8 ^= UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY THE Trial of Title to Land in Oklahoma BEING A TREATISE ON THE LAW OF REAL ESTATE WITH PRACTICE, FORMS AND PROCEDURE BY WELLINGTON L. MERWINE (Of the Okmulgee, Oklahoma, Bar) VOLUME ONE CINCINNATI, OHIO THE W. H. ANDERSON COMPANY LAW BOOK PUBLISHERS 1913 T M55f5 t 15 /3 V- COPYBIQHTED 1912 THE W. H. ANDERSON COMPANY, Cincinnati, O. To JOHN LAFAYETTE NEWHOUSE, First Judge of the County Court of Okmulgee County, Oklahoma, not only as a tribute to him as a lawyer and a judge, but also as an acknowledgment of the friendship and esteem of the author, This Work is Dedicated. PREFACE The bench and bar of this State, in determining the law and procedure applicable to land litigation here, have, for a long time, been compelled to search for it in the Statutes of Okla- homa, the Statutes of Arkansas, the crude Indian laws of the various nations of the Five Civilized Tribes, the Supreme Court Reports of the State, the Federal Court Reports, and the reports of the Supreme Court of the United States. In the preparation and trial of every suit in court, and in the exam- ination of every title to real estate, there has been involved here- tofore in this State, a tremendous amount of labor. To save the profession this task has been the purpose of the author in pre- senting this book to the bar and the bench of this State. This book is the result of the author's many years of experi- ence in the practice pertaining to land litigation and the examination of real estate titles in this State, and in the State of Ohio, a State whose practice in all of the real actions is practically identical with that of the State of Kansas and of Oklahoma. While it has been the aim of the writer to give the sub- stantive laAv of real estate in Oklahoma, yet it has been more his purpose to make it a practice book for which the busy practitioner will find constant, daily use. The general law books on the subjects of pleading and journal entries usually are a help to the busy lawyer. But nowhere in any of the practice books, known to the writer, has he found forms for the procedure set forth in a connected chain of the successive steps required in any of the actions by which real estate is sold from the first pleading filed in the case to and including the execution and delivery of the deed by the officer of the court to the purchaser. Vi PREFACE. The author here extends grateful acknowledgment to the bar of Okmulgee for valuable suggestions in the course of liti- gation concerning Indian lands in the Creek country. No abler or better bar ever graced or honored the profession. In the preparation of this work it has been a source of pleasure to note that the Supreme Court of Oklahoma has, by its honesty and high legal ability and foresight, always dis- closed in every case before it, a steadfast purpose to give to the people of our beloved State land titles that will protect the homes of our people. WELLINGTON LEE MERWINE. Okmulgee, Okla., October 1, 1912. TABLE OF CONTENTS. CHAPTER I. Procedube by Which the Colet Acquires Powee to Tbansfee Real Estate feom One Peeson to Anotheb — Jueisdiction. SECTION ^^^^ 1. Preliminary statement *■ 2. Duty of counsel in courts in proceedings for sale or transfer of real estate by judicial process 2 3. Jurisdiction of courts — Judicial sale — Proceedings, sale void without * 4. Jurisdiction — Provisions of the Constitution as to 6 5. Jurisdiction — Creation of superior court 7 6. Jurisdiction of superior court — Proceedings in — Custer county superior court ' 7. Jurisdiction — County courts — Procedure in 7 8. Jurisdiction — District court 8 9. Probate jurisdiction of the county court 3 10. Proceedings of county court, how construed — Effect of its process and judgment ^ 11. The issuance and service of process in the county court 10 12. Under substitution of jurisdiction, rights remain the same.. 10 13. May exercise what powers out of court 10 14. Where wills may be proved and testamentary letters must be granted 1" 15. Other instances of jurisdiction of county other than that of the residents of decedent H 16. County in which application is first made — Jurisdiction 11 CHAPTER II. The Procedube by Which the Court Acquibes Powee to Transfeb Reax Estate feom One Peeson to Anotheb — Venue of the Action. 17. Actions local and transitory 12 18. Venue — ^Ejectment — Quiet title — Partition — For sale of real property 13 19. Venue 9 what must appear in the pleading as to 18 vii Viii CONTENTS. SECTION PAGE 20. Venue — Real property in one or more tracts in two or more counties — Action may be brought in either — Specific per- formance 18 21. Venue — Actions against officers must be brought where cause of action arose, except 19 22. Venue — The action against a domestic corporation other than an insurance company 19 23. Venue — Actions against transportation or transmission com- panies — ^Turnpike road companies 20 24. Venue — Where domestic charter provides place for suit 21 25. Venue — The action against a nonresident or foreign corpora- tion 21 26. Venue — Where every other action must be brought 24 27. Venue — The action for divorce 25 CHAPTER III. The Proceduee by Which a Coubt Acqihees Power to Transfer Reax Estate from One Person to Another — The Commencement of the Action. 28. Preliminary statement 27 29. The action — How commenced 28 30. Copy of the petition need not accompany the summons — How copy obtained 29 31. The praecipe — The summons and its requisite 29 32. Summons not fatally defective, when — Summons in foreclosure — Judgment for more than amount indorsed on summons. 30 33. Summons may issue to another county, when 31 34. Summons — Service and return 34 35. The summons — The return of the sheriff may be corrected by amendment 34 36. How objection made to irregular service — May plead to merits without entering appearance, how 35 37. Evidence may be given in aid of sheriff's return, when 35 38. Alias summons may issue, when 36 39. By whom summons may be served 36 40. Summons — Service by responsible citizen — Verification of re- turn 37 41. Summons — Service personal — Place of residence 37 42. Return must state what 39 43. Does the return of the sheriff import a4)solute verity? 39 44. The officer's return may be corrected by amendment 42 45. When acknowledgment of service equivalent to service of sum- mons 43 46. Summons — Service on corporations 44 47. Constitutional provision as to service of summons upon foreign corporation 45 CONTENTS. IX SECTION PAGE 48. Foreign corporation required to file copy of charter must ap- point resident agent upon whom summons may be served. . 45 49. When no resident agent designated, service of summons upon foreign corporation may be upon secretary of state 46 50. Summons on railroad and state company — Designated agent. . . 47 51. Summons — ^Certificate of appointment of designated agent.... 47 52. Failure to designate agent, local agent may be served, vi^hen . . 4S 53. Service by leaving copy at residence of agent 48 54. Service on insurance company 49 55. Service on managing agent 49 56. Constructive service on nonresident by publication 49 57. The affidavit required for service by publication 53 58. Application to set aside constructive service and proceedings under it not a collateral attack, when 56 59. The affidavit for service by publication may be corrected by amendment, when 58 60. Service by publication, when and how made 60 61. Service by publication complete, when — Proof of publication. . . 62 62. The affidavit in proof of publication of notice may be amended 62 63. When personal service of summons may be made out of the state 62 64. Judgment on service by publication may be opened up, how — Procedure as to — Good faith purchasers 64- 65. Service by publication on unknown heirs 65 66. Procedure wliere part only of the defendants are served 65 67. Procedure against several defendants on promissory note .... 66 68. Procedure where one of a partnership has been served 66 69. Judgment in the action no bar against defendant not served . . 67 70. Lis pendens — No notice, if service be not had 67 71. Judgment ^ lien on land in other county, when 67 CHAPTER IV. Actions by or Against Infants Affecting Real Estate. 72. Actions by or against infants — History of the law as to the duties of next friend and guardian ad litem 69 73. Actions by or against infants — ^^Court has power to order pay- ment of fee for guardian ad litem 71 74. Actions by or against infants — The guardian ad litem may employ an attorney, when 72 75. Actions by or against infants — Guardian ad litem allowed at- torney's fee for counsel employed by him in allowance of his own account, when 73 76. Actions by or against infants — Nature of the duties of the guardian ad litem 73 77. Actions by or against infants — The next friend no party to the action — May employ counsel 76 X CONTENTS. SECTION PA^OV 78. Actions by or against infants — The next friend and guardian ad litem perform the same functions 76 79. Actions by or against infants — Statutory provisions 78 80. Actions by or against infants — The service of summons upon an infant under fourteen years of age — Over fourteen years of age ' " 81. Actions by or against infants — Where infant not served judg- ment void 79 82. Action by infant after disability of infancy removed — Pro- cedure in action on becoming of age 81 82a. Restoration of purchase money in suits to disaffirm deed 81 82b. Conveyance by minor Creek freedman void 82 CHAPTER V. The Law and Procedure by Which Real Estate is Sold Undeb Execu- tion AND Orders of Sale — The Judgment. 83. Preliminary statement 84 84. What is a judgment and what is an order 84 85. The judgment must be confined to the issues 86 86. Tlie judgment must conform to the verdict 88 87. Judgments without jurisdiction of the parties or the subject- matter are void 89 88. Judgments import absolute verity and cannot be collaterally attiicked 91 89. Judgment of the court as between the parties, final 92 90. The effect of the finding of the court of facts giving it power to enter judgment 94 91. KflVct of void and voidable judgments 95 92. Void judgments 97 93. Judgments may determine ultimate right of parties — Judg- ment may be rendered against one or more parties 9'8 94. Dismissal of an action without prejudice 98 95. Plaintiff may dismiss certain actions 99 96. Dismissal may not affect set-ofT or counterclaim, when 100 97. Tlie judgment in an action to enforce a mortgage or other lien — The order of sale 100 98. Judgment ordering conveyance — By whom and how secured. . . . 101 99. Judgment — Failure to answer — Court may take an account. . 101 100. Judgment by confession 102 101. Judgment confessed by warrant of attorney 102 102. Cause of action must be stated briefly in judgment 103 103. AfTidavit must be filed before judgment.! 103 104. JudcTTient by confession enforced as other judgments 103 105. Warrant confessing judgment to be filed : 103 106. Confession of judgment by prisoner 103 107. Judgment must conform to the verdict 104 CONTENTS. XI SECTION ^'*^°^ 108. Judgment on special verdict 104- 109. Judgment notwithstanding the verdict 104 110. Judgment where counterclaim or set-off exceeds plaintiff's claim 104 111. Judgment on the pleadings lO* 112. Judgments concerning infants set aside, when 105 113. Judgments in district court on cases appealed from county court 106 114. Judgment and orders to be entered on journal • 106 115. The clerk to make complete record in case, when 108 116. Judge may sign record at next term 108 117. What papers constitute complete record 108 118. Upon failure of clerk to make complete record, court may do so 109 119. Judgment becomes dormant, when 109 120. Dormant judgments — How revived 109 121. Judgment lien — General discussion 1 10 122. Judgment of county court lien on real estate Ill 123. Lien on real estate — Lien dates from, when — Lien on judgment from another county, how secured Ill 124. Judgment recorded in office of register of deeds — Effect of . . . . 112 125. Res ad judicata 113 126. Lis -pendens H^ 127. Lis pendens as to lands in another county 113 128. The procedure by which judgment is obtained on warrant of attorney to confess judgment — Form for the petition.... 114 129. The answer confessing judgment 115 130. The judgment by confession 116 CHAPTER \l. The Law and Procedube by Which Real Estate is Sold Unmb Levy OF AN Execution. 131. General statement 119 132. The praecipe for an execution 120 133. The execution — ^Nature and kinds thereof 120 134. The property subject to levy and execution 123 135. The property bound from the time of the levy 123 136. The judgment becomes dormant, when 123 137. The command of the execution 1'25 138. The priority in case of several levies — The office must endorse on the writ the date he received it 126 139. If no goods to le^-y on real estate 127 140. The officer may require bond before levying on goods claimed by third party 128 141. When the officer may take a bond and leave the goods in the possession of the defendant 128 142. The notice of sale — Inventory — Goods taken on execution 129 Xll CONTENTS. SECTION PAGE 143. Property insufficient — Further Ie\y — Indorsement by officer... 130 144. The appraisement under the levy — Qualifications of the ap- praisers — View of the premises 130 145. The appraisement must be made on actual view 131 146. The return of the appraisers conclusive and cannot be set aside except for fraud or other proper grounds 131 147. Parol evidence may be introduced to show mistake in appraise- ment — Appraisement set aside, when 132 148. The sale may be made witliout appraisement, when 133 149. The return of the appraisement 134 150. The land cannot be sold for less than two-thirds of the ap- praised value — Exceptions as to claims due state 135 151. The property of certain officers sold without appraisement. . . . 135 152. The legal notice of sale under the execution 136 153. The sheriff's return of his proceedings under the writ 138 154. Confirmation and approval by the court of sheriff's sale of real estate 138 155. When objection to the confirmation of sale should be made. . . . 140 156. The irregularities that are and are not corrected by the con- firmation — The procedure 141 157. The sheriff's deed to the purchaser 144 158. Printers' fee to be advanced, when — Officer must demand same, when 145 159. Where sale must take place — Officer or appraiser may not purchase — Persons in trust relations may not bid at their own sales 146 160. Alias execution 146 161. Procedure where several executions are issued — Creditors may direct several levies 146 162. When one other than the officer making the sale may execute the deed 147 1G3. The remainder of the proceeds of sale to be returned to de- fendant 148 164. The reversal of the judgment does not defeat title of the pur- chaser 149 165. When the lien expires in case no execution issues — The lien when mandate issues from the Supreme Court — When property may be reappraised and sold 149 166. The writ of execution to be returned in sixty days 151 167. Fee of apprai.sers — Penalty for failure to appear 151 168. When execution may issue to sheriff of another county 152 169. The officer may mail execution to another county 152 170. Money oollpcted by execution in another county may not be returned by mail 153 171. Sureties of sheriff may be made parties to the judgment — Prop- erty of officer to be first exhausted 153 172. Officer on amercement may collect original judgment, when... 154 173. When contribution may be required 154 CONTENTS. Xlll SECTION PAGE 174. Equitable interest in lands subject to levy — Stocks — Glioses in action 155 175. Pleading, practice and procedure the same in the county court as in the district court 15'6 176. When the judgment becomes a lien on the real estate 156 177. Execution to conform to judgment — Special cases 157 178. Judgment of justice of the peace, how docketed by clerk of district court 15.7 179. Judgment of a justice of the peace becomes a lien on the real estate, when 158 180. Execution thereon may be issued by the clerk of the district court 158 181. Justice to certify costs 159 182. Judgment may be revived, when 159 183. The procedure by which real estate is levied upon and sold under judgment in a civil action — The petition in the action 159 184. The praecipe for summons 1'60 185. The summons in the action 160 186. The sheriff's return 161 187. Motion for appointment of guardian ad litem to defend for insane defendant 161 188. The affidavit in proof of insanity 162 189. The order of court appointing a guardian ad litem to defend for insane defendant 162 190. The answer of guardian ad litem for insane defendant 163 191. The judgment of the court in the action 163 192. The execution 164- 193. The sheriff's return of his proceedings under the execution. . . . 165 194. The appraisement by the sheriff of real estate under levy of execution — The oath of the appraisers — The appraisement. 166 195. Sheriff's publication of notice of sale of real estate under the levy and execution 167 196. The proof of publication of sheriff's notice of sale of real estate. 168 197. The order of the court approving and confirming the sale of real estate under the execution 169 198. Sheriff's deed where real estate is sold under the ordinary writ of execution 170 199. Procedure where real estate is sold under a venditioni exponas — The sheriff's return 172 200. The praecipe for the venditioni exponas 173 201. The order of sale directed from the clerk to the sheriff — The venditioni exponas 173 202. The appointment of appraisers under a venditioni ex^ponas — The oath of appraisers — The appraisement 174 203. The legal notice by the sheriff under a venditioni exponas. . . . 175 204. Proof of publication of sale by sheriff under a venditioni ex- ponas 176 xiv CONTENTS. SECTION PAGE 205. llie sheriff's return of the venditioni exponas 177 206. The procedure for sale of levy made under foreign execution — The petition asking for the marshaling of liens and sale of real estate 178 207. The answer and cross-petition of defendant setting up a life estate in the premises levied upon 180 208. The answer of a judgment debtor containing a general denial. . 181 209. The answer and cross-petition of a lienholder setting up a mortgage 182 210. The judgment of the court finding the issues in favor of the plaintiff and decreeing and ordering sale of the real estate. 183 211. The appointment of appraisers — The oath of the appraisers — The appraisement 185 212. The sheriff's legal notice of sale of real estate under the order of sale 186 213. The proof of publication of shcriir's notice of sale of real estate. 187 214. The sheriff's return of his proceedings under the order of sale. 188 215. The confirmation of the sale and order for deed and distribu- tion of the proceeds of sale 189 216. The sheriff's deed to the purchaser 190 CHAPTER VII. Law and Procedure by Wmoir Real Estate is Sold by an Executor ou Administrator. 217. Both real and personal property may be sold to pay debts — No priority as to eitlier 195 218. The court may decree personal property to be sold first 195 219. No sale can be made except by order of court — One petition for whole estate 196 220. The petition must be in writing — Objections thereto must be in writing 196 221. An executor or administrator may sell real estate, when 197 222. Tlie allegations of the petition — The petition must \^e verified. . 197 223. The order \\\mn the hearing of the petition must contain what. . 198 224. The order to be posted in three public places — The order to be mailed — The publication of the order 198 225. The hearing of the petition by the court— The proof in such cases 199 226. Who may be examined as witnesses at the hearing 199 227. When all the real estate may be sold » 200 228. The court may order the whole or part of the estate sold 200 229. The order must describe the real estate to be sold and also the terms of sale — Sale may be made for cash or credit 200 230. Additional bond required in sale of real estate, when -201 231. Proceedings by an administrator or executor in the sale of land void, when 202 CONTENTS. XV SECTION PAGE 232. When person interested may apply for order of sale 203 233. The notice of time and place of sale 203 234. Where public sale must be made 203 235. The notice in case of private sale 204 236. The real estate must be sold for ninety per cent, of the ap- praisement 204- 237. Balance of purchase price secured by mortgage 205 238. The executor or administrator required to make return of his proceedings under the order of sale 205 239. Objections may be made to confirmation of sale 206 240. The confirmation of sale — The deed to the purchaser 206 241. The deed to the purchaser 207 242. Facts to be proved before confirmation of sale 208 243. The sale may be postponed, when 208 244. The notice required in case of postponement 208 245. When property designated by will must be applied to the pay- ment of debts 2O18 246. W'hen in an estate by will an executor may sell real estate without order of court 209 247. When property not disposed of by will may be sold 209' 248. The property of legatees and devisees liable for debts, when. . 209 249. Devisees and legatees must contribute to pay debts, when.... 210 250. Decedent's interest in a contract for the purchase of land may be sold 210 251. Such sale to be subject to payments falling due 210 252. The purchaser's bond and its condition 211 253. The confirmation of such sale 211 254. Real estate may be sold by an executor or administrator, sub- ject to mortgage or other liens 211 255. The mortgagee may be a purchaser 212 256. Neglect or misconduct on the part of executor or administrator may cause liability on his bond 212 257. Fraudulent sale by administrator or executor — Liability in double the value of the property 213 258. The limitation as to the action to recover land sold by an executor or administrator 213 259. Limitation not applicable to minors, when 213 260. The sale by an executor or administrator must be returned at the next term of the county court — The return of sale to be verified 214 261. An executor or administrator may not purchase at his sale. . . 214 262. Property fraudulently conveyed by a decedent may be recov- ered and sold by the executor or administrator, when 214 263. Executor or administrator not required to sue unless upon application of creditors 215 264. Real estate so recovered may be sold, how 215 XVi CONTENTS. SECTION PAGE 265. Land sold by executor, administrator, guardian, sheriff or com- missioner of court and afterward recovered, possession not given until purchaser has been refunded purchase money with interest 215 266. How publication made 216 267. All orders must be entered in minute form — Need not recite facts showing jurisdiction 216 268. Decree recorded in office of register of deeds — Notice to all persons 216 269. When description of real estate need not be published 217 270. Parties to the action — How designated 217 271. The petition— Ordinary form 218 272. The order for the hearing 219 273. llie notice of the hearing and the proof of posting the same — Proof of mailing 220 274. The proof of publication of the notice of the hearing of the petition 221 275. The decree for the sale of real estate 222 276. The order appointing appraisers of real estate 223 277. The report of sale of real estate by administrator 225 278. The notice of the hearing of administrator's return of sale of real estate 226 279. Order for hearing of the return of sale of real estate by an administrator 227 280. The notice of hearing return of sale of real estate 228 281. The legal notice of sale of real estate by an administrator and tlie proof of posting same 229 282. The notice of publication and the proof of sale 230 283. The appraisal before private sale of land by an administrator. 232 284. Ihe bid in writing 232 285. The order approving and confirming sale of real estate by an administrator — Order for deed to purchaser 233 286. The form for a deed to purchaser of real estate at an admin- istrator's sale thereof 234 CHAPTER Ylll. The T.aw .and Procedurk by Which Real Estate is Sold Under Attachment Proceedings. 287. Introductory statomont — The statute must be strictly followed . 238 288. An auxiliary remedy allowed only after suit is brought 239 289. When the action is deemed commenced \ 240 290. The affidavit for the attachment — What it must contain 240 291. Tbp grounds for attachment 242 292. ^^ hen tlie defendant, or one of several defendants, are nonresi- df-nt^ of the state 243 293. Hns absconded with intent to defraud his creditors 245 294. When the debt has been fraudulently or criminally incurred. . 246 CONTENTS. XVll SECTION PAGE 295. Fraudulent disposition of property 247 296. The attachment bond — Attorney's fee 248 297. The order of attachment, its requirements and to whom directed 2'*^ 298. The order of attachment may be issued to different counties. . . 249 299. When returnable 249 300. The order in which the writ is to be executed 250 301. The manner of the execution of the order 250 302. The officer may leave property in possession of whom — Reten- tion bond 251 303. Different attachments — Tlie inventory and appraisement 251 304. How subsequent attachments may be made 251 305. What the officer's return of the order must show 252 306. A receiver mav be appointed to take charge of property — His bond ....'. 252 307. The receiver's report 252 308. Sheriff to act as receiver, when 253 309. The attachment discharged, when — Bond 253 310. The defendant may execute bond before sheriff' or clerk in vacation 253 311. Judgment in the action — How satisfied 254 312. Court may compel delivery of attached property 254 313. May order retaking of property 255 314. Reference may be ordered, when 255 315. Death of defendant 255 316. Defendant may move for additional security, when 255 317. The defendant may move to discharge attachment — The evi- dence in the case 256 318. The attachment before it is due 256 319. The procedure by which real estate is sold under a writ of attachment — The form of the petition in such case 257 320. The form for the affidavit in attachment 258 321. The form for the bond in attachment 259 322. The form for the order of attachment issued by the clerk to the sheriff 260 322a. The form for sheriff's return of the order of attachment and the appraisement thereunder 260 323. The form for the affidavit for service by publication upon a nonresident defendant in attachment 261 324. The form for notice by publication 262 325. The order of sale in attachment proceedings 263 326. The form for proof of publication of the notice 263 327. The form for the judgment and order of sale of the attached property 264 328. The form for the order of sale issued by the clerk to the sheriff in attachment proceedings 265 329. The form for the legal notice of sale of real estate under at- tachment proceedings 266 Xviii CONTENTS, SECTION ^^^^ 330. The form for proof of publication of notice of sale 267 331. The appointment of appraisers of real estate, the oath of the appraisers, and appraisement — In attachment 267 33e. The order confirming the sale, ordering distribution, and the execution and delivery of a deed to the purchaser at sheriff's sale of property attached 268 333. Form for sheriff's deed for real estate sold under attachment proceedings 2"" CHAPTER IX. The Law and Procedure ix the Foreclosure of an Attobney's Lien FOR Fees. 334. The attorney's lien on personal property and judgment 273 335. May retain money and property to enforce lien, when 273 336. Lien may be released by bond 274 337. The attorney's lien for his services — The statute 275 338. Contingent fee authorized — The statute 275 339. Liability of adverse party for fees in case of settlement — The statute 276 340. The measure of the amount of recovery in case settlement is made without the consent of the attorney 276 341. Decided cases 277 342. The eflect of notice — "Lien claim" endorsed in writing on plead- ing filed 278 343. The settlement without the notice to, or knowledge of the attorney having a lien 279 344. The attorney may have the cause heard to determine the amount of his fee 280 345. Right to lien when services partly performed by attorney 281 346. Effect of agreement not to settle or compromise without the consent of the attorney 281 347. Specific performance of contract for portion of land to be re- covered, will be enforced 283 348. Should the suit to foreclose the lien be a separate action or by cross-petition, or by intervening petition in the original action 283 340. Contract of infant or next friend to employ counsel, when. . . . 286 350. TTic statute authorizing the prosecution or defense on behalf of an infant 287 351. TTistory of the law ns to the functions of the next friend and guardian ad litem 287 352. The court has power to order payment of fee of guardian ad litem 289 353. The next friend no party to the action — Cnn employ counsel. . 290 354. The next friend and guardian ad litem perform the same func- tions 290 CONTENTS. XIX SECTION PAGE 355. The power of infcant or next friend to employ counsel 291 356. The employment of an attorney is a necessary, and the infant alone may make the contract — A necessary in an action for personal injury 292 357. The action does not abate on the death of the next friend — Counsel fees in such case should -be paid 295 358. The attorney for an infant has a lien on his client's cause of action for his fee 295 359. The infant, or next friend, or both, can make contract with an attorney for a contingent fee 295 360. The law as to procedure after judgment 296 361. Procedure by which the lien of an attorney for his services is foreclosed on real estate — Form for the petition 296 362. Form for decree of court foreclosing lien of attorney for services 301 363. Form for order of sale directed from the clerk to the sheriff. . 303 364. Form for the appraisement of the real estate 304 365. The form for the oath of the appraisers 305 366. Form for the appraisement of the real estate 805 367. Form for the publication of the notice of sale of the real estate by the sheriff 305 368. Form for proof of publication of notice of sale of real estate. . 306 369. Form for the sheriff's return of his proceedings under the writ. 307 370. Form for confirmation of sale 308 371. Form for sheriff's deed to the purchaser of said real estate. . . 309 CHAPTER X. Pbocedube by Which Trustee in Bankruptcy Sells Real Estate at Private Sale. 372. The source of the trustee's authority to sell 311 373. The appraisal of the real estate 312 374. The manner in which the sale is conducted 312 375. The order of the court appointing appraisers 313 376. The oath of appraisers, the appraisement and return of the appraisers 313 377. The petition to sell real estate at private sale, subject to in- cumbrances 314 378. The order to sell real estate at private sale, subject to incum- brances 315 379. The entry confirming such sale 316 380. The petition for sale of real estate by public auction 316 381. The order of the court authorizing sale at public auction 317 382. The petition for sale of real estate at public auction, subject to liens 317 383. The order and decree of the court authorizing such sale 318 384. The deed from th£ trustee to the purchaser at trustee's sale of real estate in bankruptcy 318 XX CONTENTS. CHAPTER XI. CONVEYANCES. 1. Conveyancing. 2. -Conveyance — Specific Performance of. 3. Conveyance — Cancellation of. 4. Conveyance — Reformation of. 5. Conveyance — Fraud of Creditors. 1. Conveyance of Real -E'state and Procedure Connected Therewith. 385. Who may hold, convey and mortgage real estate 322 386. Witnesses to execution of conveyances not necessary 323 387. Attorney in fact may execute instrument, when 323 388. Deed or instrument affecting real estate must be in writing.. 323 389. When husband or wife may convey homestead 324 390. Husband conveying homestead concluded thereby 324 391. Who estopped from denying validity of deed 324 392. Deeds executed by sheriff, how acknowledged 325 393. Husband or wife may deed real estate not the homestead 325 394. Words relating to real estate defined 325 395. Contract valid against third persons, when 326 396. What conveyances deemed mortgages 326 397. Separate instruments deemed parts of each other 326 398. Innocent purchasers protected, when 327 399. Conveyance deemed an assignment, when 327 400. Quitclaim deed — What is conveyed thereby 327 401. Warranty deed — What is conveyed thereby 328 402. Power of attorney — How executed — Where filed 329 403. What grantor is affected where land recovered by action — Grantors to be notified 329 404. Wlio may recover on warranty — Attorneys' fees 330 405. Proceduie when warrantor fails to defend action 330 406. What instruments entitled to record 330 407. Duty of register of deeds when instrument presented for filing. 330 408. What instruments of conveyance may be used as evidence in court 331 409. Requirements as to printing and writing in a conveyance.... 331 410. Corporation may convey by attorney, when 3.32 411. Wliat instruments executed by a corporation or its attorney valid 332 412. Conveyance void for want of consideration, when 332 413. Every estate in land deemed fee simple unless limited by special words 332 414. Will may be recorded with like effect as deed, when 333 415. .Judgment may be filed and recorded — Effect of 333 416. Minor may hold title to real estate, when 333 417. Form for acknowledgment of any instrument affecting real estate 333 418. Before wliom acknowledgments may be taken, , , 334 CONTENTS. XXI SECTION PAGE 419. Certain acknowledgments legalized by Legislature SM 420. Statutory form for deed 334 421. Difference in form for a warranty and quitclaim deed 335 422. Tlie manner in which instruments of conveyance by corpora- tions must be executed 335 423. When corporate seal to be attached to instrument 336 424. Statutory form for acknowledgment by corporation 336 425. Form for deed by a corporation 336 426. Form for deed conveying life estate, with remainder over.... 337 427. Form for deed conveying remainder estate subject to a life estate 338 428. Form for deed by tenant for life 339 429. Form for power of attorney to sell and convey real estate, price and terms discretionary 340 430. Form for petition for breach of covenant of seizin 340 431. Form for petition for breach of covenant against incumbent. . 342 2. The Procedube by Which a Contract for the Purchase and Sale OF Real Estate is Specifically Enforced. 432. Preliminary statement 344 433. Proper parties 344 434. Contract to be performed must be just and fair in all its parts 344 435. Contract must not be unconscionable 345 436. It must be certain in its terms 345 437. It must be possible to perform it 345 438. Contracts specifically enforced though vendee at fault 346 439. Contract optional as to one party optional as to both 346 440. Defective description cured, when — Vendor estopped to object, when 347 441. Contract by agent without naming principal cannot be spe- cifically enforced 348 442. Time not the essence of a contract, when 348 443. Performance will not be decreed where title is defective 349 444. Title, unless refused by purchaser, precludes an action by him for specific performance 349 445. The evidence required in proof of the contract 350 446. Evidence — Tender of abstracts — Affidavits as part of abstract may be evidence, when 350 447. The statute of frauds 350 448. The statute of frauds — The writing excludes all other nego- tiations 352 449. Statute of frauds — Contracts made by agent of owner of real estate 352 450. Statute of frauds — Part performance satisfies the statute — Possession 353 451. Statute of frauds — Verbal contract partly performed may be specifically enforced 354 452. Statute of frauds — Description defective — Undisclosed principal 355 Yvn CONTENTS. SECTION PAGE 453. Statute of frauds — The parties to a written contract — Within the statute contract may not modify is terms orally 356 454. Statute of frauds — Contract may be made partly by letters, writing and telegrams 356 455. Statute of frauds — A receipt is not sufficient to satisfy the statute 357 456. Bond to build may be specifically enforced, when 357 457. An agreement to dispose of property by will specifically en- forced, when 358 458. Compensation allowed when specific performance ca«inot be decreed 358 459. Decree of court in default of deed to operate as a conveyance — Sheriff may make conveyance 359 460. Decree may contain terms of mortgage agreed upon by con- tract 359 461. The procedure where the statute of frauds is interposed as a defense 359 462. The venue of the action 360 463. The procedure by which a contract for the sale of real estate is specifically* enforced — Petition by vendor to compel vendee to complete contract of purchase 360 464. The petition by vendee to compel vendor to make deed 361 465. Petition to enforce performance of verbal contract of sale. . . . 362 466. Another form for petition by vendor against vendee for specific performance 364 467. Another form of petition by vendee against vendor to compel performance of oral contract of sale 365 468. Form for petition to compel specific performance of agreement for exchange of property 366 469. The decree awarding specific performance of a contract for the purchase and sale of real estate 367 470. Form where sheriff" executes deed 368 3. Conveyances — Tiie Law and Procedure by Which Instruments of Conveyance are Canceled. 471. Procedure — General statement 370 472. Specific acts of fraud should be alleged and proved 370 473. The jury in the action to cancel instrument of conveyance. . . . 371 474. The petition need not allege inadequacy of legal remedy 371 475. The statutory regulations as to when party may rescind a contract 372 476. Rescission and cancellation allowed for mistake^ when 373 477. Canceling and rescinding — How and when allowed 373 477a. Mental incapacity to execute deed 374 478. The rule as to notice 375 478a. Allegations of ofler to restore consideration 375 47Sb. Federal court power to cancel conveyance of Indian lands .... 375 479. Form for petition for cancellation of deed 376 CONTENTS. XXUl SECTION PAGE 480. Another form for cancellation of deeds, mortgage and lease. . . 376 481. Decree of court canceling instruments set forth in the petition 378 482. Another form for decree for cancellation of deeds 379 4. Conveyances — Reformation of Instruments of. 483. The parties defendant in an action to reform an instrument of conveyance 381 484. The petition may be amended so as to reform a mortgage sued on 382 485. The nature of the action to reform a deed or other instrument of conveyance 382 486. When a court of equity should interfere 383 487. The instrument may be reformed and specific performance decreed 384 488. The rule as to bona fide purchasers 385 489. The lien of a mortgage reformed prior to the lien of attaching creditors, when 385 490. A deed may be corrected so as to make the grantee assume existing mortgages, when 386 491. Party seeking reformation must have superior equity 386 492. Mutuality not always an essential requisite 386 493. Equity will interfere sometimes to correct a mistake of law. . 386 494. Estoppel 387 495. Form for petition correcting description in a mortgage and set- ting aside a release of mortgage made under mistake 388 496. Decree of court correcting said mortgage, finding service by publication and appointment of guardian ad litem for minor defendants 389 497. Procedure by which a deed is reformed — Form for petition... 392 498. Form for praecipe 396 499. Form for summons 397 500. Form for affidavit for service by publication 398 501. Form for the notice 399 502. Form for proof of publication 400 503. Form for decree reforming deeds 400 5. Conveyances in Fraud of Creditors — The Law and Procedure. 504. Fraudulent conveyance — The statute 404 505. Debtor may prefer creditors 405 506. The preference by mortgage 406 507. The preference may be given under a general assignment for the benefit of creditors 407 50'8. Exceptions as to exempt property 408 509. The fraud may be avoided, when 408 510. Question of fraudulent intent one of fact — Exceptions 409 511. Fraudulent debt due when liability occurred 409 512. The procedure by which a conveyaiice in fraud of creditors is set aside — The petition — Ordinary form 410 513. Petition of judgment creditor to set aside fraudulent mortgage and marshal liens 411 xxiv CONTENTS. SECTION PAGE 514. Petition to set aside fraudulent conveyance for sale of prem- ises 413 515. Petition to set aside fraudulently confessed judgment and deed made thereunder 415 516. Another form for petition to set aside fraudulent deed 416 CHAPTER XII. DESCENT AND DISTKIBUTIOK 1. Oklahoma Statute. 2. Five Civilized Tribes 3. Arkansas Statute. 4. Dower and Assignment Theeeof Under Arkansas Statute 5. Law op Wills. 6. Probate of Wills. 1. Title by Descent — The Oklahoma Statutes. 517. General discussion 420 518. Dower and curtesy abolished in Oklahoma 421 519. Discussion of terms — Statutory definition of succession 421 520. Proper persons to take property of a deceased 421 521. What property passes to the heirs 422 522. Inheritance by illegitimate child 422 523. Inheritance from an illegitimate child 423 524. Degrees of kindred, how establislied 423 525. Lineal and collateral descent 423 526. Tlie lines ascending and descending 424 527. The degrees in the direct line 424 528. The degrees of the collateral line 424 529. Inheritance by kindred of the half blood 424 530. Advancement of child's part 425 531. Advancement — Excess not refunded 425 532. Advancement defined 425 533. Advancement — Expressed value governs, when 425 534. Advancement — When the descendant receiving it dies before decedent 426 535. Inheritance by representation 426 536. Aliens may inherit 426 537. An estate escheats, when — Subject to what charges 426 538. Heirs must pay obligations of decedent 427 539. The order of succession — Wife and children — Lineal descend- ants 427 540. Where decedent was married more than once 427 541. Where decedent leaves no surviving husband or wife 428 542. Where decedent leaves no issue 428 543. Where property acquired by joint industry of husband and wife 429 CONTENTS. XXV SECTION I'AGE 544. Where there is no issue, no husband, no wife, no father and no mother ^^29 545. Where there is no issue, no husband, no wife, no father, no brother and no sister 429 546. Where decedent leaves a surviving husband or wife, no issue, no father, no mother, no brother and no sister 430 547. Where decedent leaves no issue, no husband, no wife, no father, no mother, no brother, no sister 430 548. Where the decedent leaves several children, or one child and the issue of one or more children, and any such surviving child dies under age, and not having been married, holding an estate of inheritance 430 549. Where decedent dies under age, unmarried, and all the other children of his parents are dead, and any of them have lawful issue, leaving an estate of inheritance from his parents 431 550. The estate will escheat, when 431 550a. Change in statutes of Oklahoma 431 2. Title by Descent for Five CrviLizED Tribes. 551. Descent for Creek, Cherokee, Choctaw, Chickasaw and Semi- nole nations 432 3. Law of Descents — The Arkansas Statute. 552. Children inherit, when 433 553. Inheritance when there are no children nor their descendants, no father, no mother, no brother, or sister, or their de- scendants 434 554. Construction of statute — Kelly v. McGuire- -Ancestral and non- ancestral property — Descent per stirpes and per capita. . . 434 555. Posthumous children 441 556. Illegitimate children inherit from the mother — Marriage will legitimatize, when 441 557. Children where marriage is null 442 558. An alien may inherit 442 559. Where there are no children nor their descendants, no father, no mother nor their descendants, or any paternal or ma- terial kindred capable of inheriting 442 560. Per capita and per stirpes 443 561. Ancestral and nonancestral property 445 562. Where there is default of father and mother 449 563. Half bloods 449 564. Where not provided by statute inheritance to go as at com- mon law — Several inherit as descendants in common .... 450 565. Conflict of laws 450 566. Construction of the statutes of 450 567. Heir at law may be made by declaration in writing — Declara- tion must be recorded, or same shall have no force 451 Xxvi CONTENTS. SECTION PAGE 568. Advancement by settlement of portion to child — How reckoned and effect of — When not equal to share of estate — Value of such advancement, how ascertained — Maintenance, edu- cation and the like not to be taken as advancement, when. 451 4. Aekansas Statute of Descent — Dower and Assignment Thereof. 569. Widow's dower in lands 454 570. Widow of an alien to have the same dower as if her husband had been a native-born citizen 454 571. Dower in case of exchange of land 454 572. Mortgage of husband not to affeat widow's dower 455 673. Otherwise where mortgage given for purchase money 455 574. Widow's right in surplus after discharging mortgage for purchase money 455 575. Widow, no dower in lands held by her husband as mortgagee. . 456 576. In case of divorce or misconduct of wife, she shall not be endowed 456 577. Conveyance or provision in lieu of dower 456 578. How assent given in such case 456 579. When assented to by wife to bar dower 457 580. Cases in which she may elect to accept provision or take dower 457 581. When provision in lieu of dower forfeited 458 582. Widow's dower not to be barred by the conveyance of the hus- band or any judgment or decree against him 458 583. May tarry in the mansion house, how long 458 584. Duty of commissioners appointed to lay off dower 459 585. Dower in lands and personalty when the husband dies leaving no children 459 586. W^idow's dower descends, how 400 587. Devise of real estate by husband deemed in lieu of dower. . . . 460 588. Widow has her election in such cases; proceedings 460 589. Widow may relinquish dower and take absolutely a child's share of the estate 461 590. Laws investing certain estates in widow and children not repealed 402 591. Widow shall be endowed in all the lands sold in the lifetime of the husband without her consent 462 592. Diity of heirs to assign dower 462 593. How widow may proceed when dower not assigned in due time; form of petition for dower 463 594. When petition stands for hearing; order thereon 463 595. Constructive service *. 464 596. Verification of pleadings not required 464 597. Who may be admitted to defend 464 598. Party may contest right of petitioner by answer; questions, how tried 464 599. Commissioners to be appointed and their duties 465 600. Report of commissioners 465 CONTENTS. XXVn SECTION PAGE 601. Proceedings- on report 465 602. Order when lands will not admit of division 465 603. Widow may recover and defend possession of her dower 465 604. Heirs' alienation of land not to affect widow's dower 466 605. Of the crop growing on the land assigned as dower at widow's death 466 606. Costs to be apportioned, how 406 607. Procedure for assignment of dower — For assignment of dower by heirs 466 608. Form for the petition for the assignment of dower 468 609. Form for answer of heirs joining in the prayer of the petition. 468 610. Decree of court awarding dower to widow 469 '611. The writ of dower issued by the clerk of the sheriff 470 612. The return of the sheriff of his proceedings and of the commis- sioners assigning dower 470 613. The decree of the court confirming the report of the commis- sioners assigning dower 471 613a. Curtesy under the Arkansas law — Tenant by curtesy defined. . 472 5. Title to Real Estate by Last Will and Testament — The Law and Procedure by Which the Probate of a Last Will and Testament IS Contested and by Which a Will Probated is Set Aside. 614. Who may make a will 476 615. Mental capacity 476 '616. Insane delusion 477 617. Undue influence, duress, menace, fraud 478 618. Undue influence, execution, evidence of 481 619. Undue influence — The admissibility of evidence of testator's declarations as to undue influence — Declarations of the beneficiary 482 620. The burden of proof in case of testamentary incapacity 483 621. Construction of statute as to notice — Limitation of action as to heir 486 622. Rights of married woman 488 623. What may be disposed of by a will 488 624. Will may be made to anyone capable of taking 489 625. Nuncupative will 489 626. Mutual will 489 627. A conditional will may be denied probate 490 628. Execution of wills — Olographic wills 490 '629. Nuncupative will need not be in writing 491 630. Witnessing a will 491 631. Codicil— Effect of 491 632. Tlie law of what place governs as to a will 491 633. Tlie law must be followed as to the execution of a will 491 634. Change of domicile 492 635. Where a will may be deposited 492 636. How such will may be delivered 492 XXviil CONTENTS. SECTION PAGE 637. When the county judge may open will 493 638. Proof of lost or destroyed will 493 ■639. Revocation of wills 493 640. Proof of destruction of will 493 641. Effect of partial erasure 494 642. Revocation of a will in duplicate 494 '643. Revocation of subsequent will — Effect of 494 644. Effect of subsequent will 494 645. Marriage of and issue after will made 494 646. Marriage of woman revokes will 495 647. Sale of devised property — Effect of 495 648. Incumbrance not a revocation 495 649. Partial disposal after will 496 650. When such act revokes will 496 «51. Codicils 496 652. Succession supplements will, when 496 '653. Devisee's descendants take property 497 654. Gift to a witness void 498 655. Gift to a witness not void, when 498 656. Probate of will not prevented, when 498 657. Property acquired after will made 498 658. Intention of testator governs 499 659. Will excludes all oral declarations 499 660. Rules of interpretation 499 661. Instruments construed together 499 662. Irreconcilable parts 500 663. Distinct devises not affected by inaccuracies 500 664. Ambiguities, how explained 500 665. Words taken in ordinary sense 500 666. Rule of construction 500 667. Validity of will favored 501 668. Technical words 501 669. Words of inheritance 501 670. Devise in general terms 501 671. Residue of real estate 501 672. Residue of personalty 502 673. Effect of certain terms 502 674. Terms mentioned are words of donation 502 675. Postponement of possession 502 676. Class includes all 503 677. Conversion of realty 503 678. Unborn child included » 503 679. Imperfect description corrected, how 503 680. Testamentary dispositions vest at death 504 681. Can be divested, when 504 682. Death of devisee — Effect of 504 683. Interest of persons in remainder 504 684. Conditional disposition defined 504 CONTENTS. XXIX SECTION PAGE 685. Condition precedent defined 505 Q.S6. Unknown unavoidable event — Effect of 505 687. Substantial compliance sufficient 605 688. Condition subsequent defined 505 689. Devise to more than one person 505 690. Gifts do not reduce legacies 505 691. Legacies classified '506 692. Property chargeable with payment of debts 506 6'93. Order in which property applied to debts 506 694. For payment of legacies 507 i695. Preferred legacies 507 696. Class only affected •' 508 697. Representative may sell 508 698. Proved devise impairs deed by heir 508 699. Succession to limited devises 508 700. Income after death 509 701. Legacy, etc., may be satisfied before death 509 702. Legacies due in one year 509 703. Interest on legacies 509 704. Intention controls 509 705. Unnamed executor 509 706. Authority void, when 510 707. Power of executor begins, when 510 708. Limitation of power 510 709. Will includes codicil 510 710. Law of place governs, when 510 711. Liability of devisees and legatees 510 712. Will may be recorded with like effect as a deed 511 712a. Manner in which will may be made by full-blood Indian of Five Civilized Tribes 511 712b. Will — Choctaw and Chickasaw. . ; 513 6. The Pbocedube in the Pkobate and Contest of a Wii^. 713. Jurisdiction of probate court 516 714. Proceedings of the court, how construed 516 715. Under substitution of jurisdiction rights remain the same. . . . 517 716. Where wills proved — Letters testamentary granted 517 717. Custodian of wills — Thirty days — Must deliver to whom.... 518 718. Executor or other person interested may petition for probate of will 518 719. What petition must show 518 720. When executor held to renounce his right to letters 519 721. Will in possession of third person — Procedure 519 722. Petition filed — Will produced — ^Court must fix day for hearing 519 723. Notice to heirs — How given 520 724. Court may receive petition at chambers or out of term time. . 520 725. Proof of service of notice — ^Hearing proof of will 521 726. Persons interested may appear and contest will 521 XXX CONTENTS. SECTION PAGE 727. Procedure where no person appears to contest 521 728. Holographic will — How proved 522 729. Written grounds of opposition to probate must be filed 522 730. The court must give in writing findings of fact and conclu- sions of law 522 7'31. Subscribing witnesses who must be produced and examined — Proof of handwriting admitted 523 732. Testimony of each witness reduced to writing 523 733. Certificate of proof and facts found to be issued, if court sat- isfied upon proof 523 734. Certificates — Together with evidence must be filed 524 735. Will duly proved and allowed in any foreign country or state may be recorded, when 524 736. Copy of will duly authenticated produced by executor must be filed — Petition hearing 524 737. Must be admitted to probate, when, and letters testamentary issued 524 738. Within one year after probate any person interested may con- test same — Petition — Material facts to be shown 525 739. Executors or administrators and all legatees and devisees must be cited 526 740. If will offered by petition, it must show all required in original case 526 741. After service of citations, court must proceed to try the issues — Judgment 526 742. Revocation being made, powers of executors cease — Acts done in good faith, executor not liable 527 743. Fees and expenses paid by contesting party or by party resist- ing revocation 527 744. Probate conclusive after one year 527 — Filed and recorded — Letters issued 528 746. Lost or destroyed will must have been in existence at death of testator 528 747. Lost will established — Provisions distinctly stated and certified — Filed and recorded — Letters issued 528 748. Pending application to prove lost or destroyed will, court may restrain administrators 529 749. Nuncupative wills may within six months be probated — Peti- tion — Testamentary words 529 750. Court must not entertain petition until lapse of fifteen days — Interested parties notified 529 751. Contest of probate of nuncupative wills — How gonducted 530 752. Court admitting will to probate must issue letters 530 753. Persons competent to serve as executor 530 754. Who may file objections to granting letters testamentary 530 755. No executor of an executor authorized to administer on estate of first testator 531 756. Qualified executor may act during minority or absence of an- other executor 53I CONTENTS. XXXI SECTION PAGE 757. When all executors named are not appointed, those appointed may act — When coexecutor may act for all 531 758. Administrators with will annexed have sanic authority as executors 532 759. Form of letters 532 760. Letters of administration with will annexed — Form of 533 761. Letters must be signed by judge under seal 533 762. Form for will leaving estate to wife 533 763. Another form for will leaving estate to wife, also giving execu- trix power of sale and compromise 534 764. Another form for will making specific bequests with devise to widow for life or during widowhood, with residuary clause 536 765. Form for a provision in a will in trust for wife during life, with remainder to children, advancements to be deducted. 537 766. Form for provision in a will giving power to trustee to con- tinue business 538 767. Form for devise of real estate to wife for life, with remainder to brothers and sisters . 538 768. Form for devise to wife for life, with remainder to children . . . 539 769. Skeleton form for codicil to last will and testament 539 770. The procedure by which a last will and testament is admitted to probate — The form for the petition for probate of a will 540 771. Form for order of hearing petition for probate of a will 541 772. Form for notice of hearing of probate of will 541 773. Form for proof of posting and mailing the foregoing notice. . . 542 774. Form for written testimony of subscribing witness to last will and testament 542 775. Form for protest of heirs against allowing probate of last will and testament 543 776. Form for order appointing guardian ad litem for infant heirs 545 777. Form for the protest of guardian ad litem of minor heirs against the probate of the alleged last will and testament. . 546 778. Form for the answer of proponents to protestants to said will 547 779. Form for order of court admitting will to probate 548 780. Form for order of court refusing to probate Inst will and testa- ment 550 781. The procedure by which a will is contested after the same has been admitted to probate — The petition in such case 551 782. Form for praecipe for summons in such action 553 783. Form for agreement by parties to have cause referred to special judge for the determination of the question as to the setting aside of the will in controversy 554 784. Form for official oath of special judge 555 785. Form for citation for executors to appear and answer petition 555 786. Form for sheriff's return of his service of said citation 556 787. Form for answer to the petition 556 788. Form for reply to answer 558 Xxxiv CONTENTS. SECTION PAGE '&60. The order for hearing the petition to sell ward's real estate. . . . 608 &61. Form for the waiver of the statutory notice and consent to immediate hearing 609 862. Form for the proof of posting the notices 609 863. The form for the order of sale of ward's real estate where parties waive the notice — Guardian appointed in one county and real estate situated in another 610 864. Form for legal notice for posting 611 865. Form for proof of posting legal notice 612 8i66. Form for legal notice and the proof of publication of same in county where land is located 612 867. Form for legal notice and proof of publication of same in county where guardian resides and was appointed 613 868. Form for report of the sale by gunrdian 614 869. Form for the order for the hearing of the guardian's report and return of sale of real estate 616 870. Form for the notice of hearing return of the sale and proof of posting the same 616 S71. Form for offer of more than ten per cent, of the amount bid at guardian's sale of ward's real estate 617 872. Form for order confirming sale of real estate to party bidding ten per cent, more than the bid at public auction 618 873. Form for the deed from the guardian to the purchaser 619 874. Procedure by which guardian is authorized to loan funds of ward — The petition therefor 621 875. The form for order of loan — The appointment of appraisers. . . . 622 876. The form for the oath of the appraisers 623 877. The form for the report of the appraisers 623 878. The form for opinion of attorneys as to title 624 879. The form for the mortgage to guardian 624 880. The form for the report of guardian as to loan 626 681. The form for the order approving and confirming loan 627 882. Set of forms for tlie appointment of a guardian, and for the sale of real estate by guardian — The form for selection of guardian by a minor over years of age 628 883. Form or the petition for the appointment of guardian 628 884. Form for the oath to the petition 629 885. Form for the order appointing guardian 630 886. Form for the letters of guardianship 630 887. Form for the oath of guardian 631 888. Form for the guardian's bond 631 889. Form for the oath of sureties 632 890. Form for the inventory and appraisement.*. 632 691. Form for the oath of guardian to inventory and appraisement 633 892. Form for the order appointing appraisers 634 893. Form for certificate of true copy 634 894. Form for the oath of appraisers 634 CONTENTS. XXXV SECTION PAGE 895. Form for the certificate of appraisers 635 89G. Form for the bill of appraisers 635 897. Form for the oath of appraisers to said bill 635 898. Form for petition to sell real estate by guardian 636 899. Form for oath to petition 637 900. Form for order for hearing petition to sell real estate by guardian 637 901. Form for waiver of notice of hearing petition by next of kin and persons interested 638 902. Form for affidavit of posting copies and mailing copies to next of kin 638 904. Form for the affidavit of publication 639 90'5. Form for the order appointing appraisers 640 907. Form for the decree of sale of real estate by guardian 642 908. Form for notice of sale of real estate 643 909. Form for the affidavit of posting notice. 644 910. Form for the notice of sale of real estate by guardian 644 911. Form for affidavit of posting notices 645 912. Form for publication of notice of sale of real estate 645 913. Form for the proof of legal notice 646 914. Form for the legal notice of sale of real estate by guardian. . 647 915. Form for the proof of publication 647 916. Form for the additional bond of guardian 648 917. Form for the oath of sureties 649 918. Form for the return of sale of real estate 649 919. Form for oath of guardian to return "650 920. Form for order for hearing return of sale of real estate 651 921. Form for the notice of hearing return of sale of real estate. . . 651 922. Form for affidavit of posting notices of hearing return 652 923. Form for the order confirming sale of real estate by guardian . 652 CHAPTER XV. Homestead axd Exemption Laws. 924. Distinction between general homestead and homestead for Indian and freedman 654 925. Homestead in forty acres for the Indian and freedman 655 926. The homestead law a constitutional provision 657 927. What property exempt from attachment or execution 658 928. Homestead shall consist of what; may be mortgaged 659 929. Abandonment — Waiver — Forfeiture 660 930. Deed, mortgage or contract relating to homestead must be in writing, and both husband and wife must join ©BO 931. When husband or wife may execute instrument without the other joining 661 932. Husband or wife executing instrument on homestead alone, can be avoided only by the party not joining 662 XXXVi CONTENTS. SECTION PAGE 933. Husband and wife must join in same instrument to convey homestead 662 934. Property of decedent to be delivered to family at once; the homestead 663 935. Additional allotment to widow and children 663 936. Selection of the homestead 664 937. Homestead exempt from debt or liability 664 938. Property belonging to single person exempt, when 664 939. Homestead exemptions shall not apply, when 664 940. Personal property not exempt, when 665 941. Pension money exempt, when 665 942. Adult heir cannot partition homestead occupied by wife and family 665 943. Procedure to sell homestead of insane husband or wife 665 944. Petition in such case 665 945. Notice to be served, and upon whom 666 946. Order of court authorizing sale 666 947. Form for petition for sale of homestead of insane husband or wife 666 948. Form for order for hearing petition 667 949. Form for notice to be served on nearest male relative in state 668 950. Form for proof of service of notice 66S 951. Form for order authorizing sale of homestead of insane hus- band 669 952. Form for deed in such case 670 CHAPTER XVI. Landlord and Tenant. 953. Preliminary statement 673 954. Tenant defined 673 955. Tenant from year to year — Month to month 674 956. To hold from one period to another, when 675 957. Notice to terminate tenancy 675 958. Tenancy from year to year — How terminated 676 959. Notice to terminate farm tenancy 676 960. Rent not paid — Notice to quit — Ten days 677 961. Rent not paid — Notice to quit — Five days 677 962. Notice not necessary, when 677 963. Notice, how served 677 964. Tenant not to assign interest, when 678 965. Landlord may enter, when v 678 966. Convfyance by landlord — Payment of rent 678 967. Attornment void, when 678 968. Sublessees 679 969. Alienees of lessors and lessees 679 970. Rent from life grants — How recovered 679 CONTENTS. XXXVll PAGE SECTION 071. Arrears at death — May be recovered 679 972. Executors and administrators may recover rents 679 973. Occupants liable 679 974. Joint tenants 680 975. Joint tenant may recover against his cotenant 680 976. Estate in remainder or reversion 680 977. Rent for farm land — Lien on crop 680 978. Share of crop as rent — ^Lessor's rights in 681 979. Purchaser for crop liable for rent, when 681 980. Landlord may attach, when 682 '981. Attachment to enforce lien on crop, when eS* 982. Courts — Jurisdiction of 684 983. Improvements, taxes on 684 984. Lease must be in writing 685 985. When husband or wife may lease homestead 685 986. Lease valid as against third persons only when recorded 685 987. Notice — Classes — Actual — ^Constructive — Presumptions of con- structive notice 686 988. Lease allowed to record, when 686 989. Lease received in evidence, when 686 990. Eequirement as to writing or printing of lease 687 991. Tenant estopped from denying landlord's title 687 992. Form for farm lease 687 993. Form for lease of furnished house 6'88 994. Form for lease for apartment 691 995. Form for lease of storeroom with chattel mortgage clause .... 694 996. Form for assignment of lease indorsed on lease 698 •997. Form for ninety-nine-year lease, renewable forever 699 998. Form for petition by landlord to recover lien on crop sold by tenant to purchaser with notice 705 999. Form for petition replevying landlord's share of crop 706 1000. Form for affidavit of replevin in such case 707 1001. Form for replevin bond 707 1002. Form for Avrit of replevin 708 1003. Form for affidavit in attachment for rent on farm land 709 1004. Form for order of attachment for rent on farm land 710 1005. Form for notice to tenant to quit premises 711 1006. Form for notice to quit after rent due 711 1007. Form for notice to quit tenancy on farm 711 1008. Form for affidavit of service of notice to quit 712 CHAPTER XVII. The Law and Procedube by Which Real Estate is Sold by Fobeclostjee OF Mechanic's Lien. 1009. The origin and natiire of the law 714 1010. The right to assert the lien may be waived, how 715 Xl CONTENTS. SECTION PAGE 1077. Innocent purchaser protected 766 1078. Such instrument deemed an assignment 767 1079. Benefits of mortgage accrue to mortgagee 767 1080. Mortgage follows property, when 767 1081. Xo mortgage received for record until acknowledged 767 1082. Duty of register of deeds when mortgage is presented for record 768 1083. Mistake of register of deeds does not lose priority for the in- strument 768 1084. Mortgage void for want of consideration, when 768 1085. Assignment of non-negotiable note secured by mortgage, effect- ive of 769 1086. Statutory form for mortgage 769 1087. Another statutory form for mortgage 770 1088. What is a good and valid mortgage — Waiver of appraisement. . 770 1089. The manner of the discharge of a mortgage 770 1090. Discharge noted by recording officer, when 771 1091. Certificate of discharge recorded how 771 1092. Mortgagee to make certificate of discharge, when 771 1093. Xote and mortgage construed together 772 1094. Form for petition for foreclosure of mortgage where third party assumes the mortgage and agrees to pay it 773 1095. Form for petition for foreclosure of a mortgage where succes- sive grantees have assumed and agreed to pay it 775 1096. Form for petition seeking to reform a mortgage and foreclose the same, marshaling the liens 778 1097. Form for petition in an action to declare a deed a mortgage and foreclosing the same 780 1098. The procedure by whicli a mortgage is foreclosed — The form for the petition in foreclosing a building and loan mortgage. . . 782 1099. Application for the appointment of a receiver 787 1100. The order appointing receiver 788 1 101. Affidavit for service by publication 789 1 102. Kotice by publication 790 1103. The proof of service by publication 790 1104. Decree of foreclosure 791 1105. The order of sale directed from the clerk to the sherifi" 793 1106. The legal notice of the sale by the sheriff under the decree of foreclosure 795 1107. The proof of publication of notice of sale 796 1108. 'Confirmation of sale '. 796 1109. Sheriff's return of his proceedings under the writ 797 1110. Sheriff's deed to the purchaser 798 CONTENTS. Xli CHAPTER XIX. REAL ACT! OXS— STATUTORY. 1. Ejectment. 2. Occupying Claimant's Law. 3. Quiet Title. 4. Paetition. a. In District Coukt. b. In County Court. 5. Evidence in Real Actions. 1. Ejectment — The Modern Action to Recover Possession of Real Estate. section page 1111. The nature of the old action of ejectment 802 1112. Intances where ejectment a proper action 804 1113. Plaintiff may recover where shown to be entitled to only a part of the land in controversy 807 1114. Ejectment for breach of condition in deed 807 1115. Ejectment will not lie to recover under oil and gas mining lease where lands undeveloped 808 1116. Plaintiff must recover on the strength of his own title 809 1117. Possessory title will prevail, when 810 1118. The action may be an equitable action as well as legal 811 1119. The action to determine adverse interests in real estate — ^The action by one not in possession 811 1120. Ejectment — Rents and profits and partition may be united in one action 811 1121. A joint tenant out of possession may not have partition with- out joining a cause of action for possession 813 1122. Actions against executors or administrators 813 1123. Limitations of actions to recover real estate sold by an execu- tor or administrator 813 1124. Actions by or against executors for the recovery of real estate 814 1125. Duties of executor or administrator as to taking possession of real estate 814 1126. The allegations of the petition in ejectment 814 1127. The allegation of the answer in ejectment — Possession ad- mitted, wlien 816 1128. The allegations of the answer of a cotenant 817 1129. Recovery of rents and profits by cotenant 818 1130. The general denial and what may be proved thereunder 818 1131. Possession in ejectment may be awarded the defendant who pleads by cross-petition 820 1132. Judgment on disclaimer of defendant 820 1133. Xeither party may contest prior deed, when 821 1134. Where title is derived under special law, such special law must be alleged and proved 821 Xlii CONTENTS. SECTION PAGE 1135. When the words of an instrument operate as a covenant or mere words of description 821 1136. Action by an occupant of a town lot before legal title has passed from the government 822 1137. When the defendant may not deny that his grantor had title. 822 1138. The statute of limitations in actions concerning real estate. . . . 823 1139. Legal disability as to real property 824 1140. New action may be brought after reversal, when 824 1141. . A right barred by limitation may neither be made a cause of action nor a defense 824 1142. Proof necessary to show adverse possession in ejectment. . . . 824 1143. The burden of proof 824 1144. Verdict where right of action changes pending suit 826 1145. One trial only in ejectment 826 1146. Restitution by sheriff — Crops belong to what party 827 1147. Judgment in ejectment final and prevents reassertion of title — Res adjudicata 827 1148. Costs for plaintiff on recovery in ejectment 828 1149. Effect of conveyances in violation of statute against champerty 828 1150. Procedure in ejectment where trial by jury is waived and the cause submitted to the court sitting as a jury — The form for the petition 829 1151. Form for answer 830 1152. Motion for a new trial 831 1153. Form for the judgment of the court and the order overruling motion for new trial 831 1154. The procedure by which the possession of real estate is recov- ered — The form for the petition when damages are asked. 832 1155. The answer containing a general denial 834 1156. The journal entry of the action of the jury 834 1157. Instructions to the jury 835 1 158. Motion for new trial 836 1159. Judgment sustaining motion for new trial 836 1160. Form for judgment for plaintiff on the verdict 837 1161. Form for judgment on verdict for defendant 838 1162. The writ of possession or habere facias possessionem 838 2. The Occupying Claimant's Law. 1163. Preliminary statement 840 1164. In what cases the occupying claimant may not be evicted until improvements are paid for 841 1165. Occupant must have "color of title" — Definition of term 842 1166. Instances where occupant not allowed for improvements 844 1167. Improvements for which the occupant may be paid 845 1168. The riglit to set off rents against the value of improvements 845 1169. Tax title which will support the claim for improvements.... 846 1170. Construction of the occupying claimant statutes 847 CONTENTS. Xliii SECTION PAGE 1171. Occupying claimant's law — Specific findings of the court — Three disinterested freeholders, appraisement — Jury im- paneled, when 847 1172. Judgment for value of improvements — Execution thereon.... 849 1173. Value between rents and improvements before writ of ouster issue — Appeal 849 1174. Writ of possession, when — Issued in favor of successful claim- ant 850 1175. Land sold by executor, administrator or guardian — Sheriff or commissioner — Recorded — Plaintiff not entitled to posses- sion, when 851 1175a. Special instance where improvement allowed under void tax deed 851 1175b. Improvements — Indian lands 852 3. The Procedube by Which Title to Real Estate is Quieted. 1176. The statutory action to quiet title 854 1177. The equitable action to quiet title 855 1178. The nature of the action 856 1179. Sufficiency of the allegations of the petition to quiet title 860 1180. Answers and cross-petitions in the action 861 1181. A person having no interest in real estate cannot maintain the action to quiet title thereto 861 1182. Awarding costs when disclaimer is filed by a defendant 861 1183. The nature and effect of a decree quieting title 862 1184. Injunction against defendants may be demanded, when 862 1185. The ordinary form for the petition to quiet title 8fi2 1186. Form for the petition to quiet title to land devised to descend to brothers, etc., in case of death without heirs 863 1187. Form for the petition in an action to quiet title and to enjoin judicial sale 864 1188. Form for the answer in action to quiet title of adverse posses- sion for more than years 865 1189. Form for the judgment and decree of the court in the action to quiet title 866 1100. Procedure by which title to real estate is quieted — The form for the petition 867 1191. Form for praecipe for summons 871 II S2. Form for the summons 872 1193. Form for waiver of summons and entry of appearance 873 1194. Form for motion for appointment of guardian ad litem for minor defendants 875 1195. Order appointing guardian ad litem for minor defendants 875 1196. The answer of the guardian ad litem 876 1197. The decree of the court quieting title '877 Xliv CONTENTS. 4. The Action by Which Real Estate is Partitioned. a. In the District Court. section page 1198. Nature of the proceeding — Equitable and» statutory 880 1199. One tenant cannot ell'ect partition by deed, conveying his interest by metes and bounds 882 J200. Will may be construed — Course of descent and legality of bequest determined by partition 882 1201. Partition creates no new titles 882 1202. Construction of partition by mutual releases 883 t203. Remainderman or reversioner cannot have partition — The exception to this rule 884 120ki. Heirs may not have partition of homestead occupied by wife and family 885 1205. The real estate must be described in the petition to partition. 886 1206. The power of a general guardian in partition cases 886 1207. Allegation as to unknown owners — 'Creditors as parties 886 1208. The allegations of the answer 887 1209. The allegations of the petition where the executor or admin- istrator has charge of the estate 887 1210. Tlie causes of action that may be joined with partition 887 1211. Sale in partition where real estate is encumbered by lien.... 887 1212. Heirs not divested by foreclosure proceedings, when 8'8'8 1213. Trustees under a will may partition, when 888 1214. The order of partition 888 1215. The commissioners in partition 889 1216. The fees of commissioners 889 1217. The duty of commissioners, as to allotment of special tracts of land 889 1218. The oath of the commissioners 889 1219. The report of the commissioners in partition 889 1220. The report may be .set aside, when 800 1221. Judgment upon the report of the commissioners 890 1222. Party may elect to take at appraisement, when 890 1223. The property to be sold, when 890 1224. The sheriff's return and deed 891 1225. Apportionment of attorneys' fees and taxing costs 891 1226. The powers of the court in partition 89il 1227. The doctrine of lis pendens as applied to partition suits 892 1228. Form for petition by guardian for partition 892 1229. Form for petition for equitable partition wlien advancements have been made 894 1230. Form for petition where an account for' rents and profits is asked 896 1231. The proceeding by which real estate is j)artitioncd by the court — The ordinary form for partition 8'97 1232. Form for answer of defendant disclaiming any interest in the real estate 899 1233. Form for answer in partition 89Q CONTENTS. Xlv SECTION PAGE 1234. Form for decree for partition 900 1235. The writ of partition directed to the sheriff by the clerk 901 1236. The oath of the commissioners 902 1237. The commissioners' report of their proceedings 903 1238. The sheriff's return of his proceedings 904 1239. 'Confirmation of commissioners' report 904- 1240. The sheriffs deed 905 1241. Commissioners' report when tlie property cannot be divided and must be sold 906 1242. Sheriff's return 907 1243. Election by one of tlie parties to take real estate at the ap- praisement 907 1244. Entry confirming sale, order of deed and distribution of funds 908 1245. Entry confirming report of appraisement and ordering sale of real estate Q09 1246. The order of sale from the clerk to the sheriff 910 1247. Legal notice of sale 911 1248. Proof of publication 911 1249. Sheriff's return 912 1250. Confirmation of sale, order for distribution and deed 912 4. Partition. b. In the County Court. 1251. The partition may be made, when — The commissioners in partition — Their oath and duties 914 1252. The petition for partition and the notice required 915 1253. The partition when the real estate is in different counties. . . . 916 1254. Partition may be made when heirs of devisees may have con- veyed 91,6 1255. Both partition and distribution — Metes and bounds 916 1256. The rule when estate cannot be divided — ^Owelty in partition — Males preferred to females — Duties of commissioners when estate cannot be divided 917 1257. The whole tract may be assigned to whom — The payment by the others 918 1258. The real estate to be sold — Manner of sale 918 1259. The notice required — Commissioners may take evidence — Duties of 918 1260. The report of the commissioners — Other commissioners may be appointed, when — The decree to be recorded and where. 919 1261. Commissioners need not be appointed, when 919 1262. The court has power to hear and determine questions of ad- vancements 919 1263. Form for petition for partition, county court 920 1264. Order for hearing petition for partition 921 1265. The notice for the hearing of the petition 922 xlviii CONTENTS. SECTION PAGE 1323. 'Conditional limitations 963 1324. Limitations to heirs of the body 963 1325. On death of first taker 903 1326. Unexecuted power 964 1327. Termination of estate at will 964 1328. Notice must be in writing, etc 964 1329. Action after notice 964 1330. Three days' notice 965 1331. Action without three days' notice 965 1332. Easements attached to land 965 1333. Easements not attached to land 966 1334. Dominant tenement 966 1335. Who can create a servitude 966 1336. Who cannot hold a servitude 967 1337. Extent of servitude 967 1338. Partition of servitude 967 1339. Right of future owner 967 1340. Action to enforce easement 967 1341. Action for possession 968 1342. Servitude, how extinguished 968 3. Rights and Obligations of Ownebs of Real Propebty. 1343. Land includes water 969 1344. Above and below surface 969 1345. Banks and beds of streams 970 1346. Highways 970 1347. Lateral support 970 1348. Trees on land 970 1349. Trees on line 971 1350. Repair and taxes 971 1351. Boundaries and fences 971 13.52. Limitations to those specified 971 1353. Uses held under former statute 971 1354. Use defined 972 1355. Estate of trustee not divested 972 1356. Transfers must be made by record 972 1.357. Limitation of preceding sections 972 1358. Requi.sit<-3 of a trust 973 1359. Trust presumed, when 073 1.360. Rights of innocent purchaser 973 1361. Express trusts — Created for what purpose 973 1.'}C2. Power in trust , 974 1363. Surplus liable to creditors 974 1364. Certain trust may be created 974 1365. Power in trust may be created 975 1 360. Realty passes, how 975 1367. Estate in trust limited 975 1368. Contingent trust 975 CONTENTS. Xlix SECTION PAGE 1S69. Legal estate 9"5 1370. Undisposed estates 976 1371. Limited disposal '976 1372. Grant separate from trust 976 1373. Act of trustee void, when 976 1374. Trust ceases, when 976 4. Powers Concerning Real Property. 1375. Powers limited to tliose specified 977 1376. Power of attorney excluded 978 1377. Power defined 978 1378. Author of power defined 978 1379. Powers classified 978 1380. General powers 978 1381. Special powers 079 1382. Beneficial powers 979 1383. Power in trust 979 1384. General power in trust 979 1385. Special power in trust — Capacity to create, etc 979 1386. Power may be reserved 980 1387. Power irrevocable unless right reserved 980 1388. Power is lien, when 980 1389. Power a security 980 1390. Power cannot be executed, when 981 1391. Married woman may execute power 981 13-92. Married woman cannot execute power, when 981 1393. Power, how executed 981 1394. Power vested in several persons 981 1395. Execution by will 982 1396. Execution by grant 982 1397. Instrument insufficient to pass estate, when 982 1398. Observance of additional formalities unnecessary 982 1399. Nominal condition may be disregarded 982 1400. What conditions must be observed 983 1401. Consent of third party must be expressed 983 1402. Consent of survivors 983 1403. Validity without recital by power 983 1404. Instrument to be deemed conveyance 984 1405. Disposition charge valid to extent of power 984 1406. Time runs from when 984 1407. Estate can be given only, when 984 1408. Married woman may create estate 984 1409. Pvelief from defects 985 1410. Fraud— Efl['ect of 985 1411. Power given to married woman 985 1412. Estates changed into fee 985 1413. Same 986 1414. Same 986 I CONTENTS. SECTION PAGE 1415. Same ^^^ 1416. Power deemed absolute 986 1417. Reserved power 986 1418. Beneficial power valid 98^ 1419. Power to lease 987 1420. Power annexed to estate 987 1421. Extinguishing grant 987 1422. Mortgage binds power 988 1423. Effect of mortgage 988 1424. Power liable to claim of creditors 988 1425. Other power void 988 1426. Enforceable power 988 1427. Power does not cease to be imperative, when 988 1428. Equal shares 989 1429. Discretionary power 989 1430. Death of trustee 989 1431. Execution devolves on district court, when 989 1432. Trust for benefit of creditors 989 1433. Curing of defects 990 1434. Certain law applies 990 5. The Public Lands. 1435. Alien shall not acquire title 992 1436. Land already owned 993 1437. Legal holdings for five years, when 993 1438. Conveyances by alien 993 1439. County attorney or attorney-general to institute proceedings.. 994 1440. Procedure in case of minor 995 1441. Procedure on judgment 995 1442. Leases extended 996 1443. Appraisement to be made 997 1444. Statistics collected 997 1445. Certain lands to be sold 998 1446. Proceeds of sale reserved for what uses 999 1447. Limit of purchases — "New college lands" — Classification — Pref- erence of lessees — List of purchasers to county clerk for taxation purposes 1000 1448. Appraisement basis of sale — Appeal from appraisement 1002 1449. Lien of state for purchase price — 'Certificate of purchase to be delivered 1003 1450. Lessee to retain possession — To remove crops, etc 1003 1451. Ijcssce's preference 1004 1452. Preliminary payment of purchaser 1004 1453. Transfer of rights by purchaser — Procedure 1006 1454. Conditions read into contract 1006 1455. Rale regulations 1006 1456. Advertisement 1007 1457. Affidavit of purchaser as to use of land 1007 CONTENTS. li SECTION PAGE 1458. Reservation from sale 1008 1459. When lands to be sold 1009 1460. Rules and regulations 1009 1461 . Penalties for violation 1009 1462. Public mineral lands reserved from sale 1010 1463. Public lands subject to exploration 1010 1464. Mining claim — How entered 1011 1465. Lode mining claim 1011 146'6. Placer location 1011 1467. Preference to discoverer 1012 1468. Leases for mining purposes 1012 1469. Application for recording claim 1012 1470. Preference of claim poster 1012 1471. Lode location 1013 1472. Placer location 1013 1473. Surface right of location 1013 1474. Leases let by bids 1013 1475. Applicant to pay twenty-five cents an acre 1013 1476. Royalty discontinued, when 1014 1477. Contract prior to expiration of lease 1014 1478. Terms of royalty fixed by commissioners 1014 1479. Claims recorded — Where 1015 1480. Legalizing local rule 1015 1481. Vested right of discovery 1015 1482. Inherent rights 1015 1483. Land containing oil or gas 1015 1484. Leases reserve easement 1016 1485. Lease for prospecting 1016 1486. Commissioners may lease 1017 1487. Stipulations of lease 1018 1488. Liability of lessee 1018 1489. Disagreement as to damages 1018 1490. Power of commissioners to enter findings 1019 1491. Proceeds from leasing 1019 1492. All public lands may be leased 1020 1493. Manner of leasing 1020 1494. School lands — Lease, term of 1021 1495. Indemnity land, etc., term of lease 1021 1496. Application for lease — Conditions of 1022 1497. Commissioners may advertise 1022 1498. Lessee in default — Forfeiture — Procedure 1023 1499. Assignment of lease recorded where 1024 1500. Appraisers — Compensation 1026 1501. Subdivision and lease of lands adjoining town — ^Procedure. . . . 1025 1502. Waste 1026 1503. Termination of lease — Improvements on, etc 1026 1504. Appeal from appraisement 1027 '1505. Relinquishment in favor of new lessee 1027 lii CONTENTS. SECTION PAGE 1506. Commissioners may hear contest 1028 r507. Oaths— Penalty for false 1029 1508. Records of land office piihlic — Evidence 1029 1509. Lessee may sublease — One year — Application to 1030 1510. Bonus for lease may be accepted 1030 1511. Commissioners may make rules 1030 1512. Certain school land may be sold 1031 1513. Procedure for sale 1031 1514. Lessee to be paid for improvements : 1031 1515. Proceeds credited to school funds 1031 1516. Funds created 1032 1517. Warrants against funds 1032 1518. Sale of warrants 1033 1519. Deposit by bidders 1034 1520. Proceeds of sale — Construction of buildings 1034 1521. Estimate by board 1035 1522. Corporate and public funds may be invested in warrants.... 1035 1523. Signing and registration of warrants 1036 1524. Payment of warrants 1036 1525. Former warrants to be redeemed at once 1036 1526. Lands specified 1036 1527. Appropriation made 1037 1528. "New college fund" name of fund 1038 1529. Income, interest, etc., to be available 1038 1530. Lease authorized 1038 1531. Land to be appraised 1039 1532. Appeal from appraisers 1039 1533. Appropriation made 1039 1534. Purchase authorized 1039 1535. Commissioner shall cause appraisement to be made 1040 1536. Land may be condemned 1040 1537. Leasing in charge of commissioners 1041 1538. Leasing regulations 1041 1539. Date of new leases 1042 1540. Application blanks 1042 1541. Leasing vacant lands — Preference rights 1042 1542. Default of rental — Notice — Forfeiture 1043 1543. Lease, when valid as mortgage 1044 1544. Penalty for waste 1044 1545. Improvements — When removable 1044 154G. Appraisements, how appealed from 1045 1547. Transfer of lease » 1045 1548. Contest of lease assignment 1046 1549. Appeals from commissioners 1046 1550. Power to administer oaths — False swearing 1047 1551. Records made public 1048 1552. Subleases 1048 1553. Fees, disposal of 1048 CONTENTS. liii SECTION PAGE 1554. Bonus, receivable 1048 1555. Arbitration of leasing terms 1049 1556. Rules and regulations 1050 1557. Salaries and bonds of employes 1050 1558. Salaries— How paid 1053 1559. Traveling expenses 1053 15G0. Terms and duties 1054 CHAPTER XXI. The Sale of Real Estate by a Receiver. 1(5'61. Source of receiver's authority to sell real estate 1055 1562. The statutory powers of a receiver 1056 1563. The statutory instances in which a receiver may be appointed. 1057 1564. Who may be appointed receiver 1058 1565. The oath and bond of the receiver 1058 1566. Funds in the hands of a receiver may be invested 1058 1567. Disposition of property admitted to pleadings to be held as trustee 1059 1568. Disobedience of order — ^Contempt 1059 1569. Appeal from order appointing or refusing to appoint receiver — The bond 1059 1570. ]\Ibtion to vacate in cases pending in the Supreme Court.... 1060 1571. The manner in which a receiver is appointed and the procedure in such case 1061 1572. Procedure by which real estate is sold by a receiver of the court — The petition in an action in which a receiver is appointed 1062 The petition in an action in which a receiver is appointed. 10'6i2 1573. Motion asking for appointment of receiver 1065 1574. Notice to defendant of the time and place of asking for the appointment of a receiver 1065 •1575. Order of court appointing receiver 1066 1576. Order of court appointing counsel to advise receiver 1067 1577. Motion asking court's instructions as to publication of notice to creditors 1067 1578. Order of court directing the manner and kind of notice to be pviblished to creditors 1068 1579. The notice published 1068 1580. Proof of publication 1069 1581. Inventory filed by receiver 1069 1582. Application for appointment of appraisers and order to sell real estate 1070 1583. The receiver's report of appraisement 1071 1584. Oath of appraisers and their report 1071 1585. Application for confirmation of appraisement 1072 1586. The confirmation of appraisement and order of sale 1073 1587. The receiver's report of sale of real estate 1074 liv CONTENTS. SECTION PAGE 1588. The legal notice of receiver's sale 1075 1589. The proof of publication 1076 1590. The entry confirming the sale of real estate 1076 1591. ^Receiver's deed for real estate 1077 CHAPTER XXII. Restobation of Records of Title to Real Estate When Lost oe Destboyed. 1592. Mode of applying or restoring by certified copy 1082 1593. Mode of supplying when no copy of lost record exists 1082 1594. Restoration of probate records when destroyed by fire — How made 1083 1595. Certified copy of record of Supreme Court may be filed in in- ferior court 1084 1596. Destruction of records of register of deeds' office supplied by re- recording original papers 1085 1597. Restoration of records of register of deeds' office in recording certified papers from other counties 1085 1598. Certified copies of records of any court of record entitled to be recorded, when 1086 1599. Loss of maps or plats — How restored 1086 1600. Expenses, how paid 1088 1601. Restoration of county records, how made 1088 1602. County commissioners to procure certified copies of all docu- ments pertaining to land in county — Same to be recorded. . 1089 1603. County attorney — Duty of — Copies of or extracts from de- stroyed records, purchase of — Effect of such records — Ab- stract of title prima facie correct 1089 1604. Custody of purchased copies of records — Certified copies of such documents to be furnished by register of deeds — Docu- ments introduced in evidence presumed to have been legally executed — Sales, etc., presumed to be regular — Exception — Person pleading irregularity must prove same 1091 1605. Courts — Power of to establish title 1093 1606. Mode for establishing title 1093 1607. Clerk of court to keep records — Notice, form of — Publication of notice 1904 1608. Petition for establishing title — Interested person may oppose. . 1096 1008a. Time in which petition may be opposed — Form of procedure; referee appointed ^ 109G 1609. Power of courts to determine in whom title i.s — Decree not to afi"ect lien on land 1097 1610. Decree, efi'ect of — Decree void, when — Service on all persons in- terested 1097 1611. Destruction of records — Refiling of original documents, when — Certified copy of original document entitled to record, when 1098 CONTENTS. IV SECTION PAGE 1612. Burden of proof when title based on tax deed — Duties of person relying on tax deed to show strict compliance with law. . . 1099 1613. Executors, etc., may act in behalf of interest represented 1099 1614. Special commissioners — Appointment of — Duties of — Fees 1099 1615. "Person" defined 1100 1616. Proceeding, to govern 1100 1617. Instruments mutilated inadmissible — Unlawful to alter instru- ments — Forgery — Persons furnishing abstracts or writings concerning lands declared to be common carriers — Extor- tion — Punishment for 1100 1618. Abstract of title, press copies of writings, etc., admissible in evidence 1 102 1619. The procedure by which lost records are restored 1103 1620. Petition to restore lost records 1103 1621. Lost petition for appointment of guardian 1104 1622. Lost waiver of right by father 1105 1623. Lost selection of guardian by ward 1106 1624. Lost order appointing guardian 1 106 1625. Lost letters of guardianship 1107 1626. The order by which lost or destroyed records are restored 1108 INDIAN LAND LAWS. CHAPTER XXIII. Indian Land Laws — The Curtis Act, ob Act fob the Pbotection of THE People of the Indian Tebbitoby — The Atoka Agbeement. section page 1627. Definition of term "officer" in suits for embezzlement and embracery 1110 162S. Tribes to be made parties to civil suits — Service on chief or gov- ernor 1110 1629. Land suits by members of tribe — Occupying claimants— Pro- ceedings as to 1111 1630. Police courts — jurisdiction 1113 1631. Statute of limitations for possession of lands — Act not con- flicting to actions of forcible entry and detainer 1114 1632. Allotment of lands — Mineral lands reserved — Church and school lands reserved — Vested rights reserved — Allottee entitled to allotment of lands in his possession — Town sites may con- demn tribal lands for public piirposes, when 1114 1633. Secretary to make record of allotments — Confirmation of allot- ment to give undisturbed possession 1116 Ivi CONTENTS. SECTION PAGE 1634. Provisions as to the making of coal, oil and other mineral leases 1117 1635. Provisions for the formation of towns and cities, and the con- trol thereof — Sale of lots in towns and cities 1118 1636. Penalty for taking royalty for coal and other minerals — For taking or inclosing lands other than allotment 1123 1637. Payment of money to tribes — Employment of assistance to enforce provisions of this act 1125 1638. Manner of making a roll and census of a tribe — The taking of testimony in making the rolls 1125 1639. Improvements made by members of one tribe on lands of an- other — Disposition of 1128 1640. Agricultural and grazing leases 1129 1641. Money under this act to be paid where — Segregated lands purchased by the Delawares from the Cherokees — Suits by Delawares in United States court of claims against Chero- kees under agreement of April eighth, eighteen hundred and sixty-seven 1 129 1642. Laws of tribes not enforced in the courts of the United States for the Indian Territory — Indian inspector — All tribal courts abolished 1130 1643. Submission of Atoka agreement 1131 1644. Allotment to Choc taws and Chickasaws 1133 1645. Members' title to land 1136 ] 646. Provisions as to railroads 1137 1647. Provisions as to town sites 1137 1648. Mineral leases on Choctaw and Chickasaw lands 1141 1649. What courts have jurisdiction for offenses on lands occupied by Choctaws and Chickasaws 1144 1650. Per capita payments to Choctaws and Chickasaws — Appropria- tion for fulfilling treaty stipulations with Choctaws and Chickasaws 1 147 1651. Court decisions to be basis of settlement between the United States and the Choctaws and Chickasaws for what is known as "leased" district — Disposition of Choctaw orphan lands 1148 CHAPTER XXIV. Indian Land Laws — Tiik Federal La\v Ratifying and Confirming an Agreement with the Creek Tribe — The Original Creek Agreement. 1652. Provisions for the ratification of agreement— rDefmition of terms 1151 1653. General allotment scheme for lands of the Creek Nation 1153 1654. Method of ynitting allotee in possession of his allotment 1156 1655. Method of equalizing allotment values 1156 1656. Laying out towns and villages — Town site commission 1157 1657. Town sites along railroads in Choctaw, Cherokee, Chickasaw and Creek nations 1 160 CONTENTS. Ivii SECTION PAGE 16»8. Rights of persons in possession of town lots on which improve- ments have been made — Persons in possession of lots and lands, rights of — Sale of town lots — Taxes on town lots. . . . 1160 1659. Locations of cemeteries, courthouses, jails, etc. — Colleges and churches 11 62 1660. Surveys for Clarksville, Coweta, Gibson Station and Mounds. . 1163 1661. Allotment deeds and record thereof 1164 1662. Reservation of lands for schools and other institutions 1165 1663. Cities are authorized to issue bonds for certain public im- provements 1 166 1664. Loyal Creek claims and self-emigration claims 1167 1665. Tribal funds capitalized for equalizing allotments 1168 1666. Citizenship rolls, how made up 1168 1667. Lien for enforcement of deferred payments under this agree- ment — Manner of paying of moneys to tribes; payment of moneys to equalize allotments and expenses of surveys. . . . 1169 1668. Parents the natural guardians of minors; guardians appointed by the court 1170 1669. Lease of lands by allotees and disposition of timber 1171 1670. Schools and maintenance thereof 1172 1671. General provisions for the carrying out of this agreement 1173 CHAPTER XXV. Indian Land Laws — Federal Law Ratifying and Confirming a Sup- plemental Agreement with the Creek Tribe and for Other Pur- poses — Act of June 20, 1902. 1672. Preamble to supplemental agreement with Creek Tribe 1175 1673. Definition of terms 1176 1674. Amendment of section two of the original Creek agreement. . . . 1176 1675. Amendment of paragraph two of section three of the original Creek agreement 1 177 1676. Commission to have exclusive jurisdiction in controversies be- tween citizens as to selection of lands 1178 1677. Descent and distribution in Creek Nation to be governed by cliapter forty-nine of Mansfield's Digest of the Statutes of Arkansas 1178 1678. What chiklren entitled to enrollment 1179 1679. Establishment of public roads 1 180 1680. Town site provisions and regulations 1181 1681. Regulations as to cemeteries 1182 1682. Funds not needed for equalization of allotments, how paid out. . 1182 1683. Section twenty-four of the original Creek agreement repealed. . 1183 1684. Restrictions on alienation — Selection of homesteads 1183 1685. Selection of homesteads for minors and certain incompetents — Descent for homesteads 1 183 Iviii CONTENTS. SECTION PAGE I6816. Lease of allotment for agricultural and grazing purposes 1184- 1687. Lands not allotted to be secured for grazing purposes, how. . . 11'85 1688. Section eight of the original Creek agreement amended — Al- lotee placed in possession by Indian agent 11 8G 1689. General provisions for the enforcement of this supplemental agreement 1186 CHAPTER XXVI. Indian Land Laws — Act of Congress Providing for the Final Dis- position OF the Affairs of the Five Civilized Tribes — Act of April 26, 1906. 1690. Provisions for closing the enrollment of citizens of the Five Civilized Tribes — Motion to reopen citizenship cases, how made 1 189 1691. Enrollment of minors living on and prior to March fourth, nineteen hundred and six — Illegitimate children to take statue of mother — Provisions as to equalization of allotment valuation — Enrollment to be completed, when — Provision as to application for enrollment fixed by agreement — This act not to apply to intermarried whites in Cherokee Nation. . . 1190 1692. Approval of roll of citizenship, how made — Homesteads of Choctaw and Chickasaw tribes 1191 1693. Names transferred from approved rolls of Five Tribes, how made 1192 1694. Patents to issue in the name of allotee — Death of allotee before issuance of patents — Patents to be recorded, where — Contests pending 1 192 1695. Chiefs of the Five Civilized Tribes may be removed — Successors appointed — Secretary of interior may sign patent on neglect of chief to do so — Provisions as to Seminole Nation 1193 1696. Lands reserved and segregated from allotment 1194 ]()07. Records of each land office — How kejit — How transferred — May be used in evidence 1 195 1698. Disbursements on account of loyal Seminole Indians — Court of claims 1 195 1099. Secretary of the interior directed to assume control of schools in Five Civilized Tribes 1196 1700. Payment of claims against the Five Civilized Tribes and col- lection of the reveniies accruing to tlTe same 1197 1701. Sale of town lots of the Five Civilized Tribes 1199 1702. Certain coal and asphaltum lands reserved from sale 1199 1703. Certain lands to be conveyed to persons and corporations — Same to revert, when — Reservation of railway lands — Certain rights and reservations in favor of Murrow Indian Orphan Home 1200 CONTENTS. lix PAGE SECTION 1704. Sale of certain school property 1202 1705. Sale of residue of lands after allotments have been made 1202 1706. Manner of distribution of funds after sale of lands 1203 1707. Secretary of the interior to bring suits for collection of money of recovery of land 1204 1708. Restrictions upon alienation of land allotted to the Five Civil- ized Tribes — Leases for one year 1205 1709. Leases on full-blood lands t206 1710. Certain inherited intestate lands of the Five Civilized Tribes disposed of, ho\v — Disposition of deceased Mississippi Choc- taw lands 1206 1711. Procedure by which adult and minor heirs may convey certain lands — Land may be devised by will, when 1207 1712. Provisions as to highways 1208 1713. Provisions as to certain public utilities 1209 1714. Provisions for the making of certain municipal improvements and the payment of the same 1211 1715. Provisions as to lands unsold after dissolution of tribes 1213 1716. Tribal existence continued for certain purposes — Legislature of tribes not to sit for period longer than thirty days in the year — Contracts affecting tribes to be approved by the President 1213 1717. Reservation from allotment — Choctaws and Chickasaws 1214 1718. Reservation from allotment and canceling of certain filings or applications for allotment 1214 1719. Preparation of tribal rolls 1215 1720. Enrollment of Mississippi Choctaws 1216 1721. Provisions for closing certain rolls 1216 CHAPTER XXVII. Indian Land Laws — Federal Law Removing Restrictions from Certain Lands of the Five Civilized Tribes and for Other Purposes —Act of May 27, 1908. 1722. Enumeration of lands from which restrictions have been re- moved — Secretary of the interior may remove restrictions. 1219 1723. Allotted lands may be leased by allotee, when — Must be approved by secretary of the interor, when — May be made by approval of county court, when 1220 1724. Age and blood of allotee — How determined 1220 1725. Previous oil, gas and mineral leases requiring approval of secretary of interior, not invalidated, when — Cancellation of such leases, how made 1221 1726. Unrestricted lands of allotees subject to taxes 1221 1727. Effect of attempted lease or conveyance of restricted lands. . . . 1222 1728. Minor allotees under control of county courts — Government Ix CONTENTS. SECTION PAGE maj' appoint representatives to examine the conduct of guardians or curators of minors, powers and duties of . . . . 1222 1729. Appropriation for expense of enforcing act of March twenty- seventh, nineteen hundred and eight — Restricted lands of minors may not be leased or incumbered except as author- ized by law or order of court — Suits may be brought by authority of secretary of interior and for what purpose. . . 1224 1730. Limitation of right to contest allotment — Amendment to section twenty-three of an act approved April twenty-sixth, nine- teen hundred and six 1225 1731. Removal of restrictions by death of allotee — Deed to be ap- proved by county court — Homestead of the allotee to remain for the use of issue born after March fourth, nine- teen hundred and six — When homestead of allotee may be conveyed by will 1226 1732. Payments of moneys to Choctaw and Chickasaw nations — Pay- ment of royalties on mineral leases on allotted Seminole lands 1226 1733. Land records to be made and furnished to various counties. . . . 1227 1734. Amendment of paragraph two of section eleven of an act approved April twenty-six, nineteen hundred and six — Records and moneys of the Five Civilized Tribes to be accounted for — Section thirteen of an act approved April twenty-six, nineteen hundred and six, not to apply to town lots in town sites 1228 CHAPTER XXVIII. Indian Land Laws — Governmental Control of — Construction of Stat- utes Relatino Thereto — Descent and Distribution for Creek Nation. 1735. Covernmontal control of allotted lands — Wards of the gov- ernment 1231 1730. Rules for tlie construction of federal laws relating to the con- trol of the Indian and his lands 1235 1737. Tlie general rules for the construction of a statute may be reversed when necessary to protect allotee's land 1236 1738. Enabling act reserves right to general government to legislate for the allotted lands of the Indian 1237 1739. Constitutional power of Congress to remove restrictions or abrogate treaty 1239 1740. Reason for the limitation of the riglit of the Indian to convey his land 1239 1741. Law cnntrolling tlie course of descent of allotted lands in tlie Creek Nation — The Arkansas statute 1240 1742. Change in the Creek law of descent and distribution 1241 CONTENTS. Ixi SECTION PAGE 1743. Descent and distribution changed to the Arkansas statute. . . . 1242 1744. The change from the Arkansas statute to the statute of Okla- homa 1-^3 1745. Treaty and patent by which Creek Nation was given title to lands 1244 1746. Occupancy of the lands by Creek Nation, 124-6 1747. Creek freedmen — Origin of title to lands for 1246 1748. Status of allotee receiving certificate of allotment who dies before patent issues 1247 1749. The inception of title of allotee 1248 1750. Conveyance by a Creek citizen not of Indian blood before patent issued 1248 1751. The enrollment of the freedmen 1249 1752. The Creek statute of descent and distribution 1249 1753. Meaning of the term "nearest relation" and "heir" under the statute of the Creek Nation 1251 1754. Construction of law of descent and distribution by the Supreme Court of the Creek Nation to be followed 1253 1755. General discussion of the Creek statute — Descent cast, when.. 1253 1756. A noncitizen husband of Creek freedman, dying without issue, may inherit from the wife — The inheritance where husband murders wife to take same 1255 1757. Rule of descent where allotment selected prior to ratification of original agreement 1258 1758. Special instances of descent cast under laws of Creek Nation. 1259 17159. Special instances of descent cast under the Arkansas statute. . 1264 1760. Efl'ect of statehood on restrictions 1'272 1761. Removal of restrictions does not validate prior judgment lien on land 1273 1762. Date of removal of restrictions 1274 1763. Powers of court of equity to grant relief in allotment contests 1276 1764. Judicial powers of the commission to the Five Civilized Tribes 1277 1765. An oil and gas mining lease by allotee an alienation within the meaning of the statute 1278 1766. Title of Creek citizen not affected by being included within the incorporate limits of a town 1278 1767. Special improvement contest by Creek citizen town lot 1279 1768. Procedure by which secretary of the interior is required to restore names stricken from the rolls 1280 CHAPTER XXIX. Cbeek Law — Ixhebited Homesteads. 1769. The allotment and homestead deed — Their provisions and terms 1281 1770. Allotment of homesteads and surplus and restrictions thereon 1283 1771. Construction of the four provisions of federal law above set forth— Act of May 27, 1908 1291 Ixii CONTENTS. SECTION PAGE 177'2. Discussion by Bledsoe 1293 1773 Certain restrictions in patents are covenants and run with the land 1293 1774. Deed of full-blood heir dated September sixteen, nineteen hundred and nine, whose ancestor died in August, nine- teen hundred and seven, need only be approved by the county court 1294 1775. Procedure by which restrictions on allotted lands are re- moved 1-94 1775a. Restrictions under original Seminole agreement 1294 CPIAPTER XXX. Indian Land Laws — Special Construction of Federal Law — Descent AND Distribution for the Choctaw Nation. 1776. Summary of laws for Choctaw and Chickasaw nations.... 1296 1777. Construction of terms in the patent from the federal govern- ment to the Choctaw Nation 1299 1778. Lands of Choctaw and Chickasaw nations combined 1299 1779. District courts no power to enjoin contest proceedings before commissioner to Five Civilized Tribes 1300 1780. Power of secretary of the interior to cancel selection of allotment 1300 1781. Descent and distribution for Choctaws and Chickasaws dying before selection of allotment and entitled to allotment. . . . 1301 1782. Rights of a noncitizen by intermarriage, having received a certificate of allotment 1302 17'83. Statute of descent for Chickasaw Nation 1302 1784. Statute of descent for Choctaw Nation 1303 1785. Indian courts abolished and courts given jurisdiction under the Arkansas law 1304 1786. Descent of an allotment where name appears on roll, but wlio died before allotment 1305 1787. Inheritance of ancestral and nonancestral property 1310 1788. Dower, curtesy, removal of restrictions and other kindred topics l'^^2 1789. Deed before thirty day period void 1312 1790. Notes given to protect sale of land in violation of restric- tions, void 1314 1791. Lands of deceased Choctaw not subject to 'debts, when 1314 1702. Conveyance of certain deceased lands 1315 1793. Evidence in certain cases sufficient to maintain ejectment. . . . 1315 1794. Lease in violation of Atoka agreement 1315 1795. Approval of court required, when 1316 1796. Power of adult, intermarried citizen of the Chickasaw Nation to convey surplus allotment 1316 CONTENTS. Ixiii CHAPTER XXXI. Indian Land Laws — Federal Law Providing foe the Allotment op Lands to the Cherokee Nation. section page 1797. History of treaties and laws up to allotment of lands 1317 1798. Definition of words and terms 1324- 1799. Appraisement of Cherokee lands 1325 1800. General allotment provisions 1325 1801. Death of allotee prior to receiving allotment — Descent of such allotment under chapter forty-nine of Mansfield's Digest — Selection of allotment by executor — Administrator — By Dawes Commission 1327 1802. Effect' of allotment certificate — How placed in possession — Mat- ters relative to the appraisement and allotment of land, how determined 1328 1803. Allotments to Delawares who are members of nation 1328 1804. Reservation of certain lands 1329 1805. Enrollment of citizens of Cherokee Nation 1332 1806. Regulations for schools 1334 1807. Public roads 1335 1808. Town site regulations — Right of person in possession to pur- chase lot — Sale of lots not improved and not in possession of anyone 1335 1809. Conveyance to allotee of allotment — Record of his title 1340 1810. Termination of tribal government — ^Collection of revenues be- longing to tribe — Funds of tribe to be paid out under direction of secretary 1341 1811. Court of claims — Appeal — Contest 1342 1812. Selection of allotments for minors, incompetents, prisoners. . . . 1343 1813. Allotee taking lands around seminaries 1344 1814. Leases for agricultural and grazing purposes 1344 1815. Provisions of act of June twenty-eighth, eighteen hundred and ninety-eight 1345 1816. Provisions as to taking effect of this act 1345 CHAPTER XXXn. Cherokee Statute of Descent and Distribution and Construction of THE FedeejVL Law Applicable to the Cherokee Nation. 1817. General principles 1347 1818. The Cherokee statute of descent and distribution 1348 1819. Cherokee enrollment — Rights of intermarried whites — Married out and abandoned whites 1350 1820. Allotment — Persons entitled 1352 1821. What constitutes an improvement under the law 1354 1822. . Marriage of minor male ward does not terminate guardianship 1354 Ixiv CONTENTS. SECTION PAGE 1823. Evidence — Judicial notice — Rights of white woman intermarry- ing with Indian 1354 1824. All lands allotted to Cherokees inalienable, how 1355 1825. Injunction will not lie to prevent allotment, an appeal having been taken 1 355 11826. Sale of land by guardian 1355 1827. Validity of mortgage given by Cherokee 1356 1828. A court of equity has power to determine the validity of patent issued by town site commission of the Cherokee Nation. . . 1356 1829. Decision of town site commission — Attack in court of equity. . 1357 1830. Effect of compilation of original Cherokee statutes — Rights of adopted whites 135/ 1831. Ejection by allotee of Cherokee Nation — ^Certificate as evi- dence of title 1358 1832. Constitutionality of act of July first, eighteen hundred and ninety-eight, and other laws 1358 1'833. General provisions — Minors and a sale of their lands 1359 1834. Limit for period of alienation 1360 CHAPTER XXXIII. Indian Land Laws — Seminole Nation. 1935. History of laws and treaties 1361 1836. A part of Creek Nation by agreement 1362 1837. Designation of tract of land for Seminole Nation 1362 1838. Cession by Creek Nation to Seminole Nation 1363 1839. Laws and treaties of Seminole Nation as to allotted lands 1364 1840. Enrollment and allotment of Seminole lands 1367 1841. Restrictions on alienation 1368 1841a. Restriction under original Seminole agreement of alloted lands 1374 1842. Descent for Seminole Nation 1375 1843. Arkansas law of descent, and not Seminole agreement, controls descent, when 1376 1844. Seminole citizenship 1377 1845. Dower, curtesy and wills 1378 CHAPTER XXXIV. Indian Land Laws — Aokekment Between the Commission to the Fi^t: CiviLizicD Tribes and the Seminole Commission. 1846. Preamble to agreement with Seminole Commission 1379 1847. Class and grade of lands — Selection of allotments — Certificates of allotments 13^0 1848. Sales of allotments void, wlion — Leases of allotments 1380 1849. Leases for coal, minerals and oil — Royalties 1380 CONTENTS. IxV SECTION PAGE 1850. Provisions as to town site commission of Wewoka 1381 1851. Appropriation for school purposes for Seminoles — Allotment for academies 1381 1852. Reservations for cluu-ch and school purposes 1382 1853. Allotment to be made, when and how — Homestead 1382 1854. Equalization of allotment values — Loyal Seminole claims — United States Court at Wewoka — Intoxicating liquors.... 1383 1855. Jurisdiction conferred on United States courts 1384 1856. Agreement to purchase lands of the Creek Nation 1384 1857. Supplemental agreement of October seventh, eighteen hundred and ninety-nine — Preamble 1385 1858. Tribal rolls, how made 1386 1859. Allotments to certain deceased members shall descend, how. . . 1386 1860. Provisions as to ratification of agreement 1387 1861. Town site laws 1387 CHAPTER XXXV. The Dawes Commission — Crr.\tion of — Powers and Duties of — Enroll- ment Records of Five Civilized Tribes. 1862. Creation of Dawes Commission 1388 1863. Duties — Equal distribution of land 138& 1864. Negotiations for allotment not to affect federal control 1390 1865. Powers and duties conferred upon the commission — Control as to application for citizenship 1390 1866. Trial in applications for citizenship — Appeal therefrom 1391 1867. Completion of roll of citizenship by commission 1392 1868. Rolls of citizenship — Where to be filed — Report of commission to Congress of leases 1392 1869. Completion of tribal rolls by the commission 1392 1870. Appeal in citizenship cases 1393 1871. Continuance of authority of commission 1394 1872. Duties of commission as to Mississippi Choctaws — ^Contracts affecting lands 1394 1873. Finality of rolls made by commission 1395 1874. Creek children to be added to rolls by the commission 1395 1875. Further continuance of the authority of the commission 1395 1876. Application for citizenship enrollment 1396 1877. Closing Choctaw and Chickasaw rolls by the commission 1396 1878. Closing Creek rolls by the commission 1397 1879. Closing Seminole rolls by the commission 1397 1880. Record of tribal rolls — Pimishment for copy thereof — Enroll- ment of Mississippi Choctaw full bloods and closing of rolls 1397 1881. Federal law providing for the filing, recording and acknowl- edging of instruments of conveyance 1398 Ixvi CONTENTS, CHAPTER XXXVI. The Law and Procedure by Which Title to Inherited Lands of Full- Blood Indians is Conveyed, section page 18i82. History of the law leading up to the allotment of land by the government to the Creek Indians 1400 1883. Individual allotments of land under the original Creek agree- ment 1403 1884. Restrictions ujKin alienation of the Five Civilized Tribes 1403 1885. Approval of secretary of the interior necessary to convey in- herited lands of full-blood Creek Indians between the date of the act of nineteen hundred and two and the act of nineteen hundred and eight 1406 1886. The removal of restrictions upon the allotted lands of the Five Civilized Tribes by the Act of May twenty-seven, nineteen hundred and eight 1412 1887. Death of any allotee of the Five Civilized Tribes removes re- strictions upon alienation, when — Approval by county court 1412 1888. Approval of the court should be made for the conveyance of interest of heirs of deceased allotees dying before or after May twenty-seventh, nineteen hundred and eight 1413 1889. Procedure by wliich a conveyance of full-blood inherited land is approved by the county court — Form for the petition. . . . 1414 1890. Form for proof of heirship 1415 1891. Form for use in taking testimony in case 1419 1892. Form for order of court approving deed conveying inherited full-blood land 1420 CHAPTER XXXVII. Indian Land Laws — General Allotment Provisions Which Do Not Extend to the Cherokees, Cheeks, Choctaws, Chickasaws, Semi- NOLES AND OsAGES, MlAMAS AND PeORIAS AND SaCS AND FoXES IN THE Indian Territory. 1803. General allotment aet — Selection — Preference — Right — Selection, by wlioni made 1422 1894. Allotm<'nts made by whom 1423 1895. Selection of allotment out of public lands 1423 1806. Trust patent to issue to allotee — Restrictions on alienation — Descent and partition — Purchase of Keservation 1424 1897. Ceded lands for settlement — Patent to settlers 1425 1898. Allotment to religious society 1426 1899. Allote<'s subject to state or territorial law 1427 1000. Alh)tees iM'come citizens 1427 1901. Irrigated lands 1427 1902. Tribes not included in the allotment act 1428 CONTENTS. Ixvii SECTION PAGE 190'3. Survey appropriation 1428 1904. Right of eminent domain 1428 1905. Removal of Southern Utes 1428 1906. President may direct allotments, when 1429 1907. Equalization of allotments 1430 1908. Provisions as to leases 1430 1909. Public lands subject to allotment 1431 1910. Descent and distribution 1431 1911. Allotee a citizen at end of trust period 1432 1912. Allotments exempted from debts 1423 CHAPTER XXXVIII. Indian Land Laws — Osage, Kansas ob Kaw Xations. 1913. Outline of treaties of the Osage Indians — Treaty grant of land 1436 1914. Manner of the enrollment of tribal land of said tribe 1438 1915. Manner of selecting homestead — Certain restrictions upon alien- ation of certain lands 1439 1916. Manner of selecting homestead — The restriction upon alienation of allotted lands 1441 1917. Division of remaining land by commission 1441 1918. Appointment and selection of commission to divide Osage lands — Powers and duties of such commission 1442 1919. The manner in which restrictions upon alienation are removed — Taxation — Oil and other mineral leases 1442 1920. Reservation of certain lands from reservation and allotment — Sale of certain reserved lands 1443 19.21. When governmental control of Osage land shall terminate. . . . 1446 1922. Descent and distribution of Osage land 1446 1923. Control of minor Osage land 1446 ]i924. Patents to be executed by chief of Osage Tribe 1447 1925. Later provision for sale of land of members of Kaw or Kansas and Osage Tribes 1447 1926. Rules and regulations of secretary of the interior for sale of surplus lands of the allotee of the Kansas or Kaw and Osage Tribes 1447 1927. Town site commission law for Osage Nation 1448 1928. Approval of secretary of interior required to validate deed, when 1448 1929. Restrictions a covenant running with the land 1449 1930. Enrollment and membership in the Kansas or Kaw Tribe 1449 1931. Division of lands of Kaw Tribe — Restrictions upon alienation — Homestead — Minors 1450 1932. Division of surplus land — Kaw Tribe 1451 1933. Allotment deeds— Kaw Tribe 1451 1934. Reservation from allotment — Sale of certain town lots in desig- nated town site — Kaw tribe 1452 Ixviii CONTENTS. SECTION PAGE 1935. Sale of trust and diminished reserved land — Kaw tribe 1453 1936. Allotee may have permission to sell land, when 1453 1937. Provision for sale of inherited and minor land 1454 1938. Jurisdiction of courts for Kaw and Osage Indians 1454 CHAPTER XXXIX. Indian Land Laws — ^Marriage and Divorce. 1939. Certain Indian marriages declared legal 1455 1940. Children of certain Indian marriages legitimatized 1455 1941. Legality of marriage according to the Indian custom 1456 1942. Marriage of Indian must now be according to law 1456 1943. Divorce law for the Indian 1456 1944. When Indian guilty of bigamy 1456 1945. Indian required to select which of wives 1457 1946. Record of selection of wife by Indian husband — Evidence of record 1457 1947. Validity of tribal marriage and divorce l4o'S 1948. Property rights of white men by marriage with Indian women 1459 1949. Citizenship of Indian women marrying white men 1459 1950. Proof as to marriage between whites and Indians 1459 CHAPTER XL. Town Site Laws of the Five Civilized Tribes. 1951. Choctaw, Chickasaw, Creek and Cherokee nations — Act of June twenty-eighth, eigliteen hundred and ninety-eight 1463 195'2. Choctaw, Chickasaw, Creek and Cherokee nations — Survey, plat and sale of town lots 1463 1953. Choctaw, Chickasaw, Creek and Cherokee nations — Secretary of interior authorized to survey and plat town sites 1465 1954. Choctaw, Chickasaw, Creek and Cherokee nations — Where plats are to be kept 1466 1955. Choctaw and Chickasaw nations — Wlien work under Choctaw and Chickasaw agreement shall begin 1466 1956. Choctaw, Chickasaw, Creek and Cherokee nations — Appoint- ment of town site commission — Appraisement and sale of lots y 1467 1957. Choctaw, Chickasaw, Creek and Cherokee nations — Separate town site commission for any town 1467 1958. Choctaw, Chickasaw, Creek and Cherokee nations — When town maj' survey and plat 1468 1959. Choctaw, Chickasaw, Creek and Cherokee nations — Appraise- ment and sale 1468 CONTENTS. Ixix SECTIOX PAGE 1960. Choctaw, Chickasaw, Creek and Cherokee nations — Boundaries of corporations and town sites 1468 1061. Choctaw, Chickasaw, Creek and Cherokee nations — Commission may appropriate lands for town sites, when 1469 1962. Creek Nation— Town site laws of 1470 1963. Creek Nation — When and how occupant of any town lot may purchase same 1470 1964. Creek Nation — When and how resident of a lot not improved may purchase 1471 1965. Creek Nation — When and how purchaser of land prior to this act may acquire title 1471 11966, Creek Nation — Town lots not having any improvements thereon to be sold within twelve months 1471 1967. Creek Nation — Owner of improvements to be notified of ap- praisement — Amount and manner of his payment 1472 1968. Creek Nation — Town lots of a purchaser not subject to execu- tion—Taxes 1472 1969. Creek Nation — Location, survey and sale of cemetery lots.... 1473 1970. Creek Nation — Grounds for public buildings, how procured. . . . 1473 1971. Creek Nation — Surveys of Clarkeville, Coweta, Gibson Station and Mounds 1473 1972. Creek Nation — Lien for purchase price of town lots 1474 1973. Creek Nation — Town site provisions under supplemental Creek agreement 1474 1974. Creek Nation — Other provisions as to cemeteries and sale of lots— Parks 1475 1975. Creek town site law— Effect of bill of sale 1476 1976. Creek Nation — Secretary of the interior has control of the des- ignation of town sites — Kxtent of town sites to be measured by needs of town 1477 1977. Cherokee Nation — Owner compensated for improvements 1478 1978. Cherokee Nation — Manner of laying out town sites in towns having less than 200 population 1478 1979. Cherokee Nation — Preference right to purchase 1479 1980. Cherokee Nation — Sale of unimproved town lots 1480 1981. Cherokee Nation — Sale of town lots having improvements thereon — Payment 1480 1982. Cherokee Nation — Sale where owner of improvements fails to purchase 1481 1983. Cherokee Nation — Planner of sale of unimproved town lots. . . . 1481 1984. Cherokee Nation — Towns having less than 200 population and not otherwise provided for 1481 1085. Cherokee Nation — Cemeteries — Parks 1482 1986. Cherokee Nation — Expense of surveying, platting and dispo- sition of town lots 1482 1987. Cherokee Nation — Taxes and interest 1483 1988. Cherokee Nation — Lots for church purposes 1483 Ixx CONTENTS. SECTION PAGE 19S9. Cherokee Nation — The secretary of interior may appoint town site commission, when 14S3 1990. Cherokee Nation — Who may bid and manner of payment 14'84 1991. Cherokee Nation — Purchaser of lot for public buildings 1484 1992. Cherokee Nation — Patents to purchasers of lots 1484 1993. Cherokee Nation — Patents to be approved by secretary of in- terior 1485 1994. Cherokee Nation — Effect of acceptance of patent 1485 1995. Cherokee Nation — Acceptance of patents for minors 1485 1996. Cherokee Nation — Patents to be recorded 1485 1997. Cherokee, Choctaw, Chickasaw and Creek nations — When sec- tion 13 of act of Congress approved April twenty-sixth, nineteen hundred and six, shall not apply 1486 1998. Cherokee Nation — Jurisdiction of town site commission in con- test for ownership of lot — Equity jurisdiction of courts in such contest 1486 1999. Cherokee Nation — Limitation of laws of that nation 1486 2000. Chickasaw and Choctaw nations — Survey, appraisement, deeds 1487 2001. Chickasaw and Choctaw nations — Provisions for cemeteries and churches 1489 2002. Chickasaw and Choctaw nations — Approval of town site laws in act of May thirty-first, nineteen hundred 1490 2003. Chickasaw and Choctaw nations — ^Acreage to town sites to be added, when 1491 2004. Chickasaw and Choctaw nations — Compensation to owner where lands taken for toAvn site purposes 1491 2005. Chickasaw and Choctaw nations — Additional commissions au- thorized, when — Secretary may appoint — Additional com- missioners authorized 1492 2006. Chickasaw and Choctaw nations — Patents to purchasers 1492 2007. Chickasaw and Choctaw nations — Town sites for towns of 200 population or less 1493 2008. Cliickasaw and Choctaw nations — Other town site provisions. . 1493 2009. Seminole town site law — Preamble — Commissioners appointed. . 1494 2010. Seminole town site law — Authority of commission — Size of lots — Public buildings 1494 2011. Seminole town site law — Compensation to owners 1405 2012. Seminole town site law — Description of land — ^Commissioners authorized to sell or lease lots 1495 2013. Seminole town site law — Records required to be kept by com- missioners — Their compensation 1496 2014. Seminole town site Inw — A])pointment of city officials — City marshal — City attorney — Police judge — Other powers of commissioners as to government of cities 1497 2015. Seminole town site law — The capital of the Seminole Nation. . 1498 2016. Joint resolution extending tribal governments 1408 2017. Abolishment of town site commissions for the Choctaw, Chick- asaw, Cherokee and Creek nations 1498 2018. Removal of restrictions for town site purposes 1499 CONTENTS. Ixxi CHAPTER XLI. Indian Land Laws — The Law and Procedure — Forms by Which Re- stricted La>-ds and the Lands of Minor Freedmen and Indians of THE Five Civilized Tribes are Sold, Leased for Oil, Gas and Otheb MI^^NG Purposes, and fob Agricultural and Gbazing Purposes. section page 2019. Creek citizens may lease for grazing purposes 1502 2020. Creel: citizens may lease for agricultural and grazing purposes. 1502 2021. Restrictions on lands of full-blood Creeks, Seminoles, Chero- kees, Chickasaws and Choctaws 1503 2022. The law and procedure for leasing lands of the Five Civilized Tribes by act of May twenty-seventh, nineteen hundred and eight 1504 2023. Rules and regulations for leasing restricted lands and for the removal of restrictions on such lands 1506 2024. Local representatives — How designated — Regulations and juris- diction of district agent 1509 2025. Duties of district agent — Agent can have no interest in land of tribes 1510 2026. Agent must be in office, when — In field, when 1511 2027. Agent's duty as to records — Must report, when 1511 2028. Copies of reports of district agent to probate courts forwarded to Indian agent — Leases for approval of secretary of in- terior filed, where 1511 2029. Applications for removal of restrictions, where filed 1512 2030. Revision of revised regulations of department of April twen- tieth, nineteen hundred and eight 1512 2031. Leases must be presented to district agent 1512 2032. Regulation of term of mineral lease on minor lands 1512 2033. Regulation as to mineral lease on Seminole lands 1513 2034. Amendment of section ten of the regulations of April twentieth, nineteen hundred and eight 1513 2035. Regulations for agricultural, grazing and other leases other than mineral 1513 203-6. Application for removal of restrictions to be made, where — The classes of restricted lands to which regulations of depart- ment of interior apply 1514 2037. Duty of district agent to forward application — Secretary of interior will remove restrictions, when and how 1515 2038. Procedure when restrictions are to be removed from land — Ad- vertisement — Bids — ^^Check — Right to reject bid, etc 1515 2039. District agent to inspect land before sale — Appraisement before sale 1516 2040. The form for the order removing restrictions 1517 2041. Form for the indorsement on deed — Delivery of deed to district agent lol7 2042. Duty of district agent as to disbursement of proceeds of sale — Confirmation of sale 1518 Ixxii CONTENTS. SECTION PAGE 2043. Method of procedure to procure oil and gas mining leases and other mineral leases on restricted land 1518 2044. Method of procedure where oil and gas lease is procured on restricted lands by corporation 1519 2045. Procedure where lessor is a minor — Heirs of allotted land may join, when 1520 2046. Bond to be furnished by lessees — Indian agent may require furt'ier information, when; effect of failure of lessee to give bond 1521 2047. The amount of royalty to be paid on oil leases — Increase of . . . . 1522 2048. Amount of royalty on gas-producing well 1524 2049. The amount of royalty on coal and asphaltum leases 1525 2050. How rentals for gold, silver, iron, shale, lumber, stone and other minerals determined 1525 2051. How royalties are to be paid 1525 2052. Bonus per acre required to be paid until producing well is completed lo-o 2053. Requirement as to operating and caring for oil and gas on part of lessee 1527 2054. Procedure where lease is assigned 1533 2055. Method of cancellation of lease 1534 2056. Departmental forms for procedure for oil and gas mining leases 1534 2057. Procedure where restrictions have been or may be removed — Leases executed before removal of restrictions 1535 2058. Procedure for agricultural and grazing leases — ^Not to be longer than for a term of five years — Lessee required to furnish bond 1^37 2059. Form for order removing restrictions on land 1538 2060. Another form for order removing restrictions on land 1539 20i61. Form for application for removal of restrictions 1539 2062. Form for oil and gas mining lease Nation 1540 2063. Form for application for approval of oil and gas mining lease. . 1541 2064. The form for the bond 1547 2065. The form or the back of the bond 1548 2066. Form for affidavits of Indian lessor and lessee — Proof of bonus — No development 1551 2067. Form for affidavits showing authority of officers to execute lease — Bond and accompanying papers 1552 2068. Form for proof of heirship 1553 2069. Form for assignment of oil and gas mining lease 1558 2070. Form for the bond ^'^^'^ 2071. Form for the back of the bond *. 1562 2072. Form for stipulation increasing oil royalty and extending term of lease 1^02 2073. Form for stii)ulation increasing oil royalty and extending term of lease to cancel regulations of October fourteen, nineteen hundred and seven 1564 2074. Form for lessor's consent to extension of lease 1566 CONTENTS. Ixxiii SECTION PAGE 2075. Form for application for mineral lease other than oil and gas. . 1568 2076. Form for coal and asphaltum lease, Nation 1571 2076a. Form for other minerals than coal, asphalt, oil and gas 1577 2077. Form for agricultural lease, Nation 1583 2078. Form for grazing lease, Nation 1588 2079. Form for surety of lease 1593 2080. Form for the procedure by which a guardian of a minor freed- man leases lands not restricted, for oil and gas mining purposes — The petition 1595 2081. Tlie waiver of notice 1596 2082. Form for the order authorizing lease 1597 2083. Form for the report of guardian as to lease made 1598 2084. The form for oil and gas mining lease made under order of county court 1599 2085. Form for the order of court approving and confirming oil and gas lease made by guardian 1603 CHAPTER XLII. FoBMS FOB Allotmext Cebtieicates and Patext Deeds fbom the Gov- EBNMENT TO THE MeMBEBS OF THE FiVE CIVILIZED TbIBES. 2086. Form for allotment certificate — Chickasaw Nation 1606 2087. Form for homestead certificate — Chickasaw Nation 1608 2088. Form for allotment certificate — Minor Mississippi Choctaw.. 1609 2089. Form for homestead certificate — Minor Mississippi Choctaw. . . 1610 2090. Form for allotment certificate of freedman — Chickasaw Nation 1611 2091. Form for designation of identified Mississippi Choctaw 1612 2092. Form for homestead certificate — Choctaw and Chickasaw na- tions 1613 2093. Form for allotment certificate — ^Choctaw-Chickasaw Nation.. 1614 2094. Form for homestead patent — Choctaw and Chickasaw nations 1615 2095. Form for allotment patent — Clioctaw and Chickasaw nations. . 1617 2096. Form for homestead designation — Mississippi Choctaw 1619 2097. Form for allotment designation — Mississippi Choctaw 1620 2098. Form for homestead certificate — Mississippi Choctaw 1622 2099. Form for allotment certificate — ^Mississippi Choctaw 1623 2100. Form for homestead certificate — Minor Mississippi Choctaw.. 1624 2101. Form for allotment certificate — Minor Mississippi Choctaw... 1625 2102. Form for homestead patent — Mississippi Choctaw 1626 2103. Form for allotment patent — ^Mississippi Choctaw 1628 2104. Form for allotment certificate — ^Choctaw Nation 1631 2105. Form for allotment patent — ^Choctaw and Chickasaw freedmen 1632 2106. Form for certificate of homestead designation — Seminole Na- tion 1634 2107. Form for Seminole deceased allotee certificate 1635 2108. Form for new-born certificate — Seminole Nation 1636 Ixxiv CONTENTS. SECTION PAGE 2109. Form for certificate of homestead allotment — Clierokee Nation 1637 2110. Form for certificate of allotment — Cherokee Nation I&3i8 2111. Form for homestead deed — ^Cherokee Nation 1639 2112. Form for allotment deed — Cherokee Nation 1640 2113. Form for certificate of selection by heirs — Creek Nation 1642 2114. Form for homestead certificate — Creek Nation 1643 2115. Form for certificate of allotment — Creek Nation 1644 2116. Form for allotment certificate — ^Creek Nation new-born 1645 2117. Form for homestead deed — Creek Nation 1646 2118. Form for allotment deed — Creek Nation 1648 CHAPTER XLIII. Restbictioxs on Alienation. 2118. Eff'ect of contract to convey after removal of restrictions 1651 2119. Restrictions on alienation — Leases — Judgments and sale 1655 21.20. Restrictions on alienation — Estoppel may not be pleaded against 1657 2121. Restrictions on alienation — Oil and gas mining lease 1660" 2122. Power of the secretary of the interior to make rules for the removal of restrictions 1661 2123. Restrictions upon the surplus lands of Choctaw and Chickasaw nations othan than freedmen L661 2124. Alienation of Creek homesteads 1668 2125. Patents of Choctaw and Chickasaw nations are issued, when, or operate to pass title, when 1675 2126. Date of patent as term is used in the Choctaw and Chickasaw supplemental agreement 1676 .2127. Alienation of the homestead of deceased Seminole allotee. . . . 1677 2128. Status of Choctaw-Chickasaw — Freedmen allotments as to homesteads prior to act of April twenty-sixth, nineteen hundred and six 1679 2129. Taxation of allotted lands — Choctaws — Chickasaws — Creeks.. 1681 2130. Do tax exemptions in patents extend to subsequent grantees. . . 1686 2132. Marriage, divorce and inheritance in Creek Nation 1689 2133. Public highways or roads for the Creek Nation 1691 2134. Public highways — Choctaw, Chickasaw and Seminole nations. . 1691 2135. Public highways or roads — Cherokee Nation 1692 2136. Inalienability of certain minor lands — Creek Nation 1692 2137. Law of Congress authorizing secretary of interior to give fran- chise to lay pipes constitutional . . . . , 1693 2138. Procedure by which heirship, title or interest in estate in course of administration is established 1693 2139. Constitutional provision as to purchase and sale of real estate 1696 2140. Corporation may own real estate 1697 2141. Time within whicli corporation to dispose of certain real estate 1698 2142. Corporation to file stiitement of lands owned 1699 CONTENTS. IXXV SECTION PAGE 2143. Graduated land tax — Corporations and persons 1699 2144. Departmental regulations and forms for oil and gas mining leases in the Osage Nation 1701 2145. Definition of certain terms 17(>2 2146. Bids for a lease 1703 2147. Execution of leases and bonds 1704 2148. Acreage that may be leased 1706 2149. Rentals and royalties 1707 2150. Payment of rentals and royalties 1708 2151. Operations under lease 1700 2152. Assignment of lease 1717 2153. Surrender and cancellation 1718 2154. General provisions 1718 2155. Provisions as to forms 1720 2156. Forms for bid and application for oil and gas mining lease, Osage reservation 1721 2157. Form for oil and gas mining lease, Osage reservation 1723 2158. Form for bond 1732 2159. Form for affidavit of lessee, proof of bonus, and no develop- ment 1734 2160. Form for evidence showing authority of officer to execute leases, bonds and accompanying papers 1736 2161. Form for assignment of oil and gas mining leases 1737 TABLE OF CASES. [References are to sections.] Abbey v. Grimes (44 Kan. 415, 24 Pac. 426), 32. Abbott V. Coats (86 N. W. 1058),—. Abila V. Burnette (33 Cal. 658), 691. Abrams v. Same (74 Kan. 88, 88 Pac. 70), 1112. Abrams v. .Same (74 Kan. 88, 88 Pac. 571), 450. Acker v. Adams (23 O. S. 543), 93. Adair v. Forey (105 X. W. 714), 18. Adair v. Forey (105 X. W. 714), 33. Adam v. Johnson (65 Pac. GG2), 1130. Adams v. Baldwin (49 Kan. 781, 31 Pac. 681), 63. Adams v. Baldwin (49 Kan. 781, 31 Pac. 681), 57. Adams v. De Valley (40 Kan. 48G), 154. Adams v. Jeffries (12 Ohio, 253), 87. Adams v. Jeffries (12 Ohio, 253), 3. Adams v. Loekwood (2 Pac. 526), 317. Adams v. Parnell (11 C. C. 567), 1112. Aetna v. Wortasenski (88 X. W. [Xeb.] 855), 152. Ahlban v. Wolff (11 Atl. 799), 485. Alabama v. Price (42 Ala. 39), 836. Alberta v. Moore (20 Okla. 78, 93 Pac. 543), 1020. Alberti v. Moore (20 Okla. 78, 93 Pac. 543), 1017. Ixxvii Albers v. Cozeluh (97 X. W. 646), 57. Albright v. Warkentin (31 Kan. 442, 2 Pac. 614), 64. Alderson v. Marshall (7 Mont. 288, 16 Pac. 676), 57. Alexander v. Frary (9 Ind. 484), 553. Alexander v. Frarey (9 Ind. 484), 73. Alfred v. Bank (29 Pac. 471), 145. Allen V. Houston (21 Kan. 201), 1274. Allen V. Jewell (94 U. S. 606, 24 L. Ed. 260), 447a. Allen V. Miller (11 0. S. 374), 18, 33, 4(5. Allen V. Oliver (12 Pac. 226), 1736, 1740, 1824, 1834. Allentown v. Derr (115 Pa. 439, 9 Atl. 55), 1834. Alleson v. Bryan (21 Okla. 537, 97 Pac. 382), 522. Almorev v. Hicks (3 Head. 39), 1177. Alton V. Staton (19 Okla. 252, 91 Pac. 892), 412, 1084. America, etc., v. Johnson (17 0. S. 640), 46. American v. Davis (67 S. W. 864, 108 Tenn. 442), 73, 356. American v. Pappe (43 Pac. 1086), 92. Ames V. Burnham (108 X". \Y. 297), 475. Amos V. Humbolt (21 Kan. 474), 96. Anderson v. Canter (63 Pac. 285), 1138. lxx^'iii TABLE OF CASES. [References are to sections.] Anderson v. Chicago (17 111. 26), 1736. Angel V. Alartin (24 Kan. 344), Anderson v. Cantor ( 10 Kan. App. 167, 63 Pac. 285), 450. Anderson v. Ferguson (12 Okla. 307, 71 Pac. 226), 803. Anderson v. Itasca (86 Minn. 480, 91 N. W. 12), 341. Anderson v. Same (75 Kan. 117, 88 Pac. 745), 457. Apple, In re (66 Cal. 432), 695. Apperson v. Botton (29 Ark. 418), 565, 569, 587. Archer v. Lumber (24 Ore. 341, 33 Pac. 526), 493. Ard V. Brandon (156 U. S. 37), 1763. Ard V. Wilson ( 60 Kan. 857, 56 Pac. 80), 1143. Ardmere v. Briggs (20 Okla. 427, 94 Pac. 533), 1563. Armour v. Oneck (4 Okla. 661, 46 Pac. 573), 29. Armstrong v. Bartin (42 Miss. 506), 85. Armstrong v. Brownfield (4 Pac. Ii86), 1130, 11315. Armstrong v. Grant (7 Kan. 286), 166. Arm-strong V. Wood (195 Fed. 137), 1759. Arnold v. Campbell (64 S. W. 532, 3 Ind. Ter. 5.50), 10, 11. Ashmed v. Reynolds (184 Ind. 139, 38 N. E. 763), 477a. Ashton V. Slaler (19 Minn. 347), 121. Askey v. Williams (5 L. R. A. 176), 356. Atchisfm v. l'.iirk (96 Pac. 950), 1292. Atchison v. Cogswell ( — Okla. — , 99 Pac. 923), 86. Atchison v. Tx)ge (49 Kan. 524, 31 Pac. 140), 50. Atchison v. Sledge (68 Kan. 321, 74 Pac. 1111), 1.^. Atkinson v. Woodmansee (68 Kan. 71, 74 Pac. 640), 1020, 1025, 1026. Atchinson v. Means (61 Kan. 857, 58 Pac. 989), 64. Atchison v. Pracht (30 Kan. 71, 1 Pac. 319), 1116, 1118. Atchison v. Rockwood (25 Kan. 110), 1116, 1118. Atchison v. Woodman (58 Kan. 71, 74 Pac. 640), 1025. Atwood V. McKesa (il5 Pac. 106), 487. Aultman v. Caldwell ( 14 Okla. 472, 78 Pac. 319), 94. Avela V. Burnett (33 Cal. 658), 757. Avery v. Sykes (1 W. 56), 1275. Ay ward v. Lamarde (29 Wis. 502), 341. Babcock v. Camp (12 0. S. 11), 89. Badanger v. Lauten (15 Kan. 608), 292, 296. Baird v. Ramsey (2 C. C. [N. S.] 492), 1178. Bahm v. Mine (63 la. 641), 92. Baird v. Prosanor (62 Ala. 486), 1279. Baker v. Harriet (23 Okla. 480, 100 Pac. 1114), 1762. Baldredge v. Outgrof (108 Pac. 83), 1274, 1276. Balduff V. Griswold (9 Okla. 538, 60 Pac. 223), 1074, 1075. Baldwin v. Bohl (122 N. W. 247), 817. Baldwin v. Bush (61 N. W. 601), 1292. Baldwin v. Detzel (1 Iddings F. P. D. 138), 1178. Baldwin v. Squier (31 Kan. 284, 1 Pac. 591), 450. Baldwin v. Wilson (7 N. P. 506), 22. Balke, In rl (137 Cal. 429), 703. Ball V. Houston (11 Okla. 235, 66 Pac. 559), 1011. Ball V. Houston (11 Okla. 233, 66 Pac. 358), 929. Ballen v. Bergvendsen (83 N. W. 10), 449. TABLE OF CASES. Ixxix [References are to sections.] Ballew V. Young (103 Pac. 624), 60. Baltimore v. Fitzpatrick (36 Md. 624), 353. Baltimore v. Fitzpatrick (36 Md. 1624), 77. Bancroft v. Chambers ( 10 Kan. 275), 1274, 1277, 1278. Bancroft v. Cliambers (10 Kan. 275), 1180. Bander v. Bryan (20 Kan. 369), 1171. Bank v. Dweners (29 Vt. 332), 43. Bank v. Hinton (35 Kan. 577, 11 Pac. 309), 133. Bank v. Maddox (4 Okla. 563, 46 Pac. 5'63), 476. Bank v. Roosa (13 Ohio, 334), 138. Bank v. Taylor (58 N. W. 297), 475. Bankers Life v. Robins (75 N. W. 585), 64. Bankman v. Knyder (6 Blackf. 21), 455. Bannester v. Carroll (43 Kan. 64, 22 Pac. 1012), 292. Banning v. Carpenter (48 N. Y. 412), 121. Barbee v. Shannon (1 Ind. Ter. 199, 40 S. W. 584), 89. Barbour v. Hubbard (54 N. H. 539, 20 Am. Rep. 160), 357. Bard v. Elston (1 Pac. 565), 955. Barge v. Haslem (91 N. W. 528), 86. Barker v. Camp (71 Am. St. Rep. 186), — . Barker v. Central (105 K W. 985), 86. Barrington v. Alexander (6 0. S. LS9), 159. Barnard v. Stevens (2 Ark. 420), 166. Barneby v. Plummer (45 N. .V. 277,) 1292. Barnen v. Dolph (97 U. S. 652, 24 U Ed. 1063), 1750. Barnes v. Stevens ( 2 Ark. 420 ) , 166. Barnes v. Stonebraker (113 Pac. 903, 28 Okla. 75), 2121. Barnes v. Stonebraker (28 Okla. 29, 113 Pac. 705), 1770. Barnett v. Way (119 Pac. 418), 1758, 1759, 1765. Barney v. Doph (97 U. S. 652), 1841. Barney v. Patterson (5 Har. & J. 1204), 166. Barnett v. Schodd (73 Kan. 414, 91 Pac. 539), 20. Bartholomew v. Lutherean ( 35 0. S. 567), 11-84. Bartlesville v. Barker (109 Pac. 72), 1825. Barto V. Abbe (16 Ohio, 408), 811. Barton, In re (86 Cah 441), 652. Barrington v. Alexander (6 0. S. 180), 169. Barrow-s v. Rubber (13 R. I. 48), 43. Barry v. Honey (30 0. S. 348), 39. Barry v. Wochasky (176 N. W. 1080), 33. Bass v, Spooner (45 Ind. 489), 80. Bassell v. Bassett (19 Pac. 671), 32. Bashore v. Nordyke (25 Kan. 222), 148. Bastin v. Schaffer (15 Okla. 267, 85 Pac. 349), 388, 932, 1068. Baumeister v. Carroll ( 22 Pac. 1012), 29. Beadles v. Fry (82 Pac. 1041), 136. Beal V. Western (74 N. W. 54), 94. Beard v. Hosier (30 Ark. 515), 561. Beaumont v. Ogden (24 0. S. 452), 136. Beaquith v. Talbot (95 U. S. 289, 2'4 L. Ed. 496), 454. Beck V. Flourney (65 Fed. 30), 1735. Beck V. Johnson (23 Okla. 812, 101 Pac. 1100), 82b. Beck, In re (110 F. D. 449), 1009. Beckwith v. Douglass (25 Kan. 159), 60. Beckwith v. Douglass (26 Kan. 229), 806. Ixxx TABLE OF CASES. [References are to sections.] Beelin v. Schmidt (16 Okla. 429, 85 Pac. 711), 36. Beeline v. Taylor (16 Okla. 481, 85 Pac. 713), 36. Beer v. Plant (96 N. W. 348), 1116. Beeson v. Patterson (36 Pa. 34), 1834. Bell V. Cook (— Okla. — ), 1295. Bell V. Dalton (39 N. W. 930), 94. Bell V. Sternberg (53 Kan. 571, 3G Pac. 986), 442. Bel ton V. Bemis (44 0. S. 51), 472. Bemis v. Becker (1 Kan. 248), 1170. Bennett, In re (134 Cal. 620), 682. Bennett v. Same (15 Okla. 286, 81 Pac. 632), 504. Bennison v. Worelty (De G. Sen. 64i8), 72. Benson v. Canfield (89 N. W. 664), 801. Benson v. ]Marhoe (37 Minn. 30), 471. Benton v. Beakey (81 Pac. 196), 973. Berkley v. Mining, etc. (4 Colo. 117), 92. Berry v. Same (55 Pac. 348), 977. Bess V. Frazier (16 Okla. 523), 1138. Best V. Frazier (16 Okla. 523), 804. Beson v. Nerkve (33 N. W. 38), 486. Bethel v. Bethel (39 Kan. 230, 17 Pac. 813), 1016. Bethel v. Chicago (39 Kan. 230, 17 Pac. 813), 1013. Betts V. Commissioners (27 Okla. 64, 110 Pac. 766), 1834. Betts V. Lilsatre (1 S. D. 182, 46 N. W. 201), 987. Betts V. Mills (8 Okla. 351, 58 Pac. a57), 929. Betz V. Maxwell (29 Pac. 147), 957. Beverly v. Fairchilds (29 Pac. 985), 32. Bigelow V. Pilcher (16 Okla. 228), 187, 1138. Black V. Drake (28 Kan. 484), 1120, Blackburn v. Blackburn ( 18 Ohio, 81), 1275. Blackburn v. Memson (118 Pac. 402), 472. Blackburn v. Randolph (33 Ark. 119), 486. Blake v. Davis (20 0. 239), 1275. Blake v. Rider (14 Pac. 280), 301. Blakemore v. Johnson ( 24 Okla. 544, 103 Pac. 554), 82a, 17Ga. Blanchard v. Swartz ( 7 Okla. 23, 54 Pac. 304), 1016, 1020, 1055. Blanchell v. Freeze (52 N. W. 1101), 813. Blanco v. Haller (1 N. W. 978), 813. Block V. Pearson (19 Okla. 422, 91 Pac. 714), 1012. Blodgett V. Hobart (18 Vt. 418), 487. Bloomer v. Cramer (14 Okla. 366, 79 Pac. 1134), 1060. Blyth V, Ayers (96 Cal. 532), 522. Board v. Geleno (9 Kan. App. 555, 58 Pac. 277), 1017. Board v. Kansas (19 Okla. 375, 91 Pac. 699), 114. Board v. Moon ( 8 Okla. 205, 57 Pac, 161), 84. Bobb V. Alien (149 U. S, 481, 13 Sup. Ct. 950), 454. Boden v. Maier (98 N. W. [Xeb.] 701), 63. Bodle V. Shoenfelt (22 Okla. 94, 97 Pac. 556), 1756. Bodwell V. Heaton (18 Pac. 901), 485, P.odwell V, Heaton (18 Pac. 901), 489. Bogart V. City (27 N. J. Eq. 568), 1178. Bogle V. Bloom (36 Kan. 512, 13 Pac, 793), 137. Bogle V, Jarves (58 Kan. 76, 48 Pac. 538),* 457. Bolton V. Steel Co, (4 C. C. [Ohio] 242), 18. Bonecamp v. Starbuck (106 Pac. 839), 453. Bond V, Wilson (8 Kan, 231), 43, 44, TABLE OF CASES. Ixxxi [References are to sections.] Bonlin v. Lord (15 0. S. 454), 13S3. Bonner v. Proprietors (7 Mass. 475), 1201. Bonner v. Sanders (26 Okla. 673, 110 Pac. 730), 1843. Booth V. Pendola (88 Cal. 36), 692. Booth V. Wiley (102 111. 84), 1177. Boring v. Jude (53 S. W. 763), 73. Boring v. Jude (53 S. W. 763), 353. Born V. Horston (80 Cal. 452), 684. Boswell V. Sharp (15 Ohio, 441), 89. Boswell V. Sharp (15 Ohio, 447), 91. Boudinot v. Morris (110 Pac. 894), 1823. Boudinot v Same (2 Ind. Ter. 107, 48 S. W. 1019), m. Bowden v. Pince (73 Cal. 459), 707. Bowdish V. Metzger (81 Pac. 484), 1177. Bowen v. Ledbetter (122 Pac. 132), 1764. Bowling V. United States (191 Fed. 22), 1735. Bowman v. Overal (80 Ala. 451, 2 So. 2), 457. Boyd V. Munson (76 N. W. 552), 94. Boyles v. Bradley (101 Pac. 477), 978. Boynton v. Crockett (12 Okla. 57, 69 Pac. 869), 86. Bradfield v. Hale (67 0. S. 317), 1112. Bradfield v. Lukens (57 Kan. 90, 45 Pac. 69), 832, 854. Bradley v. Rogers (33 Kan. 120), 1171. Brady v. Sizomore (124 Pac. 615), i756. Bragden v. McShea (26 Okla. 35, 107 Pac. 916), 82a. Bragdon v. McShea (107 Pac. 916, 26 Okla. 35), 2120. Braley v. Leaman (30 Cal. 610), 57. Branch v. Mitchell (24 Ark. 431), 1177. Brashfield v. Whitaker (4 Howks, 309), 133. Braun v. Bell (192 Fed. 427), 1759. Braunner v. Chapman (11 Kan. 118), 154. Breckenridge v. Crocker (78 Cal. S29, 21 Pac. 17'9), 441. Brendedge v. Beggs (25 0. S. 652), 45. Brennan v. Shanks (103 Pac. 704), 800. Brenner v. Eggly (23 Kan. 123), 18, 26, 33. Brewer v. Maurer (38 0. S. 543), 1057. Brewster v. Benedict ( 14 Ohio, 385), 561. Bridge v. Street (9 Okla. 422, 60 Pac. 221), 64. Brittain v. Burnham (7 Okla. 522, 60 Pac. 241), 507. Britton v. Larson (37 N. W. [Neb.] 681), 57, 61. Brook V. Lester (36 Md. 67), 1014. Brooks V. Finney (39 0. S. 57), — . Brown, In re (143 Cal. 450), 680, Brown, In re (80 Cal. 381, 32 Pac. 233), 757. 700. Brown v. Brown (8 N. H. 93), 1203. Brown v. Burdick (25 0. S. 260), 811. Brown v. Campbell (100 Cal. 635, 35 Pac. 433), 509. Brown v. Fagins (55 N. W. 1048), 810. Brown v. Ins. (6 C. C. 62), 1022. Brown v. International (116 Pac. 799), 401, 984. Brown v. Massey (13 Okla. 670, 76 Pac. 266), 64. BroATO V. Eener (.59 X. W. 360), 84. Brown v. Vose (75 N. W. 536, 70 Am. St. 379), 292. Brown v. Ward (110 la. 123, 81 K W. 247), 440. Brownell v. Same (19 Wend. 367), 1201. Ixxxii TABLE OF CASES. [Eeferences are to sections.] Browton v. Alston (4 W. L. M. 588), 41. Brundege v. Blair (25 Kan. 482), 485. Bryan v. Wuburn (43 Ark. 28), 1177. Buchanan v. Ray (2 0. S. 261), 90, 178. Buchanan v. Roy (20 S. 253), 85. Burchett v. Clark (64 K W. 1113), 160. Buck V. Davidson (79 Pac. 119), 806. Buck V. Gage (43 N. W. 110), lllG. Bucket V. Eagle (21 C. C. 229), 46. Buckeye v. Fee (62 0. S. 55G), 287. Buffom V. Buffom (11 N. H. 451), 1834. Bull V. Bray (89 Cal. 286, 26 Pac. 873), 505. Bull V. Ford (66 Cal. 176, 4 Pac. 1175), 504. Bullner's Estate (59 Cal. 131), 624. Bulwer v. Standard (83 Cal. 589, 23 Pac. 1102), 1178. Bump, In re { 152 Cal. 271, 92 Pac. 642), 743. Bunce v. Gallaher (5 Blatchf. 481), 1177. Burdsal v. Shields (79 Pac. 1067), 823. Burford v. Kersey (48 Miss. 643), 89. Burge V. Brown (45 N. W. [Neb.] 271), 137. Burke v. Hinseman (70 111. App. 496), 1296. Burkell v. Clark (64 N. \V. 1113), 166. Burkley v. Superior (102 Cal. 61, 36 Pac. 360), 1251, 1252. Burnham v. Dixon (5 Okla. 112, 147 Pac. 1059), 300. Burnham v. Larkin (36 Kan. 246, 13 Pac. 398), 490. Burnhill v. Bradbury (67 Kan. 762, 74 Pac. 279), 451. Burnley v. Stephenson (24 0. S. 474), 20. Burns v. Hartshorn (12 Okla. 121, 69 Pac. 1049), 809. Burris v. Kennedy (108 Cal. 331, 41 Pac. 458), 217. Burton v. Handy (54 Kan. 13, 37 Pac. 108), 486. Busby V. Littlefield (31 N. H. 193), 483. Bush V. Bush (33 Kan. 556, 6 Pac. 794), 489. Butler V. Craig (29 Kan. 205), 163. Butler V. Birkey (13 0. S. 616), 18. Butler V. King (2 Yerg. 116), 561. Bvers v. Danley (27 Ark. 77), 1177. Byers v. Schlupe (51 0. S. 300), 292. Byrne v. Ft. Smith (1 Ind. Ter. 680), 488. C. & T. V. Rings (28 Pac. 110), 93. Caldwell V. Bank (2 Ohio, 29), 287. Caldwell v. Caldwell (145 0. S. 613), 159. Calkins v. Miller (75 X. W. [Xeb.] 1108), 60. Calkin, In re (112 Cal. 301), 619. Campbell v. Coonvodt (22 Kan. 704) , 810. Campbell v. Disney (93 Ky. 417, 18 S. W. 1027), 1178. Campbell v. Harsh (122 Pac. 127), 394, 443. Campbell v. Ware (27 Ark. 66), 561. Camphor v. ]VLirder (60 N. W. 901), 46. C'anady v. Marcy (13 Grey, 573), 486. Cann v. Cann (52 N. W. 51), 1075. Capital V. Fox (6 Ind. Ter. 223, 90 S. W. 614), 1766. Capital V. Hontoon (35 Kan. 577, 11 Pac. 369), 156. Capital V. Hontoon (35 Kan. 577), 150. Card well. In re (48 Cal. 137), 844. Carniichael v. Pierce (10 Okla. 176, 61 Pac. 583), 37, 89. TABLE OF CASES. Ixxxiii [References are to sections.] Carnahan v. Gustine (2 Okla. 399, 37 Pac. 594), 287, 317. Carney v. Taylor (4 Kan. 179), 300. Carpenter In re (94 Cal. 406, 29 Pac. 1101), 616. Carpenter v. Carpenter (2 Pac. 122), 27. Carr v. Barnes ( 1 Kan. App. 232, 40 Pac. 1087), 70. Carroll v. Lifford (11 L. Ed. 671), 1748, 1750. Carter v. Becker (69 Kan. 524, 77 Pac. 264), 1143. Carter v. Day (29 0. S. 96), 1201, 1202. Carter v. Missouri (6 Okla. 11, 41 Pac. 356), 86. CaBter v. Ruddy (56 Fed. 542), 1748. CartAvright v. Holcomb (21 Okla. 548), 620. Cartwright v. McFadden (24 Kan. 662), 1179. Carver, In re ( 123 Cal. 102, 55 Pac. 770), 757. Cary v. Kemper (45 0. S. 96), 112. Cassaday v. Mims (91 Pac. 888), 927. Case V. Barthlow (21 Kan. 223), 63. Case V. Beavtregard (101 U. S. 688), >89. Case V. Steel (8 Pac. 342), 502. Cassity v. Moore (91 Pac. 888), 3i7. Castner v. Walrod (83 III. 171), 1736. Castro V. Illes ( T* ±ex. 229), 121. Caton V. Crewing (26 N. W. 253), 178. Center v. Lindsay (21 Utah, 192, 60 Pac. 559), 483. Cerf V. Phillips (73 Cal. 145, 16 Pac. 778), 505. Cerly v. Moran (58 Kan. 278, 40 Pac. 82), 157. Chadron v. Association (63 N. W. 808), 179. Chandler v. Colcord (1 Okla. 260, 32 Pac. 330), 133. Chandler v. Neal (46 Kan. 67, 26 Pac. 470), 1127. Chandler v. Richardson (65 Kan. 152, 69 Pac. 168), 1121, 1210. Chaney v. Cooper (16 N. W. 471), 94. Chambers v. King (16 Kan. 270), 46. Chambers v. Manufactory (16 Kan. 270), 43. Chamberlain v. Same (93 N. W. 1021), 1291. Chapelle v. Cummins (25 Pac. 216), 317. Chaplin v. Holmes (27 Ark. 414), 1177. Chapman v. Chapman (48 Kan. 636, 29 Pac. 1071), 136. Chapman v. Merrill (19 Hun, 318), 152. Chapman v. Siler (120 Pac. 608), 1760, 1795. Chenney v. Harding (32 N. W. [Neb.] 64), 64. Cherokee v. Hitchcock (187 U. S. 294), 1797. Cherokee v. Southern ( 135 U. S. 641), 1797. Cherokee v. Trust Funds (117 U.S. 288), 1797. Cherokee v. Journeycake (155 U. S. 196), 1797. Cherokee v. Georgia (5 Pet. 1), 1735, 1797. Cheser v. Chind ( 82 Cal. 68, 22 Pac. 1081), 1254. Chicago V. Fretz (51 Kan. 134, 32 Pac. 908), 1012. Chicago V. Groves (7 Okla. 315, 54 Pac. 484), 52. Chicago V. Mashere (21 Okla. 275, 96 Pac. 630), 1025. Chicago V. Osborne (40 Kan. 168, 19 Pac. 656), 1012. Chicago V. Schalkof (74 N. W. 650), 1116, 1142. Chicago V. Wynkoop (85 Pac. 595), 17. Childs V. MoChesney (20 la. 341), 166. Chiles V. Ferguson (93 N. W. 409), 99. Ixxxiv TABLE OF CASES. [References are to sections.] Chisholm v. Weise (5 Okla. 217, 47 Pac. 1086), 809, 817. Choat V. Trapp (— U. S. — ), 1737. Choctaw Nation v. United States (112 U. S. 76), 1297. Christian v. Williams (35 Mo. App. 297), 18. Christy v. Springs (11 Okla. 710, 69 Pac. 864), 154, 157. Church V. Gooden (22 Kan. 227), 86, 114. Cincinnati v. Busby (51 Fed. Rep. 738, 19 L. R. A. 796), 442. Cites V. Widener (35 0. S. 555), 147. Citizen v. Baird (60 N. W. 551), 317. Citizens v. Judy (146 Ind. 322), 493. City V. Fox (60 0. S. 340), 22. City V. Harvey (5 Okla. 754, 60 Pac. >84), 99. City V. Hill (57 N. W. [Neb.] 548), 21. City V. Jones (44 Pac. 273), 806. City V. Kansas (72 Pac. 238), 173. City V. West (7 Wall. 82, 19 L. Ed. 42), 89. Clampt V. Bells (39 Minn. 272, 39 N. W^ 495), 441. Clapp V. Bromagham (9 Cow. 561), 1201. Clark V. Doilington (7 S. D. 480, 58 Am. St. Rep. 855), 1178. Clark V. Town (81 Mo. 503), 1114. Clark V. Dayton (6 Neb. 192), 472. Clark V. Burt (2 Kan. App. 407, 42 Pac. 733), 174. Clark V. Lopez (75 :\Iiss. 932, 23 So. 648), 477a. Clark V. Ransom (50 Cal. 595), 639. Clay V. Hildebrand (9 Pac. 466), 148. Clay V. Hoysradt (8 Kan. 74), 21. Clavpool V. Houston (12 Kan. 324), '57, 112. Claypool V. King (21 Kan. 434), "1174. Clayton v. Freel (10 0. S. 544), 486. Clayton v. School (20 Kan. 256), 1130, 1174. Clements v. McGuire (33 Pac. 920), 742. Clements v. Noble (48 0. S. 41), 1178. Cleveland v. Ohio (1 Disn. 469), 294. Close V. Wheaton (70 Pac. [Kan.] 891), 20. Clough V. McDonald (18 Kan. 114), 34. Coal Co. V. Bank (55 0. S. 233), 139. Coalton V. Same (85 N. Y. 313), 57. Cobb V. Kenefeck (23 Okla. 440, 100 Pac. 545), 111. Cobby V. Wright (45 N. W. [Neb.] 460), 20. Cobby V. Buchanan (48 N. H. 51), 356. Cockrell v. Schmidt (20 Okla. 297, 94 Pac. 521), 114. Cockrell v. Armstrong (31 Ark. 580), 569. Coe V. Edwards (72 N. W. 1045), 301. Coe V. Erb (59 0. S. 259), 84, 114. Coe V. Smith (4 Ind. 79, 38 Am. Dec. 618), 345. Cogly, In re (107 Fed. 73, 5 Am. Bank. Rep. 731), 374. Cogshall V. Marine Bank (63 0. S. 88), 1112. Coil V. Nix (6 Okla. 618, 62 Pac. 918), 300. Coinassi, In re (107 Cal. 1), 633, 645. Colbert v. Alfrey (168 Fed. 231, 93 C. C. A. 517), 82a. Colbert v. Alfrey (168 Fed. 231), 1762. Cole V. Lombard (66 Kan. 251. 71 Pac. 584), 46. Cole, In re (49 Wis. 181), 016. Collins V. Snmo (19 0. S. 471), 1178. Collins V. Baltimore (7 N. P. 270), 39. TABLE OF CASES. Ixxxv [References are to sections.] Colonial v. Foutch (47 N. W. 929), 115. Colony V. Billingsly (89 N. W. 744), 116. Comstock V. Kerwin (77 N. W. 387), 1116. Commissioners v. Lawrence (74 Cal. 400, 16 Pac. 197), 58. Commons v. Monteith (16 N. W. 591), 485. Condon v. Wood (7 Kan. App. 577, 52 Pac. 63), 156. Conger v. Olds (1 Okla. 232, 32 Pac. 337), 811. Conell V. Parkinson (59 Kan. 365, 53 Pac. 138), 70. Conn V. Rhodes (26 O. S. 644), 32. Connell v. Kuykendall (29 Kan. 708), 981. Connolly v. Gedding (37 N. W. 235), 809. Connor v. Ashley (35 S. E. 546), 357. Connoway v. Gore (22 Kan. 216), 494, 804. Conrad v. Everich (50 S. 480), 84. Conrad v. Insurance (1 Pet. 378), 121. Conradt v. Meyers (2 Pac. 868), 1109. Conroy v. Perry (26 Kan. 472), 1016. Cook V. Dinsmore (5 €. C. [Ohio] 585), 139. Coombs V. Knox (72 Pac. 641), 348. Cooms V. Knox (72 Pac. 641), 548. Coolidge V. Burke (69 Ark. 237), 561. Cooper V. Nolan (138 Cal. 248, 71 Pac. 179), 505. Cooper V. Brinkman (17 Pac. 157), 1567. Coosbv, In re (55 Cal. 574), 692. Cope V. Braden (1 Okla. 291, 67 Pac. 475), 810. Cope V. Cope (137 U. S. 6S2), 1885. Corby V. Drew (55 N. J. Eq. 387, 36 Atl. 827), 443. Cordray v. Cordray (19 Okla. 30, 91 Pac. 781), 57, 60. Cordray v. Mergen (21 Okla. 574, 95 Pac. 761), — . Core V. Smith (23 Okla. 909, 102 Pac. 104), 70. Corker v. Corker (87 Cal. 643), 045. Corlette v. Mutual (60 Kan. 134, 55 Pac. 844), 96. Corteleau v. Mobin ioO K. W. 94), 302. Cory V. Fleming (29 O. S. 147), 'll78. Cosgrove v. Merz (37 Atl. 704), 1167. Costrelero v. United States (2 Black, 17, 97 E-d. 360), 1083. County V. Davis (34 Ark. 590), 501. ■County V. Logan (12 Okla. 267, 20 Pac. 378), 714. County V. Marhling (30 Ark. 17), 569. Covington v. Fisher (22 Okla. 207, 97 Pac. 615), 1083. Covington v. Saergeant (27 0. S. 233), 89. Cowles v. Phoenix (63 Kan. 883, 65 Pac. 217), 156. Cox v. Baird (75 Kan. 369, 89 Pac. 671), 493. Cox v. Giles (8 Okla. 485, 58 Pac. 645), '68. Crafts V. Carr (24 R. L 721), 356. Crag v. Fox (16 Ohio, 563), 149. Crag V. Fox (16 Ohio, 503, 564), 155. Crane v. Cameron (71 Kan. 880, 81 Pac. 480), 1147. Croft V. Bent ( 8 Kan. 324 ) , 459. Crane v. Randolph (30 Ark. 579), 1177. Crane v. Ford (1 Hopk. 114), 1561. Crapster v. Taylor (74 Kan. 771, 87 Pac. 1138), 76, 82. Creditors v. Search (3 W. L. M. [Ohio] 202), 145, 147. Creighton v. Goni (37 N. W. 76), 120. Ixxxvi TABLE OF CASES. [References are to sections.] Creswell v. Craig (9 N. W. 52), 39. Cretchfield v. Klure (30 Kan. 721, 18 Pac. 898), 485. Crews V. Burcham (1 Black, 352), 1786, 1841. Crist V. Crosby (11 Okla. 635, 69 Pa«. 885), 88. Crittenden v. Woodruff (11 Ark. 83), 593. Cronkmite v. Buchanan (59 Kan. 641, 53 Pac. 863), 157. Crooks, In re ( 125 Cal. 457, 58 Pac. 89), 1254. Crookston v. Marshall (57 Minn. 333), 493. Cross V. Knox (33 Kan. 725, 5 Pac. 32), 156. Crozen, In re (65 Cal. 332, 4 Pac. 10.9), 742. Crump V. Baker (18 Ves. 255), 352. Cruss V. Administrator ( 127 111. 231), 73, 1736. Crutcher v. Block (19 Okla. 246, 91 Pac. 895), 1012. Cumberland v. Padgell (61 Atl. 837), 483. Cunningham v. Harper (1 W. 336), 1275. Cunningham, In re (52 Cal. 465), 618. Cunningham v. Morris ( 12 Okla. 132, 69 Pac. 1133), 809. Curran v. Taylor (19 Ohio, 56), 1200. Curtis V. Parker (29 Kan. 93), 1212. Curtis V. Sutter (15 Cal. 289), 1178. Cully V. Shirk (50 N. S. 882), 43. Culver V. Culver (2 Root, 278), 1201. Cyr V. Walker (116 Pac. 934), 1947. Dail V. Freeman (92 X. C. 351), 121. Dalate v. Boyd (81 Ind. 146), — . Dallew V. Young (103 Pac. 623), 59. Dalrymple v. Security (9 N. D. 306, 3 N. W. 345 ) , 535. Dalzel v. Dueber (149 U. S. 315, 13 Sup. Ct. 886, 37 L. Ed. 749), 434. Dana v. Hancock (30 Burr, 616), 453. Dane v. Derber (28 Wis. 216), 493. Danley v. Same (22 Ark. 63), 593. Darlington v. Compton (20 C. C. 242), 1176, 1178. Daugherty v. Porter (18 Kan. 206), 806. Davidson v. Gibson (56 Fed. Rep. 443), 554. Davidson v. Gibson (56 Fed. 446, 5 C. C. 543), 554. Davis, In re (69 Pac. 412), 620. Davis' Est. (122 Pac. 547), 1791. Davis V. Beman (50 N. W. 836), 475. Davis V. Duffie (8 Boz. [N. Y.] 617), 18. Davis V. Hill (97 N. W. 1023), 86. Davis V. Houston (16 N. W. 820), 56. Davis V. Screlkeld (151 Pac. 226), 1138. Davis V. Weber (45 L. R. A. 196), 346. Davis V. Wilson (76 Kan. 27, 90 Pac. 766), 58. Davis' Estate (122 Pac. 549), 1736. Dawson v. Lawrence (13 Ohio, 544), 1202. Davton v. Stone (111 Mich. 346, ' 19 N. W. 29), 453. Deathrage v. Henderson (43 Kan. 684, 23 Pac. 1052), 1016. Debtor V. Holland (57 0. S. 505), 1178.^ DeCastro V. DcBarry (18 Cal. 97), 1254. Decher v. IMason (30 Kan. 697, 2 Pac. 850), 452. Dockerman v. Crane (41 Kan. 150, 2 Pac. 167), 94. TABLE OF CASES. Ixxxvii [References are to sections.] Deelyter v. Wilhite (55 Kan. 200), 1168. Deetrich v. Lang ( 1 1 Kan. 636 ) , 57. DeGroffenreid v. Iowa, etc. (95 Pac. 629), 1748, 1749, 1752, 1753, 1754, 1756, 1758, 1781. DeJarnette v. Verner (19 Pac. 666), 138, 139, 150. DeLoveaga, In re (119 Cal. 651), 661. Derkson v. Reed (2 Handy, 159), 138. Delashmut v. Paunt (28 Pac. 712), 112, 1128. Demming v. United States (224 U. S. 471), 1841. Dennison v. Foster (9 Ohio, 130), 1199. Denton v. Fife (65 Kan. 1), 1121, 1210. Denton v. Townsite (5 Ind. Ter. 396, 82 S. W 852), 1766. Denver v. Adkinson (119 Pac. 247), 1831. DePeyster v. Hasbrook (11 N. Y. 582), 487. Desnoyors v. Dennison (19 C. C. 320), 1183. Detwiler v. Swarthy (74 Kan. 88, 88 Pac. 141), 494. DeA'ine v. Adamson (119 Pac. 247), 1297. Devine v. Harrison (1 Pac. 772), 1749. Dewy V. Kavenaugh (63 N. W. 396), 302. Dewy V. Montgomery ( 28 Ark. 256 ) , 569. Dexter v. Cochran (17 Kan. 447), 31. Dickens v. Crane (33 Kan. 344, 6 Pac. 630), 157. Dillon V. Cliicago (78 N. W. [Xeb.] 927), 136. Dillon V. Heller (39 Kan. 599, 18 Pac. 693), 56. Directors v. City (15 0. S. 409), 22. Dodson V. Weightman (49 Pac. 390), 301. Doe V. Brown (8 Blackf. [Ind.] 443), 73, 352. Doe V. Roe (7 Ohio. 71), 1112. Doe V. Wilson (23 How. 457), 1786, 1844. Dolan V. Wilkerson (48 Pac. 23), 297. Dolbeer, In re (149 Cal. 227), 620. Dole, In re (147 Cal. 188), 620. Dolin V. Buchanan (62 N. W. 233), 100. Doll V. Barr (58 0. S. 113), 138. Donovan, In re (140 Cal. 396), 619. Donovan's Estate (140 Cal. 390), 617. Donnovin, In re (140 Cal. 390, 73 Pac. 1081), 617. Doolittle, In re (153 Cal. 29), 615. Doran v. Daisy (5 N. D. 167, 64 N. W. 1023), 987. Dorsey v. McCartney (12 Pac. 104), 1286. Douglas V. Whittaker (32 Kan. 381, 4 Pac. 874), 804. Douglas V. Scott (5 Ohio, 195), 1178. Douglass V. Xuzum (16 Kan. 515), 1177. Dove V. Jewell (1 Foster [N. H.], 486), 76. Doyer v. Lamb (59 Ga. 461), 43. Drea v. Carrington (32 0. S. 595), 26, 33. Drovers v. Bank (19 Okla. 302, 91 Pac. 850), 486. Drovers v. Custar (19 Okla. 302, 91 Pac. 850), 309. Drooney v. Fanning (2 Johns. Ch. 252), 159. Drown V. Massey (92 Pac. 246), 111. Drummond v. Krebs (8 Kan. App. 186, 55 Pac. 478), 492. Duffy V. Raferty (15 Kan. 9), 1126. Duhme v. Maimer (18 C. C. 707), 1176, 1178. Dunklin v. Wilson (64 A. L. A. 162), 43. Dunlap V. McFarland (25 Kan. 488), 299. Ixxxviii TABLE OF CASES. [References are to sections.] Dunn V. Clauncli ( 13 Okla. 577, 76 Pac. 143), 292. Dunn V. Hazlitt (4 O. S. 435), 18. Dunn V. Yakesh (69 Pac. 926), 438. Dunn V. Haglett (4 0. S. 435), 33. Durelle v. Hinde (18 C. C. [Ohio] 618), 18. Durham v. Moore (48 Kan. 135, W Pac. 472), 64. Durousseau v. United States (6 Cranch, 307, 3 L. Ed. 232), 1736. Dutton V. Hobson (7 Kan. 196), 43, 44. Dwelling v. Osborne (40 Pac. 1089), 806. Dwight V. Pomeroy (17 Mass. 303, 9 Am. Dec. 148), 487. Dysart v. Enslow (7 Okla. 386, 54 Pac. 550), 810. Earl V. Godley (42 Minn. 361, 44 N. W. 254, 7 L. R. A. 125, 18 Am. St. 517), 1947. Earls V. Earls (27 Kan. 538), 92. Eastin v. McEvoy (75 Kan. 515, 89 Pac. 1048), 1011. Eaton V. Benton (34 Beaven, 496), 486. Eberville v. Leadville (28 Colo. 24, 64 Pac. 200), 450. Eddie v. LaFayette (163 U. S. 456), 31. Eddie v. Moore (23 Kan. 113), 309. Edson V. Parsons (155 N. Y. 555, 50 N. E. 265), 445. Edwards, In re (154 Cal. 91, 97 Pac. 23), 718. Edwards v. Brusha (10 Okla. 234, 90 Pac. 727), 1112, 1113. Edwards v. Fry (9 Kan. 417), 451. Egan V. Lunsden (2 Disney, 168), 292. Egan V. Lunsden (2 Disney [Oliio], 108), 287. Eggleston v. Wagoner (46 Mich. 610, 10 N. W. 37), 454. Egremont v. Egremont (2 DeG. N. & G.), 72. Egremont v. Same (2 DeG. M. & G. 730), 35. Elder v. Elder (10 Me. 80), 487. Ely V. McLaughlin (78 Mo. App. 57«), 505. Eldred v. Okmulgee (98 Pac. 929, 22 Okla. 742), 2119. Elred v. Okmulgee (22 Okla. 742, &8 Pac. 929), 765, 17343. Eldredge v. Robinson ( 87 Pac. 659 ) , 176. Eldredge v. Heston (7 C. C. 499), 461. Elemer v. Chicago (105 N. W. 987), 32. Elk V. Wilkins (112 U. S. 94), 1735. Elliott V. Leopard (52 Cal. 355), 340. Elliott V. Peirsol (26 U. S. 340, 7 L. Ed. 164), 87. Elliott V. Platter (43 0. S. 198), 41. El Reno v. Jennison (50 Pac. 144), 1020. Elwood V. Bank (21 Pac. 673), 1563. Emerson v. Thatcher (51 Pac. 50), 301. Emmett v. Bropley (42 0. S. 82), 1057. Engle V. White (104 Mich. 15, 62 N. W. 154), 440. Englebert v. Troxel (40 Neb. 145, 42 Am. St. 665), 357. English V. Williamson (34 Kan. 21.5, 8 Pac. 214), 152, 806. Ennesly v. Barnett (37 la. 15), 810. Enos V. Capps (12 111. 257), 76. Epperson v. Nugent (57 Miss. 45), 356. Equitable v. Detroit (97 N. W. 17), 477. Esisch V. Pmaha (62 N. W. 67), 32. Eufala V. Gibson (22 Okla. 507, 98 Pac. 565), 1736. Eureka v. Edwards (71 Ala. 248, 46 Am. Rep. 314), 82a. Evans v. Illis (7 0. S. 233), 45. TABLE OF CASES. Ixxxix [References are to sections.] Excelsior, etc., v. Boyle (26 Pac. 408), 138. Express v. Railroad (99 U. S. 191, 26 L, Ed. 319), 439. Fahy v. Esterly (55 N. W. 580), 475. Fair, In re (132 Cal. 523), 658. Fairbanks v. Weishaus (75 N. W. 865), 174. Fairrel v. Edwards (17 Okla. 427, 87 Pac. 900), 449. Fairy v. Davidson (44 Kan. 377, 24 Pac. 419), 348. Faller v. Davis (118 Pac. 382) 401. Fallow V. Butler (21 Cal. 24) 692. Falls V. Wright (55 Ark. 5G2) 593. Fame v. Bevens (189 Fed. 785) 1796. Farer v. Dean (24 Mo. 16), 443 Farm v. Detroit (12 Mich. 445) 483. Farmers v. Banes (90 N. W. 945) 178. Fatzo V. Swathey (111 Cal. 628) 677. Faust V. Territory (58 Pac. 728) 802. Fawcett v. Hill (118 Pac. 132) 1766. Fay, In re (145 Cal. 82), 607. Faye v. Fdmiston (28 Kan. 106) ^ 21, 171. Fearns v. Young (10 Ves. 184), 72 93, 351, 352. Federal v. Peeves (73 Kan. 101, 84 Pac. 500), 55. Federal Oil Co. v. Western (112 Fed. 373), 434, 439. Fen V. Big, etc. (13 0. S. 563), 45. Fenton v. White (4 Okla. 472, 47 Pac. 472), 170. Ferguson v. Blackwell (8 Okla. 489, 58 Pac. 647), 434, 436, 454. Ferguson v. Bro'mi ( 14 Okla. 148, 77 Pac. 184), 1017. Ferguson v. Crawford (70 N. Y. 253), 43. Ferguson v. Tuff (8 Kan. 370), 154. Fidelity v. Disederaus (26 0. S. 314), 155. Field V. Holbrook (6 Durer, 597), 1177. Fields V. Maloney (78 Mo. 172), 1120. Filley v. Cody (4 Colo. 117), 92. Fillmore v. Wells (15 Pac. 643), 73. Fillmore v. Wells (115 Pac. 343), 353. Finch V. Edminson (9 Tex. 504), 837. Finlev V. Abner (69 S. W. 911, 129 Fed. 734), 1818. First V. Eastman (77 Pac. 1043), 504. First, etc., v. Rogers (103 Pac. 582), 977. First V. Merc. Co. (110 N. W. 1006), 09. First National v. Farmer (61 Kan. 620, 60 Pac. 324), 160. First V. Gibson (94 N. W. 965), 174. First, etc., v. Avery (95 N. W. 622), 301. Fishburn v. Ferguson (84 Va. 87, 4 S. E. 575), 477a. Fisher v. Haxton (26 Kan. 155), 311. Fisher v. Railroad (173 N. Y. 500, 66 N. E. 395), 343. Fitch v. Miller (20 Cal. 352), 842, 845. Flanders v. McClenethan (24 Ta. 486), 483. Fhiger t. Reiss (3 Rawle, 345), 487. Flannigan v. Continental (34 N. W. 367), 100. Fleishman v. Walker (91 111. 318), 387. Flemming v. MoCurtain (215 U. S. 56), 1777. Ixxxx TABLE OP CASES. [References are to sections.] Fletcher v. Arnett (57 N. W. 915), 475. Fletcher v. Pamler (105 Pac. 500), 442. Flint V. Dunlavy (15 Pac. 208), 64. Flint V. Noyes (27 Kan. 351), 03. Flint V. Chalimpke (99 N. W. [Neb.] 825), 136. Flint V. Hubbard (56 Pac. 446), 348. Flugel V. Henschel (7 N. D. 270, 74 N. W. 996), 504. Fluker v. Emporia (30 Pac. 18), 1563. Fones v. Mann (18 N. W. [Neb.] 64), 60. Fong Yen Ting v. United States (149 U. S. 698, 37 L. Ed. 905), 1739. Fordick v. Barr (2 O. S. 471), 157. Fore V. Fore (2 N. D. 260, 50 N. W. 712), 1203. Foreman v. Carter (9 Kan. 674), 59, 154. Foster v. Field (13 Olda. 230, 74 Pac. 190), 504. Poster V. Cimarron (76 Pac. 144), 26. Foute V. Faewman (48 Miss. 536), 121. Fox V. Easter (10 Okla. 527, 62 Pac. 283), 452. Fox V. Easter (10 Okla. 527, 56 Pac. 283), 455. Framme v. Groff (42 Cal. 169), 1075. Francis v. Wells (4 Colo. 274), 92. Franklin v. Merede (50 Cal. 293), 114. Frazcr v. Soely (71 Kan. 169, 79 Pac. 1081), 1.52, 153. Fra/Jer v. Stenrod (7 la. 339), 836. Frederick v. Henderson (7 S. W. 186), 485. Freeman v. Allen (17 0. S. 527), 1201. Freemont v. Railway (92 N. W. 131), 46. French v. Poole (111 Pac. 488), 163. Frend, In re (73 Cal. 555, 15 Pac. 135), 742. Frenk v. Rowe (70 Cal. 296, 11 Pac. 820), 504. Fritz V. Fritz (16 0. S. 218), 1203. Frond V. Bevins, (187 Fed. — ), 1762. Fry V. Somers (4 Idaho, 424, 39 Pac. 1118), 1178. Fuller V. Wells (42 Kan. 551, 22 Pac. 561), 170. Funk V. Baker (21 Okla. 402, 96 Pac. 608), 942, 1204. Galbreath v. Same (5 Kan. 403), 451. Gallagher v. Connell (36 N. W. 566), 818. Galloway v. Robinson ( 19 Ark. 396), 561. Galpin v. Page (18 Wall. 350), 57. Galton V. Tolley (22 Kan. 472), 1129. Galusha v. Butterfield (2 Scam. 227), 92. Gamble v. Warner (16 0. S. 371), 41. Gano V. Prindle (50 Pac. 110), 964. Ciardner v. Kune (20 Okla. 784, 95 Pac. 242), 804. Gardner v. Hanes (19 S. D. 514, 104 N. W. 244), 505. Garret v. National (15 Okla. 226, '81 Pac. 422), 1563. Garrett v. Bean (51 Ark. 52), 560. (nirrctt V. London (15 Okla. 226, 81 Pac. 421), 1563. Garrett v. Struble (57 Kan. 508, 46 Pac. 943), 59. Garrett v. Walcutt (25 Okla. 574, 106 Pqc. 848), 1760, 1764. Garretaon v. Witherspoon (15 Okla. 473), 474. Garton v. Hudson (8 Okla. 631, 58 Pac. 946), 1069. Gates V. Gumbel (53 Mich. 181, 18 N. W. 631), 453. TABLE OP CASES. Ixxxxi [References are to sections. J Gatlin v. Dibrell (74 Tex. 36, 11 S. W. 908), 43. Gaudy v. Jolly (53 N. W. 650), — . Gault V. Pyles (19 Okla. 445, 92 Pac. 175), 433. Gault V. Stormont (51 Mich. 636, 17 N. W. 214), 454. Gault V. Pyles (19 Okla. 445, 92 Pac. 1761), 450. Gay V. Ballou (21 Am. Dee. 158),—. Geil V. Geil (64 Hun, 600, 66 Am. Dee. 773), 457. Gemont v. First (80 N. W. 48), 174. German v. First National, etc., (58 Kan. 86, 48 Pac. 592), 54. German v. Stickle (80 N. W. 409), 99. German v. Wright (6 Kan. App. 611, 49 Pac. 704), 29. Gerrin v. Greer (10 Ohio, 211), 17. Geter v. Ulerick (113 Pac. 713), — . Getts V. Friend (26 Pac. 473), 1015. Gherkey, hi re (57 Cal. 275), 620. Giddings v. Barney (31 0. S. 804), 1054. Gidney v. Chappell (110 Pac. 1105), 478. Gifken v. Graef (77 Ga. 340), 474. Giles V. Recanner (14 Daley, 475), 111. Gillett V. Romig ( 17 Okla. 324, 87 Pac. 325), 1055. Gill V. Haggerty (122 Pac. 641), 82a, 82b. Gill V. Pelky (54 0. S. 349), 147, 157. Gilliland v. Sellers (2 0. S. 223), 3, 87. Gilmore v. Asbury (64 Kan. 583, 67 Pac. 864),' 450. Gilmore v. Asbury ( 64 Kan. 388, 67 Pac. 864), 451. Gilmartin v. Urquart (1 So. 897), 485. Gilstrop V. Moore (26 Miss. 206), 836. Gladwell v. Hume (18 C. C. 843), 461. Glanny v. Langdon (98 U. S. 20), 374. Glass V. Hulburt (102 Mass. 24, 3 Am. Rep. 418), 487. Gleason v. Wood (26 Okla. 502, 114 Pac. 703), 1297, 1735. Glidden v. Joy (8 C. C. 157), 294. Goat V. United States (224 U. S. 761), 1835, 1836, 1837, 1838, 1839, 1840, 1841. Godard v. Donoha (42 Kan. 754, 22 Pac. 708), — . Goddard v. Harbour (56 Kan. 744, 44 Pac. 1055), 43. Goddard v. Harbour (56 Kan. 744, 44 Pac. 1055), 43. Godfred v. Godfred (30 0. S. 53), 45. Godfrey v. Iowa (21 Okla. 293, 95 Pac. 792), 1841. Godfrey v. Iowa (21 Okla. 293), 1739, 1750. Goff V. Cook (7 Paige, 52), 352. GoiT V. Russell (3 Kan. 212), 29, 31. Goff V. Cook (7 Paige, 52), 73. Goldsborough v. Hewitt (99 Pac. 907), 932. Goldtree v. McAllister (86 Cal. 93, 24 Pac. 801), 743. Goldtree v. Thompson (78 Cal. 613), 676. Gooden v. Buffalo (104 S. W. 94), 88. Goodenow v. Curtis (18 Mich. 298), 493. Goodman v. Buffalo (162 Fed. 823), 2129. Goodrum v. Buffalo (162 Fed. 817, 89 C. C. A. 525), 1929. Goodwin v. Same (56 Ark. 53'2, 20 S. W. 353), 580. Goodwin v. Same (59 Cal. 560), 617, 620. Gore V. Smith (102 Pac. 114), 60. Goundee v. Northampton (7 Barr, 278), 1201. Governor v. Titus (6 Paige, 347), 487. Gower v. Stimer (2 Whart. 75), 487. Ixxxxii TABLE OF CASES. [References are to sections.] Grafter v. Cummins (99 U. S. 100, 25 L. Ed. 366), 441. Granniff, In re (132 Cal. 1), 671. Graves, In re (6 Cal. App. 716, 96 Pae. 729), 742. Great, etc., v. Mosop (17 Com. B. 140), 89. Great v. Chicago (47 Kan. 672, 28 Pac. 714), 1021. Grebe v. Jones (18 N. W. 81), 292, 305. Greely v. Greely ( 12 Okla. 659, 73 Pac. 295), 981. Green v. Carson (32 Pac. 380), 752. Green v. Holmes (9 Kan. App. 886, 58 Pac. 128), 1274, 1275. Green v. Kendy (43 Mich. 279, 5 N. W. 297), 43. Green v. Morris (77 N. W. 925), 809. Greenless v. Roach (48 Kan. 503, 29 Pac. 590), 451. Greenmeyer v. Coate ( 12 Okla. 452, 72 Pac. 377), 29. Greenmeyer v. Coate ( 12 Okla. 452 ) , 813. Greenwell v. Evans (9 Okla. 359, 60 Pac. 249), 302. Greer v. McNeal (11 Okla. 519, 69 Pac. 891), 89. Gregley v. Jackson (30 Ark. 487), 556. Gregory, In re (133 Cal. 137), 619. Grewing v. Minnesota (80 N. W. 176), 477. Griffith V. Short (15 N. W. 335), 305. Grimes v. Chamberlin (43 X. W. 395), 94. Grissom v. Russell (9 N. W. 647), 92. Grizwold v. Plazard (26 Fed. 135), 485. Groom v. Wright (121 Pac. 214), 1736. Grosovosky v. Goldenberg (86 N. W. 378)," 78, 354. Gross V. Howard (52 Me. 192), 836. Grotts v. Xagel (69 X. W. 973), 317. Grouch V. Martin (47 Kan. 313, 27 Pac. 985), 57, 92. Grunless v. Roche (48 Kan. 503, 29 Pac. 590), 450. Grove v. Jennings (26 Pac. 738), 1177. Grumeyer v. Coate (11 Okla. 452, 72 Pac. 377), 811. Guaranty v. Bladow (176 U. S. 448, 44 L. Ed. 540), 1780. Guest v. Ramsey (33 Pac. 17), 317. Guilfoile, In re (86 Cal. 594), 628. Gulf V. James (48 Fed. Rep. 148, 1 C. C. A. 53), — . Gury v. Tannenwald (18 Ohio, 481), 295. Guss V. Xelson (14 Okla. 296, 78 Pac. 170), 477. Guthrie v. Anderson (41 Kan. 383, 28 Pac. 164), 450, 452. H Haas V. Whittier (97 Cal. 411), 505. Plackett V. Lathrop (36 Kan. 661, 14 Pac. 220), 62. Hagen v. Webb (65 Kan. 38, 68 Pac. 1096), 1211. Hager v. Schnidler (29 Cal. 47), 1177. Hager v. WykofT (2 Okla. 580), 954. Ilahnes v. I>ovey (98 X. W. 631), 120. Hale v. Hogland (62 Kan. 57, 61 Pac. 314), 64. llalims V. Dovoy (89 X. W. [Xeb.] 631), 136. Hall v. Hall (32 0. S. 184), 1112. Hall v. Dodge (18 Kan. 277), 1130. Hall V. Powell (8 Okla. 276, 57 Pac. 158), 1064. Hall v. Powell (8 Okla. 276), 388, 933. llalloway v. McElhenny (17 Tex. 651), 352. Halloway v. Mcllhanney (17 Tex. 657), 73. Halsel V. Renfew (4 Okla. 67, 78 Pac. 121), 454. TABLE OP CASES. Ixxxxiii [References are to sections.] Halsell V. Renfrew ( 14 Okla. 674, 78 Pac. 123), 451. Halsey v. Van Fleet (29 Kan. 501), 154. Hamacker v. Bank (95 Wis. 359, 70 N. W. 295), 74. Hamilton, In re (120 Cal. 421), 621. Hamilton v. Wilson (CI Kan. 428, 59 Pac. 1068), 133. Hamlin v. Wheeler (25 S. W. 822), 355. Hammerslaugh v. Hackett (30 Kan. 57, 1 Pac. 41), 62. Hammerslow v. Hackett ( 1 Pac. 41 ) , 1286, 1293. Hammerslow v. Hackett (30 Kan. 57, 1 Pac. 41), 1060. Hammond v. Davenport ( 16 O. S. 182), 88. Hammond v. Davenport (16 0. S. 177), 58. Hancock v. Mutual (24 Okla. 391, 103 Pac. 566), 1792. Hancock v. Ury (25 Okla. 460, 106 Pac. 841), 1061. Hancocks v. Mutual (24 Okla. 391, 103 Pac. 566), 1740. Hannencrab v. Hamill ( 10 Okla. 1, 61 Pac. 1050), 1126. Hannibal v. Kreally (39 Kan. 1, 17 Pac. 324), 58. Harding v. Guaranty (43 Pac. 385), 297. Harding v. Guaranty (43 Pac. 835), 305. Harding v. Handy (11 Wheat. 103, 6 L. Ed. 429), 477a. Harding v. Wheton (2 Mason, 378), 477a. Ham V. €ole (20 Okla. 553, 95 Pac. 415), 101, 102. Harnbeck v. Cincinnati (20 0. S. 81), 1112. Harper v. Crawford (18 Ohio, 13), 1112. Harrel v. Neef (102 Pac. 838), 152. Harrell v. Neefe (102 Pac. 838), 446. Harrell v. Neff (102 Pac. 838), 460. Hays V. Bank (W. 563), 41. Harris v. Claflin (36 Kan. 543, 13 Pac. 830), 92. Harris v. Claflin (36 Kan. 543, 13 Pac. 830), 59. Harris v. Claflin (36 Kan. 543, 13 Pac. 830), 57. Harris v. Claflin (36 Kan. 543, 13 Pac. 830), 50. Harris v. Claflin (36 Kan. 543, la Pac. 830), 59. Harris v. Same ( 36 Barb. 88 ) , 89. Harris v. Gale (188 Fed. 792), 1889. Harris v. Gale (188 Fed. 712), 1795. Harris v. Hardredge (162 Fed. 109), 1762. Harris v. Lind (29 Okla. 362), 1762. Harrison v. Andrews (18 Kan. 537), 154. Harrison v. Beard (30 Kan. 532, 2 Pac. 632), 59. Harrison v. Beard (30 Kan. 532, 2 Pac. 632), 57. Harrison v. Beard (30 Kan. 532, 2 Pac. 632), 59. Harrison v. Carbon (14 Wyo. 246), 18. Harrison v. Cochelm (35 Mo. 79), 152. Harrod v. Benke (76 Kan. 906, 92 Pac. 1128), 1146. Harrod v. Burke (76 Kan. 909, 92 Pac. 1128), 70. Hart v. Church (26 Cal. 471), 933. Hart v. Johnson (6 Ohio, 87), 1275. Hartshorn v. Smart (67 Kan. 543, 73 Pac. 73), 450. Harvey v. Coding (109 N. W. 220), 165. Harvey v. Godding (109 N. W. [Neb.] 220), 136. Hassam v. Barrel (115 Mass. 56), 1075. Hathaway v. Davis (32 Kan. 693), 1012. Hawkins v. Oklahoma ( 195 Fed. 345), 1758. Hawkins v. Overstreet (7 Okla. 277, 54 Pac. 472), lU. Hawkins v. Stevens (97 Pac. 568), 1743. Ixxxxiv TABLE OF CASES. tReferenees are to sections.] Haj'den v. Wescote (11 Conn. 129), 1279. Hayman v. Beverstock (8 C. C. 474), 295. Hayman v. Beverstock (8 C. C. [Ohio] 447), 287. Hayne v. Webb (65 Kan. 38, 68 Pac. 1096, 93 Am. St. Rep. 276) , 1120. Haynes v. Hayden (95 Mich. 347), 619. Hays V. Barringer (168 Fed. 220), 712b. Haywood v. Association (11 Pac. 246), 1114. Haywood v. Same (81 N. C. 42), 836. Head v. Daniels (38 Kan. 1), 18. Head v. Daniels (15 Pac. 911), 157. Head V. Daniels (15 Pac. 911), 60. Heads t. Simms (29 Ind. 574), 148. Hearst v. Sawyer (37 Pac. 817), 1130. Hearst v. Sawyer ( 12 Okla. 470, 37 Pac. 817), 1116. Hebissen v. Hatchell (12 Okla. 29, 69 Pac. 888), 1138. Heclcman v. United States (224 U. S. 427), 1735. Heckman t. United States (224 U. S. 434), 1797. Heirs v. Dodge (18 Kan. 277), 1130. Heliker v. Lincoln (123 Pac. 198), 1843. Hell V. Allison (100 Pac. 651), 1169. Helmig V. Meyer (8 N. P. 31), 1200. Hempy v. Ransom (33 0. S. 312), 93. Henderson v. Brown (11 Okla. 41, 65 Pac. 935), 289. Hendrix v. Fuller (7 Kan. 332), 33. Henry Gas Co. v. United States (191 Fed. 133), 1820. Henry v. Same (103 Okla. 582), .356. Henry v. Henry (103 Ala. 582), 74. Hentig v. Pifer (28 Kan. 788, 51 Pac. 229), 1112. Hentig v. Sperry (38 Kan. 459, 17 Pac. 42), 1016. Herbage v. Feme (91 N. W. [Neb.] 40'8), 136. Herbaiigh v. Vance (5 Lea, 113), 352. Herbaugh v. Vance (5 Lea [Tenn.], 113), 73. Herbert v. Stanford (12 Ind. 503), 478. Hermon v. Hays (78 N. W. 365), 317. Hesler v. Coldron (116 Pac. 787), 152. Hess V. Trig (8 Okla. 286, 51 Pac. 159), 1069. Hester v. Coldesee ( 116 Pac. [Okla.] 787), 152. Hewitt V. Goldenberg (29 Okla. 667), 1175a. Hewitt V. Cox (55 Ark. 225), 569, 594. Heyl V. Redden (45 Kan. 562, 26 Pac. 2), 1274. Hickey v. Stewart (44 U. S. 750, 11 L. Ed. 814), 87. Higgins V. Parsons (65 Cal. 280, 3 Pac. 881), 493. Hildebrandt v. Nelson (95 N. W. 1068), 70. Hill V. Stewart (23 Kan. 397), 133. Hill V. Harding (193 111. 77), 1736. Hill V. Mitchell (5 Ark. 608), 592. Hilton V. Ross (2 N. W. 862), 302. Hilton V. Advance (66 N. W. 816), 475. Hinton v. McNeal (5 Ohio, 509), 89. Hiss V. McCabe (45 Md. 77), 1279. Hittell, In re (141 Cal. 432), 682, 689. Hobbs V. Spencer (49 Kan. 569, 31 Pac. 702), 1020. Ilobbs V. Spencer (49 Kan. 569, 31 Pac. 702), — . Hockaday v. Drye (7 Okla. 288, 54 Pac. 475), 507. Hockaday v. Jones (8 Okla. 156, 56 Pac. 1054), 57. TABLE OF CASES. Ixxxxv [References are to sections.] Hockeney v. McKee (12 Okla. 401), 1138. Hodenfelt, hi re (106 Cal. 434), 693. Hodges V. Winston (36 Am. St. 241), 933. Hofer V. Same (33 Kan. 449, 6 Pac. 537), 1204. Hogg V. Burman (41 0. S. 81), 1198. Hohndan v. Janis (42 Kan. 758, 21 Pac. 591), 450. Holcomb V. Dowe (16 Kan. 378), 451. Holcomb V. Thompson ( 50 Kan. 598, 32 Pac. 1091), 490. Holden v. Hoyt (134 Mass. 181), 474. Hollister v. Abbot (31 N. Hamp. 448, 64 Am. Dec. 342), 89. Hollenbeck v. Ess (31 Kan. 871, 1 Pac. 275), 1117. Hollenback v. Ess (31 Kan. 88, 1 Pac. 275), 1274. Hollenstein v. Conners (9 Kan. 437), 1563. Holloway v. American (89 N. W. 382), — . Holly V. Robinson (16 K W. 438), ^1292. Holman, In re (42 Ore. 345), 620. Holra V. Harrington (22 Okla. 590, 98 Pac. 443), 1060. Honce v. Scram (85 Pac. 539), 173. Hook V. Bixby (13 Kan. 164), 806. Hooks V. Kennard (28 Okla. 457, 114 Pac. 744), 1758, 1759. Hop V. Bane (21 Okla. 177, 93 Pac. 765), 505. Hope V. Boneland (21 Okla. 864), 583. Hope V. Bourland (21 Okla. 864, 98 Pac. 580), 486. Hope V. Jones (24 Cal. 90), 757. Horback v. Snively (74 K W. 623), 120. Horner v. Railway (38 Wis. 165), 1114. Horner v. Nownce (21 Okla. 864, 98 Pac. 580), 486. Horst V. Lewis (98 K W. 1046), 33. Horton v. Haines (23 Okla. 878, 102 Pac. 121), 1057. Horton v. Hames (23 Okla. 878, 102 Pac. 121), 32. Horton v. Hilliard (58 Ark. 298), 569, 583, 584. Horton v. State (88 N. W. 146), 94. Houck V. Lumm (77 N. W. 51), 94. Houghton V. Ball (70 la. 314, 30 N. W. 577), 977. Houston V. Clark (36 Kan. 412), 13 Pac. 739), 88. Houston V. Same (67 Ind. 276), — . Hove V. Parker (18 Okla. '282, 90 Pac. 15), 94. Howard v. Entrekin (24 Kan. 429), 164. Howard v. Farrar (28 Okla. 490, 114 Pac. 695), — . Howard v. Levering ( 8 C. C. [Ohio] 614), 18. Howard v. Osceola ( 22 Wis. 454 ) , 341. Howe V. ISDner (28 Kan. 441), 121. Hubbard v. Ogden (22 Kan. 671), 164. Hubbard v. Jones (61 Kan. 722, 60 Pac. 743), 71. Huber v. Johnson (64 Am. St. 456), 346. Hubert v. Wortendyke (68 N. W. 350), 21. Huckley, In re (58 Cal. 487), 1251. Huggins V. Daley (99 Fed. 606. 40 C. C. A. 12,' 48 L. R. A. 320), 439. Hughes V. Housel (50 N. W. 1127), 81. Hull V. Caldwell (54 N. W. 700), 475. Humphreys v. Hoffman (33 0. S. 395 )i 93. Hunnaker t. Bank (95 Wis. 359, 70 X. W. 205), 356. Hunt V. Xalvado (89 Cal. 636, 27 Pac. 56), 357. Ixxxxvi TABLE OF CASES. [References are to sections.] Hunter v. Stoneburner (92 111. 75), 43. Huron v. George (18 Kan. 253), 508. Husted V. Van Ness (158 N. Y. 104), 493. Hutchinson v. Hutchinson ( 15 Ohio, 301), 136. Hutchinson v. Meyers ( 52 Kan. 290, 35 Pac. 732), 111. Idem V. Finnegan (50 N. W. 933), 81. Ikard v. Bean^ers (106 Ind. 483, 7 N. E. 326), 477a. Independent v. Werner (43 la. 643), 121. Indian v. Wooten (48 Fla. 271, 37 So. 731), 483. Ingram v. McGraw (3 Kan. 521), 43. Insurance v. Rande (2Q N. J. Eq. 389), 1014. Interstate v. BaiVd (194 U. S. 25), 1885. lona V. Blair (56 Kan. 430, 43 Pac. 686), 156. Iowa V. Whistler ('87 N. W. 538), 147. Irving V. Diamond (23 Okla. 325, 100 Pac. 557), 1749, 1758, 1759. Israel v. Nichols (14 Pac. 438), 182. Ives V. Williams (50 Mich. 106, 15 N. W. 36), 955. Jacks V. Dyer (31 Ark. 334), 593. Jackson v.^King (02 Kan. 850, 62 Pac. 655), 165. Jackson v. Rerk (98 N. W. 1068), 1128. Jackson v. Stearns (84 Pac. 790), 348. Jackson v. Tenny (17 Okla. 495), 37. Jackson v. Tliompson (38 Wash. 282, 80 Pac. 4.54), 1740. Jacobsin v. Lynn (75 N. W. [Neb.] 243), 17* Jacobsin v. Miller (41 Mich. 90), 89. James, In re (65 Cal. 25), 703. James v. Germania (46 C. C. A- 476), 1763, 17G4. James v. Marshall (43 Pac. 840), 43. Jarrell v. Jarrell (19 Okla. 467, 92 Pac. 167), 1012. Jarrett v. Hoover (72 N. W. 429), 166. Jarvis v. Sultan (26 Pac. 416), 1015. Jefferson v. Winkler (26 Okla. 653, 110 Pac. 755), 82b, 83a, 384, 1738, 1297. Jeffry v. Graham (61 Fed. 48), 1114. Jeffry v. Wolf ( 10 Okla. 312, 33 Pac. 945), 287, 294. Jenks V. School, etc. (18 Kan. 356), 69. Jenks V. McGowan ( 9 Okla. 306, 60 Pac. 892), 412. Jenkins v. Frazer (64 Kan. 267, 67 Pac. 854), 493. Jenkins v. Mosier (22 Kan. 562), 163. Jennings v. Bro^vn (20 Okla. 294, 94 Pac. 557), 1126. Jewell V. Morris (21 Kan. 734), 34. John V. Strause (60 Kan. 136, 55 Pac. 845), 70. John Hancock v. Dick (14 Mich. 337, 72 N. W. 179), 474. •Tohnson, In re (152 Cal. 758), 620. Johnson, In re (57 Cal. 529), 628. Johnson, In re (57 Cal. 129), 618. Johnson v. Bannadi (52 N. W. 1057), 477. Johnson v. Barteck (76 N. W. 878), 317. Johnson v. Board (12 N. W. 237), 345. ' Johnson v. Brown (74 Kan. 346, 86 Pac. 503), 1203, 1205. .Tohnson v. Burdette (7 Kan. App. 134, 53 Pac. 87), — . Johnson v. Hardy (61 N. W. 624), 1128. TABLE OF CASES. Ixxxxvii [References are to sections.] Johnson v. Johnson (30 Mo. 72, 77 Am. Dec. 598), 1947. Johnson v. Knight (53 Ark. 255), 566. Johnson v. Lindsaj' (27 Kan. 514), 154. Johnson v. Maj' (68 N. W. 1032), 292. Johnson v. Pfeil (9 Ves. 357), 351. Johnson v. Pfeil (9 Wis. 357), 72. Johnson v. Rawles (58 N. W. 142), 115. Johnson v. Weatherwax (9 Kan. 75), 302. Jonesi V. Bolles (9 Wall. 364), 474. Jones V. Duff (95 N. W. 1), 348. Jones V. Lapham (15 Kan. 540), 1055. Jones V. McGinder (87 A'a. 360, 12 S. E. 792), 477a. Jones V. Marshall (43 Pac. 840), 43. Jones V. Meehan (175 U. S. 1), 1786, 1841. Jones V. Minoque (29 Ark. 638), 558. Jones V. Seawell (13 Okla. 711, 70 Pac. 154), 810. Jones V. Smith (22 Mich. 360), 1177. Jones V. Timmons (21 0. S. 896), 1112. Jones V. United States (96 U. S. 24, 24 L. Ed. 644), 442. Jones V. Warren (134 M. C. 390), 493. Jordan v. Dewy (59 N. W. 88), 317. Joyce V. McAvoy (31 Cal. 274), 1178. Judson V. Lyford (84 Cal. 505, 24 Pac. 286), 504, 505. Kahn v. Mahai (115 Cal. 689, 47 Pac. 678), 57. Kallen v. Ellison (13 0. S. 455), 90, 91. Kansas v. Christianberry (8 Kan. 160), 1293. Kansas Indians (5 Wall. 737), 2129. Kansas v. Sherman (3 Okla. 204, 41 Pac. 623), 987. Kansas v. Thatcher (17 Kan. 92), 50, 348. Kansas v. Walker (22 Pac. 365), 94. Kaufman, In re (117 Cal. 259), 617. Kearney v. Aspinwall (63 X. W\ [Neb.] 826), 146. Keen v. Settenback (18 N. W. 75), 56. Keeper v. Yoacum (114 Pac. 1064), 440. Kellen v. Nebraska (70 Kan. 83, 78 Pac. 159), 136. Kelley, In re (22 Cal. 379, 55 Pac. 136), 757. Kelley v. McGuire (17 Ark. 580), 1787. Kelly V. McBlain (6 Kan. App. 523, 50 Pac. 963), 64. Kelly V. McGuire (15 Ark. 556), 554, 560, 561. Kelly V. Todd (5 Okla. 360, 49 Pac. 353), 29. Kelly V. Vincent (8 0. S. 420), 133. Kelly V. Rogers (21 ]Minn. 146), ni. Kelly's Estate ( 1 Abb. New Cases, 102), 836. Kemble v. Story (108 Mass. 382), 1753. Kemper v. Fiscal (4 Okla. 250, 44 Pac. 205), 294. Kendricks, In re (130 Cal. 360), 616. Kendall v. August (32 Pac. 635), 317. Kent V. Beaver (43 Am. Rep. 725), 341. Kennedy v. Bogart (7 Serj. & R. P. A. 97), 1278. Kennedy v. Embry (72 Tex. 387, 10 S. W. «8), 478. Kennedy v. Hazleton (128 U. S. 667, 9 Sup. Ct. 202, 32 L. Ed. 576), 443. Ixxxxviii TABLE OF CASES. [References are to sections.] Kennedy v. Northrup (15 111. 148), 1177. Kerney v. Harris (3 Ind. Ter. 487, 58 S. W. 507), 41. Kershaw v. Wiley (98 Pac. 909), 588. Key V. Ewing (87 Pac. 297), 1081. Key Kendall v. Clinton (3 Kan. 78), 813. Keys V. Lardiner (59 Kan. 545, 55 Pac. 758), 484 Kid -v. Weifert (11 Okla. 52, 05 Pac. 931), 292. Kilgore v. Rich (12 L. R. A. 800), 356. Kill, In re (72 Cal. 131), 620. Kilpatrick v. Brehmer (62 X. W. 1105), 317. Kincaid v. Froy (49 Kan. 700, 31 Pac. 704), 03. King V. Bishop (44 0. S. 221), 93. King V. Carpenter (37 Mich. 303), 1177. King V. Hcalt (51 Kan. 504, 32 Pac. 1105), 1274. King V. King (36 Ala. 207), 441. Kingsborough v. Towsley (50 0. S. 450), 88, 89, 91. Kingsley v. Bagsley (2 Kan. App. 23, 41 Pac. 99i), 165. Kinsman v. S|>okane (20 Wash. 118, 72 Am. St. Rep. 24), 1178. Kinsey v. Burgess (4 N. P. 273), 22. Kirby v. Harrison (2 0. S. 320, 59 Am. Dec. 677), — . Kirby v. Ventres (30 Ark. 368), 569. Kirk V. Boling (20 X. W. 928), 1128. Kirk V. Keester (11 Kan. 471), 174. Kirkpatrick v. Burgess ( — Okla. Kirkpatrick v. Burgess (IKi Vac. 764), 1822. Kirkwood v. Reedy (10 Kan. 453). 43, 44. Kiser v. Sawyer (4 Kan. 503), 174. Kittle V. Bellagardie (86 Cal. 550, 25 Pac. 555), 1178. Klaer v. Ridgeway (86 Pa. 529). 1834. Kline t. Camp (49 Kan. 114, 30 Pac. 175), 145. Knappen v. Freeman (47 Minn. 491, 50 X. W. 533), 478. Knickerbocker v. De Frust (2 Paige, 804), 76. Knight V. Atchison (2 Tenn. 384), 89. Knight V. Indian (47 Ind. 105, 17 Am. Rep. 692), 439. Knowles v. Sells (41 Kan. 171, 21 Pac. 102), 977. Knox V. Bowersox ( 6 C. C. [Ohio] 275), 24. Knox V. Jenks (7 Mass. 488), 836. Koehler v. Ball (2 Kan. 160), 154, 156. Koelsch V. Mixer (52 0. S. 207), 3. Koelsch V. Mixer (52 0. S. 207), 85, 87. Koger V. Bonner (45 X. Y. 379), 121. Kogle V. Kennedy (119 Ala. 664), 619. Kohler, In re (21 Pac. 758), 620. Kolatcheney v. Galbreath (110 Pac. 902), 433, 439, 1115. Kountze v. Scott (72 X. W. 585), 517. Kraner v. Forrester (42 W. L. B. [Ohio] 199), 18. Krusclla V. De Camp (15C. C. 494), 114. Kugan, In re (139 Cal. 123), 617. Kushaw V. Willing (22 Okla. 677, 98 Pac. 908), 412. Kuttor V. Brushart (4 Kan. 120), 154. Kyle V. Freley ('81 Wis. 67, 51 X. W. 257), 493. Kyle V. Exchange (76 X, W. [Xeb.] 1058), 21. Lackey v. Wilson (63 Kan. 881, 64 Pac. 978), 64. Ladd, In re (94 Cal. 670), 661, 002. LafTerty v. Edwards (17 Okla. 247, 87 Pac. 304), 385. La Master v. Elliott (73 X. W. 925), 1503. TABLE OF CASES. Ixxxxix [References are to sections.] Lamb v. Baker (27 Okla. 739, 117 Pac. 189), 1759. Lamb v. Boyd (4 C. C. 501), 1179. Lamb v. Gregory (11 K W. 755), 93. Lamb v. Sherman (28 N. W. [Neb.] 319), 157. Lambert v. Sample (25 0. S. 36), 41. Lammee v. Railroad (25 Hun, 4G7), 450. Lemmerville v. Stockton (142 Cal. 129, 76 Pac. 243), 505. Lamont v. Holmes (10 W. L. E. 413), 25. Lamont v. Holmes (10 W. L. B. [Ohio] 414), 18. Lamott V. Washington (47 Am. Rep. 265), 341. Lampkin v. Chesom (10 0. S. 451), 93. Landes v. Brandt (10 Howe, 384, 13 Law Ed. 449), 1750. Landnegan -v. Peppin (94 Cal. 465, 29 Pac. 771), 1178. Landrum v. Graham (98 Pac. 432), 1827. Lane v. Tendon (11 Okla. 61, 65 Pac. 926), 296. Langdon v. Blackburn (109 Cal. 19), 621. Langford, In re (108 Cal. 608), 617. Lannier v. Kelly (10 Kan. 299), 296. La Revera v. La Revera (77 Mo. 512), 1947. Larimer v. Clemner (41 0. S. 449), 32. Larkmire, In re (135 Cal. 28), 658. Larmie v. Schilling (25 Kan. 92), 165, 180. Larmer v. Kelly (19 Kan. 299), 292. Larreson v. Wilbur (47 N. W. 38), 447. Larribre v. Larks (23 Pac. 598), 300. Larrimer v. Knoyle (43 Kan. 346, 23 Pac. 487),"^ 58. Latham v. Udell (38 Mich. 238), 617. I^atour, In re (140 Cal. 414), 520. Lathrop v. Bryant (2 Bing. [N. C] 735), 455. Laughlin v. Farriss (50 Pac. 254), 1126. Laughlin v. Peckham (66 la. 121, 23 N. W. 294), 92. Lawrence v. Estes (116 Pac. 781), 1179. Lawrence v. Simpleman (37 Ark. 643), 1177. Lawton v. Gordon (34 Cal. 36, 91 Am. Dec. 670), 504. Lawton v. Nicholas ( 12 Okla. 550, 73 Pac. 263), 34. Lawton v. Nicholas- (12 Okla. 550, 73 Pac. 263), 32. L. Briton v. Cook (107 Cal. 410), 667. Leavenworth v. Stone (60 Kan. 57, 55 Pac. 346), 59. Leese v. Potter (68 Kan. 117, 74 Pac. 622), 450. Lemert v. Clark (1 C. C. [Ohio] 571), 155. Lemert v. Moors (8 Kan. 143), 1171. Lemon, In re (92 Pac. 870), 620. Lengen v. Gates (26 Kan. 135), 178. Lenk v. Cambell (104 N. W. 940), 1142. Leroy v. Sidell (62 Kan. 349, 63 Pac. 599), 52. Lessee of Darby v. Carson (9 Ohio, 149), 133. Lessee v. Dibble (10 Ohio, 434), 157. J>essee v. Emerech (6 Ohio, 391), — . Lessee v. Longw'orth (11 Ohio, 236), 157. lessee V. Loring (17 0. S. 423), 91. Lessee v. Loring (17 O. S. 425), 287. Lessee v. McCoy (8 Ohio, 128), 157. lessee V. McCoy (8 Ohio, 128), 157. Lessee v. Noelton (1 Ohio, 278), 155. Lessee v. Reed (5 Ohio, 221), 137. TABLE OP CASES. [References are to sections.] Lessee v. Saver (2 Ohio, 110), 1199. Lessee v. Whitman (2 0. S. 270) , 90. Lemcock v. Bank (14 Kan. 529), 58. Lepp V. Hunt (45 N. W. 685), 822. Levenford v. Rogers (25 Cal. 233), 505. Lewin V. Hearth (74 N. W. 274), 1142. Lewis, In re (35 Pac. 237), 1563. Lewis V. Atherton (5 Okla. 90, 47 Pac. 617), 71. Lewis V. Clements (95 Pac. 771, 21 Okla. 231), 2118. Lieberman v. Douglas ( 62 Kan. 786, 64 Pac. 591), 57. Light V. Conover (63 Pac. 966, 10 Okla. 732), 2119. Ligon V. Johnson (164 Fed. 670), 1297, 1778. Limmick v. Ketchem ( 17 Okla. 532, 87 Pac. 605), 1011, 1013. Little V. Webster (1 N. Y. Sup. Ct. 315), 485. Littleton v. Chambers (27 la. 522), 57. Livermore, In re (132 Cal. 99, 84 Am. St. 99, 64 Pac. 133), 842. Livingston v. Cochran (33 Ark. 296), 569, 593. Loades v. Hood L29 Kan. 39), 174. Lock V. Showell iS^l N. W. 572), 813. Logan V. Hale (42 Cal. 645), 121. Long V. Adams (71 Kan. 309, 80 Pac. 16), 1017. Long v. Fife (45 Kan. 271, 25 Pac. 595, 45 Kan. 271, 25 Pac. 594, 23 Am. St. Rep. 274), 59. Long v. Long (142 N. Y. 545), 836. Ixjng V. Milford (17 O. S. 503), 76. T^newolf v. Hitchcock (187 N. S. 553), 1297. Lonewolf v. Hitchcock (187 U. S. 565), 2129. Lonewolf v. Hitchcock (187 U. S. 553, 23 Sup. Ct. 216), 1735, 1739. Loreg V. Mulford j 17 0. S. 484), 112. Loudenback v. Collins (4 0. S. 251), 89. Louis V. Clements (21 Okla. 167, 95 Pac. 796), 1181. Louis V. Omaha (114 N. W. 280), 345, 348. Love V. Arnette (109 Pac. 553), 932. Lovell V. McGaughy (66 N. W. 1085), 477. Jiving V. Illesy (1 Cal. 27), 84. Lowe V. Fisher (223 U. S. 95), 1797. T^we V. Staples (2 Nev. 209), 1177. Ix)wemiller v. Fouser (52 0. S. 123), 1178. Lowenstein v. Lexton ( 18 Okla. 322, 90 Pac. 410), 1138. Lowenstein v. Young (8 Okla. 216), 71. Lowry v. Ferd (3 Barb. Ch. 407), 451. Tvoyd V. Carew (— L. Eq. C. A. Abr. 260), 351. Loyd V. Carew (— L. Eq. C. Abr. 260), 72. Loytze v. Herschelrode (20 0. S. 334), 904. Luck V. Sheper (10 N. W. 409), 809. Lukens v. Aird (6 Wall. 78, 18 L. Ed. 750), 505. Lushington v. Sewell (6 Mad. 28), 72, 351. Luton V. Cooper (106 N. ^^\ 170), 94. Lyall v. Sheney (13 Pac. 815), 1060. Lynch v. Hinkey (13 HI. App. 139), 836. Lynn v. Allen (145 Ind. 5S4), 152. McAllister v. Dooy (5 X. P. 274), 295. IVLcAllister v. Hartzell (60 0. S. 83), 1142. INIcAlHster v. Walker (9 Minn. 535, 41 N. W. 107), 111. TABLE OF CASES. CI [References are to sections.] McAlpine v. Feslewald (57 0. S. 524), 91. MoAnarney v. Caughenaur (9 Pac. 47G), 26. McAuley, In re (138 Cal. 432), 66 1', 662. McBride v. Steinweden (83 Pac. 822), 1135, 1278. McBride v. Steinweden (72 Kan. 508, 83 Pac. 822), 1116, 1274. McBride v. Lathrop (38 N. W. 32), 178. McBrien v. Riley (57 N. W. 388), 99. McCabe, In. re (68 Cal. 519), 62S. McCairy v. Wall (51 Pac. 293), 101. McCarty, In re (58 Cal. 335), 731. McClung V. Cullison ( 15 Okla. 402, 82 Pac. 494), 1055. McClung V. Hohl ( 10 Kan. App. 93, 61 PaiC. 507), 70. McClung V. Penny (11 Okla. 477, 69 Pac. 499),' 803. JMJcClurg V. Penny (12 Okla. 303, 70 Pac. 404)", 1112, 1289. McCord V. Bowen (70 N. W. 950), 317. McCormick v. Coch (8 Okla. 374, 58 Pac. 626), 111. McCormick v. Cummins (59 Neb. 330), 18. McCormic v. Woulph (11 S. D. 252, 76 N. W. 929 ) , 493. McCourtney v. McGavill (23 Wis. 622), 341. McCracken v. Flannegan ( 127 N. Y. 493, 28 N. E. 385, 24 Am. St. Ilep. 481), 57. McCrane v. Creighton (107 N. W. 240), 112. >IcCue V. Hecker (51 Pac. 966), 1011. McCue V. Oharra (5 Redf. 356), 352. McCullough V. Finley (69 Kan. 705, 77 Pac. 696), 1203. ]VIcCune v. Snyder (8 0. S. 316), 1009. McDevit, In re (95 Cal. 33, 30 Pac. 101), 616, 617. :\rcDevitt, In re (95 Cal. 17), 620. McDevitt, In re (95 Cal. 26), 619. McDonald v. McElroy (60 Cal. 484), 692. :\rcDonald, In re (18 Cal. 277), 720. McDonald v. Cooper (32 Fed. Rep. 745), 57. McDonald v. Hoover ( 142 Mo. 484, 44 S. W. 334), 505. McDonald v. McElroy (60 Cal. 484), 217. McDonald v. McQuart (73 N. W. 288), 317. McDonald v. Stiles (7 Okla. 327, 54 Pac. 487), 809. McDonald v. Stites (54 Pac. 484), 803. McDonnell v. Steel (87 Ala. 493, 6 So. 288), 505. McFarland v. Grober (70 Ark. 371), 554. McFarland v. Nets (4 W. B. 1064), 295. McGonigal v. Gordon (11 Kan. 168), 309. McGreal v. Taylor (167 U. S. 68S), 82a. McHarry V. Eatman (116 Pac. 935), 1148. McKay, In re (107 Cal. 303), 691. M«Kebben v. Newell (41 111. 461), 1278. McKee v. Cobalt (71 Kan. 772, 81 Pac. 475), 64. McKee v. Hunt (77 Pac. 1104), 356. McKee v. Sewall (16 N. W. [Neb.] 827), 21. McKeenon v. Pentacost (8 Okla. 117, 56 Pac. 958), 1562. ]\IcKelvey v. Same (75 Kan. 325, 89 Pac. 663), 1112. McKennon v. Nixon (128 Ala. 612, 29 So. 690), 450. McKibben v. Day (98 N. W. 845), 18. McKibben v. Day (98 N. W. 844), 33. McKinney, In re (112 Cal. 447, 44 Pac. 743), 743. :\rcKinney v. Pursell (28 Kan. 446), 309. !cii TABLE OF CASES. [References are to sections.] McKune, In re (143 Cal. 580, 77 Pac. 461), 616. ]McLain v. Jones (60 Kan. 639, 57 Pac. 335), 809. McLane v. Webster (26 Pac 10), 1283. McLaughlin v. Houston (120 Pac. 659), 152. McLean v. Kelly (11 Okla. 26, 66 Pac. 282), 152. McLean v. Placerville (66 Cal. 606), 1561. McLean v. Swofford (11 Okla. 429, 68 Pac. 502), 154. McMillen v. Robbing (5 Ohio, 28), 1112. McMuck V. Northwest (23 Okhv. 386, 100 Pac. 524), 475. McNeal v. Eddie (24 Kan. 109), 43. McNeal v. E-ddy (24 Kan. 108), 43, 92. McNee v. Sewell (16 N. W. 824), 170. McNutt V. Mellins (82 Kan. 424, 108 Pac. 434), 442. McQuestion v. Walton (12 Okhi. 130, 69 Pac. 1038), 809. McVeigh v. Ritnor (40 0. S. 107), 1112. McWilliams v. Livingston (22 Okla. 864, 98 Pac. 914), 1750. McWhirter v. Roberts (40 Ark. 283) , 569, 593. M Mackee v. Purcell ( 1 Ind. Ter. 288, 37 S. W. 55), 88. Mackey v. Coxe (18 How. 100), 1797. Magnus v. Arnold (31 Ark. 103), 561. Miiguinn v. Stadel (92 Pac. 1093), 979. Maholm v. Marshall (29 0. S. 616), 18. Maholm v. Marshall (29 O. S. Oil), 45. Mahoney, In re ( 34 Hun, 506 ) , 736. Mahoning's Bank's Appeal (32 Pa. St. 160), 84. M. K., etc., V. Thompson (24 Kan. 170), 442. Malone v. Minnesota (36 Minn. 335, 31 N. W. 170), 111. Manfue v. Graham (76 N. W. 19), 112. Manful V. Graham (76 N. W. 19), 164. Mansfield v. Gregory (11 Neb. 295), 121. ]\Ianwickv. Wolf (3 W. L. B. 458), 45. Marsh v. Davis (6 Pac. 612), 1292. Marsh v. Marsh (4 Air. [Ohio] 25), 7'6. Marsh v. Reed (10 O. S. 47), 1184. Marshall v. Homer (13 Okla. 264, 76 Pac. 368), 486. Martin, In re (132 Cal. 661), 663. Martin v. Allen (74 Pac. 249), 973. Martin v. Burns (54 Kan. 641), 39 Pac. 177), 1016. Martin v. Hannesky (65 Pac. 637), 955. Martin v. Harrington (73 Vt. 193, 87 Am. St. 704), 933. Martinovitch v. ]\Iarsikano ( 137 Cal. 354, 70 Pac. 459), 1254. Maryland v. Bank (107 N. W. 662), 100. jNLison V. Alexander (44 O. S. 334), 93. Mason v. Westall (88 Cal. 296, 26 Pac. 213), 504. jNlassey v. Matthews (12 Ohio, 362), 76. Maston v. Gray (19 Kan. 458), 43. INIatthews, In re (27 Hun, 254), 352. IMatthews v. Tliompson (3 Ohio, 272), 147. Mattis ^^ Baldwin (28 N. W. 325), 1128. Mattson v. Swanson (5 S. D. 191, 58 N. W. 570), 837. IVIaxwell, In re (74 Cal. 384, 16 Pac. 206), 744. :\raxwell V. Kansas (75 Kan. 56, 38 Pac. 523), 1203. TABLE OF CASES. cm [References are to sections.] Mayer v. Wick (15 0. S. 548), 155. Meade v. McGraw (19 0. S. 55), 93. Means v. Doiul (128 U. S. 273, 9 Sup. Ct. 65), 505. Meconce v. Mower (15 Pac. 155), 1294. Medditaton v. Westomey (7 C. C. 268), 1275. Meecher v. Scliluter (98 N. W. 1082), 81. Megreedy v. Macklin (73 Pac. 293, 22 Okla. 666), 2121. Menefee v. Same (8 Ark. 9), 592. Mercer v. Ivit (127 Cal. 134, 39 Pac. 393), 505. Mercer v. Justice (65 Pac. 219), 1169, 1170. Merchant v. Coplan (1 Kan. App. 599), 508. Merchant v. Danford (28 Kan. 512), 317. Merdruke v. Rauke (82 N. E. 119), 348. Meredith v. Simpson (22 Kan. 416), 1663. Mertz V. Hubbard (75 Kan. 1, 88 Pac. 529), 441. Metz V. Nennitter (122 N. Y. 49, 25 N. E. 1044), 441. Meyer v. Bank (55 0. S. 447), 138. Meyer v. Brown (46 Kan. 543, 26 Pac. 1019), 1012. Meyer v. Elevator (128 S. D. 172, " 80 X. W. 189), 987. Myer v. Moben (58 Pac. 1011), 317. Middleditch v. Williams (45 N. J. Eq. 34, 17 Atl. 26), 616. Midland v. Turner (179 Fed. 74), 2119. Mifflin V. Stalker (4 Kan. 242), 100. Miles V. Parks (49 0. S. [Ohio] 370), 155. Miller, In re (147 Cal. 583), 619. Miller v. Cincinnati (5 C. C. 583), 1178. Miller v. Hassman (103 Pac. 577), 942. Miller v. Hassman (24 Okla. 381, 103 Pac. 577), 1204. Miller v. Jersey (66 K J. Eq. 11, 57 Atl. 730), 341. Miller v. Loving (59 Kan. 485, 53 Pac. 476), 146. Miller v. Meman (27 Ark. 233), 1173. Mlliken v. Booth (4 Okla. 713, 46 Pac. 489), 99. Milliken v. Lockwood (103 Pac. 124), 973. Mills V. Dixon (42 Pac. 1014), 311. ]\Iills V. Ralston (10 Kan. 160), 164. Milson V. Rouk (57 0. S. 422), 133. :\Iimmick v. Matchett ( 10 Kan. App. 170), 18. Miner v. Wallace (10 Ohio, 403), 136. Missick v. Wigent (56 N. W. 493), i815. Missouri v. Crowe (9 Kan. 339), 52. Mitchell, In re (102 Cal. 202), 679. Mitchell v. Bell (120 Pac. 560), 1828, 1829. Mitchell V. Dunlap (10 Ohio, 117), 159. Mitchell V. Lyons (36 Kan. 378), 1116. Mitchell V. Penfield (8 Kan. 186), 1014. Mitchell V. Skinner (17 Kan. 563), 508. Mix V. Gelmer (5 Okla. 740, 50 Pac. 131), 32. Moale V. Buchanan (11 Gill & J. 314), 487. ]SIock V. Pleasant (34 Ark. 63), 583. MofiTit V. Boydson (46 Pac. 24), 317. jNIoffit V. Clark (6 Wats. & Serg. 260), 560. Moffit V. Garrett (100 Pac. 533), 309. Mohlin V. Ice (56 Fed. Rep. 12, 5 C. C. A. 403), 89. Moline v. Custer (57 N. W. 160), 317. CIV TABLE OF CASES. [References are to sections.] Monday v. Vail (43 N. J. L. — ), 87. Monday v. Vail (33 N. J. L. 418), 85. Monday v. Vail (43 N. Y. L. 418), 3. Monson v. May (19 Kan. 466), 508. Mooney v. Olesan (21 Kan 496), 1117. Moore v. Chicago (7 Kan. App. 142, 53 Pac. 775), 450. Moore v. Earl (91 Cal. 632), 621. Moore v. Munn (69 III. 591), 483. Moore v. Odell (27 Okla. 194, 111 Pac. 358), 1767. Moore -v. Ogden (35 0. S. 430), 136. Moore v. Parker (80 N. W. 572), 813. Moore v. Pye (10 Kan. 247), 149. Moore v. Starks ( 1 0. S. 369 ) , 87, 90, 91. Moore v. Starks (1 0. S. 371), 76. Moore v. Starks ( 1 O. S. 369). 3, 81. Moore v. Starks ( 1 0. S. 372), 81. Moore v. Wade (8 Kan. 380), 1075. Moore v. Wallace (16 Okla. 114, 82 Pac. 825), 1182. Moorehead v. Robinson (75 Pac. 503), 1120. Moores v. Claskamas (40 Ore. 536, 67 Pac. 662), 1178. Moores v. Psyche (62 N. W. 1072), 178. Moral v. Craves (77 Cal. 218, 19 Pac. 489), 504. Moral V. Meneffee (5 Ark. 629), 592. Moran v. Moran (38 Pac. 268), 958. Moran V. Same (38 Pac. 268), 11. H8. Morfew v. San Francisco Co. (107 Cal. 587), 705. Morgan v. Hays (10 W. L. G. 83), 295. Morgan v. McGhee (5 Humph. 13), 1947. Morgan v. Murth (60 Mich. 238, 27 N. W. 509), 483. Morley v. FewcU (122 Pac. 700), 1756, 1758. Morris v. Sinton ( 104 N". W. [Neb.] 927), 17. Morris v. Tracy (58 Kan. 137, 48 Pac. 571), 60. Morris v. Tracy (58 Kan. 137, 48 Pac. 571), 1222. Morrison v. Collier (79 Ind. 417), 487. Morrison v. Knight (7 Okla. 419, 54 Pac. 656), 86. Morse v. Hinkle (124 Cal. 154, 56 Pac. '896), 356. Mortgage v. Norris ( 54 Pac. 283 ) , 317. Mortgage v. Weyerhouser (29 Pac. 153), 1014. Morton v. Sterritt (4 W. L. G. 132), 215. Moser v. Clapp (44 Kan. 450, 24 Pac. 951), 1274. Mosier v. Manson (3 Okla. 41, 74 Pac. 905), 400. Mosier v. Momson (13 Okla. 41, 74 Pac. 905), 1178. Mosier v. Walter (17 Okla. 305, 87 Pac. 877), 473, 474. Mosier v. Walter ( 17 Okla. 305, 87 Pac. 877), 478. jMosley v. Southern (4 Okla. 492, 46 Pac. 508), 315. INlott, In re (136 Cal. 558), 620. Motz, In re (136 Cal. 558), 617. Moyer v. Riggs (8 Kan. App. 234, " 55 Pac. 494), 174. Mullen, In re (110 Cal. 252), 628. :\rullen V. United States (224 U. S. 448), 1776, 1844. IMullin, In re (48 Cal. 165), 671. INIulvane v. Chicago (56 Kan. 615, 44 Pac. 613), 1012. IMunson v. Washburn (31 Conn. 303, 83 Am. Dec. 151), 356. ^Minison V. Washburn (83 Am. Dec. 151), 355. :\Iurphyr/n re (104 Cal. 554), 661. Murphy V. Lucas (2 Okla. 255), 811. :Murphy v. Rooney (45 Cal. 78), 487. IVlurphy v. Sears (11 Ore. 127, 4 Pac. 471), 1178. TABLE OF CASES. ey [References are to sections.] Muskogee v. Mullins (165 Fed. 179, 91 C. C. A. 213), 212a. Myer v. Keefer (78 N. W. 506), 317. Myers v. Mattheas (2 Ind. Ter. 3, 46 S. W. 178), 1116. N Xagel V. Schilling (14 Mo. App. 516), 73, 352. Names v. Names (67 N. W. 751), 1128. National v. Hutchinson (6 Kan. App. 673, 50 Pac. 100), 1015. National v. Proctor (91 N. W. [Neb.] 525), 145. Neal V. Le Breton (14 Okla. 538, 28 Pac. 168), 120. Neal V. Reynolds (38 Kan. 42, 16 Pac. 985), 56. Neal V. Robertson (55 Ark. 79), 594. Nebraska v. Fewering (72 Neb. 1003), 317. Nebraska v. Marshall (7 N. W. [Neb.] 63), 145. Xeedles v. Frost (2 Okla. 19, 35 Pac. 574), 133. \eedles v. Frost (2 Okla. 19, 35 Pac. 74), 84. Neil V. Reynolds (38 Kan. 432, 16 Pac. 785), 33. .Veisrath, In re (66 Cal. 330), 696. >^elson, In re (132 Cal. 182), 615. Nelson v. Brusha (92 N. W. 1057), 1142. Nelson v. Keystone (70 Kan. 43, 74 Pac. 269), 136. Nelson v. Ware (47 Pac. 540), 958, 962. Nelson v. Ware (47 Pac. 640), 955. Neutza v. Hunter (19 Kan. 291), 806. New V. Collins (21 Okla. 430, 96 Pac. 607), 804. Newberry v. Railway (35 Pac. 210), 33. Newell V. Wagoner ( 1 N. D. 62, 42 N. W. 104), 505. Newforth v. Hall ( 6 Kan. App. 902, 57 Pac. 513), 438. New Jersey v. Wilson (7 Cranch, 164), 2129. Newkirk v. Marshall (35 Kan. 77, 10 Pac. 51), 451. Newkirk v. Marshall (35 Kan. 77, 10 Pac. 571), 450. Newman v. Brown (27 Kan. 117), 1016. Newton v. Lyon (7 Kan. App. 811), 457. Nicholas v. Purezelle (21 la. 256, 89 Am. Dec. 572), 1204. Nivens v. Nivens (64 S. W. 604, 76 S. W. 114, 113 Fed. 39), 1818. Nixon V, Cydon (56 Kan. 298, 43 Pac. 236), — . Noceker v. Same (66 Kan. 347, 71 Pac. 815), 1213. Nolzert v. Milford (5 Kan. App. 222), 156. North V. Ackerly (171 111. 100, 49 N. E. 22), 341. North V. Hegener (42 Pac. 388), 1016. North V. Lauer (84 Am. St. 635), 933. North V. Moors (18 Kan. 143), 1171. Northrup v. Cooper (23 Kan. 432), 149, 152. Northwest v. McCarroU (118 Pac. 352), 929. Norton v. Beaver (5 Ohio, 178), 136. Norton v. Reardon (67 Kail. 302, 72 Pac. 861, 101 Am. St. Rep. 459), 133. Norton -v. Reardon (72 Pac. 861), 166, 177. O'Brien v. Bugsby (46 Kan. 1), 1116. O'Brien v. Welty (14 Tex. 148), 933. O'Brien v. Wetherall (14 Kan. 622), 1116, 1137. O'Brien v. Wetherall (14 Kan. 616), 1114. Ockendon v. Barnes (43 la. 615), 472. CVl TABLE OP CASES. [References are to sections.] Ogden V. Walters (12 Kan. 283), 1G3. Ogden V. Walters (12 Kan. 282), 58. Oglesby v. Williams (112 Ga. 359, 37 S. E. 372), 441. Ohio V. Goodin (10 0. S. 566), 155. Oklahoma City v. Hill (4 Okla. 521, 46 Pac. 568), 810. Oklahoma City v. Hill (4 Okla. 521, 50 Pac. 242), 817. Oklahoma City v. Hill (4 Okla. 521, 46 Pac. 568), 804, 869. O'Krefe v. Holran (85 Pac. 555), 1138. Olds V. Bebedict (41 N. W. 254), 317. Olds y. Congar (1 Okla. 231, 52 Pac. 337), 809. Oliver v. Clifton (39 Ark. 187), 483. Oliver v. Vance (34 Ark. 567), 554. Oliver v. Vance (34 Ark. 564), 561. Olmstead, In re (120 Cal. 447, 52 Pac. 804), 718, 743. Olson V. Hustner (6 S. D. 354, 61 N. W. 247), 817. Omaha v. Reeter (66 N. W. 650), 1116. Omaha v. Robinson (77 N. W. 73), 301. O'Neil v. Blessing (34 O. S. 34), 45. O'Neal V. Doughitt (18 Pac. 199), 1289. Orcliard V. Alexander (157 U. S. 383, 39 L. Ed. 737), 1780. Ord V. Case (110 N. W. 551), 46. Ordway -v. Downer (51 Pac. 1047), 1057. Ormsby v. Baer (22 Mich. 80), 1177. Osborn, In re (87 Cal. 1, 25 Pac. 157, 11 L. R. A. 264), 757. Osborn v. Hughery ( 14 Okla. 29, 76 Pac. 146), 1,53. Osborn v. Shotwell (50 N. W. 164), 818, 819. Osborne v. Schleichnmaier (60 Kan. 421, 75 Pac. 474), 57, 63. O'SuIlivan v. Overton (56 Conn. 102, 14 Atl. 300), 441. Outcalt V. Collier (8 Okla. 473, 58 Pac. 642), 67. Outcalt V. Collins (8 Okla. 473, 58 Pac. 642), 93. Ottumwa V. McWilliams (71 la. 104, 32 N. W. 315), 440. Overstrect v. Baxter (30 Kan. 55, 1 Pac. 825), 1075. Overstreet v. Rice (96 Am. Dec. 279), 451. Owen V. Wickham (38 Kan. 225, 16 Pac. 335), 809. Ozark v. Still (103 Pac. 586), 46. Packard v. Packard (34 Kan. 53, 7 Pac. 628), 92. Packing v. Dick (4 Okla. 661, 46 Pac. 593), 29. Palmer v. York (77 Minn. 20, 79 N. W. 587), 1178. Palmetto v. Richer (1 Kan. 561), 46. Pankan v. Larzelere (52 Pac. 906), 1112. Pappe V. Trout (3 Okla. 260, 41 Pac. 397), 955, 956. Paquete v. Hebanna (175 U. S. 677, 44 L. Ed. 320), 1736. Parker v. McCombes (17 R. S. 247, 24 Atl. 464), 345. Parker v. Western (48 N. J. Eq. 94), 1167. Parsons v. Gadeka (95 N. W. 850), 86. Passewilke v. Bollman (45 N. W. 780), 171. Patterson v. Same (57 Kan. 277, 46 Pac. 304), 57. Patton V. Same (39 0. S. 590), 1200. Patton V. SherifT (2 Ohio, 395), 138. Paulson V. Ward (4 N. D. 100, 58 N. W. 792), 505. Paulter v. Manuel (108 Pac. 702), 477a. Payne v. Long (9 Okla. 683, 6 Pac. 235), 153, 154. TABLE OF CASES. evil [References are to sections.] Pearline v. Ulrick (78 N. W. 275), 174. Pearson's Estate (110 Cal. 524, 42 Pac. 9b0), 529. Peckenpaugh v. Quillen ( 12 N. W. 104), 301. Peddicord v. Beck (86 Pac. 405), 804. Pemberton v. Pollard (25 X. W. 582), 178. Penn v. Hayward (14 0. S. 302), 20. Pennington v. Yell (11 Ark. 219), 569. Pennock v. Monroe (5 Kan. 578), 84. Pennover v. XefT (95 U. S. 714), 56. Penrock v. Hoover (5 Ralls, 291), 1014. Penny v. Richardson (12 Okla. 256, 71 Pac. 227), 823. Pennvwit v. Foote (27 0. S. 600), 87. Pennvwit v. Foote (27 0. S. 600), i3. People v. Chicago (152 111. 546, 38 X. E. 744), 1736. People V. Green (74 Cal. 400, 16 Pac. 348), 58. People V. Hoffman (97 111. 234), 1736. People V. Mullan (65 Cal. 396, 4 Pac. 348), 58. Peppin V. Prindle (61 Wis. 301, 21 X. W. 254), 1114. Perry v. Jefferson (94 111. 214), 1736. Perry v. Richardson (27 0. S. 110), 'll98, 1200. Perry v. Same (94 Tenn. 328), 617. Perry v. Sharp (8 Fed. Rep. 15), "l8. Petersine v. Thomas (28 O. S. 597), 89. Peterson v. Alboch (51 Kan. 150, 32 Pac. 917), 1147. Petit V. Black (12 X. W. 841), 809. Petit V. Flint (78 X. W. 554), 1167. Petit V. Shepherd (5 Paige, 501), 1177. Petite V. Shepherd (5 Paige, 493, 28 Am. Dec. 437), 121. Peyton v. Desmond (129 Fed. 1), 1780. Phillips V. Dana (3 Scam. 558), 166. Phillips V. Seymour (91 U. S. 650, 23 L. Ed.341), 442. Phillips V. Same (13 S. D. 231, S3 X. W. 94), 837. Phillips V. Springfield ( 76 Kan. 783, 92 Pac. 119), 1011. Phillipps V. Ehvell (14 0. S. 240), 43. Phelps V. Baker (30 Pac. 477), 1011. Phoenix v. ilcEvoy (72 X. W. 956), 166. Pickett V. Pickett (31 Kan. 727, 3 Pac. 549), 154. Pier V. City (38 Wis. 470), 1177. Pierce v. Same (9 Ves. R. 547), 72, 351. Pierce v. Same (47 Me. 507), 483. Pierce v. Butters (21 Kan. 124), 59. Pierce v. Osborne (19 Pac. 656), 1016. Pilcher v. Atkinson (7 Pac. 613), 1286. Pillow V. Wade (31 Ark. 678), 569. Pina V. Peck (31 Cal. 559), 522. Pittsburgh v. Railway (20 C. C. 561), 1184. Place V. Johnson (20 Minn. 19), 493. Plaires, etc., v. Lynch (38 Mont. 271, 99 Pac. 847), 217. Pleasant v. Shawgo (54 Kan. 732, 39 Pac. 704), 114. Plummer v. Wells (6 Ind. Ter. 189, 90 S. W. 303), 88. Poe V. Dixon (66 0. S. 124), 1057. Poff, In re (103 S. W. 765), 1785. Pollard V. Wagner (13 Wis. 569), 43. Poison V. Parsons (104 Pac. 336), 804. Pope V. Xichols (59 Pac. 257), 1126. Pope V. Xichols (61 Kan. 230, 59 Pac. 257), 1274. CVlll TABLE OF CASES. [Rpferences are to sections.] Poplin V. Wendel (27 Kan. 138), 1083. Porterfield v. Butler (47 Miss. 156, 12 Am. Rpp. 329), 85. Portage v. Stukey (18 Ohio, 455), 24. Portage v. Western (G 0. S. 599), 24. Post V. Bohner (36 N. W. 308), 809. Postle V. Martin (95 N. W. 8), 1142. Potter v. Ajax (61 Pac. 999), 346. Potter V. Ajax (57 Pac. 270), 348. Powers V. Rude (14 Okla. 381, 79 Pac. 90), 436. Powers V. Rude (14 Okla. 381, 79 Pac. 94), 442. Pratt V. HartscluifT (106 N. W. 966), 99. Pratt V. Longworth (27 0. S. 159), 159. Pratt V. Ratcliffe (10 Okla. 168, 61 Pac. 125), 89. Price V. Allen (18 Pac. 609), 1174. Price V. Allen (39 Kan. 476), 1171. Price V. Citizens (23 Okla. 723, 102 Pac. 800), 1061. Price V. Citizens (102 Pac. 803), 133. Priest V. Robinson (64 Kan 416, 67 Pac. 580), 1274. Prigsley v. Chicago (69 Kan. 599, 77 Pac. 579), 94. Pritchett, In re (51 €al. 568, 52 Pac. 94), 744. Proctor V. Tye (96 S. W. 512, 29 Ky. Law Rep. 804), 345. Provins v. Love (6 Okla. 94, 50 Pac. 581), 64. Pryor v. Downey (50 Cal. 388), 707. Psyche v. (94 N. W. 135), 1293. Pumphrey v. Pumphrey (52 Ark. 193, 12 S. W. 390),* 580. Q Quarles v. Heirn (70 Miss. 891, 14 So. 23), 43, Quincy v. Fenney (18 Wis. 510), 1748. Quinlan v. Dodford (28 Kan. 507), 317. Quinton v. Derrill (59 Kan. 772, 51 Pac. 898), 64. Ralim V. Lopee (28 Kan. 159), 178. Railroad v. Commissioners ( 18 Kan. 169), 472. Railroad v. Johnson (119 U. S. 60S, 7 Sup. Ct. 340), 810. Railroad v. Johnson (37 la. 15), 810. Railroad v. Morey (47 O. S. 210), 22. Railroad v. Neighbors (51 Miss. 412), 472. Railroad v. Prescott (10 Wall. 603, 21 L. Ed. 733), 1748. Railroad v. Transportation, etc. (32 O. S. 135), 46. Railway v. Coleman (91 Ind. 551), 1114. Railway v. Commissioners (30 0. S. 120), 1178. Railway v. Higgins (44 Ark. 293), 82a. Railway v. Hood (66 Ind. 580), 1114. Railway v. Lonnie ( 1 W. L. B. 315), 1009. Railway v. McPratney (12 Kan. 911), 1126. Railway v. Pracht (1 Pac. 319), 1126. Rain v. Young (61 Kan. 428, 59 Pac. 1068), 133, 160. Rainbow v. Young (161 Fed. Rep. 185), 1735. Ralton V. Laider (126 111. 219, 18 N. E. 555), 152. Randall v. Turner (17 0. S. 262), 76. Randall v. Van Wagoner (115 N. Y. 527, 22 N. E. 561), 342. Randell v. Barker (67 Kan. 744, 74 Pac. 240), 64. Randolph .v. Hudson (12 Okla. 516, 74 Pac. 946), 89. TABLE OF CASES. CIX [References are lo sections.] Eanker v. Hannan (37 0. S. 117), 136. Eanney v. Nelson ( 10 Okla. 675, 65 Pac. 98 ) , 294 Ranney v. Warner ( 13 Hun, 11), 476. Rapp V. Kyle (26 Kan. 89), 305. Rappine v. McPherson (2 Kan. 340), 297, 305. Ravidels v. Wilson (22 Okla. 689, 98 Pac. 949), 46. Rawle^v v. Varnum (15 Okla. 612, 84 Pac. 487), 1013. Rawson v. Sherwood (59 Kan. 776, 33 Pac. 69), 58. Raymond v. Gill (10 N. \\. 709, 41 Am. St. 763), 301. Raymond v. Nix (50 Okla. 656, 49 Pac. 1110), 59, 129, 292, 297, 317. Raymond v. Railway ^57 0. S. 282), 1120. Ream v. Wooes (61 0. S. 131), 91. Red Bird v. United States (203 U. S. 76, 51 L. Ed. 97), 1819, 1830. Red River v. Freeman (1 N. D. 196), 505. Reddick v. Webb (6 Okla. 392, 50 Pac. 363), 29. Redfield, In re (106 Ala. 637, 48 Pac. 794), 616. Redmond v. Packingham (66 111. 434), 1177. Redwine v. Annesley ( 122 Pac. 679) , 1791. Reece v. Zum (103 Fed. Rep. 97), 439. Reed v. Ash (30 Ark. 775), 592. Reed v. Radigan (42 O. S. 292), 155. Eeehl v. Thomason (114 Ind. 311, 15 X. E. 345), 457. Reese v. Rice (1 Kan. App. 311, 41 Pac. 218), 170. Reeves v. Pence (64 Kan. 502, 69 Pac. 1108), 56. Reichert v. Phelps (6 Wall. 160), 2129. Reith, In re (144 Cal. 314), 658. Remington v. Lithicum (14 Pet. 84), 166. Rempe v. Ravens (68 0. S. 113), 289. Ren V. Brown (2 Kan. App. 1, 42 Pac. 392), 1015. Rcngie v. Holquah (112 Mo. 519, 20 S. W. 800), 453. Rennert v. Klenk (91 Mich. 1, 51 N. W. 692), 493. Repine v. McPherson (2 Kan. 340), 56. Repp V. Kyle (26 Kan. 89), 44. Republic v. Sayre (13 N. W. 404), 39. Reynolds v. Cobb (19 N. W. [Neb.] 509), 136. Reynolds v. Fewell (124 Pac. 623), 1758. Ritchie v. Higginbotham (26 Kan. 645), 160. Ritchie v. Higginbotham (26 Kan. 645), 133. Rhea v. Dick (54 0. S. 420), 1178. Rhea v. Williams (103 Pac. 119), 1126. Rhoades v. Symes (1 Ohio, 281), 136. Rhodes v. Rhodes (11 N. W. 122), 56. Rhotan v. Chain (99 Cal. 645), 673. Rhoton v. Blevin (99 Cal. 045), 652, 658. Rice v. West (10 Okla. 1, 33 Pac. 499), 811. Rice V. West (10 Okla. 1, 33 Pac. 231), 813, 814. Richard v. Donnert ( 72 Cal. 207, 13 Pac. 544), 477a. Richards v. Sheff (8 0. S. 589), 90. Richardson v. Loupe (80 Cal. 490, 22 Pac. 227), 1251, 1254. Richardson v. Penny (50 Pac. 231), 816. Richardson v. Penny (10 Okla. 32, 01 Pac. 584), 37. Richardson v. Penny (6 Okla. 328, 50 Pac. 231), 804. Richardson v. Game (26 Cal. 149), 57. ex TABLE OP CASES. [References are to sections.] Richardson v. Tj'son (80 N. W. 250), 355. Richardson v. Tyson (86 N. W. [Wis.] 250)/ 74, 75. Richey v. Kansas (55 Kan. 36, 30 Pac. 718), 1114. Richter v. Same (111 Ind. 456, 12 N. E. 360), 1114. Riddell V. Roll (24 0. S. 572), 159. Riddle v. Roll (24 0. S. 572), 159. Riley v. Allen (81 Pac. 186, 71 Kan. 625), 444. Riley v. Calron (4 Ind. Ter. 376, 69 S. W. 108), 1138. Rinhimer v. Carter (31 0. S. 519), 461. Roades v. Symmes (1 Ohio, 281), 136, 157. Robinson v. Elliott (22 Wall. 527, 22 L. Ed. 758), 505. Robinson v. Fair (128 U. S. 53, 32 L. Ed. 415), 1251. Robinson v. Fidelity (11 S. W. 106), 73. Robinson v. Fidelity (US. W. 100), 352. Robinson v. Hall (33 Kan. 139, 5 Pac. 763), 62. Robinson v. Owen (119 Pac. 995), 1764. Robinson v. Owen (119 Pac. 995), 1820. Roberts v. Burr (135 Cal. 106, 67 Pac. 146), 505. Roberts v. Remy (56 0. S. 249), 1202. Roberts v. Roberts (51 0. S. 896), 76. Robertson V. Howard (112 Pac. 162), 1126. Robey v. Rainsberger ( 27 0. S. 674), 89, 93. Robey v. Rainsberger (27 0. S. 677), 89. Rockefellow v. Pay (40 Ark. 69), 569. Rockwood V. St. John (10 Okla. 476, 62 Pac. 277), 929. Rogencamp v. Heargraves (58 N. W. 162),—. Rogers, In re (94 Cal. 520), 658, 694. Romig V. Oillette (10 Okla. 186, 62 Pac. 407), 92. Romig V. Gillette (10 Okhi. 186, 62 Pac. 805), 57. Ronsavillo v. Hazon (5 Pac. 771, 33 Kan. 149), 152. Rooke V. Kensington (2 K. & J. 753), 486. Rosemerson v. Rudy (84 N. W. 2057), 475. Ross, In re (140 Cal. 282), 652. Ross V. Cook (80 Pac. 38), 450. Ross V. Hinott (— Okla. — ), 1296. Ross V. Sedgwick (69 Cal. 247, 10 Pac. 400), 505. Ross V. Stewart (25 Okla. 611, 106 Pac. 870), 1829. Ross V. Wright (110 Pac. 949), 1821, 1828. Rossin V. Lynn (23 Fed. 107), 485. Rothgeb V. Monk (35 0. S. 103), 1178. Rough V. Acknovitch (30 W. L. B. 302), 138. Rowe V. Griffith (08 N. W. [Neb.] 20), 63. Rowe V. Rowe (61 Kan. 802, 60 Pac. 1049), 1204. Ruecle v. Welty (111 N. W. 463), 1116. Rulenian v. Hulze (9 Pac. [Kan.] 210), 18, 33, 26. Rumson v. Merrill (17 Okla. 44, 86 Pac. 431), 317. Rust V. Conrad (47 Mich. 449, 11 N. W. 265, 41 Am. Rep. 720), 439. Ryan v. Cranslow (27 Kan. 672), 34. Ryan v. Dox (34 N". Y. 307), 451. Rvan V. Root (56 0. S. 302), 138. Ryan v. State (7 N. W. 276), 93. Ryan v. United States (136 U. S. 68, 10 Sup. Ct. 913), 454. Ryder, In re (141 Cal. 371, 74 Pac. 993), 1254. Ryer v. Fletcher (126 Cal. 482, 58 Pac. 008), 1253. Ryhluxen, v. Hulze (32 Kan. 598, 5 Pac. 176), 33. TABLE OF CASES. [References are to sections.] Tyndock v. Leawell (13 Okla. 737, 76 Pac. 170), 1016. S Sale V. McLean (29 Ark. 612), 1177. Salma v. Burr (52 Pac. 704), 977. Salmon, In re (107 Cal. 014), 652. Samson v. Same (64 Cal. 327, 30 Pac. 979), 744. Samson v. Samson (64 Cal. 327, 30 Pac. 979), 742. Sanders v. Same (28 Okla. 59, 117 Pac. 338), 1756, 1759. Sanderson, In re (74 Cal. 199, 15 Pac. 753), 757. Sanford v. Gates (21 Mont. 277, 53 Pac. 749), 493. San Francisco v. Superior (116 Cal. 443), 621. Santon v. Ballard (133 Mass. 464), 87. Saver v. Brown (7 Ind. Ter. 675, 104 S. W. 877), 1790. Sayer v. Brown (104 S. W. [Ind. Ter.] 877), 2118. Scantlin v. Allison (32 Kan. 379, 1 Pac. 618), 1120. Scarborough v. Smith ( 18 Kan. 400), 1120. Scarborough v. Smith (IS Kan. 399), 1210. Schade v. Connor (126 X. W. [Xeb. 1910] 1013), 78. Schade v. Conner (120 X. W. 1013), 354. Schedel, In re (73 Cal. 594), 6173. Schenck v. Spence (47 X. J. E-q. 44, 19 Atl. 881), 441. Schie V. Schie (6 Kan. App. 136, 50 Pac. 903), 93. Schlegel V. Link (105 Pac. 652), 813. Schlegel v. Link (105 Pac. 652), 811. Schlitz V. Smith (17 Kan. 300), 166. Schneider v. Anderson ( 75 Kan. 11, 88 Pac. 525), 452. Schnell v. Jay (4 Okla. 392, 50 Pac. S63)] 29. School V. Howell (44 Kan. 230, 19 Pac. 813), 1016. School V. Koontze (92 X. W. 597), 93. Schultz V. Barrows (8 Okla. 297, 56 Pac. 1053), 929. Schultz V. Hine (18 Pac. 221), 806. Schultz V. Pearson (64 Pac. 963), 450. Schumacher v. Seebert ( 18 Kan. 104), 1057. Schuyler v. Borling (45 X. W. 164), 29. Sconce v. Whitney (12 111. 150), 76. Scott, In re (1 Cal. App. 740, 83 Pac. 85), 757. Scott, In re (60 Pac. 528), 616. Scrock V. Zubler (34 Pac. 38), 1278. Scroggs V. Trett (23 Kan. 182), 165. Scully V. Porter (46 Pac. 313), 947, 981. Seaton v. Hixon (35 Kan. 663, 12 Pac. 22), 1020. Seibert v. Sweetzer (35 0. S. 661), 288, 289. Seitz V. United States (16 Kan. 133), 1012. Selders v. Boyd (5 Kan. App. 451, 49 Pac. 320), 86. Selders v. Boyde (5 Kan. App. 405, 49 Pac. 320), 114. Selles V. Roberts (13 Serg. & R. 63), 955. Sesmoda v. Rimodka ( 145 U. S. 29), 374. Severns v. English (19 Okla. 567, 101 Pac. 750), 1563. Sewell V. Hendricks (4 Okla. 435, 46 Pac. 557), 1074. Shafenbury v. Bishop (35 la. 60), 1279."^ Shafer v. Wells (69 Kan. 25, 76 Pac. 436), — . Shaffer v. Shade (7 Blackf. 178), 474. Sharp V. Lancaster (100 Pac. 578, 23 Okla. 349), 2121. CXll TABLE OF CASES. [References are to sections.] Sharp V. Lancaster (25 Okla. 349, 100 Pac. 578), 17(55. Sharp V. Ross (7 C. C. 50), 137. Shaw V. Stewart (43 Kan. 572, 23 Pac. 616), 1014. Shawkin v. City (16 O. S. 1), 85. Shawnee v. Bank (ICC. [N. S.] 509), 292. Sheehan v. Allen (67 Kan. 712, 74 Pac. 245), 1207. Shelby v. Siogler (22 Okla. 799, 98 Pac. 989), 412. Sheldon v. Preussner (52 Kan. 593, 35 Pac. 204), 156. Sheldon v. Newton (3 0. S. 495), 159. Sheldon v. Newton (3 0. S. 494), 91. Sheldon v. Pinssner (35 Pac. 204), 164. Shellenberger v. Fewell ( 124 Pac. 617), 1126. Shellenberger v. Fewell ( 124 Pac. 617), 1758. Shelly V. Zigler (22 Okla. 729, 98 Pac. 989), 296. Shepherd, In re (149 Cal. 219), 620. Sherburne v. Shaw ( 1 N. H. 157, 8 Am. Dec. 47), 441. Shields v. Bush (189 111. 534, 82 Am. St. 474), 933. Shields V. Miller (9 Kan. 390), 57. Shields v. Miller (9 Kan. 390), 57, 58, 1061. Shulthis V. McDougal (170 Fed. 529, 29 C. C. A. 615), 1759. Shulthis V. McDougal (162 Fed. 162), 1787. Shy V. Brochause (7 Okla. 35, 54 Pac. 306), 1136. Sillen V. Cheshfield (1 Hand. 87), 293. Simmons v. Wagoner (101 U. S. 260, 25 L. Ed. 910), 1750. Simmons v. Whittington (112 Pac. [Okla.] 1018), 2118, 2120, 2122. Simmons v. Whittington (27 Okla. — , 112 Pac. 1018), 1789. Simons, etc., v. Doren (142 U. S. 147), 493. Simpson v. Alexander (6 Coldw. 619), 78. Simpson v. Alexander (46 Coldw. 619), 354. Simpson v. Boring (16 Kan. 248), 1126. Simpson v. Boring (16 Kan. 248), 1116. Simpson v. Rice (43 Kan. 22, 22 Pac. 1019), 32. Sims V. Burnham (6 Okla. 018, 52 Pac. 918), 08, 300. Skelton v. Dill (119 Pac. 207), 1297. Skinner v. First (80 N. W. 42), 317. Skinner v. Scott (118 Pac. 394), 472. Small V. Small (10 Am. Dec. 255), 617. Smith, In re (145 Cal. 118), 652, 694. Smith's Estate (131 Cal. 433), 529. Smith V. Baker (5 Okla. 326, 49 Pac. 01), 567. Smitli V. Bank (26 0. S. 141), 93. Smith V. Hescailiez (84 Cal. 344, 21 Pac. 15), 842, 852. Smith V. Burnes (8 Kan. 198), 104. Smith V. Collins ( — Kan. — , 21 Pac. 1058), 21. Smith V. Dalton ( 1 C. S. C. R. 150), 292. Smith V. Dearse (27 Pac. 167), 317. Smith V. Eagle (— Okla. — , 108 Pac. 629), 86. Smith V. Fenger (15 Okla. 120, 79 Pac. 759), 812. Smith V. Finger (15 Okla. 120, 79 Pac. 759), 88. Smith V. Hobbs (49 Kan. 800, 31 Pac. 687), 1130. Smith V. Hogg (52 0. S. 528), 136. Smith V. Hunt (13 Ohio, 260), 1112. Smith y. Hunt (13 Ohio, 200, 42 Am.^ Dec. 201), 1279. TABLE OF CASES. CXlll [References are to cections. ] Smith V. Johnson (57 0. S. 4S6), 25. Smith V. Kimball (36 Kan. 474, 13 Pac. 801), 138. Smith V. Kimball (30 Kan. 474, 13 Pac. 801), 70. Smith V. Lockwood (13 Barb. 209), 472. Smith V. Olstead (188 Cal. 582), 652. Smith V. Plyton (13 Kan. 362), 299. Smith V. Railroad (60 N. W. 44), 348. Smith V. Travel (20 Okla. 512, 94 Pac. 529), 805. Smithers v. Ramey (14 0. S. 287), 93. Snell V. Mitchell .(65 Mo. 48), 443. Snyder v. Deprast (82 X. E. 742), 346. Society v. Hames (47 0. S. 424), 1057. Solomon v. Wilmington ( 142 N. C. 439, 55 S. E. 300, 6 L. R. A. [X. S.] 591), 439. Sorrels v. Johnson (26 Okla. 569, 110 Pac. 743), 1793. Sorrels v. Jones (26 Okla. 569, 110 Pac. 743). 1780. South V. Rathbone (19 Ohio, 21), 157. Southern v. Ward (85 Pac. 400), 92. Southland v. Holiday (92 X. W. 937), 93. Southward v. Jameson (00 0. S. 311), 3, 85, 87, 91. Spangler v. Dukes (39 0. S. 642), 1178. Sparks v. Bayer (5 Kan. App. 721), 18. Sparks v. Boyer (5 Kan. App. 721, 46 Pac. 980), 32. Sparks v. City (21 Okla. 827, 97 Pac. 575), 154. Sparrhaw v. Yerkes (142 U. S. 1), 374. Spear v. Coell (33 0. S. 236), 3. Speller v. Xye (10 Ohio, 10), 147. Speller v. Xye (10 Ohio, 563), 147. Sperry v. Pond (5 Ohio, 388), 1112. Spier V. Cordel (33 O. S. 236), 87, 91. Spoors V. Coen (44 0. S. 497), 3, 85, 87, 91. Springfield v. Hobart (98 Mo. App. 227, 68 S. W. 942), 346. Sproul V. Atchinson (22 Kan. 336), 508. Stackhouse v. Horton (15 X. J. Eq, 228), 616. Stair V. Stair (6 Wall. 418, 18 L. Ed. 925), 1750. Stair V. Wright (20 0. S. 99), 1275. Standard v. Lansing (48 Pac. 048), 500. Standard v. Snowden (55 O. S. 332), 1010. Standifer v. Morris (25 Okla. 802, 108 Pac. 413), 1175a. Stanley v. Roberts (59 Fed. Rep. 830, 8 C. C. A. 305), 89. Stanton v. Ballard (133 Mass. 40), 3. Stanton v. Enquire (7 X. P. 589), 22. Stanton v. Kendrick (45 X. E. 19), 1057. Stapleton v. Ellison (21 O. S. 527), 1200. Starkweather v. Morgan ( 15 Kan. 274), 43. Starkweather v. Morgan ( 15 Kan. 274), 44. Starr v. Watkins (11 X. W. 363), 112. State V. Allen (5 Kan. 213), 1292. State V. Bilk (94 X. W. 017), 175. State V. Chambliss (18 la. 474), 160. State V. Commonwealth (22 Pac. 982), 1503. State V. Conover (8 X. J. L. 338), 836. State V. Fox (00 O. S. 349), 17. State V. McArthur (5 Kan. 281), 130. State V. McGlynn (20 Cal. 233, 81 Am. Dec. 118), 727. State V. McLain (49 Kan. 750), 1296. State, etc., v. Oklahoma, etc. (21 Okla. 823, 97 Pac. 574), 29. CXIV TABLE OF CASES. [References are to sections.] State V. Stringfellow (12 Kan. 2G3), 1126. State V. Stringfellow (2 Kan. 259), 1116. State V. Williams (30 Kan. 577, 18 Pac. 727), 472. Stearns v. Ballon (27 Kan. 295), 1174. Stearns v. Endors ( 1 Green's N. J. R. 271), 1203. Stebbins v. Guthrie (4 Kan. 302), 1169, 1170. Stedliam v. Mathews (29 Ark. 50), 593. Stedwell v. Anderson (21 Conn. 139), 486. Steff V. Peckham (4 Okla. 254, 46 Pac. 664), 1075. Steinger v. Williams (63 Ga. 478), Steinrod v. Railroad (27 W. Va. 1), 450. Stevens, In re (83 Cal. 322), 652. Stevens v. Ballou (27 Kan. 63), 1168. Stevens v. Cherokee (174 U. S. 445), 1797, 1832. Stevens v. Choctaw ( 174 U. S. 445), 1297. Stevens v. Choctaw ( 174 U. S. 445, 19 Sup. Ct. 723), 1735. Stevens v. Choctaw Nation ( 174 U. S. 485, 43 L. Ed. 1055), 1735. Stevens v. Elliott (118 Pac. [Okla.] 407), 82a. Stevens v. Elliott (118 Pac. 407), Stevens v. Naylor ( 106 N. W. [Neb.] 446), 152. Stevens v. Regensten (89 Ala. 561), 505. Stevenson v. Elliott (53 Kan. 550, 36 Pac. 980), 490. Stewart, In re (81 Pac. 68), 1254. Stewart v. Same (27 W. Va. 167), 43. Stewart v. Griswold ( 134 Mass. 391), 43. Stewart v. Hoar (2 Bro. C. C. 663), 351. Stewart v. Hoare (2 Bro. C. C. 6(i,3), 73. Stewart v. Hoare (2 Bro. C. C. 663), 72. Stewart v. Severance (43 ]\lo. 322), 166. Stewart v. Stringer (41 Mo. 40), 43. Still V. Palmer (41 Miss. 89), 85. Stimson v. Green (22 Pac. 586), 1290. St. Joseph V. Casey (14 Kan. 504), 309. St. Louis V. Coal Co. (Ill 111. 32 ) , 3. St. Louis V. Cola Co. (Ill HI. 32), 87. St. I^uis V. Cox (122 Pac. 130), 1779. St. Louis V. De Ford (38 Kan. 299, 16 Pac. 442), 52. St. Louis V. Langlin (49 Fed. 440), 1738. St. Louis V. Oliver (17 Okla. 419, 87 Pac. 423), 86. St. Louis V. Phillips (17 Okla. 264, 87 Pac. 420), 111. Stone V. Banking (8 C. C. 636), 214. Stout V. Hyatt (13 Kan. 232), 1116. Stout V. Hyatt (13 Kan. 176), 1118. Stout V. Simpson ( 124 Pac. [Okla.l 754), 2127. Stover V. Hogebaker (60 N. W. 597), 809. Straton v. Morgan (112 Cal. 513), 628. Stratton, In re (112 Cal. 513), '666, 679. Stratton v. Hawk (23 Pac. 591), 1283. Striker v. Mott (2 Paige, 389), 1203. Strobe v. DowTier (13 Wis. 11), 85, 87. Strobe v. Downer (13 Wis. 10), 3. iStuU V. Powell (30 Neb. 152), 18. StuU V. Powell (97 N. W. 249), 18. Stullar V. Parks (31 Pac. 301), 804. TABLE OP CASES. cxv [RefereDces are to sections.] Sturgis V. Galendo (59 Cal. 28, 43 Am. Rep. 239), 439. Stutsner v. Prince (61 N. W. 620), 317. Styer, In re (3 Am. Bank Rep. 424), 374. Styles V. Murphy (4 Ohio, 92), 136. Styles V. Widener (35 0. S. 550), 157. Sullinger v. Buck (22 Kan. 28), 139. Superior v. Melilin (108 Pac. 54.")), 458. Superior v. ]\Ieliling (108 Pac. 545), 434. Supreme v. Bennett (472 J. Eq. 39), 1753. Sutlierhind v. Taintor ( 17 Okla. 427, 87 Pac. 900), 450. Sutro, In re (139 Cal. 87), 682. Sutton V. Henle (115 Pac. 570), 356. Sutton V. Same (83 X. W. 200), 1127. £. W. V. Swanson (49 Kan. 449, 30 Pac. 405), 54. Swanly v. Hutcliers (13 X. W. 282), 292. Swordsperger v. State (21 Kan. 495), 34. Swinford v. Rodgers (23 Cal. 233), 504, Taber v. Cook (15 Mich. 322), 1177. Tabler v. Wiseman (2 0. S. 20S), 1201, 1203. Tamer v. Ivy (2 Ves. Jr. R. 40;),', 351. Tarponny v. King (82 N. W. 409), 809." Tate V. Jov (31 Ark. 576), 560, 591. Tausig V. Corbin (142 Fed. 660, 73 C. C. A. 656), 439. Taylor v. Atwood (47 Conn. 498), 477a. Taylor v. Coots (48 N. W. [Neb.] 964), 60, 61. Taylor v. Donley (112 Pac. 594), 1126. Taylor v. Miller (13 Howard, 487), 133. Taylor v. Sprugs (11 Okla. 710, 09 Pac. 64), 1176. Taylor v. St. Louis (97 S. W. 155), 348. Templeton v. Wells (24 Kan. 277), 823. Terry v. Logan (75 Ark. 240), 561. Texas Co. v. Henry (126 Pac. [Okla.] 224), 2136, 2137. Thayer v. Pratt (189 U. S. 346, 47 L. Ed. 845), 1780. Thomas v. Gay (168 U. S. 204, 4Z L. Ed. 740), 1739. Thomas v. Gray (169 U. S. 271), 2129. Thomas v. Myrick (24 Hun, 4), 89. Thomas v. Raner (64 Pac. 80), 1116. Thomas v. White (2 O. S. 540), 1178. Thompson v. Burge (60 Kan. 549, 57 Pac. 110, 72 Am. St. Rep. 369), 133. Thompson v. Chessman (48 Pac. 477), 1057. Thompson v. Cucult (54 Mich. 236, 19 N. W. 967), 57. Thompson v. Green (4 0. S. 217), 1112. Thompson v. Hubbard (3 Kan. App. 714, 44 Pac. 1095), 165. Thompson v. Ins. Co. (136 U. S. 287), 74. Thompson v. Insurance (136 U. S. 287), 357. Thompson v. Marshall (36 Ala. 504, 76 Am. Dec. 328), 487. Thompson v. Montross (2 N. P. [N. S.] 368), 18. Thompson v. New etc. (110 Ala. 400, 55 Am. St. 29), 933. Thompson v. Ogden (3 C. C. [N. S.] 51), 292. Thompson v. Pfeifer (60 Kan. 409, 56 Pac. 763), 32. Thompson v. Same (4 0. S. 333), 1057. CXVl TABLE OF CASES. [References are to sections.] Thompson v. Toluni (2 Pot. 157), 231. Thornhill v. Hargreaves ( 107 N. \V. 847), 94, 100. Thurston v. Washington (18 Okla. 362, 'JO Pac. 16), 88. Thrall v. Wright (38 Ves. 404), 350. Thwing V. Winkler (13 Okhi. G4:?, 75 Pac. 112G), 204. Tidball v. Schmcltz (77 Kan. 440, 94 Pac. 794), 1222. Tiger v. Western (221 U. S. 2St>), 1735, 1739. Tillon V. Same (9 N. H. 385), 487. Tognior v. Christian (27 Ark. 306), 5(i9. Tohxnd V. Tohind (123 Cal. 140), 667. Tolman v. Baltimore (45 Fed. Rep. 170), 45. Tomison v. Lynch (29 Cal. 189), 1177. Tootle V. Ellis (63 Kan. 422, 65 Pac. 645, 88 Am. St. 246), 32. Tootle V. Loyd (114 Pac. 260), 980. Tootle V. Mercer (34 Pac. 301), 300. Topeka v. Route (56 Kan. 187, 42 Pac. 715), 347. Town V. Haskell (116 Pac. 805), 1736. Townsend v. Burr (9 Kan. App. 810, 60 Pac. 477), 64. Townsend v. Kennedy (160 N. \V. 164), 449. Townsend v. Vanderwerker ( 160 U. S. 171), 451. Tracy v. Kerr (47 Kan. Pac. 707), 1021. Tracy v. Muir (157 Cal. 363, 90 Pac. 832), 727. Trainer v. Ivie (2 Ves. Jr. R. 466), 72. Traver, In re (145 Cal. 508), 693. Traver v. Baker (38 W. L. B. [Ohio] 273), 18. Travis v. Topeka (42 Kan. 625, 22 Pac. 991), 70. Trepiton v. Busee (10 Kan. 170), 1 .-)2. Trepiton v. Busse (10 Kan. 1070), VM. 'l"i iiiiblc V. Jjongworth ( 13 0. S. 438), 3. Triniljle v. Longworth (13 0. S. 431), 90. Triml)le v. Longworth ( 13 0. S. 438), 87. Trombly v. Martel (61 Kan. 703, 60 Pac. 741), 1251. Trucble v. James (40 Ark. 393), 592. Tnimlnill v. James (40 Ark. 393), 583. Tucker v. Shade (15 0. S. 355), 136. Tullos V. Brawley (3 Minn. 277), 43. Turos V. Same (131 Cal. 625), 505. Turner v. Seep (167 Fed. 646), 2119. Turner v. Utah (10 Utah, 61, 37 Pac. 91), 477a. Tusca V. O'Bren (68 N. Y. 446), SO. Twonbly, In re (120 Cal. 50), 621. Tyler, In re (121 Cal. 405, 53 Pac. 928), 731. Tyler v. Gardner (35 N. Y. 576), 619. Tyler v. SafTord (24 Kan. 581), 305. Tynon v. Hall (22 Okla. 685, 98 Pac. 895), 1831. Ufford V. Wilkins (33 la. 110), 1135. Union v. McAlpine (129 U. S. 305), 45. Union v. Packard (1 C. C. 76), 295. Union v. Van Renssalaer (4 Paige, 84), 72, 73, 357. United States v. Aaron (183 Fed. 347), 1928, 1929. United States v. Allen (179 Fed. 13), 2119. United States v. Allen (179 Fed. 13, 103 C. C. A. 1), 1735. TABLE OF CASES. CXVll [References are to sections.] United States v. Babitt (1 Black, 55, 17 L. Ed. 94), 1736. United States v. Dowden (194 Fed. 476), 1782. United States v. Dowden (94 Fed. 176), 478. United States v. Fisher (122 U. S. 254), 1764. United States v. Freeman (3 How. 556), 1885. United States v. Hammer (69 Pac. 779, 195 Fed. 807), 2129. United States v. Koganna (118 U. S. 375), 1735. United States v. National (6 Okla. 163, 51 Pac. 119), 1564. United States v. Old Settlers (148 U. S. 427), 1797. United States v. Rich (8 Pet. 128), 72. United States v. Rickert (188 U.S. 432), 1735. United States v. Rogers (4 How. 567), 1797. United States v. Winona (15 C. C. A. 96), 1763, 1764. Upham, In re (122 Cal. 90), 671. Upper, etc., v. Whittaker (16 Wis. 233), 46. Upton V. Utley (59 111. 25), 18.34. Utley V. Free (33 Kan. 690, 7 Pac. 555), 1117. Utz. In re (43 Cal. 200), 689. Vamellons v. Huene (108 Pac. 1102), 804. Vanbluth v. Halsey (37 Kan. 116, 14 Pac. 482), 174. Vance v. Morony (4 Cal. 47), 836. Van Lear v. Kansas (56 Kan. 54.j, 43 Pac. 1134), 806, 1123. Van Renselaer v. Carney ( 1 1 How. 326, 13 L. Ed. 715), 89. Vendle v. Dutch (15 Pac. 520), 96. Venim v. Houston (56 X. W. [Neb.] 970), 21. Venture v. Fretta (152 Pa. 451, 21 Atl. 732), 439. Ventures v. Smith (10 Pet. 161), 436. Vieth V. Riss (87 N. W. 116), 1563. Village V. Reed (31 N. W. 797), 1143. Voiles V. Bowen (45 N. H. 124), 43. Von Buricken, In re ( 120 Cal. 343, 52 Pac. 819), 720. W Wabash, etc., v. Toledo, etc. (7 N. P. 198), 1178. Wabosu V. lienkert ( IGO 111. 298), 1736. Wachendorf v. Lancaster ( 14 N. W. 316), 485. Wadsworth v. Boyson (148 Fed. 171, 78 C. C. A. 457), 1739. Wagg V. Herbert (19 Okla. 520, 92 Pac. 250), 1074, 1075. Wagley v. Jaquez (114 Mass. 335, 59' Am. Rep. 65), 1753. Wagoner v. Lubenow (112 N. W. "247), 817. Wagstaff V. Moser (55 Pac. 584), ^299. Wait V. Atchison (103 S. W. 60), 343, 348. Waken v. Owen (79 Mo. 563), 450. Walker, In re (110 Cal. 387), 628. Walker v. Mims (14 Ga. 523), 1561. Walker v. Stevens (72 N. W. 1038), 33. Walker v. Stevens (72 N. W. [Neb.] 1038), 26. Walker v. Stevens (72 N. W. 1038), 38. Walkerly, In re (108 Cal. 627), 679, 684* Wall V. Williamson (8 Ala. 48), 1947. Wallace v. Adams (143 Fed. Rep. 716, 74 C. C. A. 540), 88. Wallace v. Adams (143 Fed. 721, 74 C. C. A. 540), 1763. 1764. Wallace V. Dayton (— Dayton, 415), 1112. Wallace v. Hall (22 Kan. 194), 823. Wallering v. Congan (36 W. L. B. 86), 294. CXVIU TABLE OF CASES. [References are to sections.] Walling V. Thomas (33 Alii. 420, 31 So. 932), 477a. Walton V. Perkins (33 Minn. 357, 23 N. W. 527), 1178. Walton V. Yore (58 Mo. App. 565), 351. Walton V. Yore ( 58 ;^^o. App. 50.") ) , 73. Wamble v. Pike (17 Okla. 122, 87 Pac. 427), 1170, 1170. Ward V. Board (12 Okla. 207, 70 Pac. 378), 028. 727. Ward V. Board (12 Okla. 207, 70 Pac 378), 89. Ward V. Racehorn (103 U. S. 504. 41 L. Ed. 244), 1739, Ward V. Urmson (59 N. W. 97), 84. V.'ardell's Estate (57 Cal. 484). 522. Warden v. Williams (07 Mich. 50, 28 N. W. 796), 453. Warden v. Jones (40 Pac. 1071), 173. War field, In re (22 Cal. 51, S3 Am. Dec. 49), 727. Watkins v. National (32 Pac. 914). 1503. Watson V. Billings (32 Ark. 27S), 509. Watson V. Key.^tone (70 Kan. 01, 78 Pac. 150), 177. Watson V. Payne (25 0. S. 340), 45. Watson V. Watson (0 Conn. 334), 43. Watterson v. Urey (5 C. C. 47), 1180. Waymire v. Staley (3 Ohio, 300), 'l38. Weaver v. Lockwond ( 2 Kan. App. 62, 43 Pac. 311), 59. Weaver v. Rush (62 Ark. 51), 560. Weaver v. Tschetter ( 1 S. D. 205, 46 N. W. 201 ) , 987. Webb V. Harris (121 Pac. 1083), 82. Weber v. King (7 W. L. B. 148), 138. Webb V. Smith (40 Ark. 17), 569, 593. Webb V. Thiele (77 N. W. 65), 1142. Weeks v. Circuit (73 Mich. 256), 346. Weeks v. White (21 Pac. 600), 1289. Weinmiller v. Laughlin (5 0. S. 421), 87. Weinmiller v. I>aughlin (51 O. S. 421), 91. Weinmiller v. Laughlin (54 0. S. 21), 1179. Weinmiller v. Laughlin (51 O. S. 421), 3. Weisham v. Hocker (7 Okla. 250, 54 Pac. 404), 1074, 1075. Welch V. Henry (4 Pac. 814), 1563. Welles V. Yates (44 X. Y. 525), 493. Wells V. Patton (50 Kan. 732, 33 Pac. 15), 33. Welsch V. Chikls (17 0. S. 39), 89. Welsch V. Perkins (8 Ohio, 52), 159. Wellsford v. Durst (8 Kan. App. 236, 55 Pac. 493), 70. Wescott V. Archer (11 N. W. 495), 292. Weshall v. Hall (3 Paige, 313), 487. West V. Badger (56 Kan. 298, 43 Pac. 239), 1018. West V. James (51 O. S. 330), 136. West V. Klotz (37 0. S. 420), 1010. West V. Williams (15 Ark. 083), 501. Western v. Herman (65 Kan. 5, 68 Pac. 1080), 1020. Western v. Hymen (71 Kan. 43, 80 Pac. 16), 1017. Western v. Kistler (97 Pac. 588, 22 Okla. 222), 2119. Western v. Kistler (22 Okla. 222, 97 Pac. 588), 1761. Western v. Tiger (96 Pac. 603), 1881. Westervelt v. Hoge (85 N. W. 852), 301. Westheimer v. Reed (19 N. W. [Neb.] 626), 157. Westinghouse v. Tilden (76 N. W. 416), 1292. TABLE OF CASES. CXIX [References are to sections, j Westner v. O'Brien (56 Kan. 724, 44 Pac. 1090), 2G, 56. Weston V. Long (66 Pac. 1032), 29. Wetyler v. Filch (52 Cal. 638), 755. Wharton v. Stoutenberg (25 N. -J. Eq. 266), 450. Wheat V. Railroad (4 Kan. 370), 56. Wheatland v. Dowden (HO Pac. 899), 1177. Wheaton v. Sutton (4 Wheat. 503), 166. Wheeler v. Walden (17 Neb. 122, 22 N. W. 346), 441. Whetstone v. Ottawa (13 Kan. 320), 456. Whitcomb, In re (24 Pac. 1028), 658. White V. Brocaw (14 0. S. 339), 1202. White V. Smith (33 Pa. 186, 75 Am. Dec. 589), 1834. White V. Friese (2 C. S. C. R. 30), 45. White Crow v. White Wing (3 Kan. 276), 154. Whitehead v. Post (3 W. L. M. [Ohio] 195), 149. Whitehead v. Post (3 W. L. M. 195), 45. Whitney v. State (73 N. W. 696), 1292. Whittaker v. Marian ( 1 Cox's Case, 285), 72. Whittaker v. Marlin ( 1 Cox's Case, 285), 351. Whitwell V. Emory (3 Misc. 84), 84. Wichita v. Record (19 Pac. 310), 317. Wicks V. Smith (18 Kan. 508), 1130. Wilber v. Harsbargcr (5 Kan. App. 80, 47 Pac. 166), 136. Wilbur V. Wilbur (138 111. 446), 352. Wilbur V. Wilbur (138 111. 446), 73. Wiley V. Helen (112 Pac. 158), 442. Wilev V. Helen (112 Pac. 158), 452. Wiley V. Lewis (4 N. P. 212). 84. Wilford V. Milford (5 Kan. App. 222, 47 Pac. 175), 154. Wilke V. Sassen (123 la. 421, 99 N. W. 124), 477a. Wilkerson v. Mears (77 Kan. 273, 94 Pac. 570), 94. Wilkinson v. Elliott (43 Kan. 590, 23 Pac. 614), 70. Williams, In re (112 Cal. 521), 691. Williams v. Same (73 Cal. 99), 680. Williams v. Board (74 Kan. 693, 88 Pac. 70), 64. Williams v. Bnglebright (73 0. S. 383), 1112. Williams v. Farmer ( 13 Okla. 5, 73 Pac. 269), 317. Williams v. Johnston (122 Pac. 48), 1739. Williams v. Morehead (33 Kan. 609, 7 Pac. 226), 62. Williams v. Richey (3 Dill. 406), 82. Williams v. Swisher (65 N. W. 788), 301. Williams v. Tourtelloff (28 Kan. 833, 28 Kan. 589), 59. Williams v. Wilton (28 0. S. 451), 38. Williamsburgh v. Towne (32 N. E. 1058), 89. Williamson v. Berry (42 U. S. 514, 12 Fed. 1170), 87. Willoughbv V. Willoughby ( 16 Okla. 546, 85 Pac. 713), 477. Wills V. Atkinson (124 Minn. 161), 1279. Wills V. Price (9 Mass. 508), 1201. Willis V. Farley (24 Cal. 490), 757. Wilson V. Campbell (88 Pac. 538), 813. Wilson V. McCormick ( 10 Okla. 180, €1 Pac. 168), 120. Wilson V. Morton (119 Pac. 213), 1826. Wilson V. Roggencamp (12 N. W. 811), 38. cxx TABLE OF CASES. [References are to sections.] Wilson V. Same (86 Ind. 472), 1114. Wilson V. Shepherd (IG N. W. 82G), 302. Wilson V. Tortotoll (22 Pac. 11), 301. Wilson V. Young (.19 N. W. 487). 809. Wilson V. Young (19 N. W. 487), 819. Wilson V. Wilson (28 0. S. 451), 25. Wilson V. Wood (10 Okla. 279, 61 Pac. 1045), 387, 402. Wilte V. Lockwood (39 0. S. 143), 483. Winter, In re (114 Cal. 186), 675. Winters v. Pavis (51 Ark. 335, 11 S. W. 420), 583. Winton v. Cornish (5 Ohio, 477), S4. Winton v. Myers (8 Okla. 42, 5-^ Pac. 634), 300. Winton v. Myers (8 Okla. 421, 58 Pac. 634), 296. Wisconsin v. Price (133 U. S. 496, 33 L. Ed. 687), 1748. Wise V. Martin (7 K P. 660), 294. Witch V. Smith (18 Kan. 508), 1130. Witham v. Lehmer (98 Pac. 351, 22 Okla. 627), 2119. Witherspoon v. Dimode (4 Wall. 210, 18 L. Ed. 339), 1748, 1750. Witmers' Appeal (45 P. S. 455, 84 Am. Dec. 505), 121. Wolf V. Ham (28 Kan. 588), 302. Wood V. Butler (23 0. S. 520), 76. Wood V. Clute (1 Sand. Chy. Rep. 202), 1203. Wood V. Colvin (5 Hill, 231), 166. Wood V. Dill (3 Kan. App. 484, 43 Pac. 822), 1020, 1024. Wood V. Drury (56 Kan. 409, 43 Pac. 763), 15G. Wood V. Wood (59 Ark. 441), 576. Woodbridge v. Baning (14 0. S. 328), 1112. Woodmen v. Bowersfield (62 Kan. 867, 62 Pac. 1012), 29. Woods V. Franks (67 Cal. 42), 505. Woodvvorth, In re (31 Cal. 595), 691, 693. Woodwortli's Estate (31 Cal. 595), 217. WoolcofT V. Heminger (96 X. W. [Neb.] 12), 146. Worcester v. Georgia (6 Pet. 515), 1797. Work V. Welsh (160 111. 468, 43 N. E. 719), 440. Worsely v. Jolinson (3 Ark. 761), 1753. Worth V. Branson (98 U. S. 118, 25 L. Ed. 86), 1750. Worthington v. Woods (34 N. W. 368), 809. Worthy v. Cooper (23 Kan. 432), 806. Worthy T, Johnson (8 Ga. 236), 836. Wright V. Branson (98 U. S. 118, 25 L. Ed. 86), 1748. Wright V. Edwards (10 Ore. 298), 836. Wright V. Kansas (126 S. W. 516), 346. Wyche v. Green (32 Ga. 34), 483. Wyman v. Herrard (9 Okla. 35, 50 Pac. 1009), 94, 96. Wyman v. Herrard (59 Pac. 1009), 26. Wynans v. Gibbs (30 Pac. 163), 1562. Yarbrough v. Spalding (124 Pac. — ), 1297, 1735. Yinglin v. Redwine (12 Okla. 64, 69 Pac. 810), 1074. Yoder v. Randal (16 Okla. 308, 83 Pac. 537, 3 L. R. A. [N. S.] 576), 111. TABLE OF CASES. CXXl [References are to sections.] Young, In re (123 Cal. 337), 679. Young V. Joseph (99 X. W. 522), 302. Young V. McWilliams (89 Pac. 12), 1120. Young V. Shellenberger (41 N. E. 518), 114. Young V. Wood (83 N. W. [Neb.] 528), 144. Youngs V. Hefifner (36 0. S. 237), 1201. Zahn V. Obert (103 Pac. 704), 803. Zashenosky v. Voliaith (59 0. S. 540), 157. Zelle, In re (74 Cal. 125), 691. Zimmerman v. Barnes (56 Kan. 419, 43 Pac. 764), 56. Zufall V. Peyton (110 Pa 67 COMMENCEMENT OP THE ACTION TO TRANSFER. §§ 69-71 cannot be enforced against the defendants not served, except against the copartnership property.^* Sec. 69. Judgment in the action no bar against defendant not served. Nothing in the code, nor in this chapter, shall be construed as to make a judgment against one or more defendants jointly or severally liable, a bar to another action against those not served.^^ Sec. 70. Lis pendens — No notice, if service be not had. When the petition has been filed, the action is pending, so as to charge third persons with notice of its pendency, and while pending no interest can be acquired by third persons in the subject-matter thereof, as against plaintiff's title; but such notice will be of no avail unless a summons be served or is published more than sixty days after the filing of the petition.^® Sec. 71. Judgment a lien on land in other county, when. When any part of real property, the subject-matter of an action is situated in any other county or counties than the one in which the action is brought, a certified copy of the judgment in such action must be recorded in the office of the register of deeds of such other county, or counties, before it will operate therein as notice, so as to charge third persons, as i4Symms v. Burnham, 6 Okla. Pac. 114; Harrod v. Burke, 76 618, 52 Pac. 918. One member of Kan. 909, 92 Pac. 1,128; McCIung a firm cannot be sued for the debt \. Hohe, 10 Kan. App. 93, 61 Pac. of the firm without joining all the 507; Wellsford v. Durst, 8 Kan. members of the firm as defendants. App. 231, 55 Pac. 493; John v. Cox V. Gills, etc., 8 Okla. 485, 58 Strauss, 60 Kan. 136, 55 Pac. 845; Pac. 645. Cornell v. Parkinson, 59 Kan. 365, 15 Snyder, 5.620; Wilson, 4,284; 53 Pac. 138: Carr v. Burns, 1 Kan. Kansas, 4,514 (1901), identical; App. 232, 40 Pac. 1.087; Wilkinson Jenks V. School District, 18 Kan. v. Elliot, 43 Kan. 590, 23 Pac. 614; 356. Travis v. Topeka, 42 Kan. 625, 22 18 Snyder, 5.621; Wilson, 4,285. Pac. 901; Smith v. Kimball, 36 For construction of this statute, see Kan. 474, 13 Pac. 801; Hildebrand Core V. Smith, 23 Okla. 909, 102 v. Nelson, 95 N. W. (Neb.) 1,068. § 71 merwine's trial of title to land. 68 provided in the preceding section. It will operate as such, notice, without record, in the county where it is rendered.^^ It has been decided that a judgment in the district court against parties who had been seized of real estate, and in whom the title still appeared of record, becomes a lien upon the property, notwithstanding that the judgment debtor had previously executed a deed conveying such real estate to a third party, regardless of whether the judgment creditor had actual notice of such conveyance or not.^* 17 Snyder, 5,622; Wilson, 4,286; v. Young, 8 Okla. 216; Hubbard v. Kansas, 4,516 (1901), identical. Jones, 61 Kan. 722, 60 Pac. 743. 18 Lewis V. Atherton, 5 Okla. 90, 47 Pac. 617; see, also, Lowenstein CHAPTER IV. ACTIONS BY OR AGAINST INFANTS. SECTION 72. Actions by or against infawts — History of the law as to the duties of next friend and guardian ad litem. 73. Actions by or against infants — Court has power to order pay- ment of fee for guardian ad litem. 74. Actions by or against infants — The guardian ad litem may employ an attorney, when. 75. Actions by or against infants- guardian ad litem allowed at- torney's fee for counsel em- ployed by him in allowance of his own account, when. 76. Actions by or against infants — Nature of the duties of the guardian ad litem. 77. Actions by or against infants — The next friend no party to the action — May employ coun- sel. SECTION , 78. Actions by or against infants — The next friend and guardian ad litem perform the same functions. 79. Actions by or against infants — Statutory provisions. 80. Actions by or against infants — The service of summons upon an infant under fourteen years of age — Over fourteen years of age. 81. Actions by or against infants — Where infant not served judg- ment void. 82. Action by infant after disability of infancy removed — Procedure in action on becoming of age. 82a. Restoration of purchase money in suits to disaffirm deed. 82b. Conveyance by minor Creek freedman. Sec. 72. Actions by or against infants— History of the law as to the duties of next friend and guardian ad litem. It has been a rule of law from time immemorial that the next friend must bring the action for an infant. In the time of Lord Thurlow and Lord Hardwick, in England, the fees of counsel were allowed as costs in the action for an infant. The former laid down the rule that no mistake or misappre- hension would be sufficient to charge the prochein ami with the costs, and that anyone who would stand forward in that character on behalf of the infant, ought to be encouraged to § 72 MERWINE 'S TRIAL OF TITLE TO LAND. 70 every possible extent which he could be supposed to intend beneficial to the infant. And the latter laid down the rule that when it appears that the next friend was sufficiently warranted to bring the suit, and it was brought and continued in a reasonable manner, without laches, then, the infant ought to reimburse him.^ It has always been the practice of English courts to bring the infant into court, and ask permission to have a guardian ad litem appointed for him.- The highest tribunal in our land has declared the English practice its practice, in the prosecution or defense of an infant by next friend or guardian ad litcm.^ And this rule of practice has been adopted by the various States of the Union. In order to carry out the practice, it is necessary that the guardian ad litem be empowered to secure and retain the services of an attorney, and the attorney's compensation will come under the allovv^ance by the court out of the funds placed in the hands of the court, or under its control, by the services of such attorney.* The general guardian of an infant is required to appear for and represent his ward in all legal suits and proceedings, unless another person is appointed for that purpose, as guard- ian or next friend.^ It is further provided by statute in the chapter relating to the general guardian of minors, that nothing contained therein shall affect or impair the power of any court to appoint a guardian to defend the interests of any minor interested in any suit or matter pending therein.^ 1 Whittaker v. Marian, 1 Cox's s Marshall, J., in United States Case, 285; Tainer v. Ivie, 2 v. Rich, 8 Pet. 128. Ves. Jr. R. 466 ; Pierce v. Pierce, 4 Stewart v. Hoare, 2 Bro. C. C. 9 Ves. R. 547. 663; Fearns v. Young, 10 Ves. 184; 2 Loyd V. Carew, L. Eq. C. Abr. Crump v. Baker, 18 Ves. 285; Union 260; Johnson v. Pfeil, 9 Ves. 357; v. Van Rensalaer, 4 Paige, 84. Lushington v. Sewell, 6 Madd. 28; s Snyder, 5,490; Wilson, 1,832; Egremont v. Egremont, 2 DeG., N. California, 1,769 (Kerr). and G.; Bennison v. Wortley, e Snyder, 5,484; Wilson, 1,826. DeG. Sen. 648. 71 ACTIONS BY OR AGAINST INFANTS. § 73 Sec. 73. Actions by or against infants — Court has power to order payment of fee for guardian ad litem. It is now, and has been the universal rule of the courts to allow a fee to be paid for counsel for guardian ad litem, for his services in protecting the interests of the infant out of any fund in the control of the court, and placed there by the services of the attorney for the guardian ad litem. It cannot be seriously controverted that a guardian ad litem appointed by the court for an infant, is entitled to compensa- tion. If the law were otherwise, the rights of infants would be at the mercy of anyone who saw fit to evade them. The statutes which make provision for the appointment of these officers imply that they should be compensated, and the proper court should fix their compensation as the one which is the witness of their services. That proposition cannot be gainsaid and has been uniformly so held.''' Another court of last resort has held that where an at- torney appears for the guardian ad litem, the relation of the attorney to the infant is the same as it would have been to an adult. It is further held that this doctrine did not at all conflict with cases holding that an infant cannot appear or plead by an attorney. The ground is, that after the guardian ad litem has been appointed, he aids the infant in selecting counsel and conducting the defense. That it is the employ- 7 Walton V. Yore, 58 Mo. App. 108 Tenn. 442; Boring v. Jude, 53 565; Nagel v. Sclmlling, 14 Mo. S. W. 763. A suit was brought in App. 576; In the Matter of Mat- the name of certain minors by thews, 27 Hun, 254; Gott v. Cook, request of their guardian. The 7 Paige, 52; Herbaugh v. Vance, minors were the real parties in 5 Lea (Tenn.), 113; Wilbur v. interest. It did not appear that Wilbur, 138 111. 446; McCue v. there was any intention on the part O'Hara, 5 Radf. (X. Y.) 336; Hallo- of the attorneys to look to the way V. Mcllhanney, 17 Tex. 657 Robinson v. Fidelity, 11 S. W. 106 Stewart v. Hoare, 2 Bro. C. C. 663 Fearns v. Young, 10 Ves. 184 guardian for compensation, nor on the part of the guardian to become (personally liable therefor. Held, that a court of equity would charge Crump V. Baker, 18 Ves. 285; Union the estate of the minors with such V. Van Rensalaer, 4 Paige, 84; compensation. Fillmore v. Wells, American v. Davis, 67 S. W, 864, 10 Colo. 228, 15 Pac. 343. § 74 MERWINE 'S TRIAL OF TITLE TO LAND. 72 ment of the infant is evidence from the fact that the infant and not the guardian pays such attorney. The legal services are, in such cases, necessary.^ The court appointing the guardian ad litem, usually fixes the amount of the fee. And such amount is fixed, having regard to the character of the litigation, and the services actually rendered by such guard- ian ad litem.^ Sec. 74. Actions by or against infants— The guardian ad litem may employ an attorney, vvhen. The guardian ad litem may employ assistance even when he is an attorney, and the assisting attorney may be allowed fees where the necessity of the case demands it. Where a guardian ad litem who is an attorney, employs counsel to assist him in conducting the litigation for his wards, he should be allowed a reasonable compensation for such counsel, for the performance of such services only as such guardian himself could not properly be expected to perform.^" 8 Alexander V. Frarey, 9 Ind. 484; the guardian ad litem's right to Doe V. Brown, 8 Blackf. (Ind.) 443. appeal was opposed, and the gen- 9 15 Am. and Eng. Enc. Law, 14. eral guardian attempted to procure 10 Richardson v. Tyson, 86 N. W. his discharge and opposed all his (Wis.) 250; Tyson v. Tyson, 94 efforts on behalf of his wards. Wis. 225, 68 X. W. 1,015; Hamacker Held, that the compensation of the V. Bank, 95 Wis. 359, 70 X. W. guardian ad litem for services in 295; Thompson v. Ins. Co., 136 the trial court was fixed by the U. S. 287; Henry v. Henry, 103 Ala. agreement, but the circumstances of 582. Before his appointment as the appeal were so changed from guardian ad litem, an attorney those contemplated when the agree- agreed to accept such appointment ment was made that compensation in a protested suit, and conduct the will not be awarded on the agree- litigation therein for his wards for ment. In this case the general a specified sum in the trial court, guardian opposed the action of the and the like sum for an appeal to guardian ad litem, and attempted the Supreme Court. He received to prevent his taking an appeal, and receipted for the agreed sum whereby his wards were saved large after the trial. Thereafter, the op- sums of money. Richardson v. posing counsel was changed, and Tyson, 86 N. W. (Wis.) 250. 73 ACTIONS BY OR AGAINST INFANTS. §§75,76 Sec. 75. Actions by or against infants — Guardian ad litem allowed attorney's fee for counsel employed by him in allowance of his own account, when. If the guardian ad litem, who is a lawyer and attorney, acts fairly, makes full disclosure, and does not make unreason- able demands for credit or allowance, he may be allowed compensation for services, and such necessary attorney fees filed in his account. This rule was enforced in a case where the guardian ad litem gave services, and when his account came up for allowance, it was resisted by those interested in the property in litigation, which necessitated the appoint- ment and services of a guardian ad litem for the infant heirs. ^^ Sec. 76. Actions by or against infants — ^Nature of the duties of the guardian ad litem. The duties of a guardian ad litem are in no wise like those of a guardian of the person and estate of a ward appointed by the county court. The guardian ad litem has nothing to do with the management of the property of the infant in the suit in which he has been appointed guardian ad litem. He has no authority over the property or the person of the infant for whom he acts. All that the guardian ad litem does is under the control and supervision of the court having con- trol of the case in which he was appointed.^- In an action in the probate court to enforce an agreement for the conveyance of real estate under the terms of a will, a guardian of a minor has no authority to waive the issuance and service of summons on his ward and dispense with the services of a guardian ad litem, unless authorized by statute. A judgment against a minor in a case in which he has not had his day in court, will he reversible on petition in error within the statutory time after reaching the age of majority.^^ 11 Richardson v. Tyson, 86 X. W. is Roberts v. Roberts, 61 0. S. (Wis.) 260-. 896. 12 Marsh v. Marsh, 4 A. L. R. (Ohio), 25. § 76 merwine's trial of title to land. 74 Counsel should remember always that the provisions of the statute as to service of summons upon an infant defendant, and the requirements of the law as to methods of procedure in all cases in which an infant is interested, are made for the protection of the infant. These requirements of the law are not mere matters of form to he treated lightly and con- sidered of no importance. Because no one appears for the infant, the attorney conducting the proceedings, somehow conceives the notion that the requirement is only a matter of form ; but as it is necessary to give good title for all real estate sold at judicial sale, a strict compliance with the statute in all eases affecting an infant's lands being sold by order of court, must be complied with. The skillful exam- iner of title to such real estate, and the careful lawyer who conducts the action in which real estate is sold by order of court is most particular to see to it that the foregoing provisions of the law for the protection of the infant are carefully and scrupulously complied with. The service of summons upon an infant, no matter how young, must be in strict compliance with the requirements of the statute, and these requirements of the statute are never, at any time, in any action, to be considered as mere formal matters; for a suit cannot be prosecuted against an infant without such service, and, in certain instances, without such guardian, unless especially excepted in special statutory proceedings. It is the purpose of the State to secure for the infant a real and proper defense ; and such guardian ad litem, has not done his duty by simply filing an answer as required by statute. The law demands that he inquire of the infant if old enough to converse intelligently, and his friends, and from all proper sources of information, what the rights of the infant are, and he is required to set such rights before the court in the proper manner, and by proper evidence at the hearing of the case. It is the bounden duty of such guardian ad litem not only to file his answer of denial, but also to protect the interests of his wards. And the court will never, when its attention is called to it, allow the guardian ad litem to suffer 75 ACTIONS BY OR AGAINST INFANTS. § 76 his ward to be prejudiced by omissions or laches. Such answers too frequently are filed, and the proceedings on behalf of the infant are conducted as though the action as to the infant were an amicable matter, and in the nature of an ex parte proceeding, involving no subject of real con- troversy. This is a mistake, and want of attention as to such matters on the part of attorneys and courts, is, and has been, prolific of useless litigation, and the source of many imper- fect real estate titles throughout the State.^* An infant two months old cannot be divested of real estate in which he owns the fee simple title, by a judicial proceed- ing to which he was not a party, of which he had no notice, and in which he was not represented by a guardian or other- wise.^^ The requirements of the law as to service of summons upon infants are so strict that in one instance, where the infant was five or six years old, the court set aside a decree, long after it was entered, authorizing the disposition of the infant's real estate, even where a guardian ad litem had been appointed and had filed an answer in the case for the infant, the infant not having been served with summons. The service of the summons in the action, as shown by the return of the writ, was by reading the same to the mother and stepfather 16 i+Long V. :Mulford, 17 0. S. 503; terial averments in the adminis- Dowe V. Jewell, 1 Foster (N. H.), trator's petition. Wood v. Butler, 486; Knickerbocker v. DeFrust, 2 23 O. S. 520; but, see, Randall v. Paige, 804; Sconce v. Whitney, 12 Turner, 17 O. S. 262; Masscy v. III. 150; Enos V. Capps, 12 111. 257. Donaldson, 8 Ohio, 377. A decree In a proceeding by an administrator against minor defendants rendered for the sale of lands to pay debts, upon an answer of their guardian the answer of the guardian ad litem ad litem, can be impeached and for the minor heirs, alleging his reversed for fraud. Massey v. ignorance of the matters contained Mathews, 12 0. 362. in the petition, and praying that is Crapster v. Taylor, 74 Kan. the rights of his wards be protected, 771, 87 Pac. 1,138. has the effect of a general denial, is Moore v. Starks, 1 0. S. 371. and requires proof of all the ma- §§ 77, 78 merwine's trial of title to land. 76 It lias been said by a learned author upon this subject of the appointment and duties of a guardian ad litem: "The matter of the appointment of a guardian ad litem, I fear, is too often regarded as a mere matter of form. At- torneys, likewise, seem to be imbued with the idea that it is for the purpose of complying with the statutory provision. Such is not its object. The object and intent of the statute is, that such attorney should carefully investigate the rights of his ward, and should look after them with a higher con- scientious regard of his duty than is required in ordinary cases. These minor defendants, by reason of want of years, are unable to know their rights, or protect them. Attorneys w4io act as such guardian ad litem should not be affronted if the courts in such cases make direct inquiry as to whether they have carefully looked into the infant's rights."" Sec. 77. Actions by or against infants — The next friend no party to the action — May employ counsel. The relation of prochein ami to the action, and his duties, are simple and well defined. He is no party to the suit in the technical sense of the term, although he is responsible for the costs. He is considered as an officer of the court, especially appointed by it to look after the interest of the infant in whose behalf he acts. One of the duties required of him is that of employing an attorney to conduct the suit, as he is not supposed to be a person learned in the law, and his intervention is, by no means, to dispense with the serv- ices of an attorney to carry on the proceedings, and try the case if necessary.^^ Sec. 78. Actions by or against infants — The next friend and guardian ad litem perform the same functions. The guardian ad litem appointed by the court to protect the rights of an infant defendant, should file a general de- 17 Probate Practice, Vol. I, Sec. is Baltimore v. Fitzpatrick, 35 844, Judge Rockel (Ohio). Md. 624. 77 ACTIONS BY OR AGAINST INFANTS. § 78 nial, and, in case the proper protection of the rights of his ward require it, he may take such affirmative action, by- filing petition, or cross-petition, and other pleading, as may be necessary for that purpose. In a case where the rights of the infant require it for his protection, the guardian ad litem should file a denial as in actions for adults. At common law, infants were required to sue by guardian ad litem, but by the statute of "Westminster, they were author- ized to sue by next friend in all actions, and the remedy was held to be cumulative, rendering it optional for the suit to be brought by a guardian ad litem, or next friend. In respect to the representation of an infant plaintiff by counsel, or guardian ad litem, there would seem to be little, if any, difference between the functions of a guardian ad litem and of a next friend. It may be well said that a guardian ad litem appointed by the court for an infant defendant, in addition to filing a general denial, has not only the power, but it is his duty to take affirmative action and prosecute by cross-petition, if it should be found necessary, and it was for the protection of the interests of the ward." "We here quote from a standard work on this subject: "A next friend is one, who, though not properly appointed guardian, represents in a suit, a party thereto, who is not sui generis, as an infant. The term is synonymous with prochein ami. There is but little substantial difference be- tween the office of next friend and that of guardian ad litem. The chief distinction is that the former is usually applied to one who appears on behalf of a plaintiff, while the corre- sponding representation of a defendant is usually denomi- nated guardian ad litem.'' ^ '^'^ 19 Schade v. Connor, 126 N. W. him as such, is provided in this (Neb., 1910), 1,013; Grosovosky v. State, still he is in all respects Goldenburg, 86 X. W. 378. the next friend of the infant. Simp- 20 14 Enc. Prac. 997. Although son v. ALxander, 6 Coldw. (Tenn.) the practice of allowing an infant 619. to sue by his guardian, describing § 79 merwine's trial op title to land. 78 Sec. 79. Actions by or against infants — Statutory provisions. In some jurisdictions the general guardian alone has power to bring and defend actions for an infant. But the matter is regulated in this State by statute. The guardian of the infant, or his next friend, is authorized to bring an action for the infant, or to defend an action for him. The following are the statutory provisions in regard thereto : (a) A general guardian must appear for and represent his ward in all legal suits and proceedings, unless another person is appointed for that purpose, as guardian or next friend.^^ (&) The action of an infant must be brought by his guardian or next friend. When the action is brought by his next friend the court has power to dismiss it if it is not for the benefit of the infant, or substitute the guardian of the infant, or any person as next friend.-^ (c) Nothing contained in the chapter concerning the guardianship of infants and insane or incompetents, affects or impairs the power of any court to appoint a guardian to defend the interests of any minor interested in any suit or matter pending therein.^^ The question arises. Why did the Legislature enact that a court had power to substitute the guardian for the next friend, if the action could not be brought by the next friend when there was a general guardian? It seems clear from the above enactment that the Legislature intended the action to be brought by the next friend, even in cases where there is a general guardian. This would seem to be not only the logic, but the common sense, as well as the spirit and purpose of these statutory provisions. 21 Snyder, 5,490; Wilson, 1,832; 22 Snyder, 5,563; Wilson, 4,227; California, 1,763 (Kerr), similar. Kansas, 4,459 (1901), identical. 23 Snyder, 5,584; Wilson, 1,826. 79 ACTIONS BY OR AGAINST INFANTS, §§80,81 Sec. 80. Action by or against infants — The service of sum- mons upon an infant under fourteen years of age — Over fourteen years of age. When the defendant is a minor, under the age of fourteen years, the service must be upon him and upon his guardian or father, or if neither of these can be found, then upon his mother, or the person having the care and control of the infant, or with whom he lives. If neither of these can be found, or if the minor be more than fourteen years of age, service on him alone wiii be sufficient. The manner of service may be the same as in case of adults.-* Sec. 81. Actions by or against infants — Where infant not served, judgment void. The service of summons upon an infant is mandatory; no matter how young the infant may be, or how idle the service of summons on a child may seem, the statute demands service, and it must be complied with. Even where a guardian ad litem has been appointed and interposes a defense for infants, and the record shows affirmatively that the infants were not served as required by statute, the decree entered against them is void, and can be assailed at any time, any- where, and in any action.-^ In a well-considered case, in regard to this question, it was said: ''The statute requires service to be made and we cannot dispense with its requirements. Nothing discretionary is left with the court. The Legislature prescribed the means by which the court shall obtain jurisdiction, and the courts cannot determine that anything short of such means shall give them jurisdiction. It is sometimes said that it can be a matter of no importance, whether children, such as these were, are served with process or not; to this we cannot give 24 Snyder, 5,611; Wilson, 4.275; 25 Moore v. Starks, 1 O. S. 369. Kansas, 5,405 (1901), identical; Nebraska, 1,077 (1907), identical. § 81 mebwine's trial of title to land, 80 our assent, and even if it were so, it is a suggestion proper for the Legislature and not for a court — the Legislature makes the rules and the courts have to be bound by them. The return of the officer is evidence to the court and to the Avorld, of the fact that the party has been subjected to its process or not ; whether he has been brought into court ; whether jurisdiction is claimed to have been obtained over his person. If the process is returned served, it is proof of that fact. If the return is no service, that is proof equally explicit that no service has been made, and is notice to the world as well as the court, to parties and their friends, that no service is claimed to have been made. And here we will remark that this case differs from cases in which the record is silent on the subject of process or service. In such cases it has been held that although the decree of the court is reversible for error, not showing affirmatively a necessary fact, yet, where jurisdiction is assumed to exercise jurisdiction of the case, it will be presumed, that, notwith- standing the silence of the record, the court had obtained jurisdiction over the person of the defendant. That presump- tion is rebutted and precluded in this case by the positive statement of the record that no service was made. For it is to be remarked that in those eases where, the record being silent on the question of service, jurisdiction has been ob- tained, it has always been held that it was competent for the defendant to rebut the presumption of service by affirma- tive proof that he had not been served, then the record becomes a nullity and can be collaterally impeached. The record in this case furnishes the proof that no service was in fact made."-*' 26 Moore v. Starks, 1 0. S. 372. A stipulation by an attorney that When the record of a cause in which an action shall abide another a judgment is rendered against a action pending, will bind his adult minor, discloses that the mode clients, but not an infant client, pointed out by statute for obtaining unless the same is approved and jurisdiction, has not been followed, ratified by the court. Idem v. Fin- the judgment is void on its face. negan, 50 N. W. 933. The require- Hughes V. Housel, 50 N. W. 1,127. ments of Section 76 of the Code of 81 ACTIONS BY OR AGAINST INFANTS. §§ 82, 82a Sec. 82. Action by infant after disability removed. Any person entitled to bring an action for the recovery of real property, who may be under any legal disability when the cause of action accrues, may bring his action within two years after the disability has been removed.-' In an action prosecuted by an infant plaintiff by next friend, during the pendency of which action plaintiff attains his majority, the plaintiff, if he desire, may then continue the action in his own name. The prosecution of an action by next friend is a protective shield thrown around the infant ; and an objection in the motion for new trial, and the assignments of error against such change in style, will not be considered on appeal to this court.-^ The infant is the party to the action, though brought by the next friend.^® Sec. 82a. Restoration of purchase money in suits to disaffirm —Contract by infant for improvements. Upon the disaffirmance of a conveyance made by a minor Creek freedman, he will be required to restore such of the consideration received as remains in his hands; but such restoration will not be required where it has been wasted, disposed of, or consumed during minority, and his estate has not been benefited thereby.^'' Civil Procedure are mandatory, and 29 Williams v. Richey, 3 Dill, 406. the mode therein pointed out for 3o Gill v. Haggerty, 122 Pac. service of summons upon a minor (Okla.) 641; Blakemore v. John- defendant under the age of fourteen son, 24 Okla. 544, 103 Pac. 5o4; years, must be strictly pursued, or Colbert v. Alfrey, 168 Fed. 231, judament rendered against him will, «3 C. C. A. 517 ; Bragdon v. McShea, as far as his rights are concerned, 26 Okla. 35, 107 Pac. 916; Stevens be void. Melcher v. Schluter, 93 v. Elliott, 118 Pac. (Okla.) 407; N W 1 082. Eureka v. Edwards, 71 Ala. 248, 46 '27 Snyder, 5,549; Wilson, 4,215; Am. Rep. 314; Railway Co. v. Crapster v. Tavlor, 74 Kan. 771, Higglns, 44 Ark. 293; MoGreal r. 87 Pac 1 138 * Taylor, 167 U. S. 688, 17 Sup. Ct. 28 Webb V. Harris, 121 Pac. 961, 42 L. Ed. 326. (Okla.) 1,083. § 82b merwine's trial of title to land. 82 111 a suit in equity, by a minor Creek freedman to cancel and annul a deed executed by her during minority, it is un- necessary to formally allege an offer to do equity by return- ing the consideration received by her during minority.^^ A deed so made by such person is void.^^ Sec. 82b. Conveyance by married minor Creek freedman, void. The marriage of a Creek freedman under the age of twenty-one years, does not affect the restrictions imposed by acts of Congress and treaty provisions against the sale of his allotments during minority ; and a conveyance by such minor of his allotment is void, notwithstanding his marriage prior to the execution of such conveyance. ^^ A minor within the meaning of the Federal law, includes males under the age of twenty-one years and females under the age of eighteen years, and the marriage of such minor does not confer upon him or her the authority to sell his or her allotted lands independent of the jurisdiction and super- vision of the probate courts of the State.^* A contract entered into subsequent to the passage of the Curtis Bill,^^ and prior to the Creek Treaty,^" purporting to bind certain infants for the purchase price of improvements upon lands in the Creek Nation, taken by them as allotments, executed by their natural guardian, who did not submit himself or his actions to a court having jurisdiction, is void as to such infants.^'^ 31 Stevens v. Elliott, 118 Pac. 34 Jefferson v. Winkler, 26 Okla. (Okla.) 407. 653, 110 Pac. 755; Gill v. Haggerty, 32 Stevens v. Elliott, 118 Pac. 122 Pac. (Okla.) 641. (Okla.) 407. This was in violation 35 Act June 28, 1898, Chap. 517, of Sec. 16, Act of June 30, 1902. 30 Stat. L. 495. 33 Gill V. Haggerty, 122 Pac. 36 Act March 1, 1901, Chap. 676, (Okla.) 641; Jefferson v. Winkler, 31 Stat. L. 861. 26 Okla. 653, 110 Pac. 755. 37 Beck v. Johnson, 23 Okla. 812, 101 Pac. 1,109. CHAPTER V. THE LAW AND PROCEDURE BY WHICH REAL ESTATE IS SOLD UNDER EXECUTION AND ORDERS OF SALE— THE JUDGMENT. SECTION 83. Preliminary statement. 84. What is a judgment and what is an order. 85. The judgment must be con- fined to the issues. 86. The judgment must conform to the verdict. 87. Judgments without jurisdic- diction of the parties or the subject-matter are void. 88. Judgments import absolute verity and cannot be col- laterally attacked. 89. Judgment of the court as be- tween the parties, final. 90. The efTect of the finding of the court of facts giving it power to enter judgment. 91. Effect of void and voidable judgments. 92. Void judgments. 93. Judgment may determine ulti- mate riglit of parties — Judgment may be rendered against one or more parties. 94. Dismissal of an action with- out prejudice. 95. Plaintiff may dismiss certain actions. 96. Dismissal may not afTect set- off or counterclaim, when. 97. The judgment in an action to enforce a mortgage or other lien — The order of sale. 98. Judgment ordering conveyance — By whom and how secured. 83 SECTION 99. Judgment — Failure to answer — Court may taka an ac- count. 100. Judgment by confession. 101. Judgment confessed by war- rant of attorney. 102. Cause of action must be stated briefly in judgment. 103. Affidavit must be filed before judgment. 104. Judgment by confession en- forced as other judgments. 105. Warrant confessing judgment to be filed. 106. Confession of judgment by prisoner. 107. Judgment must conform to the verdict. lOS. Judgment on special verdict. 109. Judgment notwithstanding the verdict. 110. Judgment where counterclaim or set-off exceeds plaintiff's claim. 111. .Judgment on the pleadings. 112. Judgments concerning infants set aside, when. 113. Judgments in district ^court on cases appealed from county court. 114. Judgment and orders to be entered on journal. 115. The clerk to make complete record in case, when. 116. .Judge may sign record at next term. § § 83, 84 MERWINE 'S TRIAL OF TITLE TO LAND. 84 SECTION SECTION 117. What papers constitute com- 124. Judgments recorded in office plete record. of register of deeds- -Effect of. 118. Upon failure of clerk to make 125. Res ad judicata — Parties de- complete record, court may fendant. do so. 126. Lis pendens. 119. Judgment becomes dormant, 127. Lis pendens as to lands in when. another county. 120. Dormant judgments — How re- 128. The procedure by which judg- vived. mcnt is obtained on warrant 121. Judgment lien — Gk;neral dis- of attorney to confess judg- cussion. ment — Form for the petition- 122. Judgment of county court lieu 129. The answer confessing judg- on real estate. ment. 123. Lien on real estate — Lien dates 130. The judgment by confession. from, when — Lien on judg- ment from another county, how secured. Sec. 83. Preliminary statement. In the preparation of the discussion of this subject, the author has not been unmindful of the fact that the arrange- ment thereof is illogical, but it was deemed best to folio-w- as near as practicable the arrangement of the statute on the subject, upon the theory that the practitioner -would be more apt to find the la-w under the plan of the statute. The subject is discussed here only as it pertains to the procedure in land litigation, and as it pertains to the title of real estate. There are many other topics that might have been included in this chapter, but the limitations of this -work forbade further discussion thereof. Sec. 84. What is a judgment and what is an order? A judgment is a final determination of the rights of parties in an action,^ and a direction of a court or judge, made kno-wn in -writing, and not included in a judgment, is an order. The statutory definition of a judgment has been held broad enough to comprise all final judgments and all final decrees.^ liSnyder, 5,916; Wilson, 4,583; Ohio Gen. Code, Sec. 11,582 (1910), Kansas, 4,844 (1901), identical; identical. Nebraska, 1,413 (1907), identical; 2 Conrad v. 'Svereich, 50 0. S. 450. 85 REAL ESTATE UNDER EXECUTION.— JUDGMENT. § 84 As in logic, a judgment is an affirmation of a relation be- tween a particular predicate and particular subject, so, in law, it is an affirmation upon the law of the legal sequence attending a proved or admitted state of facts.^ The common law definition of a judgment is the decision or sentence of the law pronounced by a court or other com- petent tribunal upon matter contained in the record.* At common law an oral opinion of a judgment announced by a court in a case before it, was a good judgment and an execution could be issued upon it. Under the general codes of the various States a judgment carries with it no force until recorded. An oral judgment or decision of the court is completely under the control of its judge, or judges, until final decree is entered of record.^ The minutes entered by a judge in his trial docket are no part of the records in a case, and cannot in any sense be called a judgment." A decree as defined by Judge Black,^ is the determination, sentence or judgment of equity pronounced by a competent court, upon a controversy submitted for its decision. The chief points of difference between a judgment and a decree are these : A judgment in a contested case follows the finding of a verdict ; a decree is the decision of a judge in an equity case, passing on all the questions raised ; a judgment does not compel anything but the payment of money, and this only by the sale of the debtor's property; a decree may enforce the doing of acts other than the payment of money, 3 Black on Judgments, Sec. 1. A Practice, 930; Mahonings Bank's judgment is a final consideration Appeal, 32 Pa. St. 160. and determination of a court of 4 Wiley v. Lewis, 4 X. P. (Ohio), competent jurisdiction in a matter 212; Freeman on Judgments, Sec. 2. submitted to it. Ihid. Wliitwell b \Yiiey v. Lewis, 4 N. P. (Ohio), V. Emery, 3 Mich. 84. It is the 212; but see Coe v. Erb, 59 0. S. decision or sentence of the law 259. given by a court of justice, or other 6 Pennock v. Monroe, 5 Kan. 578 ; competent tribunal, as a result of Ward v. Urmson, 59 X. W. (Neb.) proceedings instituted therein for 97; Brown v. Eener, 59 N. W. the redress of an injury. Bouvier's (Xeb. ) 360. Law Dictionary; see Tidd's Law 7 Black on Judgments, Sec. 1. §85 merwine's trial of title to land. 86 and be enforced by punishment for contempt of court ; an execution may issue upon a judgment, and upon a decree only to enforce an order of sale; a judgment cannot meet all the exigencies of litigation; a decree may do this in so far as it is in the power of the courts to enforce anything. An order is, ''a decision made during the progress of a case, either prior to or subsequent to final judgment, settling some point of practice, or some question collateral to the main issue, presented by the pleadings and necessary to be disposed of, before such issue can be passed on by the court, or necessary to be determined in carrying the execution into effect.^ An order must be in writing before it will carry with it any legal sanction.^ Judgments are either final or interlocutory. An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents the judgment, and an order aft'ecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is a final order. All further proceedings made during litigation of any case, and before final hearing on its merits, are interlocutory orders.^" Judgments are not self-executory. They require some min- isterial act for their execution.^^ The judgment must state the amount or it will be void.^^ Sec. 85. The judgment must be confined to the issues. The examiner of title to real estate sold under a judicial decree, and the practitioner who is about to sell real estate by judicial proceedings, must look carefully to the pleadings in the case under consideration. He must be sure that the petition, if filed under the statute for sale, states a cause of action. For a petition failing to state any statutory require- sLoring v. Illesey, 1 Cal. 27; n Xeedles v. Frost, 2 Okla. 19, Black on Judgments, Sec. 1. 35 Pac. 74. 9 Winton v. Cornish, 5 Ohio, 477. ^- Board v. Moon, 8 Okla, 205, loKinkead's Practice, Sec. 945; 57 Pac. 161. Freeman on Judgments, Sec. 29. 87 REAL ESTATE UNDER EXECUTION. — JUDGMENT. § 85 ment, or authority of the court, will avail nothing toward giving the purchaser title. Again, the court can pass on the issues only which are raised by the pleadings; for, should the court go outside of the issues in the case and determine some question not raised by them, the decision will carry with it no power for its enforcement. Even a judgment of a court upon a subject of litigation within its jurisdiction, but not brought before it by any statement or claim of the par- ties, is a void judgment and may be collaterally impeached.^^ Jurisdiction is the right to adjudicate concerning the sub- ject-matter of a given case. To constitute this there are three essentials : (a) The court must have cognizance of the class of cases to which the one adjudicated belongs. (h) The proper parties must be before it. (c) The point decided must be in substance and effect within the issue. That a court cannot go outside of its appointed sphere, and that its action is void with respect to persons who are strangers to its proceedings, are propositions established by the authorities." The issues must state a cause of action and the judgment cannot go outside of the issues made up by the pleadings, and undertake to decide matters not brought into the case, but this rule is not so strict as to require the petition, or cross-petition, as the case may be, to be so perfect in form and substance as to withstand a demurrer interposed against it.^^ 13 Spoors V. Coen, 44 0. S. 497; Downer, 13 Wis. 11; Black on Judg- Porterfield v. Bulter, 47 Miss. 156, ments, Sec. 184; Koelsch v. Mixer, 12 Am. Eep. 329; Armstrong v. 52 0. S. 207; Southward v. Jame- Bartin, 42 Miss. 506; Still v. son, 66 O. S. 311. Palmer, 41 Miss. 89; Black on Judg- is Kinkead's Practice, Sec. 807; ments, Sec. 184; Freeman on Judg- Buchanan v. Roy, 2 0. S. 253; ments. Sec. 135a. Shawkin v. City, 16 0. S. 1. 14 By the court in Monday v. Vail, 33 N. J. L. 418; Strobe v. § 86 merwine's trial of title to land. 88 Sec. 86. The judgment must conform to the verdict. When a trial by a jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless it is special, or the court order the case to be reserved for future argument or consideration.^'^ While it is the usual practice for the attorneys to prepare and approve the judgments of the court, and while it is the practice usually, for the judge to sign the judgments and decrees of the court, yet these are only for the assistance of the clerk in preparing his entries for the court's journal; and in a case where the clerk accepts and records a judgment of a court prepared by the attorney for one side only, and which has not been approved by opposing counsel, or signed by the judge, still such entry on the journal, is the judgment and decree of the court. It has been held that it is the duty of counsel to make timely examination of the journals of the court and see that the records correctly recite the pro- ceedings, and, if they have objection, to present same to the court by proper motion, and have the records corrected or have omissions supplied.^^ 16 Snyder, 5,931; Wilson, 4,598; CPac. 626; Atchison v. Cogswell, Kansas, 4,854 (1901), identical; 23 Okla. 181, 99 Pac. 923. It was Nebraslca, 1,428 ( 1907), identical. held in a case tried by a jury, 17 Boynton v. Crockett, 12 Okla. where it was clearly apparent that 57, 69 Pac. 869. Wliere the verdict the prevailing party was entitled to of the jury is proper, and the judg- interest upon the amount found in ment is irregular, the court will the verdict, and it was unquestion- modify the judgment to conform to ably clear that the jury allowed no the verdict and affirm the case. interest, or where the court reserved Morrison v. Knight, 7 Okla. 419, the question of the allowance of 54 Pac. 656. Where the verdict of interest until after verdict, and it the jury is one that can properly was clearly ascertainable from the be returned under the pleadings, it verdict or uncontroverted facts the was not error for the covirt to date from which and to which in- render judgment thereon, in the terest should be allowed, and the absence of a motion for judgment rate is fixed, that the court could upon the special finding of facts make the computation and add the returned by the jury. Carter v. interest so found to the sum found Missouri, 6 Okla. 11, 41 Pac. 356; in the verdict and render judgment Smith v. Eagle, 25 Okla. 408, 108 89 REAL ESTATE UNDER EXECUTION. JUDGMENT. § 87 Sec. 87. Judgments without jurisdiction of the parties or the subject-matter are void. In the examination of title to real estate sold under a judicial decree, one of the most important inquiries is, has everyone who had an interest in the property at the time suit was begun been brought into the case, and, if so, did the court make the proper orders necessary to divest him of his title thereto? It is elementary that everyone must have his day in court. The court has no power to pass on anyone 's property rights without giving him a chance to be heard. ^^ Any order made as to the rights of anyone as to the real estate sought to be sold by the court, though made as to a party defendant who has not been served with summons, or who has not entered his appearance by some of the methods pointed out by law, is void, as to such party, and he can assert his rights at any time and in any manner, unless barred by limitation of time. Counsel conducting any pro- ceeding in which real estate is sold should use the utmost diligence in searching the records of the title of real estate sought to be sold, in order to secure the names of every lienholder, whether by mortgage, judgment, mechanic's lien, vendor's lien, attorney's lien, attachment lien, foreign execu- tion lien and the interest of anyone in the title thereto, and every such person holding such claim, lien or interest in the title thereto, should be made a party defendant and required to set forth such claim, lien or interest. The petition should ask that they do this upon penalty of having their lien or interest in the real estate forever barred by order of court. V. Oliver, 17 Okla. 419, 87 Pac. it is error to enter judgment for 423. A court may stay a judgment such amount in the journal. Davig until motion for new trial is heard. v. Hill, 97 X. W. (Xeb.) 1,023. Church V. Gooden, 22 Kan. 227; Objection to the form of the verdict Barge v. Haslem, 91 X. W. (Xeb.) should be made at the itme of its 528. It is the duty of the clerk to rendition. Parsons v. Gadeka, 95 enter judgment on the journal. X. W. (Xeb.) 850. Selders v. Boyd, 5 Kan. App. 451, is Trimble v. Longworth, 13 0. S. 49 Pac. 320. Where the verdict is 438. for more than the amount alleged. § 87 merwine's trial of title to land, 90 If the lien or interest of any such claimant be invalid, the petition in such ease, should so allege, else such interest, in case of default to answer, will be a cloud on the title and will frighten away purchasers at such sale.'** After such persons who hold any interest of record, or not of record, in said real estate, if the plaintiff has had notice of their interest, have been made parties to the action, the practitioner must have each of them served in the manner appointed by law, and the record should show the manner of service. Great care should be exercised in respect of the rights of infants, and insane, or other defendant under guard- ianship. Service of summons on them should be made as required by the statute.-'^ As to them, if the statute has not been followed, their rights remain in the real estate un- affected by any order of the court, and unaffected by any judicial sale of their real estate. In case of any irregularity in the proceedings there is no presumption to aid the record. Again, counsel, should see to it that the court in which he brings his action has jurisdiction to do what is asked. If the court has no jurisdiction of the subject-matter, then the purchaser of the real estate takes no title, and the person or persons, whose real estate is sought to be sold, can, at any time, take possession of the same. The order of the court in such case affords no protection. A judgment of a court without jurisdiction is an absolute nullity.^^ The waiver of summons and entry of appearance may give the court jurisdiction over the person of the defendant, but 19 Strobe v. Downer, 13 Wis. 11; 21 Pennywit v. Foote, 27 0. S. Southward v. Jameson, 66 0. S. 600; Spier v. Cordel, 33 0. S. 236 311; Koelsch v. Mixer, 52 0. S. Gilliland v. Sellers, 2 0. S. 223 207; Spoors v. Coen, 44 0. S. 497; Moore v. Starks, 1 0. S. 369 Black on Judgments, Vol. 1, Sec. Fleischman v. Walker, 91 111. 318 184; Freeman on Judgments, Vol. 1, Santon v. Ballard, 133 Mass. ^64 Sec. 158. St. Louis v. Cola Co., Ill 111. 32 20 When the record shows affirm- Weinmiller v. Laughlin, 5 0. S atively that infants were not served, 421 ; Adams v. JeiTries, 12 Ohio, the decree as to them is void. 253. Moore v. Starks, 1 0. S. 369. 91 REAL ESTATE UNDER EXECUTION. — JUDGMENT. § 88 cannot give the court jurisdiction over the subject-matter over which the court is not authorized to exercise its juris- diction.-- It has been well said by the Supreme Court of this State that where a court has jurisdiction, it has a right to decide every question which occurs in the cause ; and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other court. But if it act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification; and all persons concerned in executing such judgments or sen- tences, are considered, in law, as trespassers. This distinction runs through all the cases on this subject; and it proves that the jurisdiction of any court exercising authority over a subject, may be inquired into in every court, when the pro- ceedings of the former are relied on and brought before the latter by the party claiming the benefit of such proceedings. The principle that a record cannot be impeached by plead- ings is not applicable where there is want of jurisdiction. The want of it makes a record utterly void and unavailable for any purpose. The want of jurisdiction is a matter that may always be set up against a judgment when it is to be enforced, or when any benefit is claimed under it." Sec. 88. Judgments import absolute verity and cannot be collaterally attacked. When a court has jurisdiction of the subject-matter and the parties, and the case is made by the pleadings, its judg- ment, however erroneous, is binding until reversed, and such errors are not available on collateral attack on the judg- ment.^* 22Kinkead's Practice, Sec. 806; Williamson v. Berry, 42 U. S. 541, Gilliland v. Sellers, 2 0. S. 223. 12 Fed. 1,170. 23 Elliott V. Peirsol, 26 U. S. 340, =4 Hammond v. Davenport, 16 7 L. Ed. 164; Hickey v. Stewart, 0. S. 182; Smith v. Finger, 15 44 U. S. 750, 11 L. Ed. 814; Okla. 120, 79 Pac. 759; Mackee v. § 89 merwine's trial of title to land. 92 Where a judgment shows a finding by a court of record of personal service, the judgment cannot be collaterally at- tacked.-^ A direct attack on a judgment is one by which the judg- ment is directly assailed by some method authorized by law. A collateral attack on a judgment is an attempt to defeat the operation of the judgment in proceedings where some new right derived from or through the judgment is involved.-^ Sec. 89. Judgment of the court as between the parties, final. A judgment in an action upon the merits of a case is final, and such judgment is a bar to a second suit for the same cause, and when a matter is finally determined in an action between the same parties by a competent tribunal, it is to be considered at an end, not only as to what was determined, but also as to every other question that the par- ties might have litigated in the case. As to these two propo- sitions, decrees in chancery stand upon the same footing as judgments in law.^^ Purcell, 1 Ind. Ty. 288, 37 S. W. under it. Houston v. Clark, 36 55; Thurston v. Washington, 18 Kan. 412, 13 Pac. 739. Okla. 362, 90 Pac. 16; Gooden v. =5 Crist v. Crosby, 11 Okla. 635, Buffalo, 104 S. W. 94; Crist v. 69 Pac. 885; Wallace v. Adams, 143 Crosby, 11 Okla. 635, 69 Pac. 885. Fed. Rep. 716, 74 C. C. A. 540; In an action where a journal entry Plummer v. Wells, 6 Ind. Ty. 189, shows that the plaintiff in the 90 S. W. 303. action "moves the court here to dis- 26 By the court in Kingsborough miss the action without prejudice v. Towsley, 56 0. S. 458. In an to a future action at the cost of action on a personal judgment, the plaintiff, which is accordingly whether rendered by a court of this done," and afterward an execution State or elsewhere, it is competent is issued, to recover costs, and the to prove in defense, though it be in real estate of the plaintiff is levied contradiction of the record, that on and sold for that purpose, and the defendant was not served with the sale confirmed by the court, a process, nor jurisdiction of his per- sheriff's deed executed, and the pur- son otherwise obtained by the court chaser takes possession of the real rendering the judgment. Such de- estate, held, that such journal entry fense is not a collateral attack on is a sufficient judgment in a col- the judgment. Ihid. lateral attack to uphold the sheriff's =7 Pratt ,v. Ratcliffe, 10 Okla. deed and the other proceedings 168, 61 Pac. 125; Williamsburg v. 93 REAL ESTATE UNDER EXECUTION. — JUDGMENT. § 89 Mr. Freeman, in his work on judgments, puts the proposi- tions above in the following language : "Adjudication is final and conclusive, not only as to matters actually determined, but as to every other matter which the parties might have litigated and have decided as incidental to, or essentially connected with, the subject-matter of the litigation, and every matter coming within the legiti- mate purview of the original action, both in respect to mat- ters of claim and defense."-^ This principle of the finality of a judgment is known as res adjudicata. It has been said as a familiar rule that when a matter has once become res adjudicata, there shall be an end to the question.* The reason and principle upon which this rule is based rest upon the expediency of ending the contention of the parties and accomplishing the ends of justice by a single speedy decision of all their rights. Again, "human life is not long enough to allow of matters once disposed of being brought under discussion again. "^^ If the rule were otherwise, there would be no end to litigation ; for the judgment would finally go to the one whose money or time would enable him to exhaust his adversary. All Towne, 32 N. E. 1,058; City v. Case v. Beauregard, 101 U. S. 688 West, 7 Wall. 82, 19 L. Ed. 42; Thomas v. Myriek, 24 Hun, 4 Van Renselaer v. Carney, 11 How- Jacobsin v. Miller, 41 Mich. 90 ard, 326, 13 L. Ed. 715; Hollister Knight v. Atchison, 2 Tenn. 384. V. Abbot, 31 N. Hamp. 448, 64 * Great Northern v. Mosop, 17 Am. Dec. 342; Randolph v. Hudson, Com. B. 140. 12 Okla. 516, 74 Pac. 946; Robey 29 Robey v. Rainsberger, 27 O. S. V. Rainsberger, 27 0. S. 677; Peter- 677; Great Northern v. Mosop, 17 sine V. Thomas, 28 0. S. 597; Com. B. 140; Boswell v. Sharp, 15 Covington v. Saergeant, 27 0. S. Ohio, 441; Kingsbury v. Towsley, 233; Hinton v. McNeal, 5 Ohio, 56 0. S. 450. This rule seems to 509 ; Bobcock v. Camp, 12 0. S. 11; have been adopted from right and Loudenback v. Collins, 4 0. S. 251 ; necessity to give confidence to the Welsch V. Childs, 17 O. S. 319. judicial action of the country, and 28 Freeman on Judgments, Sec. to protect those who have made 249; Harris v. Harris, 36 Barb. 88; purchases on the faith of judicial 59; Burford v. Kursey, 48 Miss. sales. Boswell v. Sharp, 15 Ohio, 643; Bass v. Spooner, 45 Ind. 489; 441. Tusca v. O'Brien, 68 N. Y. 446; § 90 merwine's trial op title to land. 94 judgments of the court in Indian cases import absolute verity,^" Sec. 90. The eflfect of the finding of the court of facts giving it power to enter judgment. In a case where the court finds and states in the judgment facts giving the court power and jurisdiction to enter judg- ment and decree, such finding imports absolute verity upon the parties and the privies, and while such finding is not reversed, it is conclusive of the matters so found. A judicial record, judgment or decree cannot be contradicted by parol, nor is the truth of the matters therein recited open to in- vestigation. Were the findings, judgments and decrees of the court open to investigation, there would be no security for the innocent purchasers of real estate at a judicial sale. If the records of a sale of real estate under decree of the court, did not import absolute verity, then every purchaser of real estate, under decree of court, would be required to look beyond the record to see whether the clerks, sheriffs, courts and attorneys did their duty, and committed no error, and that each had power to do the various things set forth in the record. Such a condition would make the pleadings and records of our courts on judicial sales of real estate, no protection whatever, and would be a snare to innocent purchasers.^^ aoBarbee v. Shannon, 1 Ind. Ty. judgments and decrees are accorded 199, 40 S. W. 584; Mohlin v. Ice, like force and effect, and legal pre- 56 Fed. Eep. 12, 5 C. C. A. 403; sumption, as the records, orders, Stanley v. Roberts, 59 Fed. Rep. judgments and decrees of the dis- 836, 8 C. C. A. 305; Boudinot v. trict court. Carmichael v. Pierce, Boudinot, 2 Ind. Ty. 107, 48 S. W. 10 Okla. 176, 61 Pac. 583; Greer 1,019. Under the statutes of this v. McNeal, 11 Okla. 519, 69 Pac. territory, proceedings in the probate 891; Ward v. Board, 12 Okla. 267, court, when exercising jurisdiction 70 Pac. 378. concurrent with the district court 3i Kallen v. Ellison, 13 0. S. 455; are considered in the same manner Lessee v. Whitman, 2 0. S. 270; and with like intendment, as the Moore v. Starks, 1 0. S. 369; Bos- proceedings of courts of general well v. Sharp, 15 Ohio, 447; jurisdiction; and its records, orders, Buchanan vT Roy, 2 0. S. 261; 95 REAL ESTATE UNDER EXECUTION. — JUDGMENT. § 91 Sec. 91. Effect of void and voidable judgments. Judgments are either voidable or void. And any judgment, in so far as the record is concerned, and in so far as it concerns property rights, is good, valid and binding until it is set aside by the court in an action brought for that pur- pose. Voidable judgments, as shown above, cannot be at- tacked collaterally. This principle is assuming a great deal of importance in the courts everyAvhere, especially as to judicial sale of real estate. Real estate sold under a void- able judgment or decree, gives a title that cannot be assailed except by some method given by statute, to reverse the order of decree or judgment in the case in which the real estate was sold. The statute gives the right to prosecute error for the reversal or setting aside of a judgment within a proper time. It also gives any aggrieved party the right at any time after the term at which the judgment was ren- dered, to file his petition to vacate and set aside the judgment for any grounds mentioned and set forth in the statute. In addition to these methods, a judgment or decree may be set aside by proceedings in equity .^- We find an entirely different principle applicable to void judgments. A void judgment is subject to collateral attack. If a judgment is void, it has no force and effect, and can be assailed in any action by anyone, and such a judgment is void anywhere and for every purpose. A purchaser of real estate under a void judgment takes no title.^^ It has been said of such a judgment : "A void judgment, is in legal effect, no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are Richards v. Shiff. S 0. S. 589; Moore r. Starks, 1 0. S. 369 Trimble v. Longworth, 13 0. S. Sheldon v. Newton, 3 0. S. 494 431. Kallen v. Ellison, 13 O. S. 455 32 Kingsborough v. Towsley, 56 Speir v. Corval, 13 0. S. 236 0. S. 962. Weinmiller v. Laughlin, 51 0. S. 33 Kingsbo rough v. Towsley, 56 421; McAlpine v. Festewald, 57 O. S. 450; Ream v. Wools, 61 0. S. O. S. 524; Southward v. Jameson, 131; Spoors v. Coen, 44 0. S. 497; 66 O. S. 311. § 91 merwine's trial of title to land. 96 equally worthless. It neither binds nor bars anyone. All acts performed under it, all claims flowing out of it, are void. All parties attempting to enforce it may be respon- sible as trespassers. A purchaser at a sale by virtue of its authority, finds himself without title and without redress. The first most material inquiry in relation to a judgment or decree then, is in reference to its validity. For, if it be null, no action on the part of the defendant, no resulting equity in the hands of third persons, no power residing in any Legislature or other department of the Government can invest it with any of the elements of power or vitality. It does not terminate or discontinue the action in which it is entered, nor merge the cause of action ; and it, therefore, cannot prevent the plaintiff from proceeding to obtain a valid judgment in the same cause, either in which the action in which the void judgment was given, or in another action.^* A purchaser at a judicial sale made under a void judgment cannot sustain his title. Title to real estate sold under a voidable judgment is good as long as the judgment remains in force. Another distinction between void and voidable judgments is lack of power, or want of jurisdiction in the court, and a wrongful or defective execution of power. In the first instance, all acts of a court not having jurisdiction or power, are void, in the latter, voidable only. A court then, may act, first, without power or jurisdiction; secondly, having power or jurisdiction, may exercise it wrongfully; or, thirdly, irregularly. In the first instance, the act or judgment of the court is wholly void, and is as though it had not been done. Second, is wrong and must be reversed on error. Third, is irregular, and must be corrected by motion.^'^ 3* Freeman on Judgments, Sec. 117. laterally. The result or consequence ss Lessee v. Loring, 17 0. S. 423. in such case is precisely as though If the judgment or decree is void, no such judgment or decree had the land itself sold to satisfy it over heen rendered or pronounced, may be recovered back, and such If a judgment or decree be not void, proceeding may be impeached col- but simply erroneoiis, subject to 97 REAL ESTATE UNDER EXECUTION. — JUDGMENT. § 92 Sec. 92. Void judgments. Where a court undertakes to enter a judgment in an amount beyond the limits of its jurisdiction, the judgment will be void, and where the terms of court are, under the law, fixed at stated periods, and the court fails to convene at the time so fixed, by reason thereof, the court is not legally in session, and the parties to an action cannot, by agreement, confer jurisdiction upon the court to render a judgment binding upon the parties.^'' It has been held that where a service by publication has been made without an affidavit having been first filed, the service is void; and every subsequent proceeding founded on such service, including the judgment, execution or order of sale, the sale, and sheriff's deed must necessarily be void." If an unauthorized person brings an action in the name of a party who has not consented thereto, such action is ficti- tious and the court does not acquire jurisdiction of the plaintiff named, or of the subject-matter, and any judgment rendered in such proceedings, is void.^^ A personal judgment rendered against a defendant without notice is void.^^ A judgment entered on a lost pleading over the objection of counsel is error.*° reversal on writ of error or review. Kirkley v. Mining Co., 4 Colo. 117; the consequences are wholly dif Francis v. Wells, 4 Colo. 274. ferent. They must be impeached 37 Romig v. Gillette, 10 Okla. directly and cannot be questioned 186, 62 Pac. 807; Harris v. Claplin, collaterally; and on reversal the 36 Kan. 543, 13 Pac. 830; Grouch defendant shall have restitution in v. Martin, 47 Kan. 313, 27 Pac. 985. money against the plaintiff and pur- 38 Southern v. Ward, 16 Okla. 131, chaser holding the land or property 85 Pac. 459. acquired by sale under such judg- 39 McXeal v. Eddy, 24 Kan. 108; ment or decree, undisturbed. Bos- Romig v. Gillette, 10 Okla. 186, well V. Sharp, 15 Ohio, 447. 62 Pac. 805. A judgment for ali- 36 American v. Pappe, 4 Okla. mony, when the court was closed. 110, 43 Pac. 1,085; Earls v. Earls, and the judge out of the county, is 27 Kan. 538; Galusha v. Butter- erroneous, and, on appeal, will be field, 2 Scam. 227; Bahm v. Xunn, held to be void. Packard v. Pack- 63 la. 641, 19 K W. 810; Laughlin ard, 34 Kan. 53, 7 Pac. 628. V. Peckham, 66 la. 121, 23 N. W. 4o Grimson v. Eussell, 9 N". W. 294; Filley v. Cody, 4 Colo. 109; (Neb.) 647. §§93,94 merwine's trial of title to land. 98 Sec. 93. Judgment may determine ultimate right of parties — Judgment may be rendered against one or more parties. Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; it may determine the ultimate rights of the par- ties on either side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment may be proper. The court may also dismiss the petition with costs, in favor of one or more defendants, in case of unreasonable neglect on the part of plaintiff to serve summons on the other defendants, or proceed in the cause against the defendant or defendants served.*^ Sec. 94. Dismissal of an action without prejudice. An action may be dismissed without prejudice to a future action : First. By the plaintiff before the final submission of the case to the jury, or to the court, where the trial is by the court. Second. By the court, where the plaintiff fails to appear on the trial. 41 Snyder, 5,917; Wilson, 4,584; 755; Ryan v. State, 7 X. W. (Xeb.) Kansas, 4,845 (1901), identical: 27G; Smith v. Bank, 26 0. S. 141 Xelsraska, 1,414 (1907), identical; Lampkin v. Chisom, 10 0. S. 451 Ohio Gen. Code, Sees. 11,583 and Smitliers v. Rainey, 14 O. S. 287 11,584 (1910), identical; Outcalt Robey v. Ramsberger, 27 O. S. V. Collins, 8 Okla. 473, 58 Pac. 674; Humphreys v. Huffman, 33 642; Schie v. Schie, 6 Kan. App. 0. S. 395: Meade v. McGrow, 19 136, (50 Pac. 903; School Dist. 0. S. 55; King v. Bishop, 44 O. S, V. Koontze, 92 X". W. (X"eb.) 221; Mason v. Alexander, 44 0. S. 597; Rogencamp v. Heargraves, 58 334; Aucker v. Adams, 23 0. S. X. W. (Xeb.) 162; Southerland v. 543; Hempy v. Ransom, 23 0. S. Holiday, 90 X. W. (Xeb.) 937; 312. Lamb v. Gregory, 11 N, W. (Neb.) 99 REAL ESTATE UNDER EXECUTION. — JUDGMENT. § 95 Third. By the court, for want of necessary parties. Fourth. By the court, on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence. Fifth. By the court, for the disobedience by the plaintiff of an order concerning the proceedings in the action. Sixth. In all other cases upon the trial of an action, the decision must be upon the merits.*- Sec. 95. Plaintiff may dismiss certain actions. A plaintiff may, on the payment of costs, and without an order of court, dismiss any civil action brought by him, at any time before a petition of intervention, or answer praying for affirmative relief against him is filed in the action. A plaintiff may, at any time before the trial is commenced, on payment of costs, and without any order of court, dismiss his action after the filing of a petition of intervention or answer praying for affirmative relief, but such dismissal will not prejudice the right of the intervenor or defendant, to proceed with the action. Any defendant or intervenor may, in like manner, dismiss his action against a plaintiff, without an order of court, at any time before the trial is begun, on payment of costs made on the claim filed by him. All parties to a civil action may, at any time, before trial, without an order of court, and on payment of costs, by 42 Snyder, 5,918; Wilson, 4,585; 77 Kan. 273, 94 Pac. 130; Luton Kansas, 4,846 (1901), identical; v. Cooper, 106 N. W. (Neb.) 170; Nebraska, 1,419 (1907), identical; Thornbill v. Hargraves, 107 N. W. Wyman v. Herrard, 9 Okla. 35, 50 (Xeb.) 847; Bill v. Dalton, 93 Pac. 1,009; Hove v. Parker, 18 X. W. (Xeb.) 930; Horton v. State, Okla. 282, 90 Pac. 15; Aultman v. 88 X. W. (Xeb.) 146; Chaney v. •Caldwell, 14 Okla. 472, 78 Pac. 319; Cooper, 16 X. W. (Xeb.) 471; Dickerman v. Crane, 41 Kan. 150, Grimes v. Chamberlain, 43 N. W. 21 Pac. 107; National v. Crane, 50 (Xeb.) 395; Beales v. Western, 74 Kan. 49, 31 Pac. 082; Kansas v. N. W. (Xeb.) 54; Boyd v. Munson, Walker, 50 Kan. 739, 32 Pac. 365; 76 X. W. (Xeb.) 552; Houck v. Pugsley V. Chicago, 69 Kan. 599, Lumm, 77 N. W. (Neb.) 51. 77 Pac. 579; Wilkerson v. Mears, §§96,97 mebwine's trial, of title to land. 100 agreement, dismiss the action. Such dismissal is required to be in writing and signed by the party, or his attorney, and must be filed with the clerk of the district court, the judge or clerk of the county court, or the justice, where the action is pending, who must note the fact on the proper record : Provided, such dismissal will be held to be without prejudice, unless the words, "with prejudice," be expressed therein." Sec. 96. Dismissal may not affect set-off or counterclaim, when. In any action where a set-off or counterclaim has been presented, the defendant will have the right of proceeding to the trial on his claim, although the plaintiff may have dis- missed his action, or failed to appear.** Sec. 97. The judgment in an action to enforce a mortgage or other lien — The order of sale. In actions to enforce a mortgage, deed of trust, or other lien or charge, a personal judgment, or judgments, shall be rendered for the amount, or amounts due, as well to the plaintiff as the other parties to the action having liens on the mortgaged premises, by mortgage or otherwise, with interest thereon, and for the sale of the property charged, and the application of the proceeds, or such application may be reserved for the further order of the court; and the court is required to tax the costs, attorneys' fees, and expenses which may accrue in the action, and apportion the same among the parties, according to their respective interests, to be collected on the order of sale or sales, issued thereon; when the same mortgage embraces separate tracts of lands situated in two or more counties, the sheriff of each county is required to make sale of the lands situated in the county 43 Snyder, 5,919; Wilson, 4,586. Pac. 1,009; Venable v. Dutch, 37 44 Snyder, 5,921; Wilson, 4.587 Kansas, 4,847 (1901), identical Nebraska, 1,421 (1907), identical Kan. 515, 15 Pac. 520; Corlette V. Mutual, 60 Kan. 134, 55 Pac. 844; Amos v. Humboldt, 21 Kan. Wyman v. Harrard, 9 Okla. 35, 59 474. 101 REAL ESTATE UNDER EXECUTION. — JUDGMENT. §§98,99 of which he is sheriff. No real estate can be sold for the payment of any money, or performance of any contract, or agreement, in writing, in security for which it may be pledged or assigned, except in pursuance of a judgment of a court of competent jurisdiction, ordering such sale.*^ Sec. 98. Judgment ordering conveyance — By whom and how secured. When a judgment is rendered for a conveyance, release or acquittance, in any court of this State, and the party against whom the judgment is rendered, does not comply therewith by the time appointed, such judgment will have the same operation and effect, and be as available as if the conveyance, release or acquittance had been executed conformably to such judgment; or the court may order such conveyance, release or acquittance to be executed in the first instance by the sheriff; and such conveyance, release or acquittance, so ex- ecuted, shall have the same effect as if executed by the party against whom the judgment was rendered. This paragraph applies to decrees rendered or to be rendered in suits now pending.^" Sec. 99. Judgment — Failure to answer — Court may take an account. If the taking of an account or proof of a fact, or assess- ment of damages, be necessary to enable the court to pro- nounce judgment upon a failure to answer, or after the decision of an issue of law, the court may, with the assent of the party not in default, take an account, hear the proof, or assess the damages; or may, with like assent, refer the same to a referee or master commissioner, or direct the same to be ascertained or assessed by a jury ; if a jury be ordered, 45 Snyder, 5,921; Wilson, 4,588; 4G Snyder, 5,922; Wilson, 4,589; Kansas, 4,848 (1901), identical. Kansas, 4,849 (1901). identical. See chapter on Foreclosure of Mort- See chapter on Specific Perform- gages. ance. §§100,101 merwixe's trial of title to land. 102 it will be on and after the day on which the action is set for trial/^ Sec. 100. Judgment by confession. Any person indebted, or against whom a cause of action exists, may personally appear in a court of competent juris- diction, and with the assent of the creditor, or person having such cause of action, confess judgment therefor ; whereupon judgment shall be entered accordingly.*^ Sec. 101. Judgment confessed by warrant of attorney. Judgments may be entered upon confession by an attorney, authorized for that purpose by warrant of attorney, acknowl- edged or proved as conveyances of land, without any previous process or proceeding; and judgment so entered will be a lien from the date of entry.'*^ 47 Snyder. 5,023; Wilson. 4,500; Kansas, 2,202 (ISSO), identical; iN'ebraska, 1,422 (1907), identical. It is error to take judgment for damages without proof. City v. Harvey, 5 Okla. 754, 50 Pac. 84. A party is not 'n default who has filed some pleading requiring proof. Milliken v. Booth, 4 Okla. 713, 46 Pac. 489. An application to open a judgment, and leave to answer, must be accompanied by the answer setting up a meritorious defense. McBrien v. Riley, 57 N. W. (Neb.) 388. And, in addition thereto, he must give satisfactory excuse for his default. Childs v. Ferguson, 93 X. W. (Xeb.) 409. Failure to answer confesses every material allegation in the pleading to be answered. Pratt v. Hartschuflf, lOli X. W. 966. Where an answer is filed, and the answer fails, proof is required. First v. Merc. Co., 110 N. W. 1,006. If any defendant is in default, judgment should be taken as to him, even if the other defendants are not in default. German v. Stickle, SO X. W^ (Xeb.) 409. 48 Snyder, 5.924: Wilson, 4,591; Kansas, 4,851 (1901), identical; Xebraska, 1,423 (1007), identical; Maryland v. Bank, 107 X. W. (Xeb.) 662; Thornhill v. Har- graves, 107 X. W. (Xeb.) 847; Flannigan v. Continental, 34 X. W. (Xeb.) 307; Dolen v. Buchanan, 62 X. W. (Xeb.) 233. Must be made in open court. Xifflin v. Stalker, 4 Kan. 242. A director of a school district may not confess judgment for his district. Moore v. School, 11 Okla. 332, 66 Pac. 279. 49 Snyder, 5,925; Wilson, 4,592; Kansas, 4,852 (1901), identical; Xebraska, 1,423 (1907), similar. A judgment cannot be confessed ex- cept under the terms of this stat- ute. Harney. Cole, 20 Okla. 553, 103 REAL ESTATE UNDER EXECUTION. — JUDGMENT. §§ 102-106 Sec. 102. Cause of action must be stated briefly in judgment. The debt or cause of action must be stated briefly in the judgment, or writing to be filed as pleadings in other ac- tions. ^^ Sec. 103. Affidavit must be filed before judgment. Before any judgment may be entered by confession, an affidavit of the plaintiff must be filed, stating concisely the facts upon which the indebtedness arose, and that the amount of said indebtedness is justly due and owing by the defendant to the plaintiff.^^ Sec. 104. Judgment by confession enforced as other judg- ments. Such judgment will authorize the same proceedings for its enforcement as judgments rendered in actions regularly brought and prosecuted; and the confession will operate as a release of errors.^- Sec. 105. Warrant confessing judgment to be filed. Every attorney, who confesses judgment in any case, is re- quired, at the time of making such confession, to produce a warrant of attorney for making the same, to the court before which he makes the confession, and the original, or a copy of the warrant, must be filed with the clerk of the court in which the judgment is entered.^^ Sec. 106. Confession of judgment by prisoner. If any person be in custody in a civil action at the suit of another, no warrant of attorney, executed by the person in custody, to confess judgment in favor of the person at whose 95 Pac. 41.5; McCrairy v. Ware, so Snyder, 5,926; Wilson, 4,593; 58 Kan. 797, 51 Pac. 293. County Harn v. Cole, 20 Okla. 553, 95 Pac. attorney has no power to confess 415. judgment against county. Custer ^i Snyder, 5,927 ; Wilson, 5,494. V. Chicago, 87 N. W. (Neb.) 341. 52 Snyder, 5,928; Wilson, 4,595. B3 Snyder, 5,929 ; Wilson, 4,596. §§ 107-111 merwine's trial op title to land. 104 suit he is in custody, will be of any force, unless some attor- ney expressly named by the person in custody, be present and sign the warrant of attorney as a witness.^* Sec. 107. Judgment must conform to the verdict. When a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless it is special, or the court order the case to be reserved for future argument or consideration.^^ Sec. 108. Judgment on special verdict. Where the verdict is special, or where there has been a special finding on particular questions of fact, or where the court has ordered the case to be reserved, it must order what judgment shall be entered.^'' Sec. 109. Judgment notwithstanding the verdict. Where upon the statement in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so rendered by the court, though a verdict has been found against such party.^^ Sec. 110. Judgment where counterclaim or set-off exceeds plaintiff's claim. If a counterclaim or set-off, established at the trial, exceed the plaintiff's claim so established, judgment for the def en- ant must be given for the excess ; or if it appear that the defendant is entitled to any affirmative relief, judgment must be given therefor.^^ Sec. 111. Judgment on the pleadings. The Supreme Court of our State, in discussing this subject, has said that it is a form of judgment not infrequently used 54 Snyder, 5.930; Wilson, 4,597. 56 Snyder, 5,932; Wilson. 4,599. 55 Snyder, 5,931; Wilson, 4,598; 57 Snyder, 5,933; Wilson, 4,600. Kansas, 4,858 (1901), identical; 58 Snyder, 5,934; Wilson, 4,602. (Nebraska, 1,428 (1907), identical. 105 REAL ESTATE UNDER EXECUTION. — JUDGMENT. ni2 in practice under reformed codes of procedure. It is ren- dered on motion of the plaintiff, when the answer admits or leaves undenied all the material facts stated in the com- plaint; before such a judgment can be given where the pleadings of defendant set up a substantial and issuable defense, or where suit is for unliquidated damages, and the answer states matters in mitigation. And, say the authori- ties in consideration thereof, the pleadings objected to will be liberally construed, and the motion will be denied where there is any reasonable doubt as to their insufficiency.^^ Sec. 112, Judgments concerning infants set aside, when. It is not necessary to reserve in a judgment, or order, the right of an infant to show cause against it after his attaining full age; but in any case in which, but for this section, such reservation would have been proper, the infant, within one 59 Cobb V. Kenefick, 23 Okla. 440, 100 Pac. 545; McAlister v. Welker, 39 Minn. 535, 41 X. W. 107; Kelly V. Rogers, 21 Minn. 146; Giles v. Recamier, 14 Daley (X. Y.), 475; Malone v. Minn., 36 Minn. 335, 31 N. W. 170; Hutchinson v. Myers, 52 Kan. 290, 35 Pac. 732; Black on Judgments, See. 15. The mo- tion will be denied where any or all of the pleadings, together, show that the plaintiff is entitled to some relief. Hawkins v. Over- street, 7 Okla. 277, 54 Pac. 472; McCormick v. Coch, 8 Okla. 374, 58 Pac. 626. ^Yhere the essential averments of a petition for com- mission earned as a real estate broker are the contract of employ- ment and a full compliance with the terms thereof, and the answer, after a general denial, recognizes the procurement of a purchaser by the plaintiff for the land in ques- tion, and an acceptance of the pur- chaser by the landowner, and discloses further the execution of a binding, valid and enforceable contract of sale between the two and an agreement to compensate the brokers in accordance with the terms of sale; held, that in such case, a motion by plaintiffs for judgment on the pleadings was properly sustained, and the trial court committed no error in ren- dering judgment for plaintiffs thereon. Yoder v. Randol, 16 Okla. 308, 83 Pac. 537, 3 L. R. A., X.S., 576. As to when judgment should be given to defendant on the plead- ings, see St. Louis v. Phillips, 17 Okla. 264, 87 Pac. 420. As to when the court should either sus- tain motion of defendant for judg- ment on the pleadings or rule plaintiff to reply, see Brown v. Massey, 19 Okla. 482, 92 Pac. 246. §§ 113, 114 mebwine's trial of title to land. 106 year after arriving at the age of twenty-one years, may show cause against such order or judgment.'"' The statute does not give an infant absolute right to set aside a judgment; it only gives him the right to show cause why the judgment should be set aside.®^ Sec. 113. Judgments in district court on cases appealed from the county court. When a final judgment has been rendered against an ap- pellant in the district court in an action appealed from the county court, or justice's court, under the provisions for appeals from said courts, the court, on motion of the appellee, or any other person having an interest in such judgment, or right to any part of the costs in such action, after ten days' notice of said motion, to be served on appellant by copy delivered to him, may enter up judgment in the name of the appellee, or his legal representatives, against the surety or sureties on the appeal bond of the appellant, for the amount of such judgment and costs, which, by the terms thereof, the appellant may be required to pay. Execution may be issued on such judgment as in other cases, for the use and benefit of the successful party, or any person interested in such judgment, or in costs of such action. In case the bondsmen appeal from the judgment entered upon such motion, execu- tion therein will be stayed for sixty days.*'^ Sec. 114. Judgment and orders to be entered on journal. All judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action.''^ 60 Snyder, 5,935; Wilson, 4.602; 11,603 (1910), identical; Long v. Kansas, 4,862 (1901), similar; Mufford, 17 0. S. 484; Caiy v. Nebraska, 1,432 (1907), identical; Kemper, 45 O. S. 96. Delashmutt v. Parent, 39 Kan. 548, 62 Act of February 26, 1895; 18 Pac. 712; Claypool v. Houston, Wilson, 5,056. 12 Kan. 324 ; McCraire V. Creighton, 63 Snyder, 5,936; Wilson, 4,603; 107 N. W. (Neb.) 240; Starr v. Kansas, 4,863 (1901), identical; Watkins, 11 N. W. (Neb.) 363. Nebraska, 1,423 (1907), identical. 61 Manfull V. Graham, 76 N. W. (Neb.) 19; Ohio Gen. Code, Sec. 107 REAL ESTATE UNDER EXECUTION. — JUDGMENT. § 114 The failure of the clerk or recording officer to make a correct record does not vitiate the proceedings in a court of record. The court may, at any time during the term, at which the proceeding is had, correct, amend or supply omis- sions to make the record speak the truth. Such records, when so corrected, relate to the time when the proceedings were in fact had.*** On proper application and notice, the court may, by nunc pro tunc order, cause its records to speak the truth and be amended so as to record any part of the proceedings had in any cause which, by inadvertence or mistake, the clerk has omitted to report. ^'^ A person interested in a proceeding of a court of record may appear before the court at any time, and ask to have the journal made correct and complete as of the date such record should have been made, and the court should enter- tain and hear such motion upon notice to those adversely interested. Where the default was that of the court or its officers, it is the duty of the court to make its record com- plete at any subsequent date when the default is called to its attention without the formality of a motion.*"^ 64 Ex parte Cook, 2 Okla. Cr. for the amount of the verdict, 684, 103 Pac. 1,041. unless otherwise directed by the 6"> In re McQuown, 19 Okla. 347, court; and, if he fails so to do, 91 Pac. 689. he may thereafter enter the same, 66 Board v. Kansas, 19 Okla. 375, the form thereof being approved by 91 Pac. 699. The minutes from the court, without notice to the de- which the judgment is made up, fendant, at any time before the and even the judgment and any rights or interests of third persons paper signed by a master are not intervene which may be affected by properly evidence of the record. such entry without notice. Selders Cockrell v. Schmidt, 20 Okla. 297, v. Boyle, 5 Kan. App. 504, 49 "Pac. 94 Pac. 521. In an action upon a 320; see, also, Pleasant v. Shawgo^ promissory note, tried to a jury, 54 Kan. 732, 39 Pac. 704; Church and in which the jury returned a v. Gooden, 22 Kan. 527 ; Franklin verdict for the plaintiff for a cer- v. Mereda, 50 Cal. 293; Young v. tain amount, it is the duty of the Shellenberger, 41 N. E. (Ohio), clerk, under the provisions of the 518. In order to create a lien on code, to immediately enter judg- the real estate of a judgment ment upon the journal of the court debtor, the judgment must be §§ 115-117 merwine's trial of title to land. 108 The court, at all times during the terra, and at any time during a subsequent term, has power to make its journal speak the truth. If, by mistake or fraud, a judgment is entered when, in fact, no judgment was granted or allowed, the court has full power to correct the record so it may show the real action of the court as to the same. The court may do this of its own motion or on application of a party in- terested."^ Sec. 115. The clerk to make complete record in case, when. The clerk is required to make a complete record of every cause as soon as it is finally determined, whenever such record shall be ordered by the court."* Sec. 116. Judge may sign record at next term. The clerk is required to make up such record in each cause in the vacation next after the term at which the same was determined ; and the presiding judge of such court must, at its next term thereafter, subscribe the same.'''' Sec. 117. What papers constitute complete record. The record must be made up from the petition, the proc- ess, the return, the pleadings subsequent thereto, reports, verdicts, orders, judgments and all material acts and pro- ceedings of the court, but if the items of an account, or the copies of papers attached to the pleadings be voluminous, the court may order the record to be made by abbreviating the entered on the journal during the identical. The right to have such term at which the judgment was record may be waived by all the taken. Coe v. Erb, 59 0. S. 250. parties. Johnson v. Rawles, 58 67Krusela v. DeCamp, 15 C. C. .N. W. (Neb.) 142; Colonial v. (Ohio), 494. Foutch, 47 N. W. 929. 68 Snyder, 5,937: Wilson, 4,604; bo Snyder, 5,938; Wilson, 4,605; Kansas, 4,864 (1901), identical; Nebraska, 1,435 (1907), identical. Nebraska, 1,434 (1907), identical; This statute directory. Colony v. Ohio Gen. Code, Sec. 11,605 (1910), Billingly, 89 'N. W. (Neb.) 744. 109 REAL ESTATE UNDER EXECUTION. — JUDGMENT. §§ 118-120 same, or inserting a pertinent description thereof, or by omitting them entirely. Evidence must not be recorded.^*' Sec. 118. Upon failure of clerk to make complete record, court may do so. When the judicial acts and other proceedings of any court have not been regularly brought up and recorded by the clerk thereof, such court is required to cause the same to be made up and recorded within such time as it may direct. "When they are made up, and, upon examination, found to be correct, the presiding judge of such court must subscribe the same.'^^ Sec. 119. Judgment becomes dormant, when. If an execution be not sued out within five years from the date of any judgment that now is or may hereafter be ren- dered, in any court of record in this State, or if five years have intervened between the date of the last execution issued on such judgment, and the time of suing out another writ of execution thereon, such judgment shall become dormant and will cease to operate as a lien on the estate of the judgment debtor.'^^ Sec. 120. Dormant judgments — How revived. When a judgment becomes dormant, it may be revived in the same manner as is prescribed for reviving actions before judgment.'^^ 70 Snyder, 5.939; Wilson, 4,606 Kansas, 4,866 (1901), identical Nebraska, 1,436 (1907), identical 72 Snyder, 5.969; Wilson, 4,635; Kansas, 4,895 (1901), identical; Nebraska, 1,480 (1907), identical; Ohio Gen. Code, Sec. 11,607 (1910), Ohio Gen. Code, Sec. 11,663 (1910), identical. similar. For discussion of this 71 Snyder, 5,940; Wilson, 4,607; statute, see Section , herein, Kansas, 4,867 (1901), identical; chapter on Executions. Ohio Gen. Code, Sec. 11,609 (1910), 73 Act of March 16, 1893; Wilson, identical. 4,630. § 121 merwine's trial op title to land. 110 Parties must be notified and the sheriff must make return of service in actions for this purpose/* Sec. 121. Judgment lien — General discussion. It has been said of this lien created by a judgment, that, ''as a general rule, and except in special and peculiar cases, it does not belong to the courts of law to prescribe the kind or extent of the lien which shall result from the judg- ments they pronounce, or to control it in any way, as by restricting it to certain prescribed property. The court has usually nothing to do with the manner in which its judg- ment sluill be enforced, or the fund from which it shall be satisfied ; it merely pronounces the sentence of the law on the facts before it, to which, thereupon, the incident of the lien attaches by virtue solely of positive law. It is, of course, to be understood that reference is here made to judgments at law, as distinguished from decrees in chancery. The powers of equity in this respect are sufficiently familiar. The lien of a judgment upon the lands of a judgment debtor is entirely the creature of the statute, and is not dependent, in any manner, on contract of the parties. It begins, con- tinues and terminates at the will of the Legislature. ' ' ''^ The party in whose favor a judgment is secured has no set interest in the real estate of the judgment debtor. His right in the judgment can be secured only by taking such steps under his lien as will enable him to enforce it. He cannot, if the judgment debtor has sold the real estate upon which he has a lien, go after the proceeds of the sale thereof. His right is to have an execution issued and the real estate sold 74 Wilson V. McCormick, 10 Okla. the time of the revivor. Horbach ISO, 61 Pac. 168; Neal v. LeBreton, v. Snively, 74 N. W. (Neb.) 623; 14 Okla. 538, 28 Pac. 376. Jurlg- Hahnes v. Dovey, 98 N. W. (Neb.) ments in the county court that 631. have become dormant must be re- ^s Black on Judgments, Sec. 402, vived as required by this statute?. citing Castro v. lilies, 13 Tex. 220; Creighton v. Gonni, 37 N. W. Houston v. Houston, 67 Ind. 276. (Neb.) 76. The lien dates from Ill REAL ESTATE UNDER EXECUTION. — JUDGMENT. §§122,123 to satisfy his lien. The creditors of the judgment debtor may not, by any proceeding to which the creditor is not a party, impair the lien of the judgment. The lien of the judgment does not give the holder of it any right to the crop on the land at the time it is secured, nor any right to the rents and profits of the real estate, and all the real estate of the judg- ment debtor in the county where the judgment is recovered is subject to the lien,'^® Sec. 122. Judgment of county court lien on real estate. All judgments rendered in the county courts of the State of Oklahoma, are liens on any and all real estate of the judgment debtor in the counties where jurisdiction lies.'^^ Sec. 123. Lien on real estate — ^Lien dates from when — Lien on judgment from another county, how secured. Judgments of courts of record of this State, and of courts of the United States, rendered within this State, are liens on the real estate of the debtor within the county in which the judgment is rendered from and after the time the judgment is entered on the judgment docket. An attested copy of the journal entry of any judgment, together with a statement of the costs taxed against the debtor in the case, may be filed in the office of the clerk of the district court of any county, and such judgment will operate as a lien on the real estate of the debtor within that county from and after the date of the filing and entering of such judgment on the judgment docket. The clerk is required by law, to enter such 7a Freeman on Judgments, Sec. 11 Xeb. 295; Conrarl v. Insurance 528, citing Rogers v. Bonner, 45 Co., 1 Pet. 378; Lanning v. Car- -N. Y. 379; Independent v. Werner, penter, 48 N. Y. 412; Rowe v. 43 la. 643; Ashton v. Slater, 19 Miner, 28 Kan. 441; Dail v. Free- Minn. 347; Foute v. Faewman, 48 man, 92 N. Car. 351; Logan v. Miss. 536; Petite v. Shepherd, 5 Hale, 42 Cal. 645. Paige, 493, 28 Am. Dec. 437; Wit- 77 Act of March 5, 1895; Wilson, mer's Appeal, 45 P. S. 455, 84 1,876. Am. Dec. 505; Mansfield v. Gregory, §124 merwine's trial of title to land. 112 judgment on the appearance and judgment dockets in the same manner and within the same time after such judgment is filed in his office as if rendered in the court of which he is clerk. Executions can only be issued from the court in which the judgment is rendered.'^® Sec. 124. Judgment recorded in office of register of deeds — Effect of. Any judgment or decree of a court of competent jurisdic- tion, finding and adjudging the rights of any party to real 78 Snyder, 5,941; Wilson, 4,608. A judgment of the probate court rendered prior to March 7, 1893, was a lien upon the real estate of the judgment debtor in the county wherein such judgment was rendered, and continued to be a lien on such real estate for the period of sixty days after that date, but ceased to operate as a lien on real estate after the expiration of sixty days from March 7, 1893, unless the judgment creditor caused to be filed in the office of the clerk of the district court a transcript or abstract of his judgment recov- ered in the probate court. And where one recovered a judgment in the probate court against a party, prior to March 7, 1893, but failed to file a transcript or abstract of such judgment in the office of the clerk of the district court until after the expiration of sixty days from the date last above named, and thereafter, and prior to March 5, 1895, the judgment debtor sold real estate located in the county where such judgment was rendered, to a third party, and con- veyed the same by warranty deed, such third party acquired a good title as against the judgment cred- itor, such creditor having lost his lien on said real estate, by not filing a transcript or abstract of his judgment in conformity with Section 2 of the act relating to judgments rendered in probate courts, on page 1,191 of the statutes of Oklahoma of 1893. A judgment rendered in a probate court of this territory, after March 7, 1893, and prior to March 5, 1895, did not, between said dates, operate as a lien on the real estate of the judg- ment debtor in the county wherein such judgment was rendered, unless a transcript or abstract thereof was filed in the office of the clerk of the district court. Upon the filing of such transcript or abstract in the office of the clerk of the district court, it operated as a lien upon the real estate of the judgment debtor in such county, the same as if a judgment for that amount had been rendered in the district court. Spencer v. Eippe, 7 Okla. 608, 56 Pac. 1,070; see, also, Lowenstein v. Young, 8 Okla. 216, 57 Pac. 164; see, also, on this subject, Baird v. Williams, 4 Okla. 173, 44 Pac. 217; Lewis V. Athertoii, 5 Okla. 90, 47 Pac. 1.070. 113 REAL ESTATE UNDER EXECUTION. — JUDGMENT. §§ 125-127 estate, or any interest therein, duly certified, may be filed for record and recorded in the office of the register of deeds with like effect as a deed duly executed and acknowledged.^* Sec. 125. Res adjudicata — Parties defendant. Nothing in the code of civil procedure shall be so con- strued as to make a judgment against one or more defendants jointly or severally liable, a bar to another action against those not served.^" Sec. 126. Lis pendens. Where the petition has been filed, the action is pending, so as to charge third persons with notice of its pendency, and while pending no interest can be acquired by third persons in the subject-matter thereof as against the plaintiff's title; but such notice shall be of no avail unless the summons be served or the first publication made within sixty days after the filing of the petition.®^ Sec. 127. Lis pendens — Lands in other county. "Where any part of real property, the subject-matter of an action, is situated in any other county or counties than the one in which the action is brought, a certified copy of the judgment in such action must be recorded in the office of the register of deeds of such other county or counties, before it shall operate therein as notice, so as to charge third persons, as provided in the preceding section. It shall operate as such notice, without record, in the county where it is ren- dered.^^ 79 Snyder, 1,216; Wilson, 909. si Snyder, 5,621; Wilson, 4,285. 80 Snyder, 5,620; Wilson, 4,284. 82 Snyder, 5,622; Wilson, 4,285. § 128 merwine's trial op title to land. 114 Sec. 128. The procedure by which judgment is obtained on warrant of attorney to confess judgment — Form for the petition. District Court of County, State of Oklahoma. • , Plaintiff, vs. No. . , Defendant. PETITION. The plaintiff says that it is a corporation duly incorporated and organized under the laws of the State of Oklahoma, having its banking house and principal place of business in the city of , in the County of , State of Oklahoma, and this, its action, is founded upon a promissory note, of which the fol- lowing is a copy, with all the indorsements and credits thereon : $ . , Oklahoma, , 19—. On demand after date, for value received, I promise to pay The Company, at its banking house in , Oklahoma, the sum of $ , with interest thereon at the rate of per cent., payable annually after date until paid, and I do hereby authorize any attorney at law to appear for me in an action on the above note at any time after the same becomes due, in any court of record in the State of Oklahoma, to waive the issuance of process against me, and to confess judgment in favor of the legal holder of said note against me, for the amount then due on said note, at the rate of per cent, interest therein stipulated, and hereby release all errors in said proceedings and all right to prosecute a petition in error upon such judg- ments or proceedings. . Said note being indorsed as follows : State of Oklahoma, County, ss. : Before me, , a in and for said county and State, on this day of , 19 — , personally appeared , to me knoAMi to be the identical person who executed the within and foregoing instrument, and acknowledged to me that he 115 REAL ESTATE UNDER EXECUTION. JUDGMENT. § 129 executed the same as his free and voluntary act and deed for the uses and purposes therein set forth. There is due the plaintiff from defendant on said note the sum of $ , which it claims with interest from the day of , 19 — , at per cent, per annum, payable annually, until paid, for which, with costs of suit, it asks judgment against the defendant. Attorney for Plaintiff. Sec. 129. The answer confessing judgment. District Court of County, State op Oklahoma. , Plaintiff, vs. No. , Defendant. ANSWER CONFESSING JUDGMENT. The defendant, , by , attorney, an attorney of record in this court, duly authorized by warrant of attorney embraced in the note sued on in this suit, and which note, with the accompanying warrant of attorney, with acknowledgment thereof in due form, as required by statute, is produced, now comes and waives the issuing and service of process in this action, and hereby enters the appearance of said defendant herein, and said defendant, by , said attorney, duly au- thorized as aforesaid, says he cannot gainsay or resist the facts stated or allegations contained in the petition of said plaintiff herein filed against him, but acknowledges and confesses the same to be true, and says he is indebted to plaintiff on said note in the manner and form as in its petition set forth, and that the amount due upon said indebtedness at this date, is the sum of $ , with interest at per cent, per annum, payable annually until paid, and therefor, for that sum, with interest from the day of , 19 — , at per cent, per annum, payable annually until paid, according to the terms thereof, he confesses judgment in favor of the § 130 merwine's trial of title to land. 116 plaintiff, and waives and releases all errors in this proceeding, and all right to prosecute a petition in error upon such judg- ment and proceeding. Attorney for Defendant. Sec. 130. The judgment by confession. District Court of County, State of Oklahoma. , Plaintiff, vs. No. . , Defendant. JUDGMENT BY CONFESSION. This day came the plaintiff by plaintiff's attorney, and files its petition against said defendant, , and thereupon, , one of the attorneys of record in this court, also ap- peared in open court for and on behalf of said defendant, , and who, by virtue of a warrant of attorney for that purpose, duly executed and acknowledged as required by law, now produced in open court, waives the issuing and service of process, and enters the appearance of said defendant, herein, and by virtue of the same warrant of attorney, confesses there is due from said defendant to said plaintiff, as is alleged in plaintiff's petition, the sum of $ , bearing interest at per cent, per annum, payable annually until paid, and that said plaintiff ought to recover of said defendant, judgment for that sum. It is therefore considered by the court that said , plain- tiff, do recover from said , defendant, said sum of $ , so as aforesaid confessed to be due, together with costs of suit herein, to be taken, with interest, from the day of , 19 — , at the rate of per cent, per annum, payable annually until paid, and by virtue of said war- rant of attorney, all errors in this proceeding are released, and all rights to prosecute a petition in error from such judgment and proceeding are hereby waived. Judge of said Court. Done in open court this day of — , 19 — . CHAPTER VI. THE LAW AND PROCEDURE BY WHICH REAL ESTATE IS SOLD UNDER LEVY OF AN EXECUTION. SECTION 131. General statement. 132. The praecipe for an execution. 133. The execution — Nature and kinds thereof. 134. Tlie property subject to levy and execution. 135. The property bound from the time of the levy. 136. The judgment becomes dor- mant, when. 137. The command of the execution. 138. The priority in case of several levies — The officer must in- dorse on the writ the date he received it. 139. If no goods, to levy on real estate. 140. The officer may require bond be- fore levying on goods claimed by third party. 141. When the officer may take a bond and leave the goods in the possession of the de- fendant. 142. The notice of sale — Inventory — Goods taken on execution. 143. Property insufficient — Further levj" — Indorsement by officer. 144. The appraisement vmder the levy — Qualifications of the ap- praisers — View of the prem- ises. 145. The appraisement must be made on actual view. 146. The return of the appraisers conclusive and cannot be set aside except for fraud or other proper grounds. SECTION 147. Parol evidence may be intro- duced to show mistake in appraisement — Appraisement set aside, when. 148. The sale may be made without appraisement, when. 149. The return cf the appraise- ment. 150. The land cannot be sold for less than two-thirds of the appraised value — Exceptions as to claims due State. 151. The property of certain officers sold without appraisement. 152. The legal notice cf sale under the execution. 153. The sheriff's return of his pro- ceedings under the writ. 154. Confirmation and approval by the court of sheriff's sale of real estate. 155. When objection to the con- firmation of sale should be made. 156. The irregularities that are and are not corrected by the con- firmation — The procedure. 157. The sheriff's deed to the pur- chaser. 158. Printer's fee to be advanced, when — Officer must demand same, when. 159. Where sale must take place — Officer or appraiser may not purchase — Persons in trust relations may not bid at their own sales. 160. Alias execution. 117 merwine's trial of title to land. 118 SECTION IGL Procedure where several execu- tions are issued — Creditors may direct several levies. 162. When one other than the officer making the sale may execute tlie deed. 163. The remainder of the proceeds of sale to be returned to de- fendant. 164. The reversal of the judgTiient does not defeat title of the j)urcliaser. 165. When the lien expires in case no execution issues — The lien when mandate issues from the Supreme Court — When property may be reappraised and sold. 166. Tlie writ of execution to be returned in sixty days. 167. Fee of appraisers — Penalty for failure to appear. 168. When execution may issue to sherifl" of another county. 169. The officer may mail execution to another county. 170. Money collected by execution in another county may not be returned by mail. 171. Sureties of sheriff may be made parties to the judgment — Property of officer to be first exhausted. 172. Officer on amercement may col- lect original judgment, when. 173. When contribution may be re- quired. 174. Equitable interest in lands sub- ject to levy — Stocks — ^Choses in action. 175. Pleading, practice and proce- dure the same in the county court as in the district court. 176. When the judgment becomes a lien on the real eGtate. 177. Execution to conform to judg- ment — Special cases. 178. Judgment of justice of the peace, how docketed by clerk of district court. SECTION 179. Judgment of a justice of the peace becomes a lien on the real estate, when. 180. Execution ihereon may be issued by the clerk of the district court. 181. Justice to certify costs. 182. Judgment may be revived, wlien. 183. The procedure by which real estate is levied upon and sold under judgment in a civil action — The petition in the action. 184. The praecipe for summons. 185. The summons in the action. 186. The sheriff's return. 187. Motion for appointment of guardian ad litem to defend for insane defendant. 188. The affidavit in proof of in- sanity. 189. The order of court appointing a g'/iardian ad litem to de- fend for insane defendant. 190. The answer of guardian ad litem for insane defendant. 191. The judgment of the court in the action. 192. The execution. 193. The sheriff's return of his pro- ceedings under the execution. 194. The appraisement by the sheriff of real estate under levy of execution — The oath of the appraisers — The appraise- ment. 195. Sheriff's publication of notice of sale of real estate under the levy and execution. 196. The prooif of publica-tion of sheriff's notice of sale of real estate. 197. The order of the court ap- proving and confirming the sale of real estate under the execution. 198. Sheriff's deed where real estate is sold under the ordinary writ of execution. 119 REAL, ESTATE UNDER EXECUTION. — SALE. §131 SECTION 199. Procedure where real estate is sold under a venditioni ex- ponas — Tlie sheriff's return. 200. The praecipe for the venditioni exponas. 201. The order of sale directed from the clerk to the sherilf — The venditioni exponas. 202. The appointment of appraisers under a venditioni exponas — ■ The oath of appraisers — The appraisement. 203. The legal notice by the sheriff under a venditioni exponas. 204. Pi-oof of publication of sale by sheriff under a vemlitioni ex- ponas. 205. The sheriff's return of the ven- ditioni exponas. 206. The procedure for sale of \evj made under foreign execution — The petition asking for the mashaling of liens and sale of real estate. 207. The answer and <^ross-petition of defendant setting up a life estate in the premises levied upon. SECTION 208. The answer of a judgment debtor containing a general denial. 209. The answer and cross-petition of a lienholder setting up a mortgage. 210. The judgment of the court finding the issues in favor of the plaintiff and decreeing and ordering sale f^T the real estate. 211. The appointment of appraisers — The oath of the appraisers — The appraisement. 212. The sherifl''s legal notice of sale of real estate under uie order of sale. 213. The -pfooi of publication of sherifl"'s notice of sale of real estate. 214. The sheriff's return of his pro- ceedings under the order of sale. 215. The confirmation of the sale and order for deed and dis- tribution of the proceeds of sale. 216. The sheriff's deed to the pur- chaser. Sec. 131. General statement. The law of this subject is controlled and regulated largely by statute. The law of the subject of sales of real estate by execution was taken originally from the statute of Ohio. Both Kansas and Nebraska have the old statutes of Ohio on the subject. Both States, however, have avoided many of the defects of the older statutes by enacting new and better laws on the subject. Our State has in force the Ohio statute on the subject. The decisions of the Supreme Courts of Kansas, Nebraska and Ohio, so far as necessary to construe the statutes of our State, will be found in the text. The arrangement of the topics in this chapter is as made by the Legislature of the State. The arrangement could be made more analytical and logical, but it was deemed best to follow the plan of the statutes on the subject, and, as the laws §§132,133 merwine's trial op title to land. 120 regulating levies in execution on personal property and real property are interwoven, the law on both subjects will be set forth in this chapter. Sec. 132. The praecipe for an execution. Most clerks of the courts have blank forms for praecipe which can be filled out by the attorney. But no particular form need be followed. It should request the clerk to issue an execution on the judgment, directed to the sheriff accord- ing to law. Sec. 133. The execution — Nature and kinds thereof. Executions shall be deemed process of the court, and shall be issued by the clerk and directed to the sheriff of the county; they may be directed to different counties at the same time. Executions are of four kinds: 1. Against the property of the judgment debtor. 2. Against his person. 3. For the delivery of the possession of real or personal property, with damages for holding same, and costs. 4. Executions in special cases. An execution has been defined to be a command or pre- cept to the sheriff or a ministerial officer, directing him to execute the judgment of the court. It is the command of the court addressed to the ministerial officer, in writing, under the seal of the court, containing with more certainty the command of the court, and expressed with more solemnity than if uttered verbally by the court. It is, nevertheless, a command of the court to the officer to proceed and execute the judgment of the court.^ 1 Kelly V. Vincent, 8 0. S. 420; limit, it may be given in a letter Lessee of Darby v. Carson, 9 Obio, properly directed and mailed to 149. An actual delivery to the the sheriff. It may be delivered sheriff is not necessary. But it by the clerk to the plaintiff or his must be actual or constructive de- attorney, to be delivered to the livery to him. If within a time sheriff. Kelly v. Vincent, 8 O. S. 121 REAL ESTATE UNDER EXECUTION. — SALE. § 133 When the praecipe has been filed with the clerk, he cannot question plaintiff's right to do so, but must obey its com- mand, unless, however, where the language of the judgment is ambiguous, and giving it the construction which it may have, the plaintiff might not be entitled to the execution, the clerk may not upon mandamus, be required to issue it.^ It is subject to amendment, and, in one case, where the clerk had omitted his seal, it was held it could be attached even after the sale. The execution must be issued by the same court, in which the judgment is entered.^ And the issuance of the writ and the sale of the property made under it, are both ministerial acts.* There are now in the procedure by which real estate is sold under an execution, three kinds of execution. There is the ordinary execution which is the execution commanding that the goods and chattels be levied on to satisfy the judg- ment, and that in default thereof, the lands and tenements are levied on, and sold. This execution must be returned in sixty days. Then, there is the execution issued under order of sale in the foreclosure of a mortgage, or other kindred liens. This need not be returned in sixty days. An execu- tion of this latter kind is designated a special execution, but such executions must conform to the order of sale.^ Then there is the venditioni exponas. This was the common law writ still in force in this State, which is a process in con- tinuation and completion of a previous execution by which property had been appropriated and placed in the custody of the law. Again, it has been said to be issued when the original, alias or pluries writ of fieri facias is returned with an 420. An execution can is«vie only * Needles v. Frost, 2 Okla. 19, out of the court where the judg- 35 Pac. 574. ment was rendered. Milson v. 5 Price v. Citizens, 23 Okla. 723, Rouk, 57 0. S. 422. 102 Pac. 803; Norton v. Reardon, 2 Hill V. Stewart, 23 Kan. 397. 67 Kan. 30'2, 72 Pac. 861, 101 3 Chandler v. Colcord, 1 Okla. 200, Am. St. Rep. 459 ; Thompson v. 32 Pac. 330. Purge, 60 Kan. 549, 57 Pac. 110, 72 Am. St. Rep. 369. §133 merwine's trial of title to land. 122 indorsement showing that the officer has levied on the prop- erty and has the same in his hands unsold.® Upon this subject one author has said : "And though the proper course is, after levy of a fieri facias on lands, and a return thereof without sale, to sue out a writ of vendi. exponas against the property levied on, yet the plaintiff will not lose the lien of his levy if, instead thereof, he cause to be issued an alias fi. fa. and sells the property thereon. The latter course, though irregular, is not a waiver of the previous levy. For the alias fi. fa. by rela- tion reaches back to the levy of the original writ and pre- serves its lien so as to bind the property and prevent priority of another levy made in the interim upon the same property, if the subsequent or alias fi. fa. has issued in due time." ^ •5 Hamilton v. Wilson, 61 Kan. 428, 59 Pac. 1,068 ; Bank v. Hinton, 35 Kan. 577, 11 Pac. 369. 7 Rorer on Judicial Sales, Sees. 680 and 581, citing Bonton v. Lord, 15 0. S. 454; Brashfield v. Whit- aker, 4 Howks, 309. "When, under the valuation law, a sale of real estate fails for want of time and the amount required on valuation by the statute, by reason whereof the writ is returned, and venditioni exponas issued, and sale is made thereon, such sale relates back to the original levy, and is but a con- tinuation of the proceedings on the original writ. It saves the lien as an alias would have saved it, and is a valid sale." "If, in the mean- time, the defendant die between the time of the levy of the fieri facias and the issuing of the writ of venditioni exponas, the latter may legally issue, notwithstanding his death, and the snle thereon is valid, and carries with it all rights as to lien acquired by the original levy of the fieri facias, or by the judgment. Xo revival of fieri facias is necessary." Roror on Judicial Sales, Sees. 689 and 690, citing Taylor v. Miller, 13 Howard, 487. "An execution was levied upon land which was appraised and ad- vertised for sale by the sheriff. Further proceedings under the writ were enjoined by the judgment debtor, and return of the process made by the officer, reciting the facts. The defendant in the execu- tion then died, and the injunction suit was dismissed. Immediately, and without revivor, an alias execu- tion was issued, reciting the steps taken under the first one, and the land advertised and sold there- imder. Held, that the alias execu- tion, under the statute, performed the office of a venditioni exponas at commnn law, and that a sale made under it was valid. Rain v. Young, 61 Kan. 428, 59 Pac. 1,068; see, also, Retchie v. Higginbotham, 26 Kan. 645. 123 KEAL ESTATE UNDER EXECUTION. SALE. §§134-136 Sec. 134. The property subject to levy and execution. Lands, tenements, goods and chattels, not exempt by law, are subject to the payment of debts, and are liable to be taken on execution and sold, as hereinafter provided.^ Sec. 135. The property bound from the time of the levy. All real estate, not bound by the lien of the judgment, as well as the goods and chattels of the debtor, are bound from the time they are seized on execution.^ Sec. 136. The judgment becomes dormant, when. If execution be not sued out within five years from the date of any judgment that now is, or may hereafter be ren- dered in any court of record in this State, or if five years intervene between the date of the last execution issued on such judgment, and the time of suing out another writ of execution thereon, such judgment will become dormant, and will cease to operate as a lien on the estate of the judgment debtor.^"' "It is well settled, both by the statute and the decisions, that a judgment is dormant in five years, and that an execu- tion rendered thereon is absolutely void. It is true that tbe statute provides that no execution may issue against a county, but proceedings by mandamus are only in the nature of an execution for enforcing the collection of a judgment against a municipality. By all fair analogies, the same rule applies, and if a party holding a judgment against a municipality permits it to stand without any effort to collect it by 8 Snyder, 5,967; Wilson, 4,633; similar; Nebraska, 1,480 (1907), Kansas, 4,893 (1901), identical; identical. "A judgment against a Xebraska, 1.466 (1907), identical. city of the first class becomes dor- 9 Snyder, 5,968; Wilson, 4,634; mant after five years from the date Kansas, 4,894 (1901), identical; of its rendition, unless the judgment [Nebraska, 1,467 (1907), similar. creditor within said time, causes 10 Snyder, 5,969: Wilson, 4,635; execution to be levied thereon." Kansas, 4,895 (1901), identical; Beadles v. Fry, 15 Okla. 428, 82 Ohio Gen. Code, Sec. 11,663 (1910), Pac. 1,041. § 136 merwine's trial of title to land. 124 mandamus proceeding for five years, the judgment becomes dormant, and there must be a revivor, which can only be had within a year, before any process can be obtained on that judgment. The mandamus is equivalent to execution, and the same rule must obtain as to judgments which are permitted to stand for five years without process. "^^ It was held that the lien of the judgment given by the statute, and such as are created by levy of an execution, are of no avail as against a purchaser after the judgment becomes dormant, before it is revived.^- A decree and order of sale of real estate never becomes dormant. While the parties to the decree live, the case, for the purpose of the decree, is Us pendens, though, under the code practice, the clerk is di- rected to leave it of£ the trial docket.^^ It is only money judgments that become dormant.^^ The space allotted for this work prevents further discussion of dormant judgments and the revival thereof. The practi- tioner will find a careful discussion thereof in the works on pleading and court procedure. ^^ In the note below will be found a list of cases from other States having identical statutes which have been construed.^** 11 By Justice Brewer in United aker's Ann. Civil Code; Bates' States V. Township Oswego, 28 Pleading, Practice, Parties and Fed. 55. Forms. 12 Smith V. Hogg, 52 0. S. 528; is Chapman v. Chapman, 48 Kan. Poades v. Symmes, 1 Ohio, 281; 636, 29 Pac. 1,071; Wibber v. Styles V. Murphy, 4 Ohio, 92; Nor- Harshbarger, 5 Kan. App. 185, 47 ton V. Beaver, 5 Ohio, 178; Miner Pac. 166; Nelson v. Keystone, 70 V. Wallace, 10 Ohio, 403; Hutchin- Kan. 43, 74 Pac. 269; State v. son V. Hutchinson, 15 Ohio, 301; McArthur, 5 Kan. 281; Kellen v. Tucker v. Shade, 15 0. S. 355; iNeb., 70 Kan. 83, 78 Pac. 159, West v. James, 51 0. S. 330. Dillon v. Chicago, 78 N. W. (Neb.) 13 Ranker v. Hannan, 37 0. S. 927; Herbage v. Feme, 91 N. W. 117; Moore v. Ogden, 35 O. S. 430; (Neb.) 408; Flint v. Chalompke, Beaumont v. Ogden, 24 0. S. 452. 99 N. W. (Neb.) 826; Harvey v. 14 Moore v. Ogden, 35 0. 8. 430. Godding, 109 N. W. (Neb.) 220; 15 See Kinkead's Code Pleading; Reynolds v. Cobb, 19 N. W. (Neb.) Kinkead's Court Practice; Whit- 509. 125 REAL ESTATE UNDER EXECUTION. — SALE. § 137 A judgment lien is created by statute, and is destroyed by the statute, if its provisions requiring the taking out of an execution are not complied with.^^ Sec. 137. The command of the execution. The writ of execution against the property of the judgment debtor, issuing from any court of record in this State, must command the officer to whom it is directed, that of the goods and chattels of the debtor he cause to be made the money specified in the writ ; and for want of goods and chattels, he cause the same to be made of the lands and tenements of the debtor ; and the amount of the debt, damages and costs, for which the judgment is entered, must be indorsed on the execution.^^ The personalty must be sold first. But if this is not suffi- cient to satisfy the debt, the real estate may be levied on even before the personalty is advertised for sale.^^ The writ will not be avoided because judgment was taken for more than was due, but this may be corrected on proper applica- tion to the proper court.-" A fi. fa. issued and levied on lands of a judgment debtor after his death, and his land sold thereunder, gives no title to the purchaser of said lands.-^ But where the execution is issued and a levy made on the lands of the execution creditor during his lifetime, the lands so levied on may be sold under execution, without making his personal representatives a party to the judgment.-^ In the absence of any order to the contrary, it is made the duty of the sheriff, under an order for sale of real estate, to sell for cash.-^ 17 Hahms v. Dovey, 89 N. W. i9 Burge v. Brown, 45 N. W. (Neb.) 631. (Xeb.) 271. 18 Snyder, 5,970; Wilson, 4,636 Kansas, 4,896 (1901), identical Nebraska, 1,481 (1907), identical 20 Bogle V. Bloom, 36 Kan. 512, 13 Pac. 793. 21 Lessee v. Reed, 5 Ohio, 221. Ohio Gen. Code, Sec. 11,664 (1910), 22 Bigelow v. Renker, 25 O. S. identical. 609. 23 Sharp V. Ross, 7 C. C. 56. §138 MERWINE S TRIAL OF TITLE TO LAND. 126 Sec. 138. The priority in case of several levies — The officer must indorse on the writ the date he received it. When two or more writs of execution against the same debtor are sued out during the term in which the judgment was rendered, or within ten days thereafter, and when two or more writs of execution against the same debtor are deliv- ered to the officer on the same day, no preference will be given either of said writs; but if a sufficient sum of money be not made to satisfy all such executions, the amount made must be distributed to the several creditors in proportion to the amount of their respective demands. In all other cases the writ of execution first delivered to the officer must be first satisfied. And it is made the duty of the officer to in- dorse on every writ of execution the time when he received the same ; but nothing herein contained can be so construed as to afi'ect any preferable lien, which one or more of the judgments, on which execution issued, may have on the lands of the judgment debtor.-* 24 Snyder, 5,971; Wilson, 4,637; Kansas, 4,897 (1901), identical; iNTebraska, 1,482 (1907), identical; Ohio Gen. Code, Sec. 11,667 (1910), identical. See, in this connection, Meyer v. Bank, 55 O. S. 447; Ryan V. Root, 56 0. S. 302; Rough v. Acknovitch, 36 W. L. B. 302; Doll V. Barr, 68 0. S. 113; Weber v. King, 7 W. L. B. 14S; Derkson v. Reed, 2 Handy, 159 ; Bank v. Roosa, 13 Ohio, 334; Waymire v. Staly, 3 Ohio, 366; Patton v. Sheriff, 2 Ohio, 395. In a proceeding to determine and adjust the priorities of certain liens existing against the real property of a debtor, it was found that an execution had been taken out on the judgment first ren- dered within one year after its rendition, and levied upon land subject to a mortgage; but it was erroneously appraised by excluding the amount of the mortgage debt, and the execution creditor directed the sheriff not to advertise and sell under the illegal appraisement. The levy was made v,pon the whole estate, and not upon a mere equi- table interest. Within the suc- ceeding year other judgments were obtained, and the proceeding to subject the mortgaged land of the debtor to the payment of the liens, and to determine the respective priorities of the same was begun and tried. Held, that the existence of a mortgage upon the land, or the illegal appraisement of the same, or the direction of the execu- tion creditor to the sheriff not to advertise and sell under such ap- praisement, did not invalidate the levy, but the levy as made, pre- served the preference and priority of the lien of the judgment first 127 REAL ESTATE UNDER EXECUTION. — SALE. § 139 Sec. 139. If no goods, to levy on real estate. The officer to whom a writ of execution is delivered, is re- quired to proceed immediately to levy the same upon tlie goods and chattels of the debtor ; but if no goods and chat- tels can be found, the officer must indorse on the writ of execution, "Xo goods," and forthwith levy the writ of execu- tion upon the lands and tenements of the debtor, which may be liable to satisfy the judgment ; and if any of the lands and tenements of the debtor which may be liable be incum- bered by mortgage or other liens, such lands and tenements may be levied upon, appraised and sold, subject to such lien or liens, which must be stated in the appraisement.-^ Where the officer fails to find any goods and chattels and levies upon the real estate, the writ cannot be avoided be- cause, in making the return, he does not use the exact words of the statute as to "no goods."-" The provision of this statute that if no goods or chattels can be found, the officer must indorse on the execution, "No goods," is directory merely, and the execution debtor may waive the provision. Such waiver will always be presumed unless he asserts his right thereto by direct proceeding. In a case where the debtor has goods and chattels, but the officer does not levy thereon, but does levy on the lands of the judgment debtor, the lien of such levy on the lands will not be lost as against subsequent purchasers and creditors because the officer omits to indorse on the writ "no goods." -^ The return of the writ in such case by direction of the creditor without sale of the property, is not a discharge of the lien.-^ And if the officer IcA^ies on both real and personal property, Tendered. Excelsior, etc.. v. Bovle. Ohio Gen. Code, Sec. 11,666 (1910), 46 Kan. 202, 26 Pac. 408; DeJar- similnr. nette v. Verner, 40 Kan. 224, 10 =6 Trepiton v. Busee, 10 Kan. Pac. 667; Smith v. Kimball, 36 1.070. Kan. 474, 1.3 Pie. 801. =7 Coal Co. v. Bank, 55 O. S. =-"• Snyder. 5.072: Wilson. 4.638; 233. Kansas, 4.898 (1901), identical; ^s Jhid ; see, also. Cook v. Duis- Nebraska, 1,483 (1907), similar; more, 5 C. C. (Ohio), 585. §§140,141 merwine's trial op title to land. 128 and sells both under the same writ, this does not make the levy void.-" The officer making the levy has nothing to do with the liens or incumbrances on the land. It is his duty to levy on it and sell it. It is not for him to inquire whether the land is subject to any lien ; ^° and if the officer is not proceeding according to law, he may be enjoined. ^^ Where real estate is levied on, appraised, advertised and offered for sale, ])ut not sold for want of bidders, and the officer so makes his return, the lien still attaches, and the real estate may be again offered for sale under other writs. Sec. 140. The officer may require bond before levying upon goods claimed by third party. If the officer, by virtue of an execution issued from any court of record in this State, levy the same upon any goods and chattels claimed by any person other than the defendant, or be requested by the plaintiff to levy on any such goods and chattels, the officer may require the plaintiff to give him an undertaking, with good and sufficient security, to pay all costs and damages that he may sustain by reason of the detention or sale of said property ; and until such under- taking be given, the officer may refuse to proceed as against such property.^^ Sec. 141. When the officer may take a bond and leave the goods in the possession of the defendant. In all cases where the sheriff, or other officer, by virtue of an execution, levies on any goods and chattels which shall remain upon his hands unsold, for want of bidders, for the want of time to advertise and sell, or any other reasonable cause, the officer may, for his own security, take of the de- fendant, an undertaking, with security in such sum as he 29 Sullinger v. Biick, 22 Kan. 2S. 3i Ihid. 30DeJarnette v. Verner, 40 Kan. 32 Snyder, ,5,973; Wilson, 4,639; 310, 19 Pac. 666. Kansas, 4,899 (1901), identical. 129 REAL ESTATE UNDER EXECUTION. — SALE. § 142 may deem sufficient, to tlie effect tliat said property shall be delivered to the officer holding an execution for the sale of the same, at the time and place appointed by said officer, either by notice, given in writing, to said defendant in execu- tion, or by advertisement published in a newspaper printed in the county, naming therein the day and place of sale. If the defendant fail to deliver the goods and chattels at the time and place mentioned in the notice to him, given, or to pay to the officer holding the execution the full value of such goods and chattels, or the amount of said debt and costs, the undertaking, given, as aforesaid, may be proceeded on as in other cases.^^ Sec. 142. The notice of sale — Inventory — Goods taken in execution. The officer who levies on goods and chattels by virtue of an execution issued by a court of record, before he proceeds to sell the same, must cause public notice to be given of the time and place of sale, for at least ten days before the day of sale. The notice must be given by advertisement, pub- lished in some newspaper printed in the county; or, in case no newspaper be printed therein, by setting up advertise- ments in five public places in the county. Two advertise- ments shall be put up in the township where the sale is to be had ; and where the goods and chattels levied upon cannot be sold for want of bidders, the officer making such return must annex to the execution a true and perfect inventory of such goods and chattels, and the plaintiff in such execution may thereupon sue out another writ of execution directing the sale of the property levied on as aforesaid; but such goods and chattels shall not be sold unless the time and place of sale be advertised, as hereinbefore provided.^* 33 Snyder, 5,974; Wilson, 4,640; 34 Snyder, 5,975; Wilson, 4,641; Ohio Gen. Code, Sec. 11,667 (1910), Kansas, 4,900 (1901), identical. §§143,144 merwine's trial of title to land. 130 Sec. 143. Property insufficient — Further levy — Indorsement by officer. When any writ shall issue, directing the sale of property previously taken in execution, the officer issuing said writ is required, at the request of the person entitled to the benefit thereof, his agent or attorney, to add thereto a command to the officer to' whom such writ may be directed, that if the property remaining in his hands unsold, shall, in his opinion, be insufficient to satisfy the judgment, he shall levy the same upon lands and tenements, goods and chattels, or either, as the law shall permit, being the property of the judgment debtor, sufficient to satisfy the debt.^^ Sec. 144. The appraisement under the levy — Qualifications of the appraisers — View of the premises. If execution be levied on lands and tenements, the officer levying such execution must call an inquest of three disin- terested householders, who shall be resident within the county where the lands taken in execution are situate, and admin- ister to them an oath, impartially to appraise the property so levied on, upon actual view ; and such householders shall forthwith return to said officer, under tlieir hands, an esti- mate of the real value of said property.^" An appraisement made before oath is insufficient.^^ Where land is offered for sale and not sold for want of bidders, and four years afterward it is offered for sale again, under the old appraisement, the court will set aside the sale on proper application made for that purpose.^® In conducting the proceedings of a sale of real estate under an execution, or order of sale, a deputy sheriff may act for the sheriff.^^ 3s Snyder. 5.976; ^Yilson, 4.642; tical; Nebraska, 1,490 (1907), Kansas, 4,902 (1901), identical; similar. Ohio Gen. Code, See. 11,671 (1910), 37 Alfred v. Bank, 29 Pac. 471. identical. ss Kline v. Camp, 49 Kan. 114, 36 Snyder, 5.977; Wilson, 4.643; 30 Pac. 175. Ohio Gen. Code, Sec. 11,672 (1910), 39 Young v. Wood, S3 N. W. similar; Kansas, 453 (1889), iden- (Neb.) 528; Keb. v. Marshall, 7 131 REAL ESTATE UNDER EXECUTION. — SALE. § § 145, 146 Sec. 145. The appraisement must be made on actual view. Following the requirements of the statute, the courts of other States have invariably held that the appraisement must be made upon actual view. It matters not how familiar the appraisers may be as to the real estate, they must appraise it upon actual view at the time the appraisement is made. As one court has said : "Though they may have seen it often and recentb-, yet, they cannot tell how far its conditions may have been altered in a day by improvements or otherwise, and what effect an additional view and the comparison of opinion of all the appraisers might have had. ' ' ^'^ This rule that the appraisement must be made upon actual view is always enforced by the courts, and, in cases where the court's attention is called to the matter, before the sale and confirmation, the court will set aside the appraisement and order a new appraisement. This implies such a view as will enable the appraisers to judge fairly of the land and improvements thereon, and the mere entrance on one corner of a tract of land, at a distance a half a mile from the house and outbuildings, was held as not a substantial compliance with the law.*^ Sec. 146. The return of the appraisers conclusive and cannot be set aside except for fraud or other proper grounds. The actions of appraisers under an execution or order of sale, are judicial, and will not be disturbed, except for fraud or mistake, or where the appraisers were not legally qualified, or some other equally potent reason.*- And the return of the N. W. (Xeb.) 63. Where the order 4o Creditors v. Search, 3 W. L. M. of sale in a foreclosure proceeding (Ohio), 202. is re.crular, the sheriff may com- 4i Miller v. Loving, 59 Kan. 485, plete the execution, or order of sale, 53 Pac. 476. after his term. National v. Proc- 42 Woolcott v. Heminger, 96 tor, 91 X. W. (Xeb.) 525. iX. W. (Xeb.) 12; Kearney v. Aspinwall, 63 X. W. (Neb.) 826. § 147 MER wine's trial of title to land. 132 appraisers is prima facie evidence of the facts therein set forth, even where the certificate fails to show them to be dis- interested householders.*^ Sec. 147. Parol evidence may be introduced to show mistake in appraisement — Appraisement set aside, when. At any time before the confirmation of sale, the fact that the appraisement was not made upon actual view, or if the statutory requirements as to the appraisement have not been complied with, may be proved by parol, and the appraisement may be set aside.'"^ In an action in the probate court by an administraror to sell the lands of his intestate to pay the debts, and a mistake occurred in the return of the appraisement, by which it appeared one parcel of the land to be sold had been ap- praised with an adjoining tract of surface, whereas, in fact, said parcel had been appraised with a tract of coal land. The mistake was afterwards carried into the deeds made by the administrator conveying to different purchasers, the lands by them respectively purchased. The results of these mistakes were such that the parcel so appraised and conveyed to the purchaser of the adjoining tract of surface who had neither bought nor paid for it, instead of to the purchaser of the coal tract, who had done both. The latter went into possession of it, and, afterwards, an action was brought by the heirs of the purchaser in whose deed the lands had been, by mis- take, included, to recover possession of the same from the real purchaser, and the latter, by cross-petition, set forth the mistake in the proceedings of the probate court, as well as that in the deed, and prayed for the correction of both mis- takes. The plaintiff took issue, by a reply upon the aver- ments of the cross-petition, respecting the mistakes in both pleadings. It was held that a court possessing general juris- ts lowa V. Wliistler, 87 K W. son, 3 Ohio, 272; Speller v. Nye, 538. 16 Ohio, 16, 563. 4* Creditors v. Search, 3 W. L. M. (Ohio), 320; Matthews v. Thomp- 133 REAL ESTATE UNDER EXECUTION. — SALE. § 148 diction in equity, was authorized to correct the mistake in the proceedings of the probate court as well as in the deed, and that parol evidence was admissible on issue respecting the mistake.^^ In all of the cases of this character, the courts have been careful to say that there was no intention to depart from the well-established doctrine that the title of a purchaser at a judicial sale, who has paid the consideration for his property, cannot be attacked collaterally, for irregularities. In the above case, the syllabus of which has been quoted the court in its opinion, was careful to say that all courts whose powers are invoked to correct mistakes alleged to exist in the original records, should exercise those powers with due regard for the stability of the judgments, and should require the mistake to be established by clear and convincing evidence before granting relief upon that ground.*" Sec. 148. The sale may be made without appraisement, when. The statute provides that if the words, "Appraisement waived," or other words of similar import, be inserted in any deed, mortgage, bond, note, bill or written contract there- after made, any court rendering judgment thereon, must order as part of the judgment, that the same, and any process issued thereon, shall be enforced, and that lands and tene- ments may be sold thereunder, without appraisement ; and such judgment, and any process issued thereon, shall be en- forced, and sale of lands and tenements made thereunder, without any appraisement or valuation being made of the property, to be sold : Provided, that no order of sale or execu- •*5 Syllabus in Gill v. Pelky, 54 report of sale, such mistake may O. S. 349. "The title of a purchaser be corrected in equity after con- at a judicial sale, as a general firmation and deed in pursuance rule, cannot be impeached in equity, thereof. And parol evidence may for errors or irregularities in the be admitted to prove such mistake-" proceedings. But where a tract of Cites v. Widener, 35 0. S. 555. land sold, for which no considera- 46 Gill v. Pelky, 54 O. S. 349; tion was paid, or intended to be Heads v. Simms, 29 Ind. 574. conveyed, is, by mistake, in the § 149 merwine's trial of title to land. 134 tion shall be issued upon such judgment until the expiration of six months from the time of the rendition of said judg- ment.*^ Where an instrument being foreclosed recites that the real estate therein described may be sold without appraisement, or not, at the option of the mortgagee, and an order is made without objection, directing the sale without the stay of the statute, it was held not error as against the mortgagor.** The omission of the order to state whether the sale is to be made with or without appraisement, but directing the sale according to law, and the sale is made without appraisement, such sale will stand.*^ Sec. 149. The return of the appraisement. The officer receiving such return must forthwith deposit a copy thereof with the clerk of the court from which the writ issued, and advertise and sell such property, agreeably to the provisions of this chapter.^" The reason for re(]uiring a copy of the appraisement to be filed with the clerk, is, because his office is the only accessible place where creditors, attorneys and buyers can learn what the appraisement is. And knowledge of this is essential to enable them to determine whether they wall buy at the sale.'^ At all times prior to the appraisement and sale of real estate, a strict compliance with the statute regulating, levying, appraisement, advertisement and sale, will be required be- cause it must be presumed that a failure has been prejudicial 47 Snyder, 5,978 ; Wilson, 4,644 ; identical. Where the sheriff files Kansas, 453a (1889), identical; the return after advertising the but see Bashore v. Xordyke, 25 sale, but the sale is regularly made Kan. 222, on the date advertised, it would be *8 Clay V. Hildebrand, 9 Pac. error for the court to set the sale (Kan.) 466. aside because the return was not 49 Northrup v. Cooper, 23 Kan. filed before the sheriff began to 432. advertise. Moore v. Pye, 10 Kan. 50 Snyder, 5,979; Wilson, 4,645; 247. Kansas, 453b (1901), identical; si Creditors v. Search, 3 W. L. M. Ohio Gen. Code, Sec. 11,673 (1910), (Ohio), 320; Gwyn on Sheriffs, 318. 135 RBAL ESTATE UNDER EXECUTION. ^SALE. §§150,151 to the debtor or creditor, since it cannot be known how many bidders have been lost by noncompliance with the law.^- In most courts in Ohio, the written appraisement, signed by the appraisers, is not made part of the complete record, and it does not appear in the chain of title, or any record of the case except the recitals in the sheriff's return of his pro- ceedings under the writ. The appraisal papers are kept on file in the clerk's office, and are not found in the jacket with the other papers on file in the case to be entered either in the journal or complete record thereof. Sec. 150. The land cannot be sold for less than two-thirds of the appraised value— Exceptions as to claims due State. If, upon such return, as aforesaid, it appear, by the inqui- sition, that two-thirds of the appraised value of said lands and tenements, so levied upon is sufficient to satisfy the execution, with costs, the judgment on which such execution issued, will not operate as a lien on the residue of the debtor's estate to the prejudice of any other judgment creditor; but no such property shall be sold for less than two-thirds of the value returned in the inquest; and nothing in this section contained can, in any wise, extend to affect the sale of lands by the State, but all lands, the property of individuals in- debted to the State for any debt or taxes, or in any other manner, can be sold without valuation, for the discharge of such debt or taxes, agreeably to the laws in such cases made and provided.^^ Sec. 151. The property of certain officers sold without ap- praisement. If the property of any clerk, sheriff, justice of the peace, constable, or any collector of State, county, town or township 52 Creditors V. Search, 3 W. L. M. Ohio Gen. Code, Sees. 11,674 and (Ohio), 320; Whitehead v. Post, 11,675 (1910), identical; Capital 3 W L M. '(Ohio), 195; Craig v. v. Huntoon, 35 Kan. 577, 11 Pac. Fox, 16 Ohio, 563. 369; DeJarnette v. Verner, 40 Kan. 53 Snyder, 5,980; Wilson, 4,646; 310, 19 Pac. 666. Kansas, 4,903 (1901), identical; § 152 merwine's trial of title to land. 136 tax, be levied on, for, or on account of, any moneys that now are, or may hereafter be, by them collected or received in their official capacity, the property so levied on may be sold without valuation/* Sec. 152. The legal notice of sale under the execution. Lands and tenements taken on execution cannot be sold until the officer cause public notice of the time and place of sale to be given, for at least thirty days before the day of sale, by advertisement in some newspaper printed in the county, or, in case no newspaper be printed in the county, in some newspaper in general circulation therein, and by putting up an advertisement upon tlie courthouse door, and in five other public places in the county, two of which shall be in the township where such lands and tenements lie. All sales made without such advertisement shall be set aside, on motion, by the court to which the execution is returnable.^^ The statute nowhere requires that the legal notice of the sale should state either the name of the execution debtor or creditor, and when there is an omission from such notice of their names, it will not affect the validity of the sale.^** The sale will not be disturbed because the notice fails to state the exact hour of the sale ; ^^ nor will the sale be dis- turbed because in the notice of publication a defendant, B4 Snyder, 5,981; Wilson, 4,647; only in case where no newspaper Ohio Gen. Code, Sec. 11,080 (1910), is printed in the county. McLaugh- identical. lin v. Houston, 120 Pac. (Okla.) 55 Snyder, 5,982 ; Wilson, 4,G48 ; 659. Kansas, 1,905 (1901), identical; so McLean v. Kelly, 11 Okla. 26, Nebraska, 1,498 (1907), identical. 66 Pac. 282; Chapman v. Merrill, Xotice in daily legal news suffi- 19 Hun, 318; Harrison v. Cochelm, cient. Hester v. Coldron, 116 Pac. 35 Mo. 79. (Okla.) 787; Railton v. Laeder, 5- Xorthrup v. Cooper, 23 Kan. 126 111. 219; 18 N. E. 555; Lynn 432. In this case the notice stated V. Allen, 145 Ind. 584, 44 N. E. 646. the sale to he between the hours Since writing the above the Su- of ten o'clock a. m. and four preme Court of this State has de- o'clock p. m. of a specific day. cided that the posting is required »- 137 REAL ESTATE UNDER EXECUTION. — SALE. §152 whose name was Elizabeth D. Borthwick, was described as Elizabeth D. Bothwick.^^ In computing the time in which the notice is to be pub- lished, the statutory rule of this State, that the day of the first publication is to be excluded, and the last included, obtains. The words, "for at least thirty days before the day of sale," does not change the rule.^^ If one issue of the paper within the statutory time required does not contain the notice of sale, the sale may be avoided.''" If the newspaper is a weekly, then it must contain the notice each week, and each successive week ; if a daily, then in one publication each successive week.''^ The legal sale will be sufficient even where the newspaper is published in the county, but partly printed in another.*'^ A very interesting case will be found in the note below as to a change in the notice while in the process of publication.''^ A decree ordered that land be sold in sep- arate parcels and the notice of the sale did not so state. The sale was sustained.^* But Avhere the sheriff's return failed 58 Harrel v. Xeef, 80 Kan. 348, 102 Pac. 838. 59 Northrup v. Cooper, 23 Kan. 432; Atchison v. Bobb, 24 Kan. 480; English v. Williamson, 34 Kan. 215, 8 Pac. 214. 60 Ronsaville v. Hazen, 5 Pac. 771, 33 Kan. 149; Trepiton v. Busse, 10 Kan. 170. 01 Stevens v. Xaylor, 106 N. W. (Neb.) 446. 62 Aetna v. Wortaseuski, 88 X. W. (Xeb.) 855. 63 "In pursuance of a judgment of foreclosure, certain real estate was ordered to be sold. A notice Avas published by the sheriff in a daily paper that the sale would occur on March 9, 1889, and the notice was published in every issue of the paper from February 6, 18S9, to March 8, 18S9, inclusive, except in the issues of March 6 and 7, 1889. In each of those issues the figure 9 in the notice had been taken out and turned upside down, so as to somewhat resemble the figure 6. It was found that the alteration in the notice was caused or procured to be made by the defendant, whose property was ad- vertised to be sold, for the purpose of avoiding the sale. Held, on a motion of the defendant to set aside the sale by reason of the defective notice, that a party guilty of such misconduct is not in a position to appeal to the court for assistance in consummating the wrong, and that the court will not aid him in reaping the anticipated fruits of Ills wrongful conduct." Green v. Carson, 50 Kan. 624, 32 Pac. 380. 84 Fraser v. Seely, 71 Kan. 169, 79 Pac. 1,081. §§153,154 merwine's trial, of title to land. 138 to show when or for what length of time he had advertised the sale, the sale was voidable.®^ A sale of lands made by a sheriff on a day not named in the notice is illegal, and should be set aside notwithstanding the fact that the day named fell on Labor Day and the sale was held on the day following.*'*' Sec. 153. The sheriff's return of his proceedings under the writ. Every court has inherent power to correct its own pro- ceedings and records during the terra at which they were made. If the sheriff's return does not speak the truth as to the facts of the sale, the court may make such amendments as will make it do so."^ The court, instead of amendment, may, in a proper case, vacate and set aside such sale.®^ The sheriff's return that the property was sold by him at public auction implies that it was disposed of to the highest bidder, and a sheriff's notice of sale, which did not recite that the lands would be sold in separate parcels, was held to be sufficient, although the decree and order of sale provided for several tracts to be sold separately."^ Sec. 154. Confirmation and approval by the court of sheriff's sale of real estate. If the court upon the return of any writ of execution, for the satisfaction of which any lands or tenements have been «5 Atchinson v. Sledge, 68 Kan. the property was sold for 'cash in 321, 74 Pac. 1,111. hand.' The judgment creditor 68 McLaughlin v. Houston, 120 moved to confirm the sale, and, on Pac. (Okla.) 659. the hearing, it appeared that the 67 Payne v. Long, 9 Okla. 683, purchaser paid nothing but the 6 Pac. 235. costs. The sale was confirmed. 68 Osborne v. Hughery, 14 Okla. Held, that the plaintiff, the judg- 29, 76 Pac. 146. ment creditor, was estopped from 69 Eraser v. Seely, 71 Kan. 838, claiming that the judgment debt 79 Pac. 1,081. "A judgment cred- was not satisfied to the extent of itor was represented at the sheriff's the bid returned by the sheriff, and sale by her attorney. The debtor's that the debtor was not preju- land was bid in by a second mort- diced." Ihid. gagee. The sheriff returned that » 139 REAL ESTATE UNDER EXECUTION. SALE. § 154 sold, shall, after having carefully examined the proceedings of the officer, be satisfied that the sale has, in all respects, been made in conformity to the provisions of this chapter, the court shall direct the clerk to make an entry on the journal that the court is satisfied of the legality of such sale, and an order that the officer make to the purchaser a deed for such lands and tenements; and the officer on making such sale may retain the purchase money in his hands until the court shall have examined his proceedings, as aforesaid, when he shall pay the same to the person entitled thereto, agreeably to the order of the court.'" This confirmation relates back to the sale."^ And where a reasonable bidder at such sale assigns his bid, such assignee has the right by motion, to require the confirmation of the sale, and in such case, the judgment creditor has no right to defeat the confirmation and approval of the sale.'- Where the sale has been regular in every respect, but the property was sold for a price that was grossly inadequate, the sale will not be disturbed.'^ In execution sales of real estate, anyone who claims to be the owner thereof, or has an interest in defeating the title, may, though not a party to the suit, move the court to set aside the sale.'* The return being regular, it is the duty of the court to confirm the same, and the court may confirm the sale even where the sheriff does not consent to such confirmation. The court may confirm the sale on its own motion. ^^ The sale is not consummated so as to vest 70 Snyder, 5,983; Wilson, 4,649; 222, 47 Pac. 175; Xorthrup v. Kansas, 458 (1889); Nebraska, Cooix'r, 23 Kan. 433. 1,500 (1907), identical; Ohio Gen. 74 Sparks v. City, 21 Okla. 827, Code, Sees. 11,088 and 11,089 D7 Pac. 575; White Crow v. White (1910), identical. Wing, 3 Kan. 276; Harrison v. 71 Christy v. Springs, 11 Okla. Andrews, 18 Kan. 537; Branner v. 710, 69 Pac. 804. Chapman, 11 Kan. 118; Foreman 72 Payne v. Long, 9 Okla. 683, v. Carter, 9 Kan. 674; Halsey v. 60 Pac. 235. Van VIeet, 29 Kan. 501. 73 McLean v. Swofford, 11 Okla. 75 Adams v. DeValley, 40 Kan. 429, 68 Pac. 502; but see Pickett 486, 20 Pac. 239; Ferguson v. Tutt, V. Pickett, 31 Kan. 727, 3 Pac. 549; 8 Kan. 370. Wilford V. Milford, 5 Kan. App. § 155 merwine's trial of title to land. 140 the title in the x3urchaser until the confirmation/" The court is not required, on motion for confirmation, to go into the judgment, or execution, further than is necessary to determine whether the officer has properly performed his duty under the writ, nor is the court permitted to decide on the validity of either. The order of confirmation is an adjudication merely that the proceedings of the ofificer, as they appear of record, are regular, and the direction to the sheriff to complete the sale." If the return of the officer show prima facie that all the requisites of the statute have been complied with, the sale should be confirmed, and a motion cannot be resisted except on the face of the papers.'^* No formal motion in writing is required to set aside the sale.^^ It is proper for the court to examine the evidence, setting forth the proceedings, especially in a case where the officer's return is not contradicted.^" Sec. 155. When objection to the confirmation of sale should be made. It is well to observe here that there is a different rule for the action of the court where objection is made prior to the confirmation of the sale of real estate, and where objection is made to such irregularities after the confirmation. Wliere objection is made to any irregularity in the proceed- ings prior to the confirmation, the court may exercise a sound and legal discretion ; *^ but an entirely different rule applies where application is made to set aside the sale after con- firmation. Here the court must see to it that the judgments and orders of the court are not attacked collaterally.^^ So 76 Johnson v. Lindsay, 27 Kan. 0. S. 370; Ohio v. Goodin, 10 0. S. 514. 566; Crag v. Fox, 16 Ohio, 564; 77Kohle:- v. Ball, 2 Kan. 160. Fidelity v. Disederaus, 26 0. S. 78 White Crow v. White Wing, 314; Reed v. Radigan, 42 0. S. 292. 3 Kan. 276. 82 in the following cases the irreo- 79 White Crow v. Wliite Wing, ularities in the proceedings leading 3 Kan. 276. np to the confirmation of sale were 80 Kutter v. Bnishout, 4 Kan. cured by the confirmation of the 120. sale and the delivery of the deed 81 Lemert v. Clark, 1 C. C. to the purchaser by the sheriff (Ohio), 571; Miles v. Parks, 49 Crag v. Fqx, 16 Ohio, 563; Mayer 141 REAL ESTATE UNDER EXECUTION. SALE. § 156 important is this matter of confirmation of sale that the sheriff's deed will not give title to the purchaser at a judicial sale if the sale has not been confirmed as required by the statute.* Sec. 156. The irregularities that are and are not corrected by the confirmation — The procedure. Mere irregularity in the proceedings connected with a sheriff's sale are cured by order of court, made some con- siderable time after confirming the sale; but matters which are not mere irregularity, or which form no part of the pro- ceedings connected with the sale, or, for instance, fraudulent combinations which might prevent a fair and equitable sale, and matters relative to the ownership of the property sold, are not cured, or finally or conclusively determined by the order confirming the sale. Irregularity affecting a sheriff's sale may be examined in the district court on motion to confirm the sale or set aside the sale. Some of the irregularities may also be re-examined in the district court by procedure under the statute; and all such irregularities, so far as they are shown by the record, may be re-examined by petition in error in the Supreme Court; and in some particular cases of fraud and irregu- larity, parties may have an action in the district court, in the nature of a suit in equity to set aside the sheriff's sale, and for such other and further relief as justice and equity may authorize. But whatever remedy the aggrieved party may choose, he must resort to the same within proper and reason- able time.^^ The sale may not be set aside where land is advertised to be sold for cash in pursuance of a judgment of foreclosure, and the sheriff accepts a certified check as cash, which is afterwards paid, the acceptance of the certified check for cash is not, of itself, a sufficient reason to defeat the sale.«* V. Wick, 15 O. S. o48; Lemert v. 83 Capital v. Huntoon, 35 Kan. Clark, 1 C. C. (Ohio), 571. 577, 11 Pac. 369. * Lessee v. Norton, 1 Ohio, 278. s* Sheldon v. Preussner, 52 Kan. 593, 35 Pac. 204. §156 MER wine's trial OF TITLE TO LAND. 142 Where there was mere inadequacy in price, or where the newspaper containing the sale notice, though circulated to all the subscribers, failed to reach the publishers of other papers to whom it was sent in exchange ; * where the proceed- ings prior to and at a sheriff's sale of real estate were regu- lar, and in conformity with the foreclosure judgment, and no extrinsic facts affecting the validity of sale were shown in support of the motion to set the same aside, it was held error to sustain said motion ; ^° it has been held that wliile mere * Cowlos V. Phoenix, 63 Kan. 883, 65 Pac. 217. 8"' Condon v. Wood, 7 Kan. App. 577, 52 Pac. 63. The judgment of a district court foreclosing a mort- gage on real estate, in which ap- praisement was waived, directed that no order of sale should be issued to enforce it until the ex- piration of six months after the day it was entered. Six days before the expiration of that time, an order of sale was issued to the sheriff, who, after the expiration of six months from the entry of the judgment, advertised and sold the mortgaged premises without appraisement to the mortgagee and plaintiff in the judgment. The sheriff made return of his proceed- ings under the order, and the court afterwards confirmed the sale and directed a deed to be executed to the purchaser, which was done. No proceedings have been taken by the defendants in the judgment to set aside the order of sale or the proceedings under it, nor have pro- ceedings been taken to reverse, vacate, or set aside the order con- firming the sale. Soon after the execution and delivery of the sheriff's deed, the purchaser, with- out objection from the defendants in the judgment, took possession of the mortgaged premises and has ever since been in possession of them. After the execution of the m.ortgage, and before the commence- ment of the suit to foreclose it, the mortgagors conveyed to C their interest in a portion of the mort- gaged premises, and she was not made a party to the foreclosure suit. Held: (1) That although this order of 3ale was prematurely issued, the proceedings of the sheriff under it, taken after six months from the date of the judg- ment, were not void, but both the order of sale and the proceedings under it were voidable, and could have been set aside in the court in which the judgment was entered, by proceedings for that purpose by the defendants in the judgment, taken at any time before the con- firmation of the sale. (2) That after the confirmation of the sale so made the order of sale and all proceedings under it must be held legal and valid, and further, that the deed executed to the purchaser at the said sale, conveyed to him all of the title and interest of the mortgagors to the premises de- scribed in the mortgage and judg- ment. (3) That the right of C in that portion of the mortgaged premises conveyed to her by the 143 REAL ESTATE UNDER EXECUTION. — SALE. §156 inadequacy of price alone is not sufficient to justify a court in setting aside a sheriff's sale of real estate, yet, when the equities of the party moving to set aside the sale are strong, and it fairly appears that such party was prevented by acci- dent and mistake, and without negligence, from attending the sale, the ruling of the court setting aside the sale, on condition that a reasonable bid be made at a resale, will not be disturbed.^® The sale will be set aside where the lands are sold at a sheriff's sale for a price so grosslj^ inadequate as to be little more than a nominal consideration, and there is a very slight additional circumstance indicative of bad faith on the part of the bidders, or of a combination among bidders ; ^'^ and also where interested parties attack the title of property offered at a judicial sale in such a way as to deter bidders and depress values, and where the price paid for the property is greatly inadequate.*^ mortgagors was a right to redeem the land so conveyed from the lien of the mortgage, and as she Avas not a party to the foreclosure suit, the right was in no way affected by the foreclosure and sale. Cross V. Knox, 33 Kan. 725, 5 Pac. 32. 86 Xolfert V. Milford, 5 Kan. App. 222. 87 lona V. Blair, 56 Kan. 430, 43 Pac. 686. ^Yhile the judgment debtors are ordinarily necessary parties in this court to a review of the rulings of the district court confirming or setting aside a sale of lands under a decree of fore- closure, where the sale is for a grossly inadequate price, and one of the plaintiffs in error offers to bid many times the amount for which the land was sold, and the sale was made prior to the passage of the Act of 1893, known as the "Redemption Law," so that it can be clearly seen that no injury can result to the judgment debtors, the rulings of the district court may be reviewed without their hav- ing been made parties. Ihid. 88 Wood V. Drury, 56 Kan. 409, 43 Pac. 763. A return of a sheriff on an order for tlie sale of land, which fails to show that notice of the sale for the time and in the manner required by law was duly given, is irregular; and the irreg- ularity is not entirely cured by an accompanying affidavit of the printer showing the essential facts omitted from the return. Where the sale was made at a wholly in- adequate price, it is error to con- firm it on such defective return. 59 Kan. 160, 52 Pac. 419. Where an execution was issued July 10, 1860, and a sale of real estate made under it, held, that under the Act of February 27, 1860, entitled, "An act relating to sales of real prop- erty," absence in the sheriff's return of evidence that at least five days' § 157 MERWINE 'S TRIAL OF TITLE TO LAND. 144 Sec. 157. The sheriff's deed to the purchaser. The sheriff, or other officer, who, upon such writ or writs of execution, shall sell said lands and tenements, or any part thereof, shall make to the purchaser as good and suffi- cient deed of conveyance of the lands sold as the person or persons, against whom such writ or writs of execution were issued, could have made of the same, at, or any time after they became liable on the judgment. The deed shall be sufficient evidence of the legality of such sale, and the proceedings therein, until the contrary is proved, and shall vest in the purchaser as good and as perfect an estate in the premises therein mentioned as was vested in the party, at, or after, the time when such lands and tenements became liable to the satisfaction of the judgment. And such deed of con- veyance, to be made by the sheriff or other officer, shall recite the execution or executions, or the substance thereof, and the names of the parties, the amount and date of rendi- tion of each judgment by virtue whereof the said lands and tenements were sold, as aforesaid, and shall be executed, acknowledged and recorded as is or may be provided by law to perfect the conveyances of real estate in other cases.^^ notice of sale to the person to whom tion, such recitals are sufficient, the lands belonged had been given, Lessee v. McCoy, 8 Ohio, 128. A rendered it insufficient." Koehler levy and sale of land upon execu- V. Ball, 2 Kan. 160. tion will confer title, and a prior 89 Snyder, 5,984; Wilson, 4,650; assignment of the property made Kansas, 459 (1889), identical; by the judgment debtor to the cred- Xebraska, 1,502 (1907), identical; itor to secure a debt which has not Ohio Gen. Code, Sec. 11,693 (1910), been acknowledged or recorded. similar. The acknowledgment of a Fordick v. Barr, 2 0. S. 471. As sheriff's deed is indispensable, and to when sheriff's deed takes effect, such acknowledgment will not be see Zashenosky v. Voliaith, 59 0. S. presumed. Roades v. Symmes, 1 540; Lessee v. Longworth, 11 Ohio, Ohio, 281. Sheriff's deed good 236. Mistake in deed may be shown though not reciting all the statute by parol. Gill v. Pelky, 54 O. S. requires. Lessee v. Dibble, 10 Ohio, 348; Lessee v. McCoy, 8 Ohio, 128. 434. Where sheriff's deed recites A court of equity may correct so much of the execution and other sheriff's deed. Styles v. Widener, proceedings as shows clearly the 35 0. S. 550. Parol evidence may nature and authority for its execu- be introduced to show such mistake. 145 REAL ESTATE UNDER EXECUTION. — SALE. § 158 And where the sheriff seizes real estate and sells the same, but the sale is made but a short time after his term expires, his deed to the purchaser will give such equitable title that such purchaser cannot be ejected from the premises.^" Sec. 158. Printer's fee to be advanced, when — Officer must demand same, when. The officer who levies upon goods and chattels, or lands and tenements, or who is charged with the duty of selling same, by virtue of any writ of execution, may refuse to pub- lish a notice of the sale thereof, by advertisement in a news- paper, until the party for whose benefit such execution issued, his agent or attorney, shall advance to such officer, so much money as will be sufficient to discharge the fees of the printer for publishing such notice. Before any officer shall be excused from giving the notifica- tion, mentioned in the preceding paragraph, he shall demand of the party for whose benefit the execution was issued, his agent or attorney (provided either of them reside in the county), all fees in said action specified.®^ Ihid. The purchaser at a sheriff's Kan. 278, 49 Pac. 82. After- sale acquires no greater interest acquired title does not inure to tlie than the judgment debtor had at benefit of the purchaser. West- the time the levy and sale was heimer v. Reed, 19 N. W. (Neb.) made, and takes the property sub- 626. Purchasers in proper case ject to outstanding equities, espe- may compel deed from sheriff. cially if the purchaser has notice Lamb v. Sherman, 28 N. W. (Neb.) of these equities. Louth v. Rath- 319. Deed will issue after death of bone, 19 Ohio, 21. No other district purchaser. Cronkhite v. Buchanan, court except the one issuing the 59 Kan. 541, 53 Pac. 863. writ may set it aside. Christy v. so Head v. Daniels, 38 Kan. 1, Springs, 11 Okla. 710, 69 Pac. 864. 15 Pac. 911. As to recitals of deed, see Dickens 9i Snyder, 5.985 and 5,986; Wil- V. Crane, 33 Kan. 344, 6 Pac. 630. son, 4,651 and 4,652; Kansas, 4,906 Such deed a nullity where the (1901), identical; Ohio Gen. Code, mortgage is paid during proceedings Sec. 11,695 (1910), similar. to foreclose. Cerly v. Moran, 58 §§ 159-161 merwine's trial of title to land. 146 Sec. 159. Where sale must take place — Officer or appraiser may not purchase — Persons in trust relations may not bid at their own sales. All sales of lands or tenements under execution must be held at the courthouse, in the county in which such lands or tenements are situated. Xo sheriff or other officer making the sale of the property, either personal or real, nor any appraiser of such property, can, either directly or indirectly, purchase the same, and every purchase so made shall be con- sidered fraudulent and void.°- A guardian, administrator, executor, assignee, trustee, or anyone occupying a trust relation to the real estate sold by, or under a judicial decree, cannot buy any real estate which he sells by such order of the court. And the geod faith or ])ad faith of tlie purchaser does not enter into the question. AVhen it comes to the court that any such person has purchased real estate at his own sale, the sale will be set aside without further proof. "^ Sec. 160. Alias execution. If the lands and tenements, levied on as aforesaid, are not sold upon one execution, other executions may issue to sell the property so levied upon.^* Sec. 161. Procedure where several executions acre issued — Creditors may direct several levies. In all cases where two or more executions are put into the hands of any sheriff or other officer, and it is necessary 92 Snyder, 5,987; Wilson, 4,653; 572; Mitchell v. Dnnlap, 10 Ohio, Kansas, 4,908 (1901), identical; 117. Xebraska, 1,505 (1907), identical; s* Snyder, 5,988; Wilson, 4,654; Smith V. Burns, 8 Kan. 198. Kansas, 4,909 (1901), identical; 93 Caldwell v. Caldwell, 4-5 0. S. Nebraska, 1,506 (1907), identical; 513; Barrington v. Alexander, 6 Ohio Gen. Code, Sec. 11,697 (1910), 0. S. 189; Droone v. Fanning, 2 identical; First National v. Farmer, Johns. Ch. 252; Sheldon v. Nesvton, 61 Kan. 620, 60 Pae. 324; Rain 3 0. S. 495; Piatt v. Longworth, v. Young, 61 Kan. 428, 59 Pac. 27 0. S. 159; Welsch v. Perkins, 1,068; Ritchie v. Higginbotham, 26 8 Ohio, 52; Riddle v. Roll, 24 O. S. Kan. 645; Burchett v. Clark, 64 ^\ W. (Neb.) 1,113. ]^47 REAL ESTATE UNDER EXECUTION. — SALE. § 1^2 to levy on real estate to satisfy the same, and either of the judgment creditors, in whose favor one or more of such executions are issued, require the sheriff or other ofdcer, to levy such executions, or so many thereof as may be required, on separate parcels of the real estate of the judgment debtor or debtors, giving to the officer making the levy on behalf of the creditors whose execution may, by the provisions of this chapter, be entitled to a preference, the choice of such part of the real property of the judgment debtor or debtors, as will be sufficient, at two-thirds of the appraised value, to satisfy the same; and in all cases where two or more execu- tions, which are entitled to no preference over each other, are put into the hands of the same officer, it is made the duty of the officer, when required, to levy the same on separate parcels of the real estate of the judgment debtor or debtors, when, in the opinion of the appraisers, the same may be divided without material injury; and if the real property of such debtors will not be sufficient, at two-thirds of its ap- praised value, to satisfy all the executions chargeable thereon, such part of the same shall be levied on, to satisfy e-ach execution, as will bear the same proportion in value to the whole, as the amount due to the execution bears to the amount of all the executions chargeable thereon, as near as may be, according to the appraised value of each separate parcel of said real property.^^ Sec. 162. When one other than the officer making the sale may execute the deed. If the term of service of the sheriff or other officer who has made, or shall hereafter make sale of any lands and tenements, shall expire, or if the sheriff or other officer shall be absent, or be rendered unable by death or otherwise, to make a deed of conveyance of the same, any succeeding sheriff or other officer, on receiving a certificate from the .5 Snyder, 5,989; Wilson, 4,655; Ohio Gen. Code Sees 11.698 and Kansas, 4,910 (1901), identical; 11,699 (1910), identical. § 163 MERWINE 'S TRIAL OF TITLE TO LAND. 148 court from which the execution issued for the sale of said lands and tenements, signed by the clerk, by order of said court, setting forth that sufficient proof has' been made to the court that said sale was fairly and legally made, and on tender of the purchase money, or if the same or any part thereof be paid them, on proof of such payment and tender of the balance, if any, may execute to the said purchaser, or purchasers, or his or their legal representatives, a deed of conveyance of said lands and tenements so sold. Such deed shall be as good and valid in law, and have the same effect as if the sheriff or other officer who made the sale had exe- cuted the same.°® Sec. 163. The remainder of the proceeds of sale to be returned to defendant. If, on any sale made as aforesaid, there be in the hands of the sheriff or other officer, more money than is sufficient to satisfy the writ, or writs of execution, with interest and costs, the sheriff or other officer is required, on demand, to pay the balance to the defendant in execution, or his legal representative.^^ Where, upon foreclosure proceedings, a mortgagor sells land, and the sheriff tlien makes a sale thereof, the proceeds of the sale, after the satisfaction of the mortgage and costs, should be paid to the debtor's purchaser.'*^ Where land is sold by the sheriff under execution, and more money is paid than necessary to satisfy the execution, the excess belongs to whoever owns the land, and, when it is paid into court as part of the proceedings of the action in which the then owner is not a party, an order of the court disposing of such money without notice to, and without the knowledge or consent of 98 Snyder, 5,990; Wilson, 4,65R; s^ Snyder, 5.991; Wilson, 4,657; Kansas, 4,911 (1901), identical; Kansas, 4,912 (1901), identical; Ohio Gen. Code, Sec. 11,700 (1910), Ohio Gen. Code, Sec. 11,701 (1910), identical. Sale made by under- identical. sheriff, sheriff may make deed. as Butler v. Crap, 29 Kan. 205; Ogden V. Walters, 12 Kan. 283. Jenkins v. Mq^ier, 22 Kan. 562. 149 REAL ESTATE UNDER EXECUTION. SALE. §§ 164, 165 the then OMiier of the lands, is without jurisdiction, and void.**^ Sec. 164. The reversal of the judgment does not defeat title of the purchaser. If any judgment, or judgments, in satisfaction of Avhich any lands or tenements are sold, shall at any time thereafter be reversed, such reversal will not defeat or affect the title of the purchaser or purchasers ; but in such cases, restitution must be made by the judgment creditors of the money, for which such land or tenements were sold, with lawful in- terest from the day of sale.^ Where a case is prosecuted on error to reverse a judgment, but no supersedeas bond is given, the judgment creditor's title becomes absolute. - An order of confirmation is so far final that a purchaser from a party to such order, is not bound by a subsequent revocation thereof.^ Sec. 165. When the lien expires in case no execution issues — The lien when mandate issues from the Supreme Court — When property may be re-appraised and sold. No judgment heretofore rendered, or which hereafter may be rendered, on which execution shall not have been taken out and levied before the expiration of one year next after its rendition, will operate as a lien on the estate of any debtor, to the prejudice of any other judgment creditor. 99 French v. Poole, 111 Pac. 488. Kan. 420; Sheldon v. Preussner, 111 Pac. 488. 52 Kan. 593, 35 Pac. 204. 1 Snyder, 5,992: Wilson, 4.G58; 2 Reuge v. Brown, 45 X. W. Kansas, 4,912 (1901), identical; (Xeb.) 271; Manful v. Graham, 76 'X^ebraska, 1.510 (1907). identical; X^. W. (Xeb.) 19. As to what par- Ohio Gen. Code, Sec. 11,702 (1910), ties may demand restitution after identical; see, also. Smith v. Burnes, judgment and sale, see Xelson v. 8 Kan. 198: Mills v. Ralston, 10 City. 96 X. W. (Xeb.) 288. Kan. 160; Hubbard v. Ogden, 22 3 Hollister v. Maine, 58 X. W. Kan. 671; Howard v. Entrekin, 24 1,126. § 165 merwine's trial of title to land. 150 But in all cases where judgment has been or may be rendered in the Supreme Court, and a special mandate awarded to the district court to carry the same into execution, the lien of the judgment creditor shall continue for one year after the first day of the term of the district court to which such mandate is directed. Nothing in this paragraph contained shall be construed to defeat the lien of any judgment creditor who shall fail to take out execution and cause a levy to be made, as herein provided, when such failure shall be occa- sioned by appeal, proceedings in error, injunction, or by vacancy in the office of sheriff, or the disability of such officer, until one year after such disability shall be removed. In all cases where real estate has been or may be hereafter taken on execution and appraised and twice advertised and offered for sale, and shall remain unsold for the want of bidders, it is the duty of the court from which such execu- tion issued, on motion of the plaintiff, to set aside such appraisement, and order a ncAV one to be made, or to set aside such levy and appraisement and award a new execution to issue, as the case may require.* An appeal to the Supreme Court, in the absence of a super- sedeas bond, does not lengthen the life of the judgment lien.^ 4 Snyder, 5,993 ; Wilson, 4,659 Kansas, 4,914 (1901), identical Nebraska, 1,511 (1907), identical same defendant on which no execu- tion has ever been issued, where more than one year had elapsed see, also, Larmie v. Schilling, 25 from the date of its rendition to Kan. 92; Scroggs v. Tritt, 23 Kan. the first day of the term of the 182. As to effect of appeal, see court in which the personal judg- Kingsley v. Bagsley, 2 Kan. App. ment was rendered in the foreclosure 23, 41 Pac. 991. A personal judg- proceedings. Thompson v. Hubbard, ment against a mortgagor in an 3 Kan. App. 714, 44 Pac. 1.095; action to foreclose a mortgage, be- but see Jackson v. King, 62 Kan. comes a lien on all the real estate 850, 62 Pac. 655. of the judgment debtor in the s Harvey v. Godding, 109 N. W. county, and is superior to the lien (Neb.) 220. of a prior judgment against the 151 REAL ESTATE UNDER EXECUTION. — SALE. §§166,167 Sec. 166. The writ of execution to be returned in sixty days. The sheriff or other officer, to whom any writ of execution is directed, must return such writ to the court to which the same is returnable, within sixty days from the date thereof.^ The levy cannot be made after the return day.^ The writ cannot be compelled to be returned before the expiration of the sixty days ; ^ and all sales made after the time within which the writ should be returned are illegal.^ But this rule does not apply in cases where the property is sold under order of sale, or venditioni exponas}^ Sec. 167. Fee of appraisers — Penalty for failure to appear. Each householder summoned to appraise real estate under the provisions of this chapter, will be allowed and receive for his services, the sum of fifty cents for each day he may be so engaged as such appraiser, to be collected on the execution by virtue of which the property appraised was levied on, if claimed at the time of making the return of such appraisement. And when any householder, summoned as aforesaid, fails to appear at the time and place appointed 6 Snvder, 5,994; Wilson, 4,660; at what date the return is made; Kansas, 4,515 (1901), identical; or wliether the return be correct Nebraska, 1,512 (1907), identical. or incorrect; or whether any return 7 Barnor v. Stevens, 2 Ark. 429 ; be made at all, if the writ really Caines v. Clark, 1 Bilb. 608. be levied before the return day 8 Armstrong V. Grant, 7 Kan. 286; mentioned therein. It is not the Burkett v. Clark, 64 X. W. (Xeb.) return of the officer that gives title 1^113. to the purchase, but the sale." 9 Schiltz V. Smith, 17 Kan. 306. Borer on Judicial Sales, Sees. 705 10 Xorton v. Reardon, 67 Kan. and 706, citing Remington v. Linthi- 302, 72 Pac. 861; Jarrett v. Hoover, cum, 14 Pet. 84; Wheaton v. Sutton, 72 X. \Y. 429. "If the levy be made 4 Wheat. 503; Barnard v. Stevens, before the return day of the writ, 2 Ark. 420; Childs v. McChesney, the officer may sell afterwards on 20 la. 341; Stewart v. Severance, the same writ without renewal of 43 Mo. 322; Stine v. Chambliss, 18 process. It is immaterial to the la. 474; Phillips v. Dana, 3 Scam, purchaser as to the validity of the .";58; Wood v. Colvin, 5 Hill, 231; sale, whether the sale be made Barney v. Patterson, 5 Har. and J. before or after the return day; or 204. §§ 168, 169 merwine's trial of title to land. 152 by the officer, and discharge his duty as appraiser, he will, on complaint being made to any justice of the peace in the township in which such householder resides, forfeit and pay the sum of fifty cents for every such neglect, unless he can render a reasonable excuse. Such sum must be collected by said justice, and paid into the township treasury for the use of the township." Sec. 168. When execution may issue to sheriff of another county. When an execution is issued to the sheriff of any county, other than that in which the judgment was rendered, the sheriff, after indorsing the date of its reception thereon, must deliver the same to the clerk of the district court of his county, who is required thereupon to enter the same in the execution docket in the same manner as if it had issued from the court of which he is clerk; and before the sheriff can return any such writ, he must cause his return to be entered in like manner. ^- Sec. 169. The officer may mail execution to another county. When execution is issued in any county in this State, di- rected to the sheriff or other officer of another county, it will be lawful for such sheriff or other officer, having the execution, after having discharged all the duties required of him by law, to inclose such execution by mail, to the clerk of the court who issued the same. On proof being made by such sheriff or other officer, that the execution was mailed soon enough to reach the office where it was issued within the time prescribed by law, the sheriff or other officer will "Snyder, 5,996; Wilson, 4,602; ing. Phoenix v. McEvoy, 72 N. W. Nebraska, 1,514 (1907), identical. (Xeb.) 956. Appraisers are not entitled to mile- 12 Snyder, 6,000; Wilson, 4,666; age, nor sheriff to any fee for act- Kansas, 4,921 (1901), similar. 153 REAL ESTATE UNDER EXECUTION. — SALE. §§ 170, 171 not be liable for any amercement or penalty, if it does not reach the office in due time.^^ Sec. 170. Money collected by execution in another county may not be returned by mail. No sheriff shall forward by mail any money made on any execution, unless he shall be especially instructed to do it by the plaintiff, his agent or attorney of record. In all cases of a motion to amerce a sheriff, or other officer of any county other than that from which the execution issued, no- tice in writing shall be given to such officer, as hereinbefore required, by leaving it with him, or at his office, at least fifteen days before the day on which such motion will be made. All amercements so procured shall be entered on the record of the court, and shall have the same force and effect as a judgment.^* Sec. 171. Sureties of sheriff may be made parties to the judgment — Property of olncer to be first ex- hausted. Each and every surety of any sheriff or other officer may be made party to the judgment rendered as aforesaid against 13 Snyder, 6,001; Wilson, 4,667; clerk of the court where it is issued, Kansas, 4,922 (1901), identical. a sufficient time before the return Where an execution is directed to day for it to reach the office of the the sheriff of any county in this clerk issuing the same, and it fails State other than the one in which to reach the office of the clerk who it is issued, the same may be re- issued it on or before the return turned through the United States day thereof, the sheriff is not liable mail; and if the sheriff, after having for amercement or penalty. Reese performed all that is required of v. Rice, 1 Kan. App. 311, 41 Pac. him, in an attempt to execute the 218. same makes out a certificate of his i* Snyder, 6,002; Wilson, 4,668; doings thereunder, dates the same, Kansas, 4,923 (1901), identical; and has the clerk of the district Nebraska, 4,923 (1907), identical; court of his county enter the return see Fenton v. White, 4 Okla. 472, on his execution docket, and he then 47 Pac. 472; MoXee v. Sewall, 16 deposited the same in the United X. W. (Xeb.) 824; Fuller v. Wells, States postoffice, addressed to tlie 42 Kan. 551, 22 Pac. 561. §§ 172, 173 merwine's trial of title to land. 154 the sheriff or other officer, by action, to be commenced and prosecuted as in other cases ; but the goods and chattels, lands and tenements of any such surety shall not be liable to be taken on execution, when sufficient goods and chattels, lands and tenements of the sheriff or other officer against whom execution may be issued, can be found to satisfy the same. Nothing herein contained shall prevent either party from proceeding against such sheriff, or other officer, by attach- ment, at his election. ^^ Sec. 172. Officer on amercement may collact original judg- ment, when. In cases where a sheriff or other officer may be amerced, and shall not have collected the amount of the original judg- ment, he shall be permitted to sue out an execution and collect the amount of said judgment, in the name of the original plaintiff, for his use.^" Sec. 173. When contribution may be required. When property, liable to an execution against several per- sons is sold thereon, and more than a due proportion of the judgment is laid upon the property of one of them, or one of them pays, without a sale, more than his proportion, he may compel contribution from the others; and when a judg- ment is against several, and is upon an obligation of one of them, as security for another, and the surety pays the amount, or any part thereof, either by sale of his property or before sale, he may compel repayment from the principal; in such case, the person so paying or contributing, is entitled to the benefit of the judgment, to enforce contribution or repayment, if within ten days after his payment, he file, with the clerk of the court where the judgment was rendered, 1" Snyder, 0,00.3; Wilson. 4,6()0; fXeb.) 7!^0; Faye v. Edmistnn, 28 Kansas. 4,024 (1001), identical: Kan. 106. Xebraska, 1,520 (1007), identical; is Snyder, (1,004; Wilson, 4,670; see PiiSCM-ilk v. Bollman, 45 N. W. Xebraska, 1^21 (1907), identical. 155 REAL ESTATE UNDER EXECUTION. SALE. § 174 notice of his payment and claim to contribution or repay- ment. Upon a filing of such notice, the clerk shall make an entry thereof in the margin of the doeket.^^ Sec. 174. Equitable interest in lands subject to levy — Stocks — Choses in action. When a judgment debtor has not personal or real prop- erty subject to levy on execution, sufficient to satisfy the judgment, any equitable interest which he may have in real estate, as mortgagor, mortgagee, or otherwise, or any interest he may have in any banking, turnpike, bridge or other joint stock company, or any interest he may have in any money, contracts, claims, or choses in action, due or to become due to him, or in any judgment, or decree, or any money, goods, or effects which he may have in the possession of any person, body politic or corporate, shall be subject to the payment of such judgment, by action, or as hereinafter prescribed.^^ There are many decided cases on the subject set forth under this statute, but the space allotted to this work for- bids discussion of the same. A few of the decisions will be found in the notes below.^^ 17 Snyder, 6,004; Wilson, 4,G71 ; of action of creditors, see Gemani Kansas, 4,026 (1001), identical; v. First, 80 X. W. (Neb.) 48. As see, also, Honce v. Schram, 73 Kan. to burden of proof, see Parline v. 368, 85 Pac. 535; City v. Kansas Ulrich, 78 X. W. (Xob.) 275. The City, etc., 66 Kan. 610, 72 Pac. bill must show the lien on the part 238: Wordom v. Jones, 1 Kan. App. of the creditor. Fairbanks v. Weis- 304. 40 Pac. 1,071. haus, 75 X. W. 865. As to the IS Snyder, 6,006; Wilson, 4,672; equitable interest to be reached, see Kansas, 4,957 (1901), identical; Kiser v. Sawyer, 4 Kan. 503; Kirk Nebraska, 1,535 (1907), identical. v. Kiester, 11 Kan. 471; Moyer v. 19 As to parties to an action to Pi,?gs, 8 Kan. App. 234, 55 Pac. get at an interest fraudulently con- 494; Van Vliett v. Halsey, 37 Kan. veyed, see First v. Gibson, 94 N. W. 116, 14 Pac. 482; Clark v. Burt, (Neb.) 965. As to allegations of 2 Kan. App. 407, 42 Pac. 733; creditors' bill, see State v. Bilk, Loades v. Hood, 29 Kan. 39. 94 X. W. (Xeb.) 617. As to causes §§175,176 merwine's triaij of title to land. 156 Sec. 175. Pleading, practice and procedure the same in the county court as in the district court. For the trial of all civil cases, now, or hereafter pending, or transferred in or to any county court, the pleadings, practice and procedure shall be the same as in the district court.-*^ Sec. 176. V/hen the judgment becomes a lien on the real estate. Judgments of courts of record of this State, and of courts of the United States, rendered within this State, will be liens on the real estate of the debtor within the county in which the judgment is rendered from and after the time the judg- ment is entered on the judgment docket. An attested copy of the journal entry of any judgment, together with a state- ment of the costs taxed against the debtor in the case, may be filed in the office of the clerk of the district court of any county, and such judgment will be a lien on the real estate of the debtor within that county, from and after the date of filing and entering such judgment on the judgment docket. The clerk is required to enter such judgment on the appear- ance and judgment docket in tlie same manner, and within the same time after such judgment is filed in his office as if rendered in the court of which he is clerk. Execution must only be issued from the court in which the judgment is rendered.-^ There seems to be no other provision of the statute as to the manner of enforcing a judgment in the county court in this State. There is no statute directing execution to issue directly out of the county court to enforce such judgment. Following the analogy of the manner of enforcing judgment from the district court, the safer and better procedure would be to file a transcript of the judgment with the clerk of the district court, then have an execution issued from that court. However, in view of the fact that judgments of the 20 Snyder, 3,989. 2i Snyder, 5,941; Wilson, 4,608; Kansas, 4,868 (1901), identical. 157 REAL ESTATE UNDER EXECUTION. SALE. §§177,178 county court are liens on real estate in the county where the judgment was entered, and in view of the fact that the statute above stated, provides that the practice and procedure in the county court shall be the same as in the district court, the author is of the opinion that an execution, in the first instance may issue out of the county court, to enforce its o\vn judgment rendered therein. In stating this view, the writer is not unmindful of the decisions on this subject as to judg- ments by probate courts.-" Sec. 177. Execution to conform to judgment — Special cases. In special cases not hereinbefore provided for, the execution shall conform' to the judgment or order of the court. When a judgment for any specified amount, and also for the sale of specific real or personal property shall have been rendered, and an amoiuit sufficient to satisfy the amount of the debt, or damages and costs, be not made from the sale of the property specified, an execution may issue for the balance, as in other eases. -^ Sec. 178. Judgment of justice of the peace — How docketed by clerk of district court. In all cases in which a judgment shall be rendered by a justice of the peace, the party in whose favor the judgment was rendered may file a transcript of such judgment in the 22 Eldridgo v. Robertson, 15 Okla. the money paid into court, the 599, 87 Pac. 659. By Sec. 1 of original owner of the land (who Art. 15, Title, Court, of the statutes was the judgment debtor in the of Oklahoma of 1893 (v/hich article suit in which the land was sold was ratified by Congress), which under such execution) will be provides that probate courts shall entitled to the condemnation money. not order or decree tlie sale or par- Eldridge v. Robertson, 15 Okla. 599, tition of real estate, a sale of real 87 Pac. 659. estate made under an execution 23 Snyder, 6,043; Wilson, 4,708; issued out of such court is abso- Kansas, 4,994 (1901), identical; lutely void, and a sheriff's deed see, also, Norton t. Reardon, 67 to the purchaser conveys no title. Kan. 302, 72 Pac. 861; Watson v. And when the land has been con- Keystone, 70 Kan. 61, 78 Pac. 156; demned for railroad purposes, and Ibid, 70 Kan. 43, 74 Pac. 269. §§ 179, 180 merwine's trial of title to land. 158 office of the clerk of the district court of the county in which the judgment was rendered; and thereupon the clerk is required on the day on which the same was filed, to enter the case on the appearance docket, together with the amount of the judgment and time of filing the transcript; and must also enter the same on the judgment docket as in case of a judgment rendered in the court of which he is clerk.-* Sec. 179. Judgment of a justice of the peace becomes a lien on real estate, when. Such judgment shall be a lien upon the real estate of the judgment debtor, from the day of filing the transcript, in the same manner and to the same extent as if the judgment had been rendered in the district court.-^ Sec. 180. Execution thereon nay be issued by the clerk of the district court. Execution may be issued thereon, to the sheriff, by the clerk of the court, in the same manner as if the judgment had been taken in court; and the sheriff shall execute and return the same, as other executions; and in case of sale of 24 Snyder, 6,044; Wilson, 4,710: and cannot,, in the first instance, Kansas, 4,995 (1901), identical; be filed in the district court of Nebraska, 1,566 (1907), identical. another county. Pemberton v. Pol- Dormant judgment in the justice's lard, 25 X. W. (Xeb.) 582; McBride court not revived by filing a tran- v. Lathrop, 38 X. W. (Xeb.) 32; script under the statute. Lingen Caton v. Grueing, 26 X. W. (Xeb.) V. Gates, 26 Kan. 135. When the 256. Such filing of the transcript transcript is properly filed in the does not make it a judgment of the office of the clerk of the district district court. Moores v. Psyche, court, recording to the statute, the 62 X. W. (Xeb.) 1,072; Farmers judgment becomes subject to the State Bank v. Banes, 90 X. W. same rules, and is vested with the (Xeb.) 945. same powers, as though originally 25 Snyder, 6.045; Wilson, 4,711; rendered in the district court. Kansas, 4,996 (1901), identical; Rahm v. Soper. 28 Kan. 159. The Xebraska, 4.618 (1907), identical; transcript of the justice, to become see, also, Lamme v. Schilling, 25 a lien on re-^l estate, must be filed Kan. 64; Chadron v. Association, in the district court of the county 63 X. W. 808. where the judgment is recovered, 159 REAL ESTATE UNDER EXECUTION. SALE. §§ 181-183 real estate, his proceedings shall be examined and approved by the court as in other cases.-^ Sec. 181. Justice to certify costs. The justice of the peace shall certify on the transcript, the amount, if any, paid on such judgment.-'^ Sec. 182. Judgment may be revived, when. If such judgment becomes dormant, or if any of the parties thereto die before the same is satisfied, it may be revived in the same manner as other judgments in the district court, and a certified copy of the entry of such transcript may be filed in the office of the clerk of the district court of any other county, and shall be a lien on the real estate of the debtor, in such county, from th-e date of the filing of such copy.-^ Sec. 183. The procedure by which real estate is levied upon and sold under judgment in a civil action — The petition in the action. District Court of County, State of Oklahoma. , Plaintiff, vs. No. . , Defendant. PETITION. Comes now the plaintiff herein, and tor his cause of action alleges that this, his action, is founded on a promissory note, of which the following is a true copy. (Here copy same.) Said note is indorsed as follows, there being no credits on the same : There is due plaintiff from defendant on said note the sum of .$ — . , with interest on said sum from the day of 26 ^nvder, 6.040; \Yilson, 4,712. see, also, Israel v. Nichols, .37 Kan. 27 Snyder, 6,047; Wilson, 4,713. 68, 14 Pae. 438; Angell v. Martin, 28 Snyder, 6,048; Wilson, 4,714; 24 Kan. 344. Kansas, 4,999 (1901), identical; §§ 184, 185 merwine's trial of tftle to land. 160 , 19 — , at the rate of per cent, per annum, for which, Avith costs of suit, he prays judgment against the de- fendant. , Attorneys for Plaintiff. State of Oklahoma, County, ss. : , being first duly sworn, says that he is the plaintiff in the above action; that the facts stated in the above petition are true. . Subscribed in my presence and sworn to before me this day of , 19 — . , ]\Iy commission expires . Notary Puhlic. Sec. 184. The praecipe for summons. State of Oklahoma, County, ss. : In the District Court. , Plaintiff, vs. No. . , Defendant. To the Clerk of said Court, County: Please issue summons in the above entitled cause to -, of County, Oklahoma, making same returnable on the day of , 19 — , and designate therein the • Jay of , 19 — , as answer day, and deliver the same to the sheriff of County, and indorse thereon that if defendant fails to answer, judgment will be taken for . Attorneys for Plaintiff. Sec. 185. The summons in the action. State of Oklahoma, County, ss. ; Tn the District Court. , Plaintiff, vs. No. . , Defendant. The State of OJdahoma to the Sheiiff of County, Greet- ing: You are hereby commanded to notify that he has been sued by in the district court of County, Okla- 161 REAL ESTATE UNDER EXECUTION. — SALE. §§186,187 homa, and that must answer the petition of said , filed against him in said court, in the city of , in said county, on or before the day of , 19 — , or said petition will be taken as true and judgment rendered accord- ingly. You will make due return of this summons on the day of , A. D. 19—. In Witness Whereof, I have hereunto set my hand and affixed the seal of said court at , in said county, this day of , A. D. 19—. Clerk. Sec. 186. The sheriff's return. Received this writ on the day of , 19 — , at o'clock — m., and served the same upon the following persons, defendants, within named, at the times following, to- wit : , by delivering to each of said defend- ants, personally in said county, a true and certified copy of the within summons, with all the indorsements thereon. And upon , by leaving for each of said defend- ants at usual place of residence in said county, a true and certified copy of said summons, with all the indorsements thereon. The following persons, defendant, within named, not found in said county : — ^• Sheriff. Sec. 187. Motion for appointment of guardian ad litem to defend for insane defendant. District Court of County, State of Oklahoma. , Plaintiff, vs. No. . , Defendant. MOTION FOR APPOINTMENT OF GUARDIAN AD LITEM. Comes now the plaintiff , by his attorneys, and moves the court for the appointment of a guardian ad litem to defend §§ 188, 189 merwine's trial op title to land. 162 this action on behalf of the defendant, for the reason that said defendant has been served with summons and is in default for answer herein, and that said defendant is insane and has no legally appointed guardian to defend this action for him. Attorneys for Plaintiff. Sec. 188. The affidavit in proof of insanity. District Court of County, State op Oklahoma. , Flainiiff, vs. No. , Defendant. AFFIDAVIT. , being first duly sworn, says that he is a regular prac- ticing physician, engaged in the practice of medicine in the city of , Oklahoma ; that he has been the physician of the defendant, , for sometime past, and has observed his mental and physical condition. Affiant further says that at the present time the mind of him, the said , is in a state of , and that said mind is not possessed of sufficient vigor to defend properly a lawsuit of any kind, whatever. Sworn to before me and subscribed in my presence this day of , 19-. , ]\Iy commission expires . Notary Puhlic. Sec. 189. The order of court appointing a guardian ad litem to defend for insane defendant. District Court of County, State of Oklahoma. , Plaintiff, vs. No. . , Defendant. ORDER APPOINTING GUARDIAN AD LITEM. This cause came on to be heard upon the application of - for the appointment of a guardian ad litem, for said defendant 163 REAL ESTATE UNDER EXECUTION. SALE. §§190,191 to defend this action for him, on his hehalf, was submitted to the court, argued by counsel, heard upon testimony, and the court finds that said defendant has been served with summons and is in default for answer or demurrer to the petition; that he is insane and that it is necessary that such guardian ad litem be appointed, and the court, therefore, sustains said motion. It is Therefore ordered, adjudged and decreed that be, and he is hereby, appointed guardian ad litem to defend this action for said defendant. Judge of said Court. Sec. 190. The answer of guardian ad litem for insane de- fendant. District Court of County, State of Oklahoma. , Plaintiff, vs. No. . , Defendant. ANSWER OF GUARDIAN AD LITEM. Comes now , heretofore appointed herein for fhe pur- pose of conducting this defense for the defendant, and for his answer as such guardian ad litem, says, that he has no knowl- edge of the facts and allegations contained in said petition, and for want of such knowledge, denies each and every allegation therein, and demands proof of the same. ■ " > Guardian Ad Litem for Defendant. Sec. 191. The judgment of the court in the action. District Court of County, State of Oklahoma. , Plaintiff, vs. No. . , Defendant. DECREE OF COURT. This day this cause came on to be heard, the same being one of the days of the regular Term. 19—, of the said court, § 192 merwine's trial, of title to land. 164 and said cause having been regularly assigned for trial, was heard upon the evidence, argued by counsel, and, upon due con- sideration whereof, the court finds that said defendant was duly summoned in this action, and upon his failure to appear, upon proof satisfactory to the court that said defendant was insane, was duly appointed guardian ad litem to appear and answer for him ; tliat said , as such guardian ad litem, appeared for said defendant and answered for said defendant in due form of law, and appeared at said trial and represented the interests of said defendant, and that the allegations of said peti- tion are true. It is Therefore Considered and Adjudged that the plaintiff recover from defendant the sum of $ , with interest on said sum of $ , at the rate of per cent, from the day of , 19 — , and his costs herein expended, taxed at $ ; also that there be paid to , guardian ad litem, the sum of $ , to be taxed as costs herein, and paid from the proceeds of any recovery in said judgment. Judge of said Court. Sec. 192. The execution. District Court of County, State of Oklahoma. , Plaintiff, vs. No. . , Defendant. EXECUTION. State of Oklahoma to the Sheriff of , County, Greeting: Whereas, on the day of , 19 — , , plaintiff in the above action, obtained a judgment in the district court of County, State of Oklahoma, against the defendant, , for the principal sum of $ , wuth interest accruing at the rate of per cent, per annum, from the day of , 19 — , to the date of the service of this writ, together with .$ , costs therein, and $ accrued costs. Now, Therefore, you are hereby commanded that of the goods and chattels of said , you cause to be made the money 165 REAL ESTATE UNDER EXECUTION. — SALE. § 193 above specified, and for want of goods and chattels you cause the same to be made of the lands and tenements of said debtor. And make return of this execution, showing how you have executed the same, within sixty days from the date hereof. In "Witness Whereof, I Aave hereunto set my hand and affixed the seal of said court at , in said county, this day of , 19 — . , Clerk. Sec, 193. The sheriff's return of his proceedings under the execution. Received the within writ on the day of , 19 — , at o'clock, — m., and executed the same on the day of , 19 — , at o'clock, — m., by levying this writ upon the following described lands and tenements of the Mathin named defendant, situated in the county of , State of Oklahoma, to-wit: (Here describe same), I, having found no goods or personal property of any nature belonging to said , in my said county, and T thereupon, forthwith, on the same day, summoned , and , three disinter- ested householders, resident within said county, to view and appraise said lands and tenements described in this return of said writ, and administered to them an oath, impartially to appraise the same upon actual view thereof, and afterwards, on the day of , 19 — , said appraisers returned to me under their hand and oath, that they did, upon actual view, estimate and impartially appraise the real value of said real estate at $ . I forthwith deposited in the office of the clerk of the district court of County, a certified copy of said appraisement, on the day of , 19 — . I thereupon caused public notice of the time and place of sale of said lands and tenements to be given by advertising the same for not less than thirty days before the day of sale in , a newspaper, printed and of general circulation in this county, the first of said publications being on the day of , 19 — , and once each week thereafter, for at least thirty days before said day of sale. And in pursuance to said notice, at the time and § 194 meewine's trial of title to land. 166 place therein mentioned, I did, on the day of , 19 — , at o'clock, — m., at the door of the court- house of this county, offer said lands and tenements at public sale, and then and there came , who bid for said property the sum of $ , and said sum being more than two-thirds of the appraised value thereof, and he, being the highest and best bidder therefor, I then and there struck off and sold said lands and tenements to said , for said sum of $ . Dated this day of , 19 — . Sheriff of County, State of OklaJwma. Sec. 194. The appraisement by the sheriff of real estate under levy of execution — The oath of the ap- praisers — The appraisement. District Court of County, State of Oklahoma. , Plaintiff, vs. No. , Defendant. APPRAISEMENT OF REAL ESTATE BY SHERIFF. I, ■ — , sheriff of County, State of Oklahoma, do hereby call an inquest of , and , three dis- interested householders, who are residents within said county of , to impartially estimate and appraise, upon actual view, the following described real estate, situated in said county of , State of Oklahoma, heretofore leA'ied upon by me: (Here describe same.) They will first take and subscribe the following oath, then proceed fortliwith to make and return to me under their hands, an estimate of the real value of said property. Witness my hand this day of , 19 — . Sheriff of County, Oklahoma. 167 REAL ESTATE UNDER EXECUTION. — SALE. § 195 THE OATH OF THE APPRAISERS. State of Oklahoma, County, ss. : "We do solemnly swear that we are disinterested householders resident within said county of , State of Oklahoma; that we will impartially appraise, upon actual view, the real estate within described, and forthwdth return to the sheriff of said county, under our hands, an estimate of the real value of said property. So help us God. Subscribed and sworn to before me this day of 19—. Sheriff. APPRAISEMENT. We, the undersigned, in pursuance to the foregoing appoint- ment and oath, to estimate and appraise the real property afore- said, do hereby report to said sheriff that we have performed the duties assigned us, after going upon and making strict examina- tion of said property, estimate and appraise the real value of the same. (Here describe real estate) in the sum of $ . Witness our hands this day of , 19 — . Appraisers. Sec. 195. Sheriff's publication of notice of sale of real estate under the levy and execution. LEGAL NOTICE OF SHERIFF'S SALE OF REAL ESTATE. Notice is hereby given that in pursuance of a writ of execution issued out of the office of the clerk of the district court of County, Oklahoma, upon a judgment in favor of , and against , commanding me to levy upon the property be- § 196 merwine's trial op title to land. 168 longing to said , sufficient to satisfy said judgment, I have levied upon certain lands and tenements of the said , situated in County, to-wit: (Here describe same), and have caused said lands and tenements to be appraised according to law, which appraisement was in the sum of $ . Now, Therefore, notice is hereby given that in pursuance of the command of said writ, I will offer for sale, and sell for cash, to the highest ])idder, at public auction, said lands and tene- ments, or so much thereof as will satisfy said judgment, on the day of , 19 — , at o'clock, — m., of said day, at the front door of the courthouse in the city of , in the county of , and State of Oklahoma. Witness my hand tliis day of , 19 — . Sheriff of County, Oklahoma. Sec. 196. The proof of publication of sheriff's notice of sale of real estate. State of Oklahoma, County, ss. : , of lawful age, being by me first duly sworn, says that he is the of the , a weekly newspaper, published and printed in the city of , County, Oklahoma, and of general circulation in said county and State ; that said has been published for more than fifty-two consecutive weeks prior to the dates on which the notice herein referred to was published, and the notice, of which a true copy is hereto attached, was published in the regular and entire edition of said , and not a supplement thereof, for weeks, the first of said publications being on the day of , 19 — , and the last on the day of , 19 — . Sworn to before me and subscribed in my presence this day of , 19.— , My commission expires . Notary Public. 169 REAL. ESTATE UNDER EXECUTION. SALE. § 197 Sec. 197. The order of the court approving and confirming the sale of real estate under the execution. District Court op County, State of Oklahoma. , Plaintiff, vs. No. , Defendant. ORDER CONFIRMING SALE. On this day of , 19 — , the same being one of the regular days of the , 19 — Term of said court, this cause came on to be heard upon the execution and order of sale herein issued, the return thereof by the sheriff of County, the appraisement herein made and filed, the proof of publication by said sheriff of notice of sale at public auction, the levy made by said sheriff on the lands and tenements duly set forth in said return, and upon the pleadings herein, was submitted to the court, and from consideration thereof, being fully advised in the premises, the court finds, that under said writ, duly issued herein, said sheriff duly levied the same upon the following described real estate situated in the county of , State of Oklahoma, to-wit : (Here describe the same specifically); that said real estate was duly appraised under said writ by said sheriff in the sum of $ , as in said appraisement set out; that said sheriff gave due notice by publication of the time and place of sale of said real estate according to the pro\dsions of the statute in such case made and provided; that pursuant to said notice, said sheriff, at said time and place, duly struck off and sold said real estate to , as in said return set out, for $ , said being the highest and best bidder for said real estate, and said sum being more than two-thirds of the appraised value thereof ; that the facts set out in said return of said writ, in said appraisement and in said proof of publication, are admitted, and that said proceedings of said sheriff under the writ, said appraisement and sale, aforesaid, to said , should, in all things, be approved and con«firmed. § 198 merwine's trial of title to land. 170 It is Therefore considered, adjudged and decreed the said appraisement, said proceedings of said sheriff and sale of said real estate to said , for said sum of $ , be and the same is, hereby, in all things, approved and confirmed, and said sheriff is hereby ordered to execute, acknowledge and deliver a good and proper deed for said premises above described, upon payment to him of the said purchase price. And, coming to the proper distribution of the proceeds of said sale, it is by the court considered, adjudged and decreed, that out of said proceeds said sheriff shall pay: 1. The taxes and penalty thereof, due and payable on said real estate, amounting to the sum of $ . 2. The costs of this action, taxed in the sum of $ . 3. To plaintiff to apply as credit on his judgment herein, the sum of $ . Judge of said Court. Sec. 198. Sheriff's deed where real estate is sold under the ordinary writ of execution. To all Persons to Whom These Presents Shall Come, Greeting: Whereas, on the day of , 19 — , filed his certain petition, and then and there commenced a civil action in the district court of County, Oklahoma, against , and numbered on the docket of said court as Case num- ber , praying for judgment against said defendant ; and "Whereas, such proceedings were had in said action, that by the consideration and judgment of said court at the , 19 — Term thereof, said plaintiff recovered a judgment against said defendant for the sum of $ and costs of suit ; and. Whereas, said , afterwards, on the day of , 19 — , sued out of the clerk's office of said court, an execution on said judgment, directed to the sheriff of the county of , and State aforesaid, commanding him, of the goods and chattels, and for want thereof, of the lands and tenements of said , in said countv of , he cause to be levied 171 REAL ESTATE UNDER EXECUTION. SALE. § 198 and made the amount of said judgment and costs, which execu- tion duly came to the hands of , sheriff of County, State of Oklahoma, and which execution was afterwards, to-wit, on the day of , 19—, levied upon the following lands and tenements of said defendant, to-wit : (Here specifically describe same) ; and. Whereas, I, , said sheriff aforesaid, having caused said premises to be appraised, and a copy of said appraisement to be duly filed in the office of said clerk, and having advertised the time and place of sale of same in , a newspaper, printed and published and of general circulation in said county, for more than thirty days prior to the day of sale, and otherwise complied with said ^\Tit and the provisions of the statute in such case made and provided, did, on the day of , 19—, at o'clock, — m., of said day, at the door of the courthouse in said county, expose to sale at public auction, the premises herein mentioned, and thereupon, , having bid for said premises the sum of $ , which said sum being the highest and best bid therefor, and the same being more than two-thirds of the appraised value thereof, said premises were then and there struck off and sold to him, the said , for the sum above mentioned; and. Whereas, the said court, at its , 19— Term, having examined the proceedings of said , sheriff aforesaid, under said writ, and being satisfied that the sale aforesaid had been made in all respects in pursuance thereof, and in accordance with the provisions and requisites of the statute regulating such sales, did order that said sale be confirmed, and that said sheriff of County, Oklahoma, should convey said real estate by deed in fee simple to the purchaser. Now, Therefore, Know Ye, That I, , sheriff of said county, by virtue of said judgment, writ, sale and confirmation, and of the statute for such cases made and provided, and for and in consideration of the premises herein, and the sum of $ ^ which I acknowledge to have received from said -, do hereby grant and convey unto him, the said the following described real estate, situated in the county of § 199 mebwine's trial of title to land. 172 , and State of Oklahoma, to-wit: (Here describe it), to- gether with all the privileges and appurtenances thereunto be- longing, and all the right, title and interest of said , in and to the same. To Have and to Hold the premises aforesaid, unto said , as fully and completely as , sheriff of said county of , by virtue of said judgment, writ, sale and confirmation, and of the statute made and provided for such cases, might and should sell and convey the same. In Witness Whereof, I have hereunto set my hand this day of , 19—. Sheriff of County, Oklahoma. State of Oklahoma, County, ss. : Before me, , a notary public in and for said county and State, on this day of , 19 — , personally appeared , to me Imown to be the identical person who executed the within and foregoing instrument and acknowledged to me that he executed the same in his capacity therein stated, and as his free and voluntary act and deed for the uses and purposes therein set forth. , My commission expires . Notary Public. Sec. 199. Procedure where real estate is sold under a ven- ditioni exponas — The sheriff's return.* State of Oklahoma, County, ss. : Received this writ, on the day of , A. D. 19 — , at o'clock, — m., and, pursuant to its command, no goods and chattels, or lands and tenements found whereon to levy this writ on the day of , 19 — , at o'clock, — m., I levied the same on the following described real estate of said , defendant, to-wit: (Here specifically describe same), and * The procedure in this action to suit the fncts of each particular will be the same as in the above, case. In tlie following, the sheriff down to the return of the execu- makes levy and returns the writ for tion. This return must be made want of time. 173 REAL ESTATE UNDER EXECUTION. SALE. §§200,201 for want of time to make a sale of the same, this writ is returned this day of , 19—. Sheriff of County, State of Oklahoma. Sec. 200. The praecipe for the venditioni exponas. District Court of County, State of Oklahoma. ■ , Plaintiff, vs. No. -, Defendant. To the Clerk of the District Court, County, Oklahoma: Please issue a venditioni exponas in the above action directed to the sheriff of County, Oklahoma, returnable according to law. ' ■' Attorney for Plaintiff. Sec. 201. The order of sale directed from the clerk to the sheriff — The venditioni exponas. District Court of County, State of Oklahoma. -, Plaintiff, vs. -, Defendant. No. The State of Oklahoma, County. To the Sheriff of County, Greeting: We command you that to satisfy a judgment, which, by the consideration of our district court of County, State of Oklahoma, on the day of , 19—, , plaintiff, recovered against , defendant, for the sum of $ , with interest thereon from the day and year above stated, until paid, also costs and increased costs thereon, amounting to ^ ^ you expose for sale the following described lands and tenements, situated in the county of , State of Oklahoma, to-wit: (Here specifically describe same), which, according to our command, you lately took into your hands, which remain unsold ; and if, in your opinion, the property remaining in your hands not sold should be insufficient to satisfy said judgment, § 202 merwine's trial, of title to land. 174 then you are hereby commanded that you levy the same upon the goods and chattels, lands or tenements, or either, as the law shall permit, being the property of said judgment debtor, to- gether with said property on hand, which will be sufficient to satisfy said judgment, and that you liave said money before our said district court wnthin sixty days to render unto said party so recovering, the sum as above stated, and have then and there this writ. Witness the clerk of our district court this day of , 19—. , Clerk. Sec. 202. The appointment of appraisers under venditioni exponas — The oath of appraisers — The appraise- ment. District Court of County, State of OkIvAHOMa. , Plaintiff, No. . vs. , Defendant APPRAISEMENT BY SHERIFF OF REAL ESTATE UNDER VENDITIONI EXPONAS. I , sheriff of County, State of Oklahoma, do hereby call an inquest of , and , three dis- interested householders, who are resident within said county of , Oklahoma, to impartially estimate and appraise, upon actual view, the following described real estate, situated in said county and State of Oklahoma, to-wit : (Here specifically de- scribe the same.) They will first take and subscribe the follow- ing oath, then proceed forthwith to make and return to me under their hands, an estimate of the real value of said property. Witness my hand this day of , 19 — . > Sheriff of County. 175 REAL ESTATE UNDER EXECUTION. — SALE. § 203 OATH OF APPRAISERS. State of Oklahoma, County, ss. : We do solemnly swear that we are disinterested householders, resident within said county of ; that we will impartially appraise, upon actual view, the real estate above described, and forthwith return to said sheriff of said county, under our hands, an estimate of the real value of said property. So help us God. Subscribed and sworn to before me this day of 19—. My commission expires . Notary Public. APPRAISEMENT. "We, the undersigned, in pursuance of the foregoing appoint- ment and oath, to estimate and appraise the real property afore- said, do hereby report that we have performed the duties assigned us, after going upon and making strict examination of said property, estimate and appraise the real value of the same (Here describe real estate), in the sum of $ . Witness our hands this day of , 19 — . Appraisers. Sec. 203. The legal notice by the sheriff under venditioni exponas. LEGAL NOTICE OF SHERIFF'S SALE OF REAL ESTATE. Notice is hereby given that, in pursuance to a venditioni ex- ponas issued out of the office of the clerk of the district court of County, commanding me to appraise, advertise and sell § 204 merwine's trial op title to land. 176 the real estate belonging to said , sufficient to satisfy said judgment, I have levied upon certain lands and tenements of said , situated in County, to-\vit : (Here specifically describe same), and having caused said lands to be appraised according to law, wliich appraisement was in the sum of $ ; Now, Therefore, notice is here])y given that, in pursuance to the command of said writ, I will offer for sale and sell for cash, to the highest bidder at public auction, said lands above described, or so much thereof as will satisfy said judgment and costs, on the day of , 19 — , at o'clock, — m., of said day, at the front door of the courthouse in the city of , — County, Oklahoma. Witness my hand this day of , 19 — . Sheriff of County, Oklahoma. Sec. 204. Proof of publication of sale by sheriff under a ven- ditioni exponas. PROOF OF PUBLICATION OF NOTICE. State of Oklahoma, County, ss. : , of lawful age, being by me first duly sworn, says that he is the of the , a weekly newspaper, printed and published in the city of , County, Oklahoma, and of general circulation in said county and State ; that said has been published for more than fifty-two consecutive weeks prior to the dates on which the notice herein referred to was published, and the notice, of which a true copy is hereto at- tached, was published in the regular and entire edition of said , and not a supplement thereof, for weeks, the first publication being on the day of , 19 — , and the last on the day of , 19 — . Sworn to before me and subscribed in my presence this day of , 19 — . , ]\Iy commission expires . Notary Public. 177 REAL ESTATE UNDER EXECUTION. — SALE. § 205 Sec. 205. The sheriff's return of the venditioni exponas.* District Court of County, State of Oklahoma. , Plaintiff, No. . vs. , Defendant. SHERIFF'S RETURN. State of Oklahoma, County, ss. : In obedience to the commands of this writ, which was served on me on the day of , 19- at o'clock, — m., of said day, I did, on said day, levy the same upon the interest of the ^dthin named , in and to the folloudng described lands and tenements, situated in the county of , State of Oklahoma, to-wit: (Here specifically describe said real estate), and thereafter, on the day of , 19— I did summon , and , three disinterested householders, residents of said county, who were by me duly sworn to impartially appraise said lands described in the fore- going writ, and return herein, upon actual view, and afterwards, to-wit, on the day of , 19- said appraisers re- turned to me under their hands and seals, that they did, upon actual view of the premises, estimate and impartially appraise the value in money of the same as follows: $ , a certified copy of which appraisement I forthwith deposited in the office of the clerk of the district court of County, Oklahoma, and on the day of , 19-, I caused to be inserted in , a weekly newspaper, printed and pubhshed m the English language, and of general circulation in said county and State, said lands and tenements to be sold at public sale, at the front door of the courthouse in the city of , m County, on the day of , 19-, at o'clock, _ m., of said day; and, having advertised the lands and tene- ments' to be sold at public sale at the front door of the court- •The order of the court confirm- for the deed to the purchaser are inc. and approving the sale by the the same as set forth in Sections sheriff, and the order for deed in 197 and 198, above. venditioni exponas, and the form § 206 MERWINE 'S TRIAL OF TITLE TO LAND. 178 house of County, for more than thirty days prior to the day of sale, to-wit : weeks, on the same day of the week in each week; and, in pursuance to said notice, I did, on the day of , 19 — , at the time and place above men- tioned, proceed to offer said lands at public sale at the ■ door of the said courthouse; and then and there came , who bid for the same the sum of $ , and said sum being more than two-thirds of the appraised value thereof, and said being the highest and best bidder therefor, 1 then and there publicly sold and struck off said lands and tenements to him for said sum of $ . Dated this day of , 19 — . Sheriff of County, OklaJioma. Sec. 206. The proceedings for sale of levy made under for- eign execution — The petition asking for the mar- shaling of liens and sale of real estate.* District Court of County, State of Oklahoma. , Plaintiff, vs. No. and , Defendants. PETITION. Comes now the plaintiff, a corporation not for profit, duly incorporated under the laws of the State of Oklahoma, having its principal place of business at , Oklahoma, and for its cause of action herein, alleges and states : 1. That on the day of , 19—, by consideration of the district court of County, Oklahoma, in Case num- ber , plaintiff recovered a judgment against , de- fendant, for the sum of $ , with interest on said sum at per cent, per annum from the day of * The praecipe, summons and return thereof by the sheriff are as in Sec- tions 184 and 185, above. 179 REAL ESTATE UNDER EXECUTION. SALE. § 206 19 — , and also its costs therein taxed at $ , and that said judgment and costs remain wholly unpaid. 2. That on the day of , 19 — ; plaintiff caused an execution to be issued on said judgment against the said defendant, , herein, and against and against the other defendants in said case, directed to the sheriff of County, Oklahoma, who, on the day of , 19 — , returned said writ as follows: "No goods, chattels, lands or tenements found whereon to levy this ^^^:•it, and, for want of same, this writ is returned." 3. That on the day of , 19 — , plaintiff caused an alias execution to be issued on said judgment against the defendant, , in said action, and against the other de- fendants therein, directed to the sheriff of County, Okla- homa, who, under said writ, for want of goods and chattels whereon to levy, levied on certain real estate of the defendant, other than ; that said real estate, by virtue of said execu- tion and levy, was sold, but by reason of other prior liens on said real estate, no part of the judgment and costs herein were paid out of the proceeds of said sale. 4. That on the day of , 19 — , the plaintiff caused another ilias execution to be issued on said judgment against said , and the other defendants in said action, directed to the sheriff of County, Oklahoma, who, on the day of , 19 — , returned said writ as follows: "No goods, chattels, lands or tenements found whereon to leyj this writ, and, for want of same, this writ is returned." 5. That on the day of , 19 — , plaintiff caused another alias execution to be issued on said judgment in said cause, against said defendant, , directed to the sheriff of County, Oklahoma, who, on the day of , 19 — , levied said writ of execution upon the folloAving described real estate, situated in Count}", Oklahoma, to-wit: (Here describe same), and that said sheriff of said County was unable to effect a sale of said real estate because of want of time, and because of prior liens, and the same was returned under direction of plaintiff's attorneys for further proceedings. § 207 merwine's trial of title to land, 180 6. That on account of said judgment, execution and levy aforesaid and the proceedings thereunder, said plaintiff has a valid lien on said real estate for $ , with interest from the day of , 19 — , at the rate of per cent, per annum, and a lien for $ , for costs and increased costs. 7. That the defendant, , who is years of age, by virtue of a certain instrument of conveyance, recorded with the register of deeds of County, Oklahoma, claims to own a life estate in the estate so levied upon, and the defendant, , claims a certain mortgage interest in said real estate. Wherefore, the premises considered, plaintiff prays that said defendants, and , be required to answer herein, and set forth their several claims and liens on said real estate, if any they have, or be forever barred from asserting the same ; that said real estate be sold as upon execution, to satisfy plain- tiff's lien thereon, subject to said life estate; that the proceeds arising from said sale be applied to the payment of the various liens claimed against said real estate, in the order of their re- spective priorities, and that plaintiff may have such other and further relief as equity and the nature of the case may require. Attorneys for Plaintiff. State of Oklahoma, County, ss. : , being first duly sworn, says that he is the of said plaintiff; that the facts stated in the foregoing petition are true. — — — My commission expires . Notary Public. Sec. 207. The answer and cross-petition of defendant setting up a life estate in the premises levied upon. District Court of County, State of Oklahoma. , Plaintiff, vs. No. and , Defendants. 181 REAL ESTATE UNDER EXECUTION. — SALE. § 208 ANSWER AND CROSS-PETITION. Comes now the defendant, , and for her cross-petition and answer herein, alleges and states that she admits she has a life estate in and to the real estate described in the petition herein, and the instrument giving her title thereto is recorded with the register of deeds of said county as alleged. She alleges that the conveyance granting her an estate in said real estate was executed and delivered to her on the day of , 19 — , and was received for record in the office of the register of deeds of said County, Oklahoma, on the day of , 19 — , at o'clock, — m. ; that said lease is in full force and effect, and that her right and estate are prior to the lien claimed by plaintiff; that this defendant has complied with all and singular the terras and conditions of said lease, which are as follows: (Here insert same in substance) as set forth in said lease, to which reference is hereby made for the full and complete terms and conditions thereof. "Wlierefore, this defendant prays that her said lien may be declared in full force and effect ; that her life estate in said real estate so granted her by the terms and conditions of said lease be decreed prior to the lien of the plaintiff, and that in any order or decree rendered herein, her rights herein may be fully protected, and for such other and further relief in the premises to which she may be entitled. Attorneys for Defendant. Sec. 208. The answer of a judgment debtor containing a general denial. District Court of County, State op Oklahoma. , Plaintiff, vs. No. and , Defendants. § 209 MERWINE 'S TRIAL OF TITLE TO LAND. 182 ANSWER. Comes now the defendant, , and for his answer to the petition herein, says that he denies each and every allegation in said petition contained. Wherefore, defendant prays that he may be dismissed with his costs. , Attorneys for Defendant. Sec. 209. The answer and cross-petition of a lienholder setting up a mortgage.* District Court of County, State of Oklahoma. , Plaintiff, vs. No. and , Defendants. ANSWER AND CROSS-PETITION OF Comes now the defendant, , and for his cross-petition, alleges that on the day of , 19 — , the defendant, , made, and gave to this defendant, his promissory note for the sum of $ , due in years after date, with interest at the rate of per cent, per annum, payable semi- annually; that in order to secure the payment of said note, defendant made and gave to this defendant, his mortgage deed on real estate described in the petition ; that said mortgage was conditioned in substance that if said defendant, , should well and truly pay said note, according to its tenor, the said mortgage should become void, otherwise the same to remain in full force and effect ; that said mortgage was duly filed for record with the register of deeds of County, on the day of , 19 — , at o'clock, — m., of said day, and was * The foregoing form for a mort- funds arising from the sale to the gage lien can be used only in cases satisfaction of his mortgage in the where no personal judgment is order of its priority. Where a per- asked, and where the mortgagee sonal judgment is asked, the note simply asks for the protection of and mortgage should be set up in his lien, and the application of the two separate causes of action. 183 REAL ESTATE UNDER EXECUTION. — SALE, § 210 by him recorded in Book , at page of the records in his said office ; that said mortgage is a first and best lien on the real estate described in the petition, and nothing has ever been paid on said note and mortgage. Wherefore, this defendant prays that his said mortgage may be declared a first and best lien on the real estate described in the petition; that in any order, judgment or decree entered in this cause, the rights and interests of this defendant in and to said mortgage be protected, and if said property be sold, that the same be sold subject to said mortgage, and for such other and further relief to which he may be entitled in the premises. ■, Attorneys for said Defendant, . Sec. 210. The judgment of the court finding the issues in favor of the plaintiff and decreeing and ordering sale of the real estate. District Court op County, State of Oklahoma. , Plaintiff, vs. No. and , Defendants. DECREE. This day this cause came on to be heard upon the petition of the plaintifiP, and answer thereto of the defendant, , and answer and cross-petition of the defendant, , and the evi- dence; and, on consideration whereof, the court finds the issues joined in favor of the plaintiff, and that, on the day of , 19 — , by consideration of the district court of ■ County, Oklahoma, plaintiff recovered a judgment against the defendant, , in the sum of $ , with interest on said sum at the rate of per cent, per annum, from the • day of , 19—, and costs of suit, as set forth in the petition herein, which judgment is in full force and effect, and wholly unpaid and unsatisfied, and that there is now, at the date of this finding and decree, due plaintiff from defendant, , § 210 mebwine's trial op title to land. 184 on said judgment and costs, including interest, the total sum of $ , which is entitled to bear interest at the rate of per cent, until paid; that executions were duly issued on said judgment as alleged in the petition, and for want of goods and chattels whereon to levy, the execution of the day of , 19 — , directed to the sheriff of this county, was, by said sheriff, on the day of , 19 — , duly levied on the real estate described in the petition, and returned not sold because of prior liens, and upon direction of plaintiff's attor- neys; that by virtue of said judgment, execution and levy last mentioned, and the proceedings therein, plaintiff has a valid lien thereon, dating from the day of , 19 — , on the real estate in the petition described, for the sum of $ , with interest thereon, from the day of , 19 — , and plaintiff is entitled to have said premises sold for satisfaction thereof. The court further finds that the defendant, , is years of age, and is seized of a life estate in and to said real estate described in the petition, by virtue of a lease executed to her on the day of , 19 — , which lease was filed for record in the office of the register of deeds of County, on the day of , 19 — , at o'clock, — m., of said day, and on the said day, was recorded in lease records of said County, in volume , page , and that her said estate is superior and paramount to the lien of the plaintiff herein. The court further finds that defendant, , on the day of , 19 — , duly received from defendant, , a mortgage on said premises in the petition described, to secure the payment of the latter 's promissory note of even date, for $ , bearing interest at per cent, per annum, pay- able semiannually, which mortgage was duly filed for record in the office of the register of deeds of County, at o'clock, — m., as alleged in the answer and cross-petition of said defendant, ; that said , by virtue of said mortgage, acquired a lien on said real estate, dating from the said day of , 19 — , at o'clock, — m., for 185 REAL ESTATE UNDER EXECUTION. — SALE. § 211 the sum of $ , bearing interest at the rate of per cent, per annum, payable semiannually; and that the same is a first and best lien on said real estate ; that said sum of $ , with interest as last aforesaid, is now due to said , who is entitled to have said premises sold for the satisfaction thereof. It is Therefore ordered, adjudged and decreed that, unless the defendant, , shall, within days from the entry of this decree, pay, or cause to be paid to the clerk of this court, the costs of this case, and to the plaintiff herein, the sum found due it, as aforesaid, with interest at per cent, per annum, the said premises be sold, and that an order of sale issue to the sheriff of County, directing him to have said prem- ises appraised, subject to said life estate of , aged years, and advertise and sell the same as upon execution, to satisfy the liens of the plaintiff and the defendant, , and subject to said life estate of , and report his proceedings to this court for further orders. Judge of said Court. Sec. 211. The appointment of appraisers— The oath of the appraisers — The appraisement. District Court op County, State of Oklahoma. , Plaintiff, vs. No. . and , Defendants. l^ , sheriff of County, State of Oklahoma, do hereby call an inquest of , and , three dis- interested householders, who are resident within said county of , to impartially estimate and appraise, upon actual view, the following described real estate situated in said county of , Oklahoma, heretofore levied upon by me: (Here spe- cifically describe same.) They will first take and subscribe the following oath, then proceed forthwith to make and return to me under their hands an estimate of the real value of said property. § 212 MERWINE 'S TRIAL OF TITLE TO LAND. 186 Witness my hand this day of , 19 — . Sheriff of County. OATH OF APPRAISERS. State of Oklahoma, County, ss. : We do solemnly swear that we are disinterested householders resident within the county of , and State of Oklahoma; that we Avill impartially appraise, upon actual view, the real estate above described, and forthwith return to the sheriff of said county, under our hands, an estimate of the real value of said property. So help us God. Subscribed and sworn to before me this day of 19—. Sheriff of County, Oklahoma. APPRAISEMENT. We, the undersigned, in pursuance of the foregoing appoint- ment and oath, to estimate and appraise the real property afore- said, do hereby report to said sheriff, that we have performed the duties assigned us, after going upon and making strict examination of said property, estimate and appraise the real value of the same (Here describe real estate), in the sum of $ . Witness our hands this day of , 19 — . Appraisers. Sec. 212. The sheriff's legal notice of sale of real estate the order of sale. Notice is hereby given that, in pursuance to an order of sale issued out of the office of the clerk of the district court of 187 REAL ESTATE UNDER EXECUTION. SALE. § 213 County, Oklahoma, upon a judgment and decree in favor of , vs. , and , commanding me to ap- praise, advertise and sell the real estate hereinafter described, belonging to said , in order to satisfy said judgment and decree. Now, Therefore, notice is hereby given that in pursuance to the command of said order of sale, I will offer for sale and will sell for cash, to the highest bidder at public auction, the follow- ing described lands and tenements of said , situated in County, State of Oklahoma, to-wit : (Here specifically describe same), or so much thereof as will satisfy said judgment, decree and costs, on the day of , 19 — , at o'clock, — m., of said day, at the front door of the courthouse in the city of , County, Oklahoma. Said real estate is appraised in the sum of $ . "Witness my hand this day of , 19 — , Sheriff of County, State of Oklahoma. Sec. 213. The proof of publication of sheriff's notice of sale of real estate. State of Oklahoma, County, ss, : , of lawful age, being by me first duly sworn, says that he is the of the , a weekly newspaper printed and published in the city of , County, Oklahoma, and of general circulation in said county and State ; that said ■ has been published for more than fifty-two consecutive weeks next to the dates on which the notice herein referred to was published, and the notice of which a true copy is hereto at- tached, was published in the regular and entire edition of said , and not in a supplement thereof, for weeks, the first of said publications being on the day of , 19 — , and the last on the day of , 19 — . Subscribed and sworn to before me this day of 19—. My commission expires . Notary Public. § 214 merwine's trial of title to land. 188 Sec. 214. The sheriff's return of his proceedings under the order of sale. State of Oklahoma, County, ss. : Received this writ on the day of , 19 — , at o'clock, — m., and, pursuant to its command I did, on the day of , 19 — , summon , and , three disinterested householders, residents of said county of , who were by me duly sworn to appraise the lands and tenements in said writ described; and afterward, on the day of , 19 — , said appraisers returned to me, under their hands, that they did, upon actual view of the premises, estimate and appraise the value of the same in money, as follows, to-wit : (Plere describe real estate), $ . A certified copy of said appraisement I forthwith deposited in the office of the clerk of the district court of County, Oklahoma, and on the day of , 19 — , I caused to be advertised in , a newspaper, printed and published, and of general circulation in said County, said lands and tenements to be sold at public auction, at the front door of the courthouse in the city of , County, Oklahoma, on the day of , 19 — , between the hours of and — m., of said day. Having advertised said lands for more than thirty days prior to the day of sale, to-wit : consecutive weeks, I did, in pursuance to said notice, on said day of , 19 — , at the time and place above mentioned, proceed to offer said lands and tenements at public sale, at the front door of said courthouse, and then and there came , who bid the sum of $ for said property, said sum being not less than two- thirds of the appraised value thereof, and being the highest and best bid therefor, I then and there publicly sold and struck off said lands and tenements to him for the sum of $ . Sheriff of County, Oklahoma. 189 REAL ESTATE UNDER EXECUTION. — SALE. § 215 Sec. 215. The confirmation of the sale and order for deed and distribution of the proceeds of sale. District Court of County, State of Oklahoma. , Plaintiff, vs. No. and , Defendants. CONFIRMATION OF SALE AND ORDER FOR DEED. This day this cause came on to be heard on motion to confirm the same made herein, and thereupon, the order of sale and pro- ceedings thereunder, and the return thereof were produced to the court, and, upon due consideration whereof, the court finding the same to be regular and strictly according to law, said pro- ceedings and sale are hereby approved and confirmed. The court further finds that the purchaser of said premises has fully paid the judgment of the plaintiff herein, and that a conveyance should be made to said purchaser, subject to the mortgage set forth in the cross-petition of defendant, , and subject to the life estate of . It is Therefore hereby ordered that the sheriff shall make out and execute to said purchaser, , a good and sufficient deed to the real estate described in the petition. (Here insert specific description of same.) The court further finds that said judgment of plaintiff so paid and satisfied by the purchaser, , amounts to the sum of $ , and the amount due and owing upon said mortgage to , is $ . The costs herein taxed, which said pur- chaser has paid, to the amount of $ . The court further finds that there remains of the purchase price so paid by said , the sum of $ , which the said sheriff is hereby ordered to pay to said . Judge of said Court. § 216 merwine's trial of title to land. 190 Sec. 213. The sheriff's deed to the purchaser. To all Persons to Wliom These Presents Shall Come, Greeting: Whereas, on the day of , 19—, plaintiff filed its certain petition, and then and there commenced a civil action in the district court of Count}^ Oklahoma, against , and , and numbered on the docket of said court as case number , praying therein, among other things, for judgment against the defendants in said case ; and. Whereas, such proceedings were had in said action, that, by the consideration and judgment of said court, on the day of , 19 — , at the term, 19 — , of said court, plaintiff recovered a judgment against the said , and , in the sum of $ , and costs of suit ; and. Whereas, said judgment of said court remained in part un- paid, an execution was issued out of said court, directed to the sheriff' of County, State of Oklahoma, and said sheriff, under said execution having levied the same on the real estate hereinafter described, and having returned the same for further proceedings; and. Whereas, afterwards, on the day of , 19 — , plaintiff filed its petition in the district court of County, the county wherein said levy was made, and then and there commenced a civil action in said court, against the said , and , and numbered on the docket of said court as case number , praying therein, among other things, for the sale of the real estate hereinafter described ; and. Whereas, such proceedings were had in said action, that by the consideration and judgment of the said court, on the • day of , 19 — , at the Term, 19 — , of said court, that said plaintiff recovered a judgment against said in said court, in the sum of $ , and costs of suit ; and, Whereas, it was then and there further ordered, adjudged and decreed by said court, in said action, that unless said de- fendant, , should pay the costs of said suit, and the said plaintiff the amount so found due, within days from the entry of said decree, said premises should be ^sold, and an order 191 REAL ESTATE UNDER EXECUTION. — SALE. § 216 of sale should issue therefor to the sheriff of said county, com- manding him that he should cause the lands and tenements in said petition, heretofore mentioned and hereinafter described to be appraised, advertised and sold, according to law, and return his proceedings to said court; and, Whereas, afterwards, on the day of , 19 — , in pursuance to said orders and judgments of said court, and order of sale issued from said court in said cause, directed to said sheriff of said county, commanding him to execute said order, and in all things to be governed by the provisions of the statute in such case made and provided, and the order that of his pro- ceedings thereon, he sliould make due return; and. Whereas, , sheriff as aforesaid, having caused said premises to be appraised, and a copy of said appraisement to be duly filed in the ofBce of the clerk of said court, and having advertised the time and place of sale of same in , a weekly newspaper, printed and of general circulation in said county, for a period of days prior to the day of sale, and otherwise complied with said orders and provisions of the statute in such cases made and provided, did, on the day of , 19 — , at the front door of the courthouse in the city of , in said county, at o'clock, — m., of said day, expose and sell at public auction, the premises hereinafter men- tioned, and thereupon, , having bid for said premises the sum of $ , said sum being the highest and best bid there- for, and the same being more than two-thirds of the appraised value thereof, said premises were then and there struck off and sold to him, the said , the purchaser, for the sum above mentioned ; and. Whereas, the said court, at its Term, 19 — , having examined the proceedings aforesaid, in the premises, under said order of sale, and being satisfied that said sale had been made in all respects in pursuance of said judgment and order of sale, and in accordance with the provisions and requisites of the statute regulating such sales, did order that said sale be con- firmed, and that , sheriff of County, Oklahoma, §216 merwine's trial of title to land. 192 should convey said premises by deed in fee simple to , the purchaser. Now, Know Ye that I, said sheriff of County, by virtue of said judgment, order of sale and confirmation and of the statute for such case made and provided, and for and in consideration of said premises herein, and the sum of $ , which I acknowledge to have received from the purchaser above named, do hereby grant, sell and convey unto him, the said , the following described real estate, to- wit : (Here spe- cifically describe same), together with the privileges and appur- tenances thereunto belonging, and all the right, title and interest of the said , and of all other persons, parties to said suit, on, in and to the same. To JlxvE AND TO Hold the premises aforesaid, unto said , his heirs and assigns, as fully and completely as I, said sheriff, of County, Oklahoma, by virtue of said judgment, order of sale, sale and confirmation, and the statute made and provided for such case, might and should sell and convey the same. In Testimony Whereof, I have hereunto set my hand this day of , 19—. Sheriff of County, Oklahoma. State of Oklahoma, County, ss. : Before me, , a notary public in and for said county and State, on this day of , 19 — , personally appeared , to me known to be the identical person who executed the within and foregoing instrument, and acknowledged to me that he executed the same in his capacity therein stated, as his free and voluntary act and deed for the uses and purposes therein set forth. , My commission expires . Notary Public. CHAPTER VII. LAW AND PROCEDURE BY WHICH REAL ESTATE IS SOLD BY AN EXECUTOR OR ADMINISTRATOR. SECTION 217. Both real and personal prop- erty may be sold to pay debts — No priority as to either. 218. The court may decree personal property to be -sold tirst. 219. No sale can be made except -by order of court — One petition for whole estate. 220. Tlie petition nmist be in writing — Objections thereto must be in writing. 221. An executor or administrator may sell real estate, when. 222. The allegations of the petition — ^The petition must be veri- fied. 223. The order upon the hearing of the petition must contain what. 224. The order to be posted in three public places — The order to be mailed — The publication of the order. 225. I'he hearing of the petition by the court — The proof in such cases. 226. Who may be examined as wit- nesses at the hearing. 227. When all the real estate may be sold. 228. The court may order the whole or part of the estate sold. 229. The order must describe the real estate to be sold and also the terms of sale — Sale may be made for cash or credit. 230. Additional bond required in sale of real estate, when. SECTION 231. Proceedings by an administra- tor or executor in the sale of land void, when. 232. When person interested may apply for order of sale. 233. The notice of time and place of sale. 234. Where public sale must be made. 235. The notice in case of private sale. 236. The real estate must be sold for ninety per cent, of the appraisement. 237. Balance of purchase price se- cured by mortgage. 238. The executor or administrator required to make return of his proceedings under the order of sale. 239. Objections may be made to confirmation of sale. 240. The confirmation of sale — ^Tbe deed to the purchaser. 241. The deed to the purchaser. 242. Facts to be proved before con- firmation of sale. 243. Tlie sale may be postponed, when. 244. The notice required in case of postponement. 245. When properly designated by will must be applied to the payment of debts. 246. When in an estate by will an executor may sell real estate without order of court. 247. When property not disposed of by will may be sold. 193 MERWINE S TRIAL OF TITLE TO LAND. 194 SECTION 248. The property of legatees and devisees liable for debts, when. 249. Devisees and legatees must contribute to pay debts, when. 250. Decedent's interest in a con- tract for the purchase of land may be sold. 251. Such sale to be subject to pay- ments falling due. 25fi. The purchaser's bond and its condition. 2^3. The confirmation of such sale. 254. Real estate may be sold by an executor or administrator subject to mortgage or other lien. 255. The mortgagee may be a pur- chaser. 256. Neglect or misconduct on the part of executor or admin- istrator may cause liability on his bond. 257. Fraudulent sale by adminis- trator or executor — Liability in double the value of the property. 258. The limitation as to the action to recover land sold by an executor or administrator. 259. Limitation not applicable to minors, when. 260. The sale by an executor or ad- ministrator m.ust be returned at the next term of the county court — The return of sale to be verified. 261. An executor or administrator may not purchase at his sale. 262. Property fraudulently conveyed by a decedent may be recov- ered and sold by the executor or administrator, when. 263. Executor or administrator not required to sue unless upon application of creditors. 264. Real estate so recovered may be sold, how. SECTION 265. Land sold by executor, admin- istrator, guardian, sheriff or commissioner by court and afterward recovered, posses- sion not given until pur- chaser has been refunded purchase money with in- terest. 266. How publication made. 267. All orders must be entered in minute form — Xeed not recite facts showing jurisdiction. 268. Decree recorded in office of register of deeds — Notice to all persons. 269. When description of real estate need not be published. 270. Parties to the action — How designated. 271. The petition — Ordinary form. 272. The order for the hearing. 273. The notice of the hearing and the proof of posting the same — Proof of mailing. 274. The proof of publication of the notice of the hearing of the petition. 275. The decree for the sale of real estate. 276. The order appointing appraisers of real estate. 277. The report of sale of real estate by administrator. 278. Ihe notice of the hearing of administrator's return of sale of real estate. 279. Order for hearing of the return of sale of real estate by an administrator. 280. The notice of hearing return of sale of real estate. 281. The legal notice of sale of real estate by an administrator and the proof of posting same. 282. The notice of publication and the proof of sale. 283. The appraisal before private sale of land by an admin- istrator. 195 SALE OF REAL ESTATE BY AN EXECUTOR. §§217,218 SECTION SECTION 284. l^ie bid in writing. 286. The form for a deed to pur- 285. The order approving and con- chaser of real estate at an firming sale of real estate administrator's sale thereof, by an administrator — Order for deed to purchaser. Sec. 217. Both real and personal property may be sold to pay debts — No priority as to either. All the property of a decedent, except as otherwise pro- vided for the homestead and personal property set apart for the surviving wife or husband and minor child or children, will be chargeable vv'ith the payment of the debts of the deceased, the expenses of the administration and the allow- ance to the family. And the* property, personal and real, may be sold as the court may direct, in the manner hereinafter set out in this chapter. There shall be no priority as be- tween personal and real property for the above purposes.^ Attention is here called to section 836, herein, for detailed statement of the reason for great care in proceedings of the kind set forth in this chapter. Sec. 218. The court may decree personal property to be sold first. Whenever it appears to the court on any hearing of an application for the sale of real property, that it would be for the interest of the estate that personal property of the estate, or some part of such property, should be first sold, the court may decree the sale of such personal property, or any part of it, and the sale thereof shall be conducted in the same manner as if the application had been made for the sale of such property in the first instance." 1 Snyder, 5.200; Wilson, 1,641; 458; Plains Ld. & I. Co., et al., v. California, 1,516 (Kerr), similar; Lynch, et al., 38 Mont. 271, 99 Dakota Code, 5,812 (1887); Estate Pac. 847. of Woodworth, 31 Cal. 505: McDon- 2 Snyder, 5,395; Wilson, 1,737; aid V. :McElroy, 60 Cal. 484; Burris Dakota Code, 5,905. V. Kennedy, 108 Cal. 331, 41 Pac. §§219,220 merwine's trial of title to land. 196 Sec. 219. No sale can be made except by order of court — One petition for whole estate. No sale of any property of an estate of a decedent is valid unless made under order of the county court, except as otherwise hereinafter provided. All sales must be reported under oath, and confirmed by the county court, before title to the property sold passes.^ However, when the estate is insolvent but one petition need be filed. This is provided by special statute as follows : When it appears to the court that the estate is insolvent, or that it will require a sale of all the property of the estate of every character, chargeable therewith, to pay the family allowance, expenses of administration and debts, there need be but one petition filed, but one order of sale made, and but one sale had, except in case of sale of perishable prop- erty. The county court, when a petition for the sale of any property for the purposes herein named, is presented, must inquire fully into the probable amount required to make all such payments, and if there be no more estate chargeable therewith than Is sufficient to pay the same, may require but one proceeding for the sale of the entire available estate. In such ease the petition must set forth all the facts required by the sections relating to the sale of real estate.* Sec. 220. The petition must be in writing — Objections thereto must be in writing. All petitions for orders of sale must be in writing, setting forth the facts showing the sale to be necessary, and upon the hearing, any person interested in the estate may file his written objections, which must be heard and determined. A failure to set forth the facts showing the sale to be necessary will not invalidate the subsequent proceedings, if the defects be supplied by the proofs at the hearing, and the general 3 Snyder, 5,300; Wilson, 1,642; * Snyder, 5,301; Wilson, 1,644; Dakota Code, 5,813 (1887); Cali- Dakota Code (1887), 5,815. iornia, 1,517 (Kerr), similar. 197 SALE OP REAL ESTATE BY AN EXECUTOR. §§ 221, 222 facts showing the necessity be stated in the order directing the sale.^ Sec. 221. An executor or administrator may sell real estate, when. When a sale of property of an estate is necessary to pay the allowance of the family, or debts outstanding against the decedent, or debts, expenses or charges of administra- tion, or legacies, the executor or administrator may also sell any real, as well as personal property of the estate in his hands, and chargeable for that purpose, upon order of the county court, and an application for the sale of real estate may also embrace the sale of personal property.® Sec. 222. The allegations of the petition — The petition must be verified. To obtain an order for the sale of real property, he must present a verified petition in the county court, or to the judge thereof, setting forth the amount of personal property that has come into his hands as assets, and how much thereof, if any, remains undisposed of; the debts outstanding against the decedent, as far as can be ascertained or estimated; and the amount due on family allowance, or that will be due after the same has been in force for one year; the debts, expenses and charges of administration already accrued, and an estimate of what will or may accrue during the admin- istration; a general description of all the real property, except the homestead, of which the decedent died seized, or in which he had any interest, or in which the estate has acquired any interest, and the condition and value thereof; the names of the legatees and devisees, if any, and the heirs of the decedent, so far as known to petitioner. If any of the matters herein enumerated cannot be ascertained, it must 6 Snyder, 5,301; Wilson, 1,643; R Snyder, 5,308; Wilson, 1652; Dakota Code, 5,814 (1887); Cali- Dakota Code, 5,821 (1887); Cali- fornia, 118, identical. fornia, 1,537, similar. §§223,224 merwine's trial of title to land. 198 be so stated in the petition ; but a failure to set forth the facts showing the sale to be necessary will not invalidate the subsequent proceedings if the defects be supplied by the proofs at the hearing, and the general facts showing such necessity be stated in the decree/ Sec. 223. The order upon the hearing of the petition must contain what. If it appears to tlie court, or judge, from such petition, that it is necessary to sell the whole or some portion of such real estate for the purposes and reasons mentioned in the pre- ceding section, or any of them, such petition must be filed, and an order thereupon made, directing all persons interested in the estate to appear before the court, at a time and place specified, not less than four, nor more than ten weeks from the time of making such order, to show cause why an order should not be granted to the executor or administrator to sell so much of the real estate of the decedent as is necessary.^ Sec. 224. The order to be posted in three public places — The order to be mailed — The publication of the order. The county judge is required to cause copies of the order to show cause to be posted up in three public places in the county, one of which must be at the courthouse where the hearing is to be held, and a copy personally served on or mailed to all persons interested in the estate, any general guardian of a minor so interested, and any legatee or devisee or heir of the deceased : Provided, they are residents of the county, at least ten days before the time set for said hearing. He must cause copies of said order to be mailed to all such persons who are not residents of the county, with 7 Snyder, 5,309; Wilson, 1,653: s Snyder, 5,310; Wilson, 1,654; Dakota Code, 5,822 (1887): Cali- Dakota Code, 5,823 (1887); Cali- fornia. 1,537, similar. See Section fornia, 1,538, similar. See Section 271 for orocedino; in sale of real 272 for form for order for the hear- estate by administrator. ing. » 199 SALE OF REAL ESTATi: liZ AIC ZXECUTOR. §§225,226 the postage thereon prepaid. If the postoffice of any such person is unknown, a copy of such order to show cause must be published for two successive weeks in some news- paper published in said county, and said hearing shall not be less than fifteen days from the date of the first publication of such notice. Provided, that, if all persons interested in the estate join in the petition for the sale, or signify in writing their assent thereto, no notice thereof shall be given, and the court must proceed at once to hear the same.^ Sec. 225. The hearing of the petition by the court — The proof in such cases. If all persons interested in said estate do not file in court their written consent to such sale, the county court, at the time and place appointed in such order, or at such other time to which the hearing may be postponed, upon satisfactory proof of service, or publication of a copy of the order to show cause, and by posting the same as provided in this act, by affidavit or otherwise, must proceed to hear the peti- tion and hear and examine the allegations and proofs of the petitioners and of all persons interested in the estate who may oppose the application.^" Sec. 226. Who may be examined as witnesses at the hearing. The executor, administrator and witnesses may be exam- ined on oath, by either party, and process to compel them to attend and testify may be issued by the judge of the county court, in the same manner and with like effect as in other cases.^^ 9 Snyder, 5,311, amended March 1910; California, 1,540, similar. 17, 1910; Sec. 5, Chap. 65, S. L. See Section 274 for form for proof 1910; California, 1539, similar. of publication of notice and mailing. See Section 273 for forms of notice, n Snyder, 5,313; Wilson, 1,657; proof of posting and mailing. Dakota Code, 5,826 (1887). 10 Snyder, 5.312, amended March 17, 1910; Sec. 6, Chap. 65, S. L. §§227-229 merwine's trial of title to land. 200 Sec. 227. When all the real estate may be sold. If it appear necessary to sell a part of the real estate, and that by a sale thereof the residue of the estate, real or personal, or some specific part thereof, would be greatly injured or diminished in value, or subjected to expense, or rendered unprofitable, or that after such sale the residue would be so small in quantity or value, or would be of such a character with reference to its future disposition among the heirs or devisees, as clearly to render it for the best interests of all concerned that the same should be sold, the court may authorize the sale of the whole estate, or of any part thereof, necessary and for the best interest of all con- cerned.^^ Sec. 228. The court may order the whole or part of the estate sold. If the court be satisfied, after a full hearing upon the petition and the examination of the proofs and allegations of the parties interested, that a sale of the whole or some portion of the real estate is necessary, for any of the causes mentioned in this chapter, or if such sale be assented to by all persons interested, an order must be made to sell the whole or so much and such parts of the real estate described in the petition as the court shall judge necessary or ben- eficial.^^ Sec. 229. The order must describe the real estate to be sold and also the terms of sale — Sale may be made for cash or credit. The order of sale must describe the lands to be sold and the terms of sale, which may be for cash, or may be for one- third cash and the balance on a credit not exceeding two years, payable in gross or installments within that time, with 12 Snyder, 5,314; Wilson, 1,658; i3 Snyder, 5,315; Wilson, 1,629; Dakota Code, 5,827 (1887); Call- Dakota Code, 5,828 (1887); Cali- fornia, 1,542 (Kerr), similar. fornia, 1,543 (Kerr), similar. 201 SALE OF REAL ESTATE BY AN EXECUTOR. § 230 interest, as the court may direct. The land may be sold in one parcel or in subdivisions, as the executor or admin- istrator shall judge most beneficial to the estate, unless the court otherwise specially directs. If it appears that any part of such real estate has been devised and not charged in such devise with the payment of debts or legacies, the court must order the remainder to be sold before that so devised. Every such sale must be ordered to be made at public auction, unless, in the opinion of the court, it would benefit the estate to sell the whole or some part of said real estate at private sale ; the court may, if the same is asked for in the petition, order or direct such real estate, or any part thereof, to be sold either at public or private sale, as the executor or administrator shall judge most beneficial to the estate. If the administrator or executor neglects or refuses to make a sale under the order as di- rected therein, he may be compelled to sell, by order of court, made on motion, after due notice, by any party interested.^* Sec. 230. Additional bond required in sale of real estate, when. The judge must require an additional bond whenever the sale of any real estate belonging to an estate is ordered by him; but no such additional bond must be required when it satisfactorily appears to the court that the penalty of the bond given before receiving letters or any bond given in place thereof is equal to twice the value of the personal property remaining in, or that will come into the possession of the administrator, or executor, including the annual rents, profits, and issues of real estate belonging to the estate, and twice the probable amount to be realized on the sale of the real estate ordered to be sold.^^ "Snvder, 5,316; Wilson, 1,660; is Snyder, 5,213; Wilson, 5,554; Dakota Code, 5,829 (1887); Cali- Dakota Code, 5,757 (1887); Cali- fornia, 1,544 (Kerr), similar. See fornia, 1,389, similar. Section 275 for form for decree and order of sale. § 231 merwine's trial of title to land, 202 Sec. 231. Proceedings by an administrator or executor in the sale of land void, when. Where there is a total want of jurisdiction of the subject- matter in all sales made by an administrator, executor or guard- ian, the proceedings are void and a mere nullity, and confer no rights and afford no justification, and may be rejected when collaterally drawn into question. The doctrine of caveat emptor, as it applies to judicial sales, is based upon the theory that the purchaser buys only such estate or in- terest as his debtor has, and he is bound to take notice what that interest is. The following was quoted with approval, from Freeman on Void Judicial Sales by the Supreme Court of our State : "Every purchaser has the right to suppose that by his purchase he will obtain of the defendant in execution, in case of execution sales, and of the Avard or decedent in the case of guardian's or administrator's sale. The promise to, convey his title is the consideration upon Avhich his bid is made. If the judgment or order of sale is void, or if, from any cause the conveyance, when made, cannot invest him with the title held by the parties to the suit or proceeding, then his bid or other promise to pay, is without considera- tion, and cannot be enforced. He may successfully resist any action for the purchase money, whether based upon the bid or some bond or note given by him. It has been held that the rule caveat emptor does not apply to cases in which the court had no jurisdiction to direct the sale at which the purchaser bid, and that in such case the purchaser might have restitution of the purchase money even after confirma- tion of the sale. And generally it has been held that a pur- chaser at a judicial sale which is void for want of jurisdic- tion in the court to order the sale, or for other cause, may resist the payment of the purchase money, even after the purchaser's bid had been accepted by the court. "^® isZufall V. Peyton, 26 Okla. 808, Thompson v. Tolmie, 2 Pet. 157, 110 Pac. 773; Maupin, Marketable 7 L. Ed. 381; Freeman, Void Judi- Title to Real Estate (2d ed.), 82; cial Sales, Sec. 48. 203 SALE OF REAL ESTATE BY AN EXECUTOR. §§ 232-234 Sec. 232. When person interested may apply for order of sale. If the executor or administrator neglects to apply for any order of sale when it is necessary, any person may make application therefor in the same manner as the executor or administrator, and notice thereof must be given to the exe- cutor or administrator before the hearing. The petition of such applicant must contain as many of the matters re- quired for the petition of the executor or administrator as he can ascertain, and the decree of sale must fix the period of time within which the executor or administrator must make the sale.^' Sec. 233. The notice of time and place of sale. When a sale is ordered to be made at public auction, notice of the time and place of sale must be posted up in three public places in the county in which any part of the land to be sold is situated, and in the county where the order is made, and published in each of said counties in some news- paper printed in the county for two successive weeks. The lands and tenements to be sold must be described with com- mon certainty in the notice. The day of sale must be at least fifteen days from the date of the first publication of the notice. ^^ Sec. 234. Where public sale must be made. Sales at public auction must be made in the county where the land is situated; but when the land is situated in two or more counties it may be sold in either. The sale must be made between the hours of nine o'clock in the morning and the setting of the sun on the same day, and must be made on the day named in the notice of sale unless the same is postponed.^^ IT Snyder, 5,317; Wilson, 1,661; for notice of sale of real estate Dakota" Code, 1,531 (1887). V administrator; see Section 282 18 Snyder, 5,318, amended March for proof of sale. 17, 1910, Sec. 7, Cliap. 65, S. L. i9 Snyder, 5,319; Wilson, 1,663; 1910. See Section 281 for form Dakota Code, 5,832 (1887). §§235,236 merwine's trial of title to land. 204 Sec. 235. The notice in case of private sale. When a sale of real estate is ordered to be made at private sale, notice of the same must be posted up in three of the most public places in the county in which the land is situated, and published in a newspaper, if there be one printed in the same county; if none, then in such paper as the court may direct, for tAvo weeks successively next before the day on or after which the sale is to be made, in which the lands and tenements to be sold must be described with common certainty. The notice must state a day on or after which the sale will be made, and the place where offers or bids will be received. The day last referred to must be at least fifteen days from the first publication of the notice, and the sale must not be made before that day, but must be made within six months thereafter. The bids or offers must be in writing, and may be left at the place designated in the notice or delivered to the executor or administrator per- sonally, or may be filed in the office of the judge of the county court, to which the return of the sale must be made, at any time after the first publication of notice, and before the making of the sale. If it is shown that it will be for the best interest of the estate, the court or judge, may, by order, shorten the time of notice, which shall not, however, be less than one week, and may provide that the sale be made on or after a day less than fifteen, but not less than eight days from the first publication of the notice ; in which case the notice of sale and the sale may be made to correspond with such order.-*^ Sec. 236. The real estate must be sold for ninety per cent, of the appraisement. No sale of real estate at private sale can be confirmed by the court unless the sum offered is at least ninety per cent. 20 Snyder, 5,320; Wilson, 1,664: at private sale; see Section 284 Dakota Code, 5,833 (1887). See for form for bid. Section 283 for form for appraisal ,. 205 SALE OF REAL, ESTATE BY AN EXECUTOR. §§ 237, 238 of the appraised value thereof, nor unless such real estate has been appraised within one year of the time of such sale. If it has not been so appraised, or if the court is satisfied that the appraisement is too high, or too low, appraisers must be appointed, and they must make an appraisement thereof in the same manner as in case of an original appraisement of an estate. This may be done at any time before the sale or the confirmation thereof.-^ Sec. 237. Balance of purchase price secured by mortgage. The executor or administrator must, when a sale is made upon a credit, take the notes of the purchaser for the pur- chase money, with a mortgage on the property to secure their payment.^^ Sec. 238. The executor or administrator required to make return of his proceedings under the order of sale. The executor or administrator, after making any sale of real estate, must mal^e a return of this proceedings to the county court, which must be filed by the judge, at any time subsequent to the sale, either in term or vacation. If the sale be made at public auction and the return is made and filed on or before the first day of the next term thereafter, no notice is required of such return or of the hearing thereof, but the hearing may be had on the first day of the term, or any subsequent day to which the same may be post- poned. If the sale be not made at public auction, or if made at public auction, a hearing upon the return of the proceedings be asked for in the return, or is brought on for a hearing upon a day before the first day of the next term thereafter, or upon any other day than the first day of the next term after such sale, the court or judge must fix the day for the hearing, of which notice of at least ten 21 Snyder, 5,321; Wilson, 1,665; Section 276 for form for order ap- Dakota" Code, 5,834 (1887); Cali- pointing appraisers. fornia, 1,550 (Kerr), identical. See 22 Snyder, 5.322; Wilson, 1,666; Dakota Code, 5,835 (1887). §§239,240 merwine's trial of title to land. 206 days must be given by tlie judge, by notices posted in three public places in the county, or by publication in a news- paper, or both, as he may deem best, and must briefly indi- cate the land sold, the sum for which it was sold, and must refer to the return for further particulars. Upon the hearing, the court must examine the return and witnesses in relation to the same, and if the proceedings were unfair, or the sum bid disproportionate to the value, and if it appear that a sum exceeding such bid at least ten per cent., exclu- sive of expense of a new sale, may be obtained, the court may vacate the sale, and direct another to be had, of which notice must be given, and the sale in all respects conducted as if no previous sale had taken place ; if an offer of ten per cent, more in amount than that named in the return, be made to the court in writing, by a responsible person, it is in the discretion of the court to accept such offer and con- firm the sale to such person or to order a new sale.^^ Sec. 239. Objections may be made to confirmation of sale. When the return of sale is made and filed, any person in- terested in the estate may file written objections to the confirmation thereof, and may be heard thereon when the return is heard by the court, or judge, and may produce witnesses in support of his objections.-* Sec. 240. The confirmation of sale — The deed to the pur- chaser. If it appear to the court that the sale was legally made and fairly conducted, and the sum bid was not dispropor- tionate to the value of the property sold, and that a greater 23 Snyder, 5,323; Wilson, 1,607: 2* Snyder, 5,324; Wilson, 1,668; Dakota Code, 5,836 (1887); Cali- Dakota Code, 5.837 (1887); Cali- fornia, 1,552 (Kerr), similar. See fornia, 1,553; identical. See Sec- Section 277 for form for report of tion 280 for form for notice of sale; Section 278 for form for hearing return, notice of hearing; Section 279 for form for order of hearing. »' 207 SALE OF REAL ESTATE BY AN EXECUTOR. § 241 sum as above specified, cannot be obtained, or if the in- creased bid mentioned in the second preceding section, be made and accepted by the court, the court must make an order confirming the sale and directing conveyances to be executed. The sale from that time is confirmed and valid, and a certified copy of the order confirming it and directing conveyances to be executed must be recorded in the office of the register of deeds of the county within which the land sold is situated. If after confirmation the purchaser neglects or refuses to comply wath the terms of sale, the court may, on motion of the executor or administrator, and after notice to the purchaser, order a resale to be made of the property. If the amount realized on such resale does not cover the bid and expenses of the previous sale, such purchaser is liable for the deficiency to the estate.^^ Sec. 241. The deed to the purchaser. Conveyances must thereupon be executed to the purchaser by the executor or administrator, and they must refer to the orders of the county court authorizing and confirming the sale of the property of the estate, and directing con- veyances thereof to be executed, and to the record of the order of confirmation in the office of the register of deeds by the date, volume and page of the record, and such ref- erence shall have the same efiPect as if the orders were at large inserted in the conveyance. Conveyances so made convey all the right, title, interest and estate of the de- cedent in the premises, at the time of his death. If, prior to the sale, by operation of law or otherwise, the estate has acquired any right, title or interest in the premises other than, or in addition to, that of the decedent at the time of his death, such right, title or interest also passes by such conveyance.-'' 25 Snyder, 5,325; Wilson, 1,669: 26 Snyder, 5,326; Wilson, 1.670; Dakota Code, 5.838 (1887); Cali- Dakota Code, 5,839 (1887); Cali- fornia, 1,554, similar. See Section fornia, 1,555, similar. See Section 285 for form for order confirming 286 for form for deed to purchaser, sale of real estate. §§ 242-245 MER wine's trial of title to land. 208 Sec. 242. Facts to be proved before confirmation of sale. Before any order is entered confirming the sale, it must be proven to the satisfaction of the court that notice was given of the sale as prescribed, and the order of confirma- tion must show that such proof was made." Sec. 243. The sale may be postponed, when. If, at the time appointed for the sale, the executor or ad- ministrator deems it for the interest of the persons concerned therein that the same be postponed, he may postpone it from time to time not exceeding in all three months.-* Sec. 244. The notice required in case of postponement. In case of a postponement notice thereof must be given, by public declaration, at the time and place first appointed for the sale, and if the postponement be for more than one day, further notice must be given by posting notices in three or more public places in the county where the land is situated, or publishing the same, or both, as the time and circumstances will admit.^^ Sec. 245. When property designated by will must be ap- plied to the payment of debts. If the testator makes provisions by his will, or designates the estate to be appropriated for the payment of his debts, the expenses of administration, or family expenses, they must be paid according to such provisions or designation, out of the estate thus appropriated, so far as the same is suffi- cient.^" 27 Snyder, 5,327; Wilson, 1,671; 29 Snyder, 5,329; Wilson, 1,673; Dakota Code, 5,840 (1887). Dakota Code, '5,842 (1887). 28 Snyder, 5,328; Wilson, 1,672 ^ so Snyder, 5,330; Wilson, 1,674; Dakota Code, 5,841 (1887). Dakota Code, 5,843 (1887); Cali- fornia, 1,560, identical. 209 SALE OF REAL ESTATE BY AN EXECUTOR. §§ 246-248 Sec. 246. When in an estate by will an executor may sell real estate without order of court. "When property is directed by will to be sold, or authority is given in the will to sell property, the executor may sell any property of the estate without the order of the county court, and at either public or private sale, with or without notice, as the executor may determine ; but the executor must make return of such sale as in other cases ; and if directions are given in the will as to the mode of selling, or particular property to be sold, such directions must be observed. In either case, no title passes unless the sale is confirmed by the court.^^ Sec. 247. When property not disposed of by will may be sold. If the provisions made by will, or the estate appropriated therefor, is insufficient to pay the debts, expenses of admin- istration and family expenses, that portion of the estate not devised or disposed of by will, if any, must be appropriated and disposed of for that purpose according to the provisions of this chapter. •'^- Sec. 248. The property of legatees and devisees liable for debts, when. The estate, real and personal, given by will to legatees or devisees, is liable for the debts, expenses of administration and family expenses, in proportion to the value or the amount of the several devises or legacies, but specific devises or legacies are exempt from such liability if it appears to the court necessary to carry into effect the intention of the testator, and there is other sufficient estate.^^ 31 Snyder, 5,331; Wilson, 1,675; 33 Snyder, 5,333; Wilson, 1,677; Dakota Code, 5,844 (1887); Cali- Dakota Code, 5,846 (1887); Cali- fornia, 1,561, identical. fornia, 1,563, identical. 32 Snyder, 5,332; Wilson, 1,676; Dakota Code, 5,845 (1887). §§ 249-251 merwine's trial op title to land. 210 Sec. 249. Devisees and legatees must contribute to pay debts, when. When an estate given by will has been sold for the pay- ment of debts or expenses, all the devisees and legatees must contribute according to their respective interests to the devisee or legatee whose devise or legacy has been taken therefor, and the county court, when distribution is made, must, by decree for that purpose, settle the amount of the several liabilities, and decree the amount each person shall contribute, and reserve the same from their distri.butive shares, respectively, for the purpose of paying such con- tribution.^* Sec. 250. Decedent's interest in a contract for the purchase of land may be sold. If a decedent, at the time of his death, was possessed of a contract for the purchase of land, his interests in such land and under such contracts, may be sold on the application of his executor, or administrator, in the same manner as if he had died seized of such land, and the same proceed- ings may be had for that purpose as are prescribed in this chapter for the sale of lands of which he died seized, except as hereinafter provided.^^ Sec. 251. Such sale to be subject to payments falling due. The sale must be made subject to all payments that may hereafter become due on such contracts and if there are any such, the sale must not be confirmed by the county court until the purchasers execute a bond to the executor, or administrator, for the benefit and indemnity of himself, and of the persons entitled to the interest of the decedent in the lands so contracted for, in double the whole amount 34 Snyder, 5,334; Wilson, 1,678; 35 Snyder, 5,335; Wilson, 1,679; Dakotca Code, 5,847 (1887); Call- Dakota Code, 5,848 (1887). fornia, 1,654, identical. 211 SALE OF RELIL ESTATE BY AK EXECUTOR. §§ 252-254 of payments thereafter to become due on such contract, with such sureties as the county Judge may approve.^® Sec. 252. The purchaser's bond and its condition. The bond must be conditioned that the purchaser will make all payments for such land that become due after the date of the sale, and will fully indemnify the executor or administrator, and the persons so entitled, against all de- mands, costs, charges and expenses by reason of any cov- enant or agreement contained in such contract.^^ Sec. 253. The confirmation of such sale. Upon the confirmation of the sale, the executor or admin- istrator, must execute to the purchaser an assignment of the contract, which vests in the purchaser, his heirs and assigns, all the right, title, and interest of the estate, or of the persons entitled to the interest of the decedent, in the lands sold at the time of the sale, and the purchaser has the same rights and remedies against the vendor of such lands as the decedent would have had if he were living.^^ Sec. 254. Real estate may be sold by an executor or admin- istrator subject to mortgage or other lien. Wlien any sale is made by an executor, or administrator, pursuant to the provisions of this article, of lands subject to mortgage or other lien, which is a valid claim against the estate of the decedent, and has been presented and allowed, the purchase money must be applied, after paying necessary expenses of the sale, first, to the payment and satisfaction of the mortgage or lien, and the residue, if any, in due course of administration. The application of the purchase money to the satisfaction of the mortgage or lien, must be 36 Snyder, 5,336; Wilson, 1,680; ss Snyder, 5.338; Wilson, 1,682; Dakota Code, 5,849 (1S87). Dakota Code, 5,851 (1S87). 37 Snyder, 5,337; Wilson, 1,681; Dakota Code, 5,850 (1887). §§255,256 merwine's trial of title to land. 212 made without delay; and the land is subject to such mort- gage or lien until the purchase money has been actually so applied. No claim against any estate which has been pre- sented and allowed is affected by the statute of limitations, pending the proceedings for the settlement of the estate. The purchase money, or so much thereof as may be sufficient to pay such mortgage or lien, with interest and any lawful costs and charges thereon, must be paid into the county court to be received by the judge thereof, whereupon the mortgage or lien upon the land must cease, and the pur- chase money must be paid over by the judge without delay, in payment of the expenses of the sale and in satisfaction of the debt, to secure which the mortgage or other lien was taken, and the surplus, if any, at once returned to the executor or administrator, unless, for good cause shown, after notice to the executor or administrator, the judge otherwise directs.^^ Sec. 255. The mortgagee may be a purchaser. At any sale under order of the county court, of lands upon which there is a mortgage or lien, the holder thereof may become the purchaser, and his receipt for the amount due him from the proceeds of the sale is a payment pro tanto; if the amount for which he purchased the property is insuffi- cient to defray the expenses and discharge his mortgage or lien, he must pay to the judge an amount sufficient to pay such expenses.*^ Sec. 256. Neglect or misconduct on the part of executor or administrator may cause liability on his bond. If there is any neglect or misconduct in the proceedings of the executor, or administrator, in relation to any sale by which any person interested in the estate suffers damage, 39 Snyder, 5,330; Wilson, 1,683: 4o Snyder, 5,340; Wilson, 1,684; Dakota Code, 5,852 (1887); Cali- Dakota Code, 5,853 (1887); Call- fornia, 1,569, similar. fornia, 1,570, similar. 213 SALE OF REAL ESTATE BY AN EXECUTOR. §§ 257-259 the party aggrieved may recover the same in an action upon the bond of the executor or administrator, or otherwise." Sec. 257. Fraudulent sale by administrator or executor- Liability in double the value of the property. Any executor, or administrator, who fraudulently sells any real estate of a decedent, contrary to or otherwise than under the provisions of this chapter, is liable in double the value of the land sold, as liquidated damages, to be recov- ered in an action by the person having an estate of inherit- ance therein.*- Sec. 258. The limitation as to the action to recover land sold by an executor or administrator. No action for the recovery of any estate sold by an ex- ecutor or administrator under the provisions of this article, may be maintained by any heir, or other person claiming under a decedent, unless it be commenced within three years next after the sale. An action to set aside a sale may be instituted and maintained at any time within three years from the discovery of the fraud, or other grounds, upon which the action is based.*^ Sec. 259. Limitation not applicable to minors, when. The preceding section shall not apply to minors or others under any legal disability, to sue at the time when the right of action first accrues; but all such persons may commence an action at any time within three years after the removal of the disability." 41 Snyder, 5,341; Wilson, 1,685; 43 Snyder, 5,343; Wilson, 1,687; Dakota Code, 5,854 (1887); Call- Dakota Code, 5,856 (1887); Cali- fornia, 1,571, identical. ^ornia, 1,573. «in;ilar 42 Snyder, 5,342; Wilson, 1,686; 4* Snyder, 5,344; Wilson, 1,688; Dakota Code, 5,855 (1887). Dakota Code, 5,857 (1887). §§ 260-262 merwine's trial of title to land. 214 Sec. 260. The sale by an executor or administrator must be returned at the next term of the county court — The return of sale to be verified. When a sale lias been made by an executor or adminis- trator, of any property of the estate, real or personal, he must return to the county court, at its next term thereafter, an account of sales, verified by his affidavit. If he neglect to make such return, he may be punished by attachment, or his letters may be revoked, one day's notice having been first given him to appear and show cause why such attachment should not issue or such revocation should not be made.*^ Sec. 261. An executor or administrator may not purchase at his sale. No executor or administrator, must, directly or indirectly, purchase any property of the estate he represents, nor must he be interested in any sale.*^ Sec. 262. Property fraudulently conveyed by a decedent may be recovered and sold by the executor or admin- istrator, when. When there is a deficiency of assets in the hands of an executor or administrator, and when the decedent in his lifetime, has convej^ed any real estate, or any rights or inter- ests therein, with intent to defraud his creditors, or to avoid any right, debt or duty of any person, or has so conveyed such estate that by law the deeds or conveyances are void as against creditors, the executor or administrator must com- mence and prosecute to final judgment, any proper action for the recovery of the same ; and may recover for the benefit of the creditors all of such real estate so fraudulently con- veyed ; and may also for the benefit of the creditors, sue and recover all goods, chattels, rights or credits which have 45 Snyder, 5,34."5; Wilson, 1,689; 46 Snyder, 5,346; Wilson, i,690; Dakota Code, 5,858 (1887). Dakota Code, 5,859 (1887); Cali- fornia, 1,576, identical. 215 SALE OF REAL ESTATE BY AN EXECUTOR. §§ 263-265 been so conveyed by the decedent in his lifetime, whatever may have been the manner of such fraudulent conveyances.*'^ Sec. 263. Executor or administrator not required to sue unless upon application of creditors. No executor or administrator is bound to sue for such estate as mentioned in the preceding section, for the benefit of the creditors, unless upon application of the creditors, who must pay such part of the costs and expenses of the suit, or give such security therefor, to the executor or administrator, as the judge shall direct."*^ Sec. 264. Real estate so recovered may be sold, how. Ail real estate so recovered must be sold for the payment of debts in the same manner as if the decedent had died seized thereof, upon obtaining an order therefor from the county court. And the proceeds of all goods, chattels, rights and credits so recovered must be appropriated in the pay- ment of the del)ts of the decedent in the same manner as other property in the hands of the executor or administrator.*** Sec. 265. Land sold by executor, administrator, guardian, sheriff or commissioner of court and afterward recovered, possession not given until purchaser has been refunded purchase money with interest. Whenever any lands sold by an executor, administrator, guardian, sheriff, or commissioner of court, is afterward recovered in the proper action by any person originally liable or in whose hands the land would be liable to pay the demand or judgment for which, or for whose benefit the land was sold, or anyone claiming under such person, the 47 Pnyder, 5,356; Wilson. 1,699; ^s Snyder, 5,357; Wilson, 1,700; Dakota Code, 5,868 (1887); Call- Dakota Code, 5,969 (1887); Cali- fornia, 1,589, identical. fornia, 1,590, identical. 49 Snyder, 5,370; Wilson, 1,701; Dakota Code, 5,870 (1887). §§266-268 merwine's trial of title to land. 216 plaintiff shall not be entitled to tlie possession of the lands until he has refunded the purchase money with interest, deducting therefrom the value of the use, rents and profits, and injury done by waste and cultivation, to be assessed under the provisions of this article.^" Sec. 266. How publication made. When any publication is ordered, such publication must be made daily or otherwise as often during the prescribed period as the paper is regularly issued, unless otherwise provided in this chapter. The court or judge may, however, order a less number of publications during the period.^^ Sec. 267. All orders must be entered in minute form — Need not recite facts showing jurisdiction. Orders and decrees made by the county court, or the judge thereof, need not recite the existence of facts, or the performance of acts upon which the jurisdiction of the court or judge may depend, but it shall only be necessary that they contain the matters ordered or adjudged, except as otherwise provided in this chapter. All orders and decrees of the court or judge must be entered at length in the minute book of the court, and upon the close of each regu- lar or special term the judge must sign the same.^^ Sec. 268. Decree recorded in office of register of deeds — Notice to all persons. When it is provided in this chapter that any order or decree of a county court or judge, or a copy thereof, must be recorded in the office of the county register of deeds, 50 Snyder, 6,134; Wilson, 4,800: 52 Snyder, 5,438; Wilson, 1,780; Kansas, 5,100 (1901), identical. Dakota Code, 5,949 (1887); Cali- fornia, 1,704, similar. 51 Snyder, 5,439; Wilson, 1,781; Dakota Code, 5,950 (1887); Cali- fornia, 1,705, identical. 217 SAIJE OF REAL ESTATE BY AN EXECUTOR. §§269,270 from the time of filing the same for record, notice is im- parted to all persons of the contents thereof.^^ Sec. 269. When description of real estate need not be pub- lished. When a complete description of the real property of an estate sought to be sold has been given and published in a newspaper as required in the order to show cause why the sale should not be made, such description need not be pub- lished in any subsequent notice of sale, or notice of a petition for the confirmation thereof. It is sufficient to refer to the description contained in the publication of the first notice, as being proved and on file in the court. ^* Sec. 270. Parties to the action — How designated. All issues of fact joined in the county court must be tried by said court, and in all such proceedings the party affirming is plaintiff and the one denying or avoiding is defendant. After the hearing, the court shall give in writing the findings of fact and conclusions of law. Judgments thereon, as well as for costs, may be entered and enforced by execution or otherwise, by the county court, as in civil actions. If the issues are not sufficiently made up by the written pleadings on file the court, on due notice to the opposite party must settle and frame the issues to be tried and upon which the court may render judgment. ^^ 53 Snyder, 5,440; Wilson, 1,782: 55 Snyder, 5,446; Wilson, 1,788; Dakota Code, 5,951 (1887). Dakota Code, 5,957 (1887). 54 Snyder, 5,445; Wilson, 1.787; Dakota Code, 5,956 (1887); Cali- fornia, 1,712 (Kerr), identical. § 271 MEB wine's trial of title to land. 218 FORMS FOR PROCEEDING BY ADMINISTRATOR TO SELL REAL ESTATE OF DECEDENT. Sec. 271. The petition — Ordinary form. In the County Court of County, State op Oklahoma. In the Matter of the Estate of , Deceased. No. . PETITION TO SELL REAL ESTATE. Comes now , as the administrator of the estate of , deceased, and shows to the court : That the amount and value of the personal property that has come into his hands as assets of said estate is $ , and that the same has all been disposed of by sale, by order of court; and no personal property remains in my hands not set apart or otherwise disposed of by order of said court ; that the debts now outstanding against said decedent, as far as the same can be ascertained and estimated, are about $ ; that there was no family allowance ; that the expenses and debts and charges of administration already accrued are $ , and an estimate of what the debts, expenses and charges of administration that will or may accrue during administration by your petitioner is $ ; that the real property of which said decedent died seized, or in which he has any interest and the condition and value thereof, excepting the homestead, are as follows: (Here set out the same, specifically describing the nature and kind of the property, and the approximate value of the same.) That the names of the legatees, devisees and heirs of said de- cedent and their places of residence and post-office address respectively, so far as known to petitioner, are as follows: (Here set them out.) That it is necessary to sell the whole of said real estate or some portion thereof for the purpose of paying the debts of said decedent and the cost of administration. 219 SALE OF REAL ESTATE BY AN EXECUTOR. § 272 Wherefore, your petitioner prays that an order of said court be made, authorizing him to sell the whole or so much and such parts of the real estate described in this petition as the court shall deem necessary or beneficial at private sale. Petitioner. State of Oklahoma, County, ss. : , petitioner above named, being duly sworn, says that he has read the above and foregoing petition, and he knows the contents thereof, and that the allegations thereof are true. Subscribed and sworn to before me this day of 19—. My commission expires . Notary Public. Sec. 272. The order for the hearing. County Court of County, State of Oklahoma. In the Matter of the Estate of , Deceased. No. ORDER FOR HEARING PETITION TO SELL REAL ESTATE. Now, on this day of , 19 — , , as adminis- trator of said estate, having first filed herein his petition for the sale of the real estate described in said petition, for reasons in said petition stated. It is ordered that said petition be, and hereby is, set for hear- ing on the day of , 19 — , at o'clock, — m., at wiiich time all persons interested in said estate are required to appear and show cause, if any they have, why an order should not be granted for th« sale of so much of the real estate of said , deceased, as is necessary for the reasons in said petition stated. It is further ordered that copies of this order be posted in three public places in the county, one of which shall be at the courthouse where the hearing is to be held, and a copy person- § 273 mebwine's trial of title to land. 220 ally served on or mailed to all persons interested in the estate, any general guardian of a minor so interested, and any legatee or devisee or heir of the deceased, postage prepaid, and also that a copy of this order be published for two consecutive weeks in , a newspaper of , County, Oklahoma. [Seal.] Judge of the County Court. Sec. 273. The notice of the hearing and the proof of posting the same — Proof of mailing. In the County Court of County, State of Oklahoma. In the Matter of the Estate of , Deceased. No. . Now, on this day of , 19 — , , as admin- istrator of said estate, having filed herein his petition for the sale of the real estate described in said petition, for reasons in said petition stated. It is ordered that said petition be, and hereby is, set for hearing on the day of , 19 — , at o'clock, — m., at which time all persons interested in said estate are required to appear and show cause, if any they have, why an order should not be granted for the sale of so much of the real estate of said , deceased, as is necessary for the reasons in said petition stated. It is further ordered that copies of this order be posted in three public places in the county, one of which shall be at the courthouse where the hearing is to be held, and a copy person- ally served on or mailed to all persons interested in the estate, any general guardian of a minor so interested, and any legatee or devisee or heir of the deceased, postage prepaid, and also that a copy of this order be published for two consecutive weeks in , a newspaper of , County, Oklahoma. [Seal.] Judge of the County Court. 221 SALE OF REAL ESTATE BY AN EXECUTOR. § 274 State of Oklahoma, County, ss. : , being first duly sworn, says that on the day of , 19 — , he posted true copies of the above and foregoing order in three public places in said county, as follows, to- wit: one on the front door of the courthouse, one , and one , all in , County, Oklahoma. Sworn to before me and subscribed in my presence this ■ day of , 19 — . , [Seal.] Clerk of the County Court. State of Oklahoma, County, ss. : I, , of lawful age, being first duly sworn, upon oath, say that on the day of , 19 — , I personally mailed a copy of the wdthin notice to each person interested in the estate, the guardian of each minor so interested, and all legatees, devisees and heirs of said decedent at their last known place of residence, wdth postage thereon prepaid, by depositing the same in the post office at , County, Oklahoma, properly addressed. . Sworn to before me and subscribed in my presence this • day of , 19 — . , [Seal.] Notary Public. My commission expires . Sec. 274. The proof of publication of the notice of the hearing of the petition. State of Oklahoma, County of Okmulgee, ss. : , of lawful age, being first duly sworn, deposes and says that he is the of , a weekly newspaper of general circulation, printed and published in , County, Oklahoma, which said newspaper has been a legal publication ^vith a bona fide subscription list and of general circulation in County, Oklahoma, for fifty-two consecutive weeks next preceding the date of the first publication of the order hereto attached. That the attached order for hearing petition was published once each week for two successive weeks in said newspaper, the § 275 MERWINE 'S TRIAL OF TITLE TO LAND. 222 first publication thereof was on the day of , 19 — , and the last publication thereof on the day of , 19—. ' Subscribed and sworn to before me this day of , 19—. [Seal.] Notarij Public. ]My commission expires , Sec. 275. The decree for the sale of real estate. County Court of County, State op Oklahoma. In the Matter of the Estate of , Deceased. No. -. DECREE OF SALE OF REAL ESTATE. Now, on this day of , A. D. 19—, this matter coming on for hearing upon the petition of , as adminis- trator, for an order authorizing the sale of the whole, or so much, and such parts of the real estate described in said peti- tion, as shall be found by the court necessary or beneficial. And it appearing to the court, upon satisfactory proof, that said order for the hearing of said petition has been posted in three public places in said county, one of which was at the courthouse door where the hearing was had; that a copy of said order has been mailed to all persons interested in the estate, the general guardian of each minor so interested, to each devisee, legatee and heir of the deceased ten days before said hearing, with the postage thereon prepaid, and that a copy of said order was published for two consecutive weeks in the , a news- paper, printed and published in said County, Oklahoma, the first publication being fifteen days before the hearing, and there now appearing herein said petitioner in person and by hi^ attorneys, , and said matter being submitted to the court., and, upon due examination and consideration of said petition, and no one appearing to oppose it, and, after a full hearing upon the same, and upon due consideration of the proofs offered in said matter, the court finds that the sale of the real estate be- longing to said estate mentioned in said petition, and hereinafter 223 SALE OF REAL "^STATE BY AN EXECUTOR. § 276 described, is necessary for the purpose of paying the debts of decedent and the cost of administration, and is for the best interest of all concerned. It is Therefore ordered, adjudged and decreed by the court that the said , as the administrator of the estate of said ■ , deceased, be, and he is, hereby authorized and directed to sell in one parcel or in separate parcels or subdivisions, as the said administrator shall judge most beneficial to said estate, at private sale to the highest bidder, the following described real estate on the following terms, to- wit : (Here describe real estate), for cash in hand. It is further ordered that notice of the time and place of such sale be given by posting of notices of the time and place of sale in three public places in County, Oklahoma, and by pub- lication for two successive weeks in the , published at , in County, State of Oklahoma, and in the , of , published at , County, Oklahoma. It is further ordered that before making such sale said admin- istrator execute an additional bond to the State of Oklahoma in the penal sum of $ , conditioned as required by law. [Seal.] Judge of the Coimty Court. Sec. 276. Form for appointment of appraisers and for ap- praisement of lands before sale at private sale. In the County Court op County, State of Oklahoma. In the ]\latter of the Estate of , Deceased. No. . ORDER APPOINTING APPRAISERS. Now, on this day of , 19—, it is hereby ordered that , and , disinterested persons and house- holders of County, Oklahoma, be, and they are hereby appointed appraisers, to appraise the following described real estate belonging to the estate of , deceased, located in § 276 mebwine's trial op title to land. 224 County, Oklahoma, and described as follows, to-wit: (Here describe the land to be appraised), and are hereby directed to view and appraise said real estate, and make return of said appraisement as provided by law. Judge of the County Court. OATH OF APPRAISERS. State of Oklahoma, County, ss. : I do solemnly swear that I will truly, honestly and impartially appraise the real estate mentioned and described in the order of court above mentioned, according to the best of my knowledge and ability. So help me God. Subscribed and sworn to before me this day of 19—. [Seal.] Clerk of the County Court. APPRAISEMENT OF REAL ESTATE BEFORE SALE. In the Matter of the Estate of , Deceased. In the County Court. We, the undersigned appraisers appointed to appraise the real estate of , deceased, mentioned and described herein, do most respectfully certify that, having first taken and subscribed the oath prescribed by law, we do make the following appraise- ment of said lands at the fair cash value, that is to say. (Here describe the land), at (appraised value), , at . Respectfully submitted this day of , 19 — . Appraisers. 225 SALE OP REAL ESTATE BY AN EXECUTOR. § 277 Estate of , Deceased. To , , , appraisers, Dr. To compensation for services in appraising the above described real estate, as follows : days at $ , per day each. $ . Necessary expenses and disbursements as follows: $ . State of Oklahoma, County, ss. : , and , the appraisers above named, being duly sworn, each for himself, says that the foregoing bill is cor- rect and just, and that the services have been duly rendered and expenses incurred as therein set forth. Subscribed and sworn to before me, this day of 19—. [Seal.] Clerk of the County Court. Sec. 277. The report of sale of real estate by administrator. In the County Court of County, State of Oklahoma. In the Matter of the Estate of , Deceased. No. . KETURN OF SALE OF REAL ESTATE. Comes now , administrator of the estate of , de- ceased, and shows to the court that, pursuant to the decree of the court entered herein on the day of , 19 — , authorizing him as such administrator to sell the real estate belonging to said , deceased, hereinafter described. He caused public notice to be given as provided by law and said § 278 MERWINE 'S TRIAL OP TITLE TO LAND. 226 order by posting notices in three public places of the time and place of sale in each of and Counties, Oklahoma, and by publication of same for two successive weeks in the , published at , in County, Oklahoma, and in the , published at , in County, Oklahoma, that he would sell the real estate described herein, at private sale, to the highest bidder; that on the day of , 19 — , he sold said real estate, to-wit: (Here describe it, setting out amount received for each parcel), on the following terms, cash in hand, to ; that said was the highest bidder therefor, and said sum of $ , the highest and best sum bid, and that said sum of $ is not disproportionate to the value of said property. Wherefore, said , administrator, prays the court to enter its order setting said return for hearing, and that upon said hearing being had, he be directed to execute a proper con- veyance therefor to said purchaser. Dated this day of , 19 — . Administrator. State of Oklahoma, County, ss. : , being duly sworn on oath, says that he is the admin- istrator above named; that he has read the above and foregoing return and knows the contents thereof, and that the statements therein contained are true. Subscribed and sworn to before me, this day of 19—. [Seal.] Clerk of the County Court. Sec. 278. The notice of the hearing of administrator's return of sale of real estate. County Court op County, State of Oklahoma. In the Matter of the Estate of , Deceased. . No. . 227 SALE OP REAL ESTATE BY AN EXECUTOR. § 279 NOTICE OF HEARING RETURN OF SALE OF REAL ESTATE. Notice is hereby given that , the duly appointed and qualified administrator of the estate of , deceased, has returned and presented for confirmation, and filed in said court his return of the sale of the following described real estate of said , deceased, to-wit: (Here describe real estate), for the sum of $ , and that , the day of , 19 — , at o'clock in the noon of said day at the county courtroom at , in said county of , has been duly appointed by said court for hearing said return, at which time any person interested in said estate may appear and file his exceptions in writing to said return and contest the same, and are hereby referred to said return for further particulars. In Testimony Whereof,, I have hereunto set my hand and afiixed the seal of said court this day of , 19 — . [Seal.] Judge of the County Court. Sec. 279. Order for hearing of the return of sale of real estate by an administrator. County Court op County, State op Oklahoma. In the Matter of the Estate of , Deceased. No. . Now, on this day of , 19 — , , as the ad- ministrator of the estate of , deceased, having made and filed herein a return of proceedings had under order of sale of real estate, made and entered herein on the day of , 19 — , and a hearing on said return being asked for in said return upon a day before the first day of the next term after the sale reported in said return. It is ordered that said return be and is hereby set for hearing on the day of , 19 — , at o'clock, — m., and that notice of the time and place of said hearing be given by posting notices in three of the most public places in this county. § 280 merwine's trial of title to land, 228 Sec. 280. The notice of hearing return of sale of real estate by an administrator. County Court op County, State of Oklahoma. In the Matter of the Estate of . Deceased. No. . NOTICE OF HEARING RETURN OF SALE OF REAL ESTATE. Notice is hereby given that , the duly appointed and qualified administrator of the estate of , deceased, has returned and presented for confirmation, and filed in said court his return of tlie sale of the following described real estate of said , deceased, to-wit: (Here describe real estate), for the sum of $ , and that , the day of , 19 — , at o'clock, in the noon of said day at the county courtroom in , in said county of , has been duly appointed by said court for hearing said return, at which time any person interested in said estate may appear and file his exceptions in writing to said return and contest the same, and are hereby referred to said return for further particulars. In Testimony Whereof, I have hereunto set my hand and affixed the seal of said court, this day of , 19 — . [Seal.] Judge of the County Court. State of Oklahoma, County, ss. : I, , of lawful age, being duly sworn, on oath, say : That on the day of , 19 — , I posted correct and true copies of the foregoing notice in three of the most public places in said county, as follows, to-wit: One at bulletin board in county courtroom, in ; one at , in , and one at , in Subscribed and sworn to before me, this day of 19—. [Seal.] Clerk of the County Court. 229 SALE OF REAL ESTATE BY AN EXECUTOR. § 281 Sec. 281. The legal notice of sale of real estate by an admin- istrator and the proof of posting same. In the Matter of the Estate of , Deceased. No. . NOTICE OF SALE OF REAL ESTATE— PRIVATE SALE. Notice is hereby given in pursuance of an order of the county court of the county of , State of Oklahoma, made on the day of , 19 — , the undersigned administrator of the estate of , deceased, will sell at private sale to the highest bidder, subject to the confirmation of said court, on the day of , 19 — , at o'clock, — m., or within six months thereafter, at the county courtroom, in the city of , in County, State of Oklahoma, all the right, title and interest of the said , deceased, in and to the follow- ing described real estate in County and County, State of Oklahoma, to-wit: (Here describe real estate), for cash in hand. Bids for the purchase thereof must be in writing and must be filed with the county court or delivered to the undersigned at , County, State of Oklahoma. As Administrator of the Estate of , Deceased. Attorneys. State of Oklahoma, County, ss. : , being first duly sworn, says that on the day of , 19 — , he posted true copies of the within and foregoing notice in three public places in said county of , and State of Oklahoma, to-wit : one at the courthouse door in ; one at ; one at , all being in , County, Oklahoma. Subscribed and sworn to before me, this day of 19—. Clerk of County Court. § 282 merwine's trial of title to land. 230 NOTICE OF SALE OF REAL ESTATE BY ADMINISTRA- TOR—PUBLIC SALE. In the Matter of the Estate of , Deceased. No. . Notice is hereby given in pursuance of an order of the county court of County, State of Oklahoma, made on the day of , 19 — , the undersigned administrator of the estate of , deceased, will sell at public auction to the highest bidder, subject to confirmation by said court on the day of , 19 — , at o'clock, — m., at front door of the courthouse in , County, State of Okla- homa, all the right, title and interest of said , deceased, in and to the following described real estate in County, State of Oklahoma, to-wit : (Here describe the real estate), said real estate will be sold on the following terms and conditions, to-wit: . As Administrator of the Estate of , Deceased. Sec. 282. The notice of publication and the proof of sale — Notice of the sale of real estate. NOTICE OF THE SALE OF REAL ESTATE. In the Matter of the Estate of , Deceased. No. . Notice is hereby given in pursuance of an order of the county court of County, State of Oklahoma, made on the day of , 19 — , the undersigned administrator of the estate of , deceased, will sell at private sale to the highest bid- der, subject to the confirmation of the court, on , the day of , 19 — , at o'clock, — m., at the county courtroom in the city of , in County, State of Oklahoma, all the right, title and interest of the said , deceased, in and to the following described real estate in County and County, State of Oklahoma, to -wit: (Here describe real estate), for cash in hand. 231 SALE OF REAL ESTATE BY x\.N EXECUTOR. § 283 Bids for the purchase thereof must be in writing and must be filed with the county court, or delivered to the undersigned at County, Oklahoma. Administrator. Attorneys. FORM FOR THE PROOF OF PUBLICATION. State of Oklahoma, County of Okmulgee, ss. : , of lawful age, being duly sworn according to law, states that he is the of , a weekly newspaper published at , County, Oklalioma, having general cir- culation in said county, and which newspaper has been continu- ously and uninterruptedly published in said county during the period of fifty-two consecutive wrecks prior to the first publica- tion of this notice of sale, and that the notice of sale of real estate, a copy of which is hereto attached, was duly printed and published in the regular issues of said newspaper for consecutive weeks, the first insertion being on the day of , 19 — , and the last insertion being on the day of , 19—. Printer's fees, $- Subscribed and sworn to be fore me, this day of 19—. [Se^ul,.] Notary Public. My commission expires . Sec. 283. The appraisal before private sale of land by an administrator. In THE County Court of County, State op Oklahoma. In the Matter of the Estate of , Deceased. No. •. §§284,285 merwine's trial of title to land. 232 APPRAISAL BEFORE SALE OF LANDS AT PRIVATE SALE. We, the undersigned appraisers appointed to appraise the real estate of , deceased, mentioned and described herein, do most respectfully certify that, having first taken and subscribed the oath required by law, we do make the following appraisal of said lands at the fair cash value; that is to say: (Description of lands) ; (Appraised value), . (Here describe lands and give value.) Respectfully submitted, this day of , 19 — . Appraisers. Sec. 284. The bid in vmting. In the County Court of County, State of Oklahoma. In the Matter of the Estate of , Deceased. No. . , Administrator. To the Honorable , County Judge: I herewith bid the sum of $ , for the property herein- after described, which said property is being sold by , as administrator of the estate of , deceased, and is described as follows, to-wit: (Here describe real estate), all in the town of , Oklahoma, according to the government survey thereof. . Sec. 285. The order approving and confirming sale of real estate by an administrator — Order for deed to purchaser. In the County Court of County, State of Oklahoma. In the Matter of the Estate of , Deceased. » No. . 233 SALE OF REAL ESTATE BY AN EXECUTOR. § 285 ORDER CONFIRMING SALE OF REAL ESTATE. Now, on this day of , 19—, there coming on for hearing the return of sale, made by , as the administrator of the estate of , deceased, and said , administra- tor, appearing in person and by his attorneys, in support of the confirmation of sale, and no one appearing against said confirmation, and the court ha\dng examined said return and having heard and considered the evidence of witnesses offered in support of said return, and being fully advised in the premises, finds: That, in pursuance of said orders of sale, said , admin- istrator, on the day of , 19—, sold the portion of said real estate of said estate, described as follows, to-\^^t : (Here describe it), all in the town of , County, Okla- homa, at private sale, to , upon the following terms, to-wit: for the sum of $ , payable cash in hand, upon confirmation of sale. That an offer of more than ten per cent, more in amount than that named in the return of sale was made to the court in writing by a responsible person as follows: , who offered in writing the sum of $ , payable cash in hand on confirma- tion of sale. That said sale was made after due notice as prescribed by said order of sale ; that said purchaser, , was the highest bidder therefor, and said sum of $ , the highest and best sum bid; that the sale was legally made and fairly conducted; that said sum of $ is not disproportionate to the value of the property sold, and that a sum, exceeding said bid at least ten per cent., exclusive of the expenses of a new sale, can not be obtained, and that said administrator in all things proceeded and conducted and managed such sale as required by the statute in such case made and provided, and as by said order of sale required and directed. It is Therefore ordered, adjudged and decreed by the court, that said sale to , be, and the same is hereby confirmed and declared valid, and the said administrator is directed to execute § 286 MER WINERS TRIAL OF TITLE TO LAISTD. 234 to. said purchaser, , proper and legal conveyances for said real estate. , [Seal.] Judge of the County Court. Sec. 286. The form for a deed to purchaser of real estate at an administrator's sale thereof.* ADMINISTRATOR'S DEED. This Indenture, made the day of , A. D. 19 — , by and between , the duly appointed, qualified and acting administrator of the estate of , deceased, party of the first part, and , party of the second part. WITNESSETH, that whercas, on the day of , A. D. 19 — , the county court within and for the county of , State of Oklahoma, made an order of sale, authorizing the said party of the first part to sell certain real estate of the said , deceased, situate in the county of , State of Oklahoma, described in said order of sale, and which said order of sale is now on file and of record in said county court. And, Whereas, under and by virtue of said order of sale, and pursuant to legal notice given thereof, the said party of the first part, on the day of , A. D. 19 — , sold the hereinafter described real estate, specified and described in said order of sale, as aforesaid, to , subject to confirmation by said court, for the sum of $ , he being the highest and best bidder therefor, and that being the highest and best sum bid. And, Whereas, the said county court, upon the due and legal return of the proceedings under said order of sale, made by the said party of the first part after making said sale, did, on the day of , 19 — , make an order confirming said sale, * See Sections to , used by the administrator's sale. subject, Sale of Real Estate by Forms for sales by guardian at G-uardian. The action of a guardian public auction will be found there; is by statute made the same as a also other special forms that may sale by an administrator. The be used by an administrator in sale forms by guardian's sale may be of the real* estate of a decedent. 235 SALE OF REAL ESTATE BY AN EXECUTOR. § 286 and directing conveyances to be executed to the said party of the second part, a certified copy of which order of confirmation was recorded in the office of the register of deeds of said County, ■ttdthin which the said land is situated, on the day of , A. D. 19 — , in Book , page , and which said order of confirmation now on file and of record in said county court and which said record thereof in said register of deeds' office are hereby referred to and made a part of this indenture. Now, Therefore, the said , as the administrator of the estate of said , deceased, as aforesaid, the party of the first part, pursuant to the order last aforesaid, of the said county court, and for and in consideration of the said sum of $ , to him in hand paid by said party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold and conveyed, and by these presents, does grant, bargain, sell and convey unto the said party of the second part, his heirs and assigns forever, all the right, title, interest and estate of the said , deceased, at the time of his death, and also all the right, title and interest that the said estate, by operation of law or otherwise, may have acquired, other than, or in addition to, that of said decedent, at the time of his death, in and to all the certain lots, pieces, or parcels of land, situate, lying and being in said County, State of Oklahoma, and bounded and particularly described as follows, to-vvdt: (Here specifically de- scribe real estate), together with the tenements, hereditaments and appurtenances thereunto belonging or in anywise apper- taining. To Ha\t: and to Hold, all and singular, the above described premises, unto the said party of the second part, his heirs and assigns, forever. In Witness "Whereof, the said party of the first part, as such administrator as aforesaid, has hereunto set his hand the day and year above written. Administrator. § 286 MERWINE 'S TRIAL OF TITLE TO LAND. 236 State of Oklahoma, County, ss. : Be it remembered, that on this day of , 19 — , before me, , a , in and for said county and State, personally appeared , as the administrator of the estate of , deceased, to me Imown to be the identical person who executed the within and foregoing instrument, and acknowledged to me that he executed the same in the capacity therein stated, as his free and voluntary act and deed for the uses and pur- poses therein set forth. In Witness Whereof, I have hereunto set my hand and affixed my seal the day and year last above written. [Seal,] Notary Public. My commission expires . CHAPTER VIII. THE LAW AND PPoCCEDURE BY WHICH REAL ESTATE IS SOLD UNDER ATTACHMENT PROCEEDINGS. SECTION 287. Introductory statement — The statute must be strictly fol- lowed. 288. An auxiliary remedy allowed only after suit is brought. 289. When the action is deemed commenced. 290. The affidavit for the attach- ment — What it must contain. 291. The grounds for attachment. 292. When the defendant, or one of several defendants, are non- residents of the State. 293. Has absconded with intent to defraud his creditors. 294. When the debt has been fraud- ulently or criminally in- curred. 295. Fraudulent disposition of prop- erty. 296. The attachment bond — Attor- ney's fee. 297. The order of attachment, its requirements and to whom directed. 298. The order of attachment may be issued to different coun- ties. 299. When returnable. 300. The order in which the writ is to be executed. 301. The manner of the execution of the order. 302. The officer may leave property in possession of whom — Re- tention bond. 303. Different attachments— The in- ventory and appraisement. 304. How subsequent attachments may be made. 237 SECTION 305. What the officer's return of the order must show. 306. A receiver may be appointed to take charge of property — ■ His bond. 307. The receiver's report. 308. Sheriff to act as receiver, when. 309. The attachment discharged, when — ^Bond. 310. The defendant may execute bond before sheriff or clerk in vacation. 311. Judgment in the action — How satisfied. 312. Court may compel delivery of attached property. 313. May order retaking of prop- erty. 314. Reference may be ordered, when. 315. Death of defendant. 316. Defendant may move for addi- tional security, when. 317. The defendant may move to dis- charge attachment — ^Tlie evi- dence in the case. 318. The attachment before it is due. 319. The procedure by which real estate is sold under a writ of attachment — The form for the petition in such case. 320. The form for the affidavit in attachment. 321. The form for tne bond in at- tachment. 322. The form for the order of at- tachment issued by the clerk to the sheriff. §287 MERWINE S TRIAL OF TITLE TO LAND. 238 SECTION. 323. The form for the affidavit for service by publication upon a nonresident defendant in attachment. 324. The form for notice by publi- cation. 325. The form for the order of sale in attachment proceedings. 326. The form for proof of publica- tion of the notice. 327. The form for the judgment and order of sale of the attached property. 328. The form for the order of sale issued by the clerk to the sheriff in attachment pro- ceedings. SECTION 329. The form for the legal notice of sale of real estate under attachment proceedings. 330. The form for proof of publica- tion of notice of sale. The form for appointment of appraisers of real estate, the oath of the appraisers, and appraisement — In attachment. The order confirming the sale, ordering distribution, and the execution and delivery of a deed to the purchaser at sheriff's sale of property at- tached. Form for sherift''s deed for real estate sold under attachment proceedings. 331. 332. 333. Sec. 287. Introductory statement — The statute must be strictly followed. The purpose of this book necessarily makes the subject treated in this chapter quite brief. Only so much of the law of attachment in the State of Oklahoma will be dis- cussed as is necessary to disclose the essentials requisite in attachment proceedings in order to give good title to real estate bought at sheriffs' sales in such actions. The law as to the seizure of real and personal property by writ of at- tachment is so interwoven that much of the law as to the latter must be given with the former, but about the only difference between them is the manner of disposition of each by the officers and agents of the court. The subject of the seizure of real estate by writ of attachment is governed and controlled by legislative enactment, and being so con- trolled, we must look to the statutes on this subject for the source of the authority of the court and its officers for their actions in such proceeding.^ 1 Buckeye Pipe Line Co. v. Fee, 62 0. S. 5'56. Proceedings in at tachment are not, it is true, accord- ing to the course of the common law. They are, however, under our construction, proceedings in rem in- tended to subject the property of a debtor to the payment of his debts. Lessee v. Loring, 7 0. 425. 239 RELVL ESTATE UNDER ATTACHMENT § 288 Being purely statutory, the practitioner in such proceed- ings, must pursue the directions of the statutes, as the court will not acquire jurisdiction to seize hold of real estate and sell it under the writ. This remedy by attachment being contrary to the course of the common law cannot be extended beyond the strict letter of the statute authorizing it; for it has always been the policy of our courts to require the court pursuing an extraordinary remedy authorized by statute, to make out a clear case of judicial interference.- Sec. 288. An auxiliary remedy allowed only after suit is brought. The writ of attachment is an auxiliary remedy, to be issued or allowed only after an action has been begun, and it has been said of it that it is in the nature of an execution in advance. The function of the writ is to seize hold of real estate in advance of the hearing of the case, to hold it in court until a final judgment is had in the court. It follows then, as a matter of course, that, if the judgment of the court is against the claim of the plaintiff, the whole proceedings fail, but that if the judgment in the ease is given to the plaintiff, on the issues of the case, then so much of the real estate, so seized, imder the writ, is sold as will be necessary to satisfy the amount of the judgment.^ 2jaffrey V. Wolf, 1 Okla. 312, 33 man v. Beverstock, 8 C. C. 474. Pac. 945; Egan v. Lumsden, 2 Disn. If there is no debt there can be no (Ohio), 168; Taylor v. McDonald, attachment. Carnahan v. Gustine, 4 0. 153; Caldwell v. Bank, 2 0. 2 Okla. 399, 37 Pac. 594. The fact 229 ; Hoyman v. Beverstock, 8 C. C. that the action is equitable will not (Ohio), 477. An attachment ia an defeat the attachment. Hendrickson extreme remedy and the attaching v. Brown, 11 Okla. 41, 65 Pac. 935. creditor must direct his case within 3 Pempe v. Ravens, 68 O. S. 113; the letter of the law to get "the Siebert v. Sweitzer, 35 0. S. 661; strong arm of the court to take the Carty v. Fenstermacher, 14 0. S. property of the debtor from his 457; Ward v. Howard, 12 0. S. 158. possession before judgment." Hoy- §§289,290 merwine's trial of title to land. 240 Sec. 289. When the action is deemed commenced. In an action where the order of attachment was issued on the filing of the affidavit and the giving of a bond, the order was issued and served on the defendant, and there- after, on the same day, the petition was filed, and on such state of facts the court held that the attachment had been issued without authority of law, and, as against other attach- ing lienholders, gave no priority. The statute does not authorize an attachment except in an action, and the clerk of the court has no authority to issue an order of attachment until the action is brought and the relation of plaintiff and defendant is established in the case.* An action is deemed commenced so far as the right to consider a writ of attachment is concerned, as soon as a petition is filed in the proper court, and the summons is issued thereon, with the intent to have the same served.^ Sec. 290. The affidavit for the attachment — What it must contain. An order of attachment will be made by the clerk of the court in which the action is brought, in any case mentioned in the statute (Snyder, 5702; Wilson, 4365), when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showing : 1. The nature of the plaintiff's claim. 2. That it is just. 3. The amount which affiant believes plaintiff should re- cover; and 4. The existence of some one of the grounds for attach- ment enumerated in the statute (Snyder, 5701; Wilson, 4365). « 4Siebert v. Schweitzer, 35 0. S. Nebraska, 1.172 (1007), identical; <361. Ohio Gen. Code, Sec. 11,820 (1910). 5 Ck)fTman v. Brandhofer, 50 N. W. The allegations of the petition and (Neb.) 6. the affidavit for attachment must 6 Snyder, 5,702; Wilson, 4,366; be the same in substance. Carnahan Kansas, 4,625 (1901), identical: v. Gustine,^ 2 Okla. 399, 37 Pac. 241 REAL/ ESTATE UNDER ATTACHMENT. § 290 The affidavit mentioned in the preceding paragraph is one of the prime essentials in validating the attachment pro- ceedings. Not only must it be filed, but it must be just what the statute says it must be. It must also set forth, definitely and precisely, one or more of the grounds of the statute authorizing the writ of attachment. Indeed, if all the other proceedings under the attachment statute are reg- ular, and the real estate is sold by order of court, and the purchaser has paid the full value for it, he will not get a good title to the land if this affidavit has not been filed in the case, or having been filed, it fails to show all the four requirements of the statute as above indicated. In such a case, a court of last resort, in a jurisdiction having a statute identical, to the statute of this State, on this subject, well said: "No affidavit was filed, and unless the petition must be looked to to supply this important omission, the writ was void, and no jurisdiction was acquired by the seizure of the land under it ; and if no valid seizure was made, no service of publication could be made. We think that the fact that there was not the requisite affidavit to authorize the issuing of the attachment, renders all subsequent proceedings under it void."^ 594. As to affidavit for attachment 27, 78 Pac. 388; Coyler v. Xix, 7 and service by publication being suf- Okla. 267, 54 Pac. 469; Reister ficient, see Raymond v. Xix, 5 Okla. v. Laud, 14 Okla. 34, 76 Pac. 156; 666, 49 Pac. 1,110. An affidavit Tracr v. Gun, 29 Kan. 509; Cas- in the language of the statute is sity v. Fleak, 20 Kan. 54. It is sufficient. Thwing v. Humphrey, error to refuse to allow amend- 13 Okla. 646, 75 Pac. 1,127; Thwing ments. Wells v. Danford, 28 Kan. V. Winkler, 13 Okla. 643, 75 Pac. 487; Swearinger v. Ilowser, 37 Kan. 1,126; Rayburn v. Bracket, 2 Kan. 126, 14 Pac. 436. Plaintiff's attor- 227 ; Hilton v. Ross, 2 X. W. ( Xeb. ) ney of record cannot take the 862; Steele v. Dodd, 16 X. W. verification. Toodle v. Smith. 34 1,909; Tessier v. Lockwood, 24 Kan. 27, 7 Pac. 577. The affidavit iN. W. (Xeb.) 934. The affidavit may be aided by the allegations of may be amended. Dunn v. Drum- the petition. Hart v. Barnes, 40 mond, 4 Okla. 461, 51 Pac. 655; X. W. (Xeb.) 322. Tlie filing of Dunn V. Clauch, 13 Okla. 577, 76 the affidavit is jurisdictional. Pac. 143; Same v. Same, 15 Okla. 7 Endel v. Leibrock, 33 0. S. 267. § 291 merwine's trial of title to land. 242 The grounds for the attachment may be set forth in the affidavit therefor, in the language of the statute, without a more particular statement of the facts to be alleged ; ^ but where the affidavit does not follow the precise language of the statute, it will be sufficient for the attachment affidavit, if it contains language fully equivalent, or clearly shows the grounds specific or intended.^ Sec. 291. The grounds for attachment. The plaintiff in a civil action for the recovery of money, may, at or after the commencement thereof, have an attach- ment against the property of the defendant, and upon the grounds herein stated : 1. When the defendant, or one of several defendants, is a foreign corporation, or nonresident of this State; (but no order of attachment shall be issued on the ground, or grounds, in this clause stated, for any claim other than a debt or demand arising upon contract, judgment or decree, unless the cause of action arose wholly within the limits of this State, which fact must be established on the trial). 2. When the defendant, or one of several defendants, has absconded with the intention to defraud his creditors ; or, 3. Has left the county of his residence to avoid the service of summons ; or, 4. So conceals himself that summons cannot be served upon him ; or, 5. Is about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent to defraud his creditors ; or, 6. Is about to convert his property, or a part thereof, into money for the purpose of placing it beyond the reach of his creditors ; or. 3 Emmet v. Yeigh, 12 0. S. 335. believe and does believe the facts 9 Treaser v. Young, 31 0. S. 57. alleged therein, Campbell v. Hill, It is not sufficient for the affidavit 1 Kan. 54. to state that affiant has reasons to 243 REAL ESTATE UNDER ATTACHMENT. § 292 7. Has property or rights in action which he conceals ; or, 8. Has assigned, removed or disposed of, or is about to dispose of his property, or a part thereof, with the intent to defraud, hinder or delay his creditors; or, 9. Fraudulently contracted the debt or fraudulently in- curred the liability or obligation for which the suit is about to be, or has been brought ; or, 10. Where the damages for which the action is brought are for injuries arising from the commission of some felony or misdemeanor, or the seduction of any female ; or, 11. When the debtor has failed to pay the price or value of any article or thing delivered, which by contract, he was bound to pay upon delivery.^" Sec. 292. When the defendant, or one of several defendants, are nonresidents of the State. One of the grounds authorizing the writ of attachment is when the defendant, or one of several defendants, is a non- resident of this State. For a construction of the term "resident," or ''residence," as used in this statute, we cannot turn to the definition of the word "residence" as used with reference to the qualifications of voters. In such case, the word "residence" is used synonymously with "domicile." When the word "residence" is applied to the attachment laws of this State, it is not controvertible with "domicile." This is upon the theory that a party's residence may be in one place and his domicile in another. It is the actual residence of the debtor, not his domicile, that determines his status in an attachment proceeding begun in the county where his property is situated ; and if he has no abode or home within the State where process may be served on him, his property is subject to attachment, notwithstanding he may not have acquired a residence elsewhere. ^^ "Snyder. 5.701; Wilson, 4.365; Ohio Gen. Code, Sec. 11.819 (1910), Kansas. 4,624 (1901), identical; similar. Nebraska, 1,171 (1907), similar; n Thompson v. Ogden, 3 C. C, X.S. (Ohio), 51. § 292 mebwine's trial op title to land. 244 When a party left a State with his family, for another State, with the intention of returning, in case he could compromise with his creditors there, or to remain if he could not do so, and get employment, neither of which happened, and in the meantime, the real estate in the State which he had left was seized by writ of attachment, and he shortly afterwards left for a third State, it was held that these facts did not constitute him a nonresident of the first State, the court holding that mere nonresidenee for any length of time, unless aided by some unequivocal act showing an inten- tion not to return, will not cause loss of domicile in the first State/- An absence from one's home for years, where the intention is not to remain, if, in the meanwhile the intention is not destroyed by some unequivocal act, signifying the purpose to change the domicile, does not destroy the right to claim the former residence as if it had never been interrupted by the parties.^^ An attachment may issue on the grounds of nonresidency, when the defendant is a partnership, of which all the mem- bers reside out of the State, the partnership being formed for the purpose of carrying on business here. And in an attachment against the property of such nonresident firm, it may be sued in its company name, and service may be had by leaving a copy of the summons, with the indorsements thereon, in accordance with the statutes in such case.^* The attachment may be based both on the groimds of non- residency and the defendant so concealing himself that sum- mons cannot be served on him.^^ And an attachment writ brought against a nonresident of the State will not be dis- charged by the defendant becoming a resident after the writ is issued.^** A resident of the State may become a nonresident 12 Smith V. Dalton, 1 C. S. C. R. i* Byers v. Schlupp, 51 O. S. 300. (Ohio), 150. isEaymond v. Xix, 5 Okla. 656, 13 Egan V. Lumsden, 2 Disney 49 Pac. 110. (Ohio), 168. isLarmer v. Kelly, 10 Kan. 299. 245 REAL ESTATE UNDER ATTACHMENT. § 293 by leaving the State with the intention of becoming a non- resident, and he does not become a nonresident until he is entirely out of the State.^^ Where the real estate of a non- resident is attached upon the ground of nonresidency, no summons need issue for him in the action/^ It has been held that attachment will lie for a tort, the ground for the affidavit being nonresidency.^'' Sec. 293. Has absconded with intent to defraud his cred- itors. It is made a ground of attachment for a defendant to abscond with intent to defraud his creditors. Under this provision of the statute, it was held the ground authorized an attachment on partnership property, for one partner to abscond, and the other to dispose of part of the partnership property and to continue to dispose of the rest of it. And an attachment may be laid on the firm property where one partner avoids the service of process by absconding, and the copartner remaining in possession of the stock of goods belonging to the firm, and said firm is insolvent.-" A citizen of this State has the right to move his property therefrom to another State, and it will not authorize an attachment. It is only when he absconds with intent to defraud that it is allowed."^ And when he hides or conceals himself, or absents himself clandestinely, then he can be said to abscond.-^ " Ballinger v. Lautier, 15 Kan. attack. Brown v. Bose, 75 N. W. 608; Swanly v. Hutchin, 13 N. W. 536, 70 Am. St. 379. (Xeb.) 282; Johnson v. May, 68 i9 Kid v. Seifert, 11 Okla. 32, 65 K. W. (Neb.) 1,032. Pac. 931. isWestcott V. Archer, 11 X. W. 20 Sellen v. Chreshfeld, 1 Hand. (Neb.) 495; Grebe v. Jones, IS (Ohio), 87. N. W. 81; Bannister v. Carroll, 43 21 Dunn v. Claunch. 13 Okla. 517, Kan. 64, 22 Pac. 1,012. Where real 76 Pac. 143; see, also, Gundy v. estate is attached and sold, the pro- Jolly, 53 N. W. (Neb.) 658. ceeding is not subject to collateral -- Gundy v. Jolly, 47 Am. St. (Neb.) 460. § 294 merwine's trial op title to land. 246 Sec. 294. When the debt has been fraudulently or criminally incurred. It is also made a ground for issuing the writ of attach- ment for a defendant, where he has fraudulently contracted the debt, or fraudulently incurred the liability or obligation, for which suit is about to be or has been brought. The writ of attachment will be issued when the defendant has fraudulently contracted a debt by an agreed claim for unliquidated damages due the plaintiff by assaulting or beating him.-'^ It will be issued where the action is brought for false and fraudulent representations as to the value of property ; '-'* and it will be issued on the ground now under discussion when the action is brought to recover money won by the defendant by means of a gaming device known as a slot machine.-^ The writ will not be allowed under the ground now being discussed where the action is to recover for the bite of a vicious dog harbored by the defendant,-" nor for a cause of action arising from a malicious attachment ; -^ nor for con- version by an agent in another State, of the proceeds of certain claims sent to him by a bank in this State, for col- lection ; -^ nor where the claim arises from the liability of defendant over a contract ; "^ nor in a case where the obliga- tion was fraudulently incurred on account of a debt not yet due.^" It has been held that an offer by a debtor to make a voluntary assignment, is no evidence of fraud, warranting the writ of attachment.^^ A chattel mortgage given on a stock of goods, the possession remaining in the mortgagor, 23 Sturdevant v. Tuttle, 22 0. S. 27 Glidden v. Joy, 8 C. C. (Ohio), 111. 157. 24 Shawnee v. Bank, 1 C. C, N.S. -^ Cleveland v. Ohio, 1 Disn. (Ohio), 5G9. (Ohio), 409. 25 Wise V. Martin, 7 N. P. (Ohio) , 29 Ibid. ,660. '" Stone v. Banking Co., 8 C. C. 26 Wintering v. Corigan, 36 (Ohio), 636. W. L. B. (Ohio), 86. si Kemper v. Fiscal, 4 Okla. 250, 44 Pac. 205.* 247 REAL ESTATE UNDER ATTACHMENT. § 295 and the mortgagor is uot required to account for daily sales, is a fraud, and the writ will lie in such case.^- Attach- ment upon this ground will not lie before the debt is due,^^ The writ will not lie on this ground in favor of the assignee against anyone but his immediate assignor.^* Sec. 295. Fraudulent disposition of property. It is also made a ground for the issuing of the writ of attachment for a defendant to be about to remove his prop- erty, or a part thereof, out of the jurisdiction of the court, with the intent to defraud his creditors. This is in the exact words of the Ohio statute, and we here give the authorities in that State upon this point. It has been there held that such attachment cannot be maintained on the ground of the constructive fraudulent intent to dispose of or sell property,^^ nor will the formation of a corporation and the transfer to it by a debtor of his property in the absence of any fraudulent design, be sufficient,^® nor a conveyance by a debtor whose solvency is doubtful, to his wife, without consideration, made without intent to defraud," nor will it be sufficient to authorize the issuance of the writ for a debtor to remove his property out of the county without any intent to defraud his creditors.^^ It is not sufficient ground to authorize the issuing of a writ under this section of the statute, for a debtor to pay off creditors preferentially,^** nor that a debtor is hastening to pay off other debts.**' In all cases where an attachment is asked under the grounds of the statute now being discussed, the practitioner, 32 Ranner v. Xelson, 10 Okla. 675, 37 McFarland v. :MiIls, 4 W. L. B. 65 Pac. 98. (Ohio), 1,064. 33Jaffrey v. Wolf, 1 Okla. 312, 38 McAllister v. Davy, 5 X. P. 33 Pac. 945. 274. 34 Thwing V. Winkler, 13 Okla. 39 Morton v. Sterritt, 4 W. L. G. 643, 75 Pac. 1,126. (Ohio), 132. 35 Hoyman v. Beverstock, 8 C. C. ^o Morgan v. Hays, 10 W. L. G. (Ohio), 473. (Ohio), 83. 36 Union v. Packard, 1 C. C. (Ohio), 76. §§ 296, 297 merwine's trial of title to land. 248 in his affidavit for the attachment, must bring himself strictly within the grounds set forth in the statute, or the court will have no jurisdiction to hold the property seized, and, in cases where the attachment is sought for the reason that the defendant is about to abscond, or remove, or con- vert his property into money for the purpose of placing it beyond the reach of his creditors, or fraudulently and crim- inally contracted the obligation sued on, precise and definite allegations will be required, and both the letter and spirit of the law be satisfied, or the proceedings will be dismissed.^^ Sec. 296. The attachment bond — Attorney's fee. The order of attachment must not be issued by the clerk until an undertaking on the part of the plaintiff has been executed by one or more sufficient sureties, approved by the clerk and filed in his office, in a sum not exceeding double the amount of the plaintiff's claim, to the effect that the plain- tiff shall pay to the defendant all damages that he may sustain by reason of the attachment, including reasonable attorneys' fees, if the order be wrongfully obtained ; but no undertaking can be required where the party, or parties defendant are nonresidents of the State, or a foreign corporation.*^ Sec. 297. The order of attachment, its requirements and to whom directed. The order of attachment must be directed and delivered to the sheriff. It must require him to attach the lands, 4iGury V. Tannenwald, 18 Ohio, Okla. 61, 65 Pac. 026; Shelley v. 481. Ziegler, 2 Okla. 729, 98 Pac. 989. 42 Snyder, 5,703; Wilson, 4,367; As to amount of bond, see Gapen Kansas, 4,626 (1901), identical; v. Stevenson, 18 Kan. 140. As to Ohio Gen. Code, Sec. 11,821, iden- the effect of not giving bond, see tical. As to the measure of dam- Ballinger v. Lankier, 15 Kan. 1,608. ages on an action on attachment The bond in cases where a non- bond, see Winton v. Myers, 8 Okla resident becomes a resident, see 421, 58 Pac. 634. As to res adpj- Lanier v. Kelly, 10 Kan. 299. dicata, see Lane v. Lowden 11 249 REAL ESTATE UNDER ATTACHMENT. §§298,299 tenements, goods, chattels, stocks, rights, credits, money and effects of the defendant in his county, not exempt by law, from being applied to the payment of the plaintiff's claim, or so much thereof as will satisfy the plaintiff's claim, to be stated in the order as in the affidavit, and the probable cost of the action not exceeding fifty dollars/^ Sec. 298. The order of attachment may be issued to different counties. Orders of attachment may be issued to the sheriffs of different counties, and several of them may, at the option of the plaintiff, be issued at the same time, or in succes- sion; but only such as have been executed can be taxed in the costs, unless otherwise directed by the court.** Sec. 299. When returnable. The return day of the order of attachment, when issued at the commencement of the action, must be the same as that of the summons. When issued afterwards, it must be twenty days after its issuance.*^ 43 Snyder, 5.704: Wilson, 4,368; "Snyder, 5,705; Wilson, 4,369; Kansas, 4,627 (I'j;,. , identical; Ohio Gen. Code, Sec. 11,820 (1910), Ohio Gen. Code, Sec. 11,822 (1910), identical; Kansas, 4,277 (1889). identical. Service on Sunday 45 Snyder, 5,706; Wilson, 4,370- illegal. Morris v. Shew, 29 Kan. Kansas, 4,629 (1901), identical; 661. Eeturn must show attach- Ohio Gen. Code, Sec. 11,824 (1910) ment on the property of the de- identical. Xot void if not ordered fendant. Rappine v. MoPherson, to return same in ten days. Ray- 2 Kan. 340. The return must show mond v. Xix, 5 Okla. 656, 49 Pac. what property was levied on. Hard- 1,110; Smith v. Peyton, 13 Kan. ing V. Guaranty, 43 Pac. (Kan.) 362. A return one day prior to the 385. The release of the levy will return day does not invalidate the not prevent another levy on the le\'y. Dunlap v. McFarland, 25 same property. Dolan v. Wilker- Kan. 488. Property may be de- son, 48 Pac. (Kan.) 23. The writ scribed in the return by reference not void because not made return- to the other papers. WagstaflF v. able in ten days. Raymond v. Nix, Moser, 55 Pac. (Kan.) 584. 5 Okla. 656, 49 Pac. 1,110. §§ 300, 301 merwine's trial of title to land. 250 Sec. 300. The order in which the writ is to be executed. Where there are several orders of attachment against the same defendant, they must be executed in the order in which they were received by the sheriff.*'* Sec. 301. The manner of the execution of the order. The order of attachment must be executed by the sheriff, without delay. He is required to go to the place where the defendant's property may be found, and declare that, by virtue of his order, he attaches said property at the suit of the plaintiff ; and the officer, with two householders, who are first sworn or affirmed by the court, must make a true inventory and appraisement of all the property attached, which must be signed by the officer, and householders, and returned with the order.*^ When the property attached is real property, the officer must leave witli the occupant thereof, or if there be no occupant, in a conspicuous place thereon, a copy of the order.** 46 Snyder, 5,707; Wilson, 4,371; Kansas, 4,630 (1901), identical; Ohio Gen. €ode, Sec. 11,825 (1901), identical; Nebraska, 1,177 (1907), identical. The lien dates from the time the levy was made. Burnham V. Dixon, 5 Okla. 112, 47 Pac. 1,059. An amendment relates back to the time of the filing of the original petition. Symes v. Burnham, 6 Okla. 618, 52 Pac. 918; Coyle v. Xix, 6 Okla. 618, 52 Pac. 918. As to priority of the attachment lien, see Carney v. Taylor, 4 Kan. 179 ; Tootle V. Miner, 34 Pac. (Kan.) 401; Larrabee v. Sarks, 23 Pac. (Kan.) 598; Standard v. Lansing, 48 Pac. (Kan.) 638. 4T Snyder, 5,708; Wilson, 4,372 Kansas, 4,361 (1901), identical Nebraska, 1,198 (1907), identical Ohio Gen. Code, Sec. 11,826 (1910), identical; Emerson v. Thacher, 51 Pac. (Kan.) 50; Dodson v. Wight- man, 49 Pac. (Kan.) 790. As to eiTect of levy on wrong property, see Cole v. Edwards, 72 N. W. (Neb.) 1,045; Omaha v. Robinson, 77 N. W. (Neb.) 73; Benson v. Can- field, 89 N. W. (Neb.) 664; First, etc., V. Avery, 95 N. W. (Neb.) 622 ; Peckanpaugh v. Quilan, 12 N. W. (Neb.) 104. Duty as to care of property. Williams v. Swisherd, 65 N. W. (Neb.) 788. Attorney's fee allowed. Raymond v. Gree, 10 N. W. 709, 41 Am. St. (Neb.) 763. 48 Snyder, 5,709; Wilson, 4,373; Ohio Gen. Code, Sec. 11,827 (1910), identical; Kansas, 4,632 (1901), identical; Wilkins v. Tourtellott, 22 Pac. (Kan.) 11; Blake v. Rider, 14 Pac. (Kan.) 280; Westerfelt v. Hagge, 85 Jf. W. (Neb.) 852. 251 REAL ESTATE UNDER ATTACHMENT. §§ 302-304: Sec. 302. The officer may leave property in possession of whom — Retention bond. The sheriff must deliver the property attached to the person in whose possession it was found, upon the execution, by such person, in the presence of the sheriff, of an under- taking to the plaintiff, with one or more sufficient sureties, resident in the county, to the effect that the parties to the same are bound, in double the appraised value thereof; that the property, or its appraised value in money, will be forth- coming to answer the judgment of the court in the action; but if it be made to appear to the court that any part of said property has been lost or destroyed by unavoidable accident, the value thereof must be remitted to the person so bound.**'' Sec. 303. Different attachments — ^The inventory and ap- praisements. Different attachments of the same property may be made by the same officer and one inventory and appraisement will be sufficient ; and it will not be necessary to return the same with more than one order.^** Sec. 304. How subsequent attachments may be made. "Where property is under attachment, it must be attached under subsequent orders, as follows : 1st. If it be real property, it must be attached in the manner prescribed by the statute (Snyder, 5709; Wilson, 4373). ^1 49 Snyder, 5,710; Wilson, 4,374; Kavenaugli, 63 X. AY. (Xeb.) 306; Kansas, 4,633 (1901), identical; Corteleon v. Mabin, 59 X. W. (Neb.) Nebraska, 1,179 (1907), identical; .94; Young v. Joseph, 99 X. W. Greenwell v. Evans, 9 Okla. 359, (Xeb.) 522. 60 Pac. 249; Johnson v. Weather- so Snyder, 5.731; Wilson, 4,395; wax, 9 Kan. 75; Tyler v. Safford, Ohio Gen. Code, Sec. 11,834 (1910), 24 Kan. 581; Case v. Steele, 8 Pac. identical. (Kan.) 242; Wolf v. Hahm, 28 si Snyder, 5,732; Wilson, 4.396; Kan. 588; Wilson v. Shepard, 16 Ohio Gen. Code, Sec. 11,835 (1910), N. W. (Xeb.) 826; Pxilton v. Pvoss, identical. 2 X. W. (Xeb.) 862; Dewey v. §§ 305-307 mebwine's trial of title to land. 252 Sec. 305. What the officer's return of the order must show. The officer must return upon every order of attachment, what he has done under it. The return must show the property attached, and the time it was attached. When garnishees are served, their names, and the time each was served, must be stated. The officer must also return with the order all undertakings given under it." Sec. 306. A receiver may be appointed to take charge of property — His bond. A court, or any judge thereof, during vacation, may, on application of the plaintiff, and on good cause shown, appoint a receiver, who must take an oath faithfully to discharge his duties, and who must give an undertaking to the State of Oklahoma in such sum as the court or judge may direct, and with such security as shall he approved by the clerk of such court, for the faithful performance of his duties as such receiver, and to pay over all money and account for all property which may come into his hands by virtue of his appointment, at such times and in such manner as the court may direct.^^ Sec. 307. The receiver's report. Such receiver must, when required, report his proceedings to the court, and hold all moneys collected by him, and the property which may come into his hands, subject to the order of the court.^* B2 Snyder, 5,733 ; Wilson, 4,397 ; property attached. Harding v. Guar- Kansas, 4,657 (1901), identical; anty, 43 Pac. (Kan.) 835; but see (Nebraska, 1,184 (1907), identical; Grebe v. Jones, 18 X. W. (Neb.) Rappine v. McPherson, 2 Kan. 340. 18; see, also, Griffith v. Short, 15 The return may be amended by the iN. W. (Xeb.) 335, as to amend- officer who served the same, even ments. though out of office. Eapp v. Kyle, 53 Snyder, 5.734; Wilson, 4,398; 26 Kan. 89. The writ should con- Nebraska, 1,186 (1907), identical, tain a specific description of the 54 Snyder, 5,737; Wilson, 4,401. 253 REAL ESTATE UNDER ATTACHMENT. §§ 308-310 Sec. 308. Sheriff to act as receiver, when. Where a receiver is not appointed by the court, or judge thereof, as provided in the statute (Snyder, 5734; Wilson, 4398), the sheriff or other officer attaching the property, will have all the powers and perform all the duties of a receiver appointed by the court, or judge, and may, if necessary, commence and maintain actions in his own name, as such officer. He may be required to give security other than his official undertaking.^^ Sec. 309. The attachment discharged, when — Bond. If the defendant, or other person on his behalf, at any time before judgment, cause an undertaking to be executed to the plaintiff, by one or more sureties, resident in the county, to be approved by the court, in double the amount of plaintiff's claim, as stated in his affidavit, to the effect that the defendant will perform the judgment of the court, the attachment in such action must be discharged and resti- tution made of any property taken under it, or the pro- ceeds thereon. Such undertaking will also discharge the liability of a garnishee in such action for any property of the defendant in his hands.^^ Sec. 310. The defendant may execute bond before sheriff or clerk in vacation. The undertaking mentioned in the last paragraph may, in vacation, be executed in the presence of the sheriff having the order of attachment in his hands, or after the return of the order, before the clerk, with the same effect as if 55 Snyder, 5,738; Wilson, 4,402. Okla. 302, 91 Pac. 850; Moffitt v. 56 Snyder, 5,740; Wilson, 4.404 Kansas, 4,664 (1901), identical Ohio Gen. Code, Sec. 11,844 (1910) Garrett, 23 Okla. 398, 100 Pac. 533; McGonegal v. Gordon, 11 Kan. 168; Eddy v. Moore, 23 Kan. 113; W^inton v. Myers, 8 Okla. 42. 58 INIcKenny v. Purcell, 28 Kan. 446; Pac. 634; Drovers v. Custer, 19 St. Joseph v. Casey, 14 Kan. 504. §§ 311, 312 merwine's trial of title to land. 254 executed in court, the sureties in either case to be approved by the officer before whom the undertaking is executed." Sec. 311. Judgment in the action — How satisfied. If judgment be rendered in the action for the defendant, the attachment must be discharged and the property at- tached, or its proceeds must be returned to him.^^ If judgment be rendered for the plaintiff, it shall be satisfied as follows : So much of the property remaining in the hands of the officer, after applying the money arising from the sale of perishable property, and so much of the per- sonal property, lands and tenements, if any, whether held by legal or equitable title, as may be necessary to satisfy the judgment, must be sold by order of court, under the same restrictions and regulations as if the same had been levied on by execution ; and the money arising therefrom, with the amount which may be recovered from the garnishees, must be applied to satisfy the judgment and costs. If there be not enough to satisfy the same, the judgment must stand, and execution may issue thereon for the residue, in all respects as in other cases. Any surplus of the property at- tached, or its proceeds, must be returned to the defendant.^'' Sec. 312. Court may compel delivery of attached property. The court may compel the delivery to the sheriff, for sale of any attached propertj^ for which an undertaking may have been given, and may proceed summarily, on such undertaking, to force delivery of the property, or the pay- ment of such sum as may be due upon the undertaking, by rules and attachments, as in cases of contempt.®'' E7 Snyder, 5,739; Wilson, 4,405. Nebraska, 1.201 (1907), identical; B8 Snyder, 5,740; Wilson, 4,408; Ohio Gen. Code, Sec. 11,855 (1910), Kansas, 4,668 (1901), identical; identical; Fisher v. Haxtun, 2G Nebraska, 1,200 (1907), identical; Kan. 155; Mills v. Dixon, 42 Pac. Ohio Gen. Code, Sec. 11,854 (1910), (Kan.) 1,014. identical. 6o Snyder, 5,746; Wilson, 4,410. 59 Snyder, 5,745; Wilson, 4,409; Kansas, 4,669 (1901), identical; 255 REAL ESTATE UNDER ATTACHMENT. §§ 313-316 Sec. 313. May order retaking- of property. The court may order the sheriff to repossess himself, for the purpose of selling it, of any of the attached property which may pass out of his hands, without having been sold or converted into money; and the sheriff shall, under such order, have the same power to take the property as he would have under an order of attachment.*'^ Sec. 314. Reference may be ordered, when. "Where several attachments are executed on the same prop- erty, or the same persons are made garnishees, the court, on motion of any of the plaintiffs, may order a reference, to ascertain the amounts and priorities of the several attach- ments, or may determine the amounts and priorities without such reference.'^- Sec. 315. Death of defendant. From the time of the issuing of the order of attachment, the court will be deemed to have acquired jurisdiction, and to have control of all subsequent proceedings under the attachment ; and if, after issuing of the order, the defendant, being a person, should die, or a corporation, and its charter should expire by limitation, forfeiture or otherwise, the proceedings shall be carried on, but in all such cases, other than where the defendant was a foreign corporation, his legal representatives must be made parties to the action.®^ Sec. 316, Defendant may move for additional security, when. The defendant may, at any time before judgment, after reasonable notice to the plaintiff, move the court for addi- tional security on the part of the plaintiff; and if, on such motion, the court is satisfied that the surety in the plaintiff's undertaking has removed from this State, or is not sufficient 61 Snyder, 5,747; Wilson, 4,411. 63 Snyder, 5,749; Wilson, 4,413; «2 Snyder, 5,748; Wilson, 4,412. Mosely v. Southern, 4 Okla. 492, 46 Pac. 508. §§317,318 merwine's trial of title to land. 256 for the amount thereof, it may vacate the order of attach- ment, and direct the restitution of any property taken under it, unless, in a reasonable time, to be fixed by the court, sufficient security be given by the plaintiff.''* Sec. 317. The defendant may move to discharge — Attach- ment — The evidence in the case. The defendant may, at any time before judgment, upon reasonable notice to the plaintiff, move to discharge an attachment, as to the whole or part of the property at- tached. If the motion be made upon affidavits on the part of the defendant, or papers and evidence in the case, but not otherwise, the plaintiff may oppose the same by affidavits or other evidence in addition to that on which the order of attachment was made.*'^ Sec. 318. The attachment before it is due. Where a debtor has sold, conveyed, or otherwise disposed of his property, with the fraudulent intent of cheating or 64 Snyder, 5,150; Wilson, 4,414. 65 Snyder, 5,751 and 5,752; Wil- son, 4,415 and 4,416; Kansas, 4,604 and 4,666 (1901), identical; Ne- braska, 1,208 and 1,209 (1907), identical; Ohio Gen. Code, Sees. 11,862 and 11,863 (1910), identical; Carnahan v. Gustine, 2 Okla. 399, 37 Pac. 594; Cassity v. Morris, 19 Okla. 203, 91 Pac. 888; Rum- son V. Merrill, 17 Okla. 44, 86 Pac. 431; Williams v. Farmer, 13 Okla. 5, 73 Pac. 269; Raymond v. Nix, 5 Okla. 560, 49 Pac. 1,110; Quinlan V. Dadford, 28 Kan. 507 ; Merchants V. Danford, 28 Kan. 512; Smith v. Dearse, 21 Pac. (Kan.) 167; Guest V. Ramsey, 33 Pac. 17; Moffett v. Boydston, 46 Pac. (Kan.) 24; Wichita v. Records, 19 Pac. (Kan.) 346; Mnrtrjage v. Norris, 54 Pac. (Kan.) 283; Adams v. Lockwood, 2 Pac. (Kan.) 626; Moline v. Eustis, 57 N. W. (Neb.) 160; Her- man V. Hayes, 78 N. W. (Neb.) 365; Stutzner v. Printz, 61 N. W. 620; Meyer v. Kiefer, 78N. W.500; McCord V. Bovven, 70 N. W. 950; Kilpatrick v. Bremers, 62 N. W. (Neb.) 1,105; Kountze v. Scott, 72 N. W. 585; Skruner v. First, 80 N. W. 42; McDonald v. McQuardt, 73 N. W. (Neb.) 2S8; Grotts v. Nagel, 69 N. W. 973; Holloway v. American, 89 N. \\\ (Neb.) 382; Jordan v. Dewey, 59 N. W. (Neb.) 88; Johnson v. Bartek, 76 N. W. (Neb.) 878; Kendell v. August, 32 Pac. (Kan.) 635; Meyer v. Mabin, 28 Pac. (Kan.) 1,011; Chappell v. Comins, 25 Pac. 216; Olds v. Bebe- dict, 41 N. W. (Neb.) 254; Citizen V. Baird, 60 N. W. (Neb.) 551; Nebraska v. Fuering, 72 Neb. 1,003. 257 REAL ESTATE UNDER ATTACHMENT. § 319 defrauding Ms creditors, or to hinder or delay them in the collection of their debts, or is about to make such sale or conveyance, or disposition of his property, with such fraud- ulent intent, or is about to remove his property, or a ma- terial part thereof, with intent or to the effect of cheating or defrauding his creditors, or of hindering, or delaying them in the collection of their debts, a creditor may bring an action upon his claim, before it is due, and have an attachment against the property of the debtor as in other cases; but before such attachment will be issued, or such action be maintained, the plaintiff, or his agent or attorney, is required to make an oath in writing, setting forth the grounds of such attachment as in other cases, and showing the nature of the plaintiff's claim that it is just, when the same will become due, and the existence of some one or more of the grounds for attachment enumerated in this para- graph. *'*' But no judgment can be entered for the plaintiff on his claim before it is due, but the proceeding on the attachment may be conducted without delay.''^ Sec. 319. The procedure by which real estate is sold under a writ of attachment — The form for petition in such case. District Court of County, Oklahoma. , Plaintiff, vs. No. , Defendant. PETITION. Comes now the plaintiff, and for his cause of action against the defendant, alleges and states that this his action against said defendant is founded on a promissory note, of which the following is a copy, with all the credits and indorsements thereon, to-wit: (Here copy same.) 66 Snyder, 5,753; Wilson, 4,417. 67 Snyder, 5,744; Wilson, 4,422. § 320 merwine's trial op title to land, 258 The following are the indorsements on said note : Pay to the order cf , without recourse, . On the day of , 19 — , said note was, for a valu- able consideration, transferred and indorsed to plaintiff. There is due plaintiff from the said defendant on said note the sum of $ , with interest thereon from the day of , 19 — , at the rate of % per annum until paid. Wherefore, the premises considered, plaintiff asks judgment against said defendant for said sum of $ , with interest at the rate of % per annum, from the day of , 19 — , and for his costs herein expended. Attorneys for Plaintiff. State of Oklahoma, Okmulgee County, ss. : , being first duly sworn, says that he is plaintiff in the above action, and that the facts stated and allegations contained in the foregoing action are true. Sworn to before me and subscribed in my presence, this day of , 19- [Seal.] Notary Public. My commission expires . Sec. 320. The afladavit for the attachment. District Court, County, State of Oklahoma. , Plaintiff, vs. No. . , Defendant. AFFIDAVIT FOR ATTACHMENT. State of Oklahoma, County, ss. : , being first duly sworn, that this, his said civil action, is for the recovery of money upon a debt arising upon a con- tract, to-wit : one promissory note made by said defendant, pay- able to and by him transferred and assigned to plaintiff, said note being for the principal sum of $ and interest 259 REAL ESTATE UNDER ATTACHMENT. § 321 thereon from the day of , 19 — , at the rate of % per annum until paid; that plaintiff believes he ought to recover the sum of $ — thereon, and interest on said sum from the day of , 19 — , at the rate of % per annum; that said sum is just, and that said defendant , is a nonresident of the State of Oklahoma (or give here any of the other statutory grounds). Sworn to before me and subscribed in my presence, this day of , 19 — . [Seal.] Notary Public. My commission expires . Sec. 321. The bond in such action. District Court, County, State op Oklahoma. , Plaintiff, vs. No. , Defendant. ATTACHMENT BOND. "We, , , , as principals, and — , and , as sureties, do hereby undertake and bind ourselves, jointly and severally, unto , to the effect that the said plaintiff, , shall pay the defendant, , all damages which he may sustain, together with a reasonable attorney fees, by reason of the attachment in this case, if the order prove to have been wrongfully obtained. In Witness Whereof, we have hereunto affixed our hands on this day of , 19 — . Principals. Sureties. §'§322, 322a merwine's trial of title to land. 260 The above bond and the sureties thereon approved and ac- cepted by me on this day of , 19 — . Clerk. Sec. 322. The form for the order of attachment issued by the clerk to the sheriff. District Court, County, State op Oklahoma. , Plaintiff, No. . vs. , Defendant The State of Oklahoma, County, ss. : To the Sheriff of said County, Greeting: You are commanded to attach and safely keep the lands, tene- ments, goods, chattels, stocks, or interest in stocks, rights, credits, moneys and effects of the defendant, , in your county, not exempt by law from being applied to the payment of the claims of plaintiff, , or so much thereof as will satisfy his claim for $ , with interest on said sum from the day of , 19 — , at the rate of % per annum, and also for $ , the probable costs of this action. You will make due return of this order on the day of , 19-. Witness my hand and seal of said court, this day of , 19—. , Clerk of said Court. Sec. 322a. The form for sheriff's return of the order of at- tachment and the appraisement thereunder. SHERIFF'S RETURN OF ORDER OF ATTACHMENT. Received this order on the day of , 19 — , and in obedience to the command thereof, I did, on the day of , 19 — , in the presence of and , two free- holders of said county, attach the real estate described in schedule marked A, hereto attached and made a part of this 261 REAL ESTATE UNDER ATTACHMENT. § 323 return; and having first administered to said freeholders the oath required by law, to make a true inventory and appraise- ment of said property, we proceeded to make such inventory and appraisement, as wnll fully appear by reference to said schedule A. SCHEDULE A. ^e, , sheriff of said County, Oklahoma, and '_ and , two freeholders of said county, do truly inventory and appraise the property of and described as follows, situated in the county of , State of Oklahoma, to-wit: (Here describe it), at $ . Given under our hands this day of , 19 . Sheriff. Appraisers. Sec. 323. The form for the affidavit for service by publica- tion upon a nonresident defendant in attachment. District Court, County, Oklahoma. , Plaintiff, No. . vs. , Defendant. AFFIDAVIT FOR SERVICE BY PUBLICATION. State of Oklahoma, County, ss. : , being first duly sworn, says that he is plaintiff in the above action ; that this, his action, is upon a promissory note for the sum of $ , with interest on such sum from the day of , said note having been made by and in- dorsed to plaintiff ; that service of summons cannot be had upon the defendant in this action ; that said defendant is a nonresident of the State of Oklahoma, having a place of residence in the State, , and his postoffice is ; that plaintiff has used due diligence to locate said defendant in the State of Okla- homa by having summons issued for him at his last known resi- § 324 merwine's trial of title to land. 262 dence, and has inquired from persons who knew him, and has been unable, after the use of such diligence, to serve de- fendant with a summons ; that in this action an order of attach- ment has been duly issued and levied upon the property of the defendant, , which property is sought by such proceeding in attachment to be appropriated toward the satisfaction of such judgment as the plaintiff may obtain against the said defendant, Sworn to before me and subscribed in my presence, this day of , 19- My commission expires . Notary Public. Sec. 324. The form for notice by publication. District Court, County, Oklahoma. , Plaintiff, vs. No. . , Defendant. LEGAL NOTICE. The defendant, , whose place of residence is in the State of , at , will take notice that on day of , 19 — , , in said court commenced a civil action against him to recover on a promissory note for the sum of $ , with interest thereon from the day of , 19 — , which note had been made to and indorsed to plaintiff. An order of attachment has been issued in said action and levied on the following described real estate, situated in said county of , State of Oklahoma, to-wit: (Here de- scribe it.) Said defendant, , is required to answer said petition on or before the day of , 19 — , or judgment will be taken against him for said sum of $ , with interest on said sum at the rate of % per annum, and for costs of suit. , Plaintiff. Attorney for Plaintiff. 263 REAL ESTATE UNDER ATTACHMENT. §§325,326 Sec. 325. Form for proof of publication of notice. State of Oklahoma, County, ss. : , of lawful age, being by me first duly sworn, says that he is the of the , a weekly newspaper published and printed in the city of , county of , Okla- homa, and of general circulation in said county and State; tliat said has been published for more than fifty-two consecutive weeks next prior to the dates on which the copy herein referred to was published, and the notice of which a true copy is hereto attached, was published in the regular and the entire edition of said , and not a supplement thereof, for weeks, the first publication being on the day of , 19—, and the last on the day of -, 19—, each week of said time on the same day of the week. Sworn to before me and subscribed in my presence, this day of , 19—. ""' . My commission expires . Notary Puhhc. Sec. 326. The form for judgment and order of sale of the attached property. District Court, County, Oklahoma. , Plaintiff, No. . , Defendant. JUDGMENT AND ORDER OF SALE OF ATTACHED PROPERTY. Now, on this day of , 19—, this day this cause came on to be heard, and the same was submitted to the court by the plaintiff, and the court, upon the evidence, finds that said defendant is a nonresident of the State of Oklahoma; that he has been served by summons in this action by publication ; that said service of summons by publication is correct in all things and according to law ; that said defendant M^as called three times § 327 merwine's trial of title to land. 264 in open court, but came not, and has failed to except, demur or answer to the petition, thereby confessing the allegations therein to be true. The court further finds that there is due the plaintiff from the defendant the sum of $ , with interest on said sum from the day of , 19 — , at the rate of % per annum. It is Therefore considered, ordered and adjudged that plain- tiff" recover out of the said real estate attached herein the sum of $ , with interest, and costs of this action, taxed at $ . It is further ordered and adjudged by the court that so much of said real estate so attached herein as may be necessary to fully satisfy the amount so found due, with interest and costs and accruing costs, shall be sold under the same restrictions and regulations as if the same had been levied on by execution, and the money arising therefrom be applied to satisfy said judgment and said costs. , Judge of said Court. Sec. 327. The order of sale in attachment proceedings issued by the clerk to the sheriff. District Court, County, Oklahoma. , Plaintiff, vs. No. , Defendant. To the Sheriff of County, Oklahoma, Greeting: Whereas, , plaintiff, on the day of , 19 — , sued out a writ of attachment from the clerk of the district court of said County, requiring him to attach the lands, tenements, etc., of the defendant in his county, not exempt by law from the payment of plaintiff's claim, or so much thereof as would satisfy the plaintiff's claim. And said sheriff returned said WTit, executed by attaching the following described real estate, to-wit : (Here describe it.) Whereas, afterwards in said action the plaintiff recovered a judgment in said action in the sum of $ — , with interest on 265 REAL ESTATE UNDER ATTACHMENT. § 328 said sum, and costs and accrued costs, to be paid out of said real estate so attached as aforesaid, said costs being taxed at $ . You are therefore hereby commanded to sell so much of said real estate so attached as may be necessary to satisfy said judg- ment for said sum, interest and costs and increased costs, under the same restrictions and regulations as if the same had been levied on by execution. You will make due return of your proceedings herein to our said district court within days from the date herein, and have you then and there this writ. Witness my signature as clerk of our said district court, at , OMahoma, this day of , 19 — . Clerk of said Court. Sec. 328. Sheriff's return of his proceedings under the order of sale. State of Oklahoma, County, ss. : In the obedience of the command of the order of sale hereto annexed, I did, on the day of , 19 — , summon , and , three disinterested householders of the vicinity and of said county, who were by me duly sworn to appraise the lands and tenements therein described; and after- ward, on the day of , 19 — , said appraisers re- turned to me, under their hands and seals that they did, upon actual view of the premises, estimate and appraise the real value in money of the same at $ . A certified copy of said appraisal I forthwith deposited in the office of the clerk of tha district court of said county. And on the day of , 19 — , I caused to be adver- tised in the , a newspaper printed and published in County, Oklahoma, said lands and tenements to be sold at public sale at the door of the courthouse in said county, on the ■ day of , 19 — , at o'clock, — m., of said day, and having advertised said lands and tenements for more than § 329 MER wine's trial of title to land, 266 days previous to the day of sale, to-wit : consecutive weeks, and in pursuance of said notice I did, on said day of , 19—, at the time and place above mentioned, pro- ceed to offer said lands and tenements at public auction at the door of said courthouse, and then and there came , who bid for the same the sum of $ ; and said sum being more than two-thirds of the appraised value thereof, and said being the highest and the best bidder therefor, I then and there publicly sold and struck off said lands and tenements to him for said sum of $ . — "^ > Sheriff of said County. Sec. 329. Form for the legal notice of sale of real estate under attachment. LEGAL NOTICE OF SALE OF REAL ESTATE. Notice is hereby given that, in pursuance of an order of sale issued out of the district court of County, Oklahoma, on the day of , 19 — , in an action wherein was plaintiff, and was defendant, in cause number , directed to me, the undersigned sheriff of County, Okla- homa, commanding me to levy upon and sell as upon execution, the following described premises, to-wit: (Here describe the same), together with all the improvements thereon and the appurtenances thereunto belonging, to satisfy said judgment and costs, the same having been appraised in the sum of $ -, I will, on the day of , 19—, at o'clock, — m., of said day, at the door of the courthouse in the city of , in the county of , offer for sale and sell to the highest bidder for cash, said real estate above described, or so much thereof as will satisfy said claim of plaintiff and costs. Witness my hand this day of , 19 — . Sheriff of said County. Attorneys for Plaintiff. 267 REAIi ESTATE UNDER ATTACHMENT. §§ 330, 331 Sec. 330. The proof of publication of notice of sale. State of Oklahoma, County, ss.: , of lawful age, being first duly sworn, says that he is the of the , a weekly newspaper, published and printed in the city of , in the county of , Okla- homa, and of general circulation in said county and state; that said has been published for more than fifty-two consecu- tive weeks next prior to the date on which the notice herein referred to was published, and the notice, of which a true copy is hereto attached, was published in the regular and entire edition of said , and not a supplement thereof, once each week on the same day of the week, for weeks, the first publication being on the day of , 19—, and the last of said publications being on the day of , 19—. • Subscribed and sworn to before me this day of , 19- TtTy commission expires . Notary Public. [Seal.] Sec. 331. Appointment of appraisers of real estate — The oath of the appraisers, and appraisement. State of Oklahoma, County, ss. : j'o , and , Householders of County, State of OklaJioma: Whereas, on the day of , 19—, plaintiff sued out a writ of attachment in the action of vs. , on which the real estate hereinafter described was seized and at- tached, said action being filed in the district court of said • County, Oklahoma, said real estate being described as follows: (Here insert description of real estate.) And, Whereas, afterward, to-wit : at the term, 19—, of said court, such proceedings were had upon such petition, by said court, that the sheriff of County was ordered to sell such real estate as upon judgments and executions at law. § 332 merwine's trial of title to land, 268 Now, Therefore, according to the statutes in such cases made and provided, I do hereby call and appoint you, the said , and , an inquest, and do require you, on oath, forthwith to view, estimate and appraise the real value of said premises, in money, and return to me your doings, under your hands and seals. Given under my hand this day of , 19 — . Sheriff of said County. Personally appeared before me, , sheriff of County, aforesaid, the above named , and appraisers aforesaid, who are judicious, disinterested household- ers of the vicinity of said real estate and citizens of such county of , and were personally sworn according to law to dis- charge the duties of said appointment. Witness mv hand and seal this day of , 19 — . Sheriff of said County. To , Sheriff of County, Oklahoma: In pursuance of the foregoing appointment, we have pro- ceeded to view the real estate and premises described above, and from actual view of the same, we do estimate the real value thereof in money to be $ , given under our hands this day of , 19—. Appraisers. Sec. 332. Order confirming sale, ordering distribution and the execution and delivery of a deed to the purchaser at Sheriff's sale of attached property. , Plaintiff, vs. No. . Defendant. On motion of the plaintiff and his producing the return of the sheriff of the sale made under the former order of this court, 269 REAL ESTATE UNDER ATTACHMENT. § 333 on careful examination of the proceedings of the said sheriff, being satisfied that the same have been had in all respects in conformity to law and the order of this court, it is ordered that the said proceedings and sale be, and they are, hereby approved and confirmed, and it is further ordered that the sheriff convey to the purchaser, , by deed, according to law, the prop- erty so sold. And the court, coming now to distribute the proceeds of said sale, amounting to $ , it is ordered that the sheriff, out of the money in his hands, pay, first, the costs in this action, taxed at $ ; secondly, to the plaintiff, , the balance of said $ , amounting to $ , to be applied on his claim of $ , with interest at % per annum, from the * day of , 19—.^ Judge of said District Court. * See Section 3'28 for sheriff's return. Sec. 333. Form for sheriff's deed for real estate sold under attachment proceedings. To All to Whom These Presents May Come, Greeting: Whereas, on the day of , 19 — , plain- tiff filed his certain petition and then and there commenced a civil action in the district court of County, Oklahoma, against , and numbered on the docket of said court as case number , praying, among other things, for a judg- ment against said , and the issuance of a writ of attach- ment against the property of the said ; and. Whereas, such proceedings were had in said action that said , on the day of , 19 — , caused to be issued out of the office of the clerk of said court an order of attachment directed to the sheriff of County, Oklahoma, command- ing him to attach the goods, chattels, lands and tenements of the said , in the said county of , State of Okla- homa, which said order of attachment duly came into the hands of the said sheriff; and, Whereas, on the day of , 19 — , the said sheriff of said County, Oklahoma, attached the lands and tene- § 333 mebwine's trial of title to land. 270 ments hereinafter described, as the property of the said , and returned his said action upon said order thereafter to the said court ; and, Whereas, afterward, to-wit : on the day of , 19 — ^ the said obtained, by the consideration of said court at the , term of 19 — , thereof, a judgment against said , for the sum of $ , with interest and costs; and, Whereas, afterward, to-wit : on the day of , 19 — , the said sued out an order of sale in said action, directed to the sheriff of County, Oklahoma, com- manding him to expose for sale the lands and tenements attached by him as aforesaid, to satisfy the judgment aforesaid, and said writ, with his proceedings thereon, he should make due return; and, Whereas, I, the said sheriff as aforesaid, having caused said premises to be appraised and a copy of the appraisement to be filed in the office of the clerk of said court, and having adver- tised the time and place of the sale of the same in , a newspaper, printed and of general circulation in said county, for more than days prior to the day of sale, and other- wise complied with the provisions of said writ, and the pro- visions of the statute in such cases made and provided, did, on the day of , 19 — , at the door of the court- house in said county, at o'clock, — m., of said day, expose for sale, at public auction, the premises hereinafter de- scribed, and thereupon having bid for the same the sum of $ , which sum being the highest and best bid for the same and more than two-thirds the appraised value thereof, the said premises were then and there struck off to him, the said , the purchaser for the sum of $ ; and, Whereas, the said court, at its term, 19 — , having examined the proceedings of the said sheriff, aforesaid, in the premises under said writ, and being satisfied that the sale aforesaid has been made in all respects in pursuance thereof, and in accordance with the provisions and the requisites of the statute regulating such sales, should be confirmed, and that the 271 REAL ESTATE UNDER ATTACHMENT. § 333 said slierifi of Countj^ should convey the said real estate, by deed in fee simple, to the purchaser, . Now, Know Ye, that I, the said sheriff of said county of , by virtue of said judgment, writ, sale and confirma- tion, and of the statutes for such cases made and provided, and for and in consideration of the sum of $ , which I ac- knowledge to have received from , and of the premises herein, do hereby grant, sell and convey unto him the said , his heirs and assigns forever, the following described real estate, to-wit : (Here describe it), together with all the privileges and appurtenances thereunto belonging. To Have and to Hold said real estate unto the said , his heirs and assigns as fully and completely as the said sheriff of said county, by virtue of said judgment, writs, sale and confirmation and of the statute made and provided in such cases, might or should sell and convey the same. In Witness Whereof, I have hereunto set my hand this day of , 19—. , Sheriff of County. State of Oklahoma, County, ss. : Before me, a notary public, in and for said county and State, on this day of , 19 — , personally ap- peared , to me known to be the identical person who exe- cuted the within and foregoing instrument, and acknowledged to me that he executed the same in his capacity therein stated, and as his free and voluntary act and deed for the uses and purposes therein set forth. Mj commission expires . Notary Public. CHAPTER IX. THE LAW AND PROCEDURE IN THE FORECLOSURE OF AN ATTORNEY'S LIEN FOR FEES. 335. 336. 337. SECTION 334. The attorney's lien on personal property and judgment. May retain money and prop- erty to enforce lien, when. Lien may be released by bond. The attorney's lien for his services — The statute. 338. Contingent fee authorized — The statute. 339. Liability of adverse party for fees in case of settlement — The statute. 340. The measure of ithe amount of recovery in case settlement is made without consent of the attorney. Decided cases. The effect of notice — "Lien daim" indorsed in writing on pleading filed. The settlement without the notice to, or knowledge of, the attorney having a lien. The attorney may have the cause heard to determine the amount of his fee. 345. Eight to lien when services partly performed by attor- ney. 346. Effect of agreement not to settle or compromise without the consent of the attorney. Specific performance of con- tract for portion of land to be recovered will be enforced. Should the suit to foreclose the lien be a separate action or by cross-petition, or by intervening petition in the original action. 341 342 343. 344. 347. 348. SECTION 349. Contract of infant or next friend to employ counsel, when. 350. The statute authorizing the prosecution or defense on behalf of an infant. 351. History of the law as to the functions of the next friend and guardian ad litem. 352. The court has power to order payment of fee of guardian ad litem. 353. The next friend no party to the action — Can employ coun- sel. 354. The next friend and guardian ad litem perform the same functions. 355. The power of infant or next friend to employ counsel. 356. The employment of an attorney is a necessary, and the infant alone may make the contract — A necessary in a suit for personal injuries. 357. The action does not abate on the death of the next friend — • Counsel fees in such case should be paid. 358. The attorney for an infant has a lien on his client's cause of action for his fee. 359. The infant, or next friend, or both, can make contract with an attorney for a contingent fee. 360. The law as to procedure after judgment. 272 273 SALE OF REAL ESTATE FOR ATTORNEY'S FEES. §§334,335 SECTION SECTION 361. Procedure by which the lien 3GG. Form for the appraisement of of an attorney for his services the real estate. is foreclosed on real estate — 367. Form for the publication of Form for the petition. the notice of sale of the real 362. Form for decree of court fore- estate by the sheriff. closing lien of attorney for 368. Form for proof of publication services. of notice of sale of real 363. Form for order of sale directed estate. from the clerk to the sheriff. 309. Form for the sheriff's return 364. Form for the appraisement of of his proceedings under the the real estate. writ. 365. The form for the oath of the 370. Form for confirmation of sale. appraisers. 371. Form for sheriff's deed to the purchaser of said real estate. Sec. 334. The attorney's lien on personal property and judg- ment. ^jQ attorney has a lien for a general balance for com- pensation in and for each case upon: 1. Any papers belonging to his client which have come into his hands in the course of his professional employment, in the case for which the lien is claimed. 2. Money in his hands belonging to his client in the case. 3. Money due his client in the hands of the adverse party, or attorney for such party, in an action or proceeding in which the attorney claiming the lien was employed, from the time of giving notice in writing to such adverse party, or attorney for such party, if the money is in the possession or under the control of such attorney, which notice must state the amount claimed, and in specific terms, for what services. 4. After judgment in any court of record, such notice may be given, and the lien made effective against the judgment debtor, by entering the same in the judgment docket oppo- site the judgment.^ Sec. 335. May retain money and property to enforce lien, when. When an attorney claims to be entitled to a lien on money or property so held for his attorney fee, he may, if it be 1 Snyder, 261; Wilson, 230. § 336 merwine's trial of title to land. 274 money, retain the amount of such fee, but must pay over the balance as provided by statute (Snyder, 271; Wilson, 238). If it be in property, he may retain sufficient to reasonably secure his fee, and if the property be capable of divisions, must deliver all in excess of such amount as provided in the statute. (Snyder, 271; Wilson, 238.) = Sec. 336. Lien may be released by bond. It is provided by the statute that any person interested may release such lien by executing a bond in a sum double the amount claimed, or in such sum as may be fixed by a judge, payable to the attorney, with security to be approved by the clerk of the court, conditioned for the payment of the amount finally due the attorney for his services, which amount may be ascertained by suit on the bond.^ The client may release the lien of the attorney at any time by giving bond with good and sufficient securities, resi- dents of the county, to be approved by the clerk of the district court in which the attorney resides, or in the county where the attorney may hold the property, conditioned to pay to the attorney the amount of his fees, when ascer- tained by suit, and to pay all costs occasioned by suit to ascertain such fees. The bond must be deposited with the clerk approving the same, and the attorney may bring suit on such bond to recover his fee, and must, on approval of such bond by the district clerk, without further demand, deliver the money or property held as security for his fees to the client, and on failure so to do, he will be guilty of em- bezzlement and disbarred. A client giving such bond may tender to the attorney any amount admitted by the client to be owed to the attorney, as his fee, and if the attorney fail to accept such tender, and fail to recover a sum greater than the amount so tendered, he will be required to pay all costs from the time of the tender.* 2 Snyder, 262; Wilson, 239. ■* Snyder, 264; Wilson, 240. 3 Snyder, 263; Wilson, 238. 275 SALE OF REAL ESTATE FOR ATTORNEY'S FEES. §§337,338 This bond does not apply to statutes giving a lien on causes of action which can be settled by the client in the absence of the attorney. The latter statute (Snyder, 274; Act of June, 1909), was enacted long after the existence of the former one. Sec. 337. The attorney's lien for his services— The statute. From the commencement of actions at law or equity, or from the filing of an answer containing a counterclaim, the at- torney, or attorneys, who represent the party in whose behalf such pleading is filed, is entitled to a lien on his client's cause of action, or counterclaim, and the same will attach to any verdict, report, decision, finding or judgment in his client's favor, and the proceeds thereof, wherever found, will be subject to such lien, and no settlement between the parties without the approval of the attorney, shall affect or destroy such lien. Such lien will attach from and after such attorney is contracted with, provided such attorney serves notice on the defendant or defendants, or proposed defendant, or defendants, in which he is required to set forth the nature of the lien he claims, and the extent thereof, or from and after the service of such notice. Such notice will not be necessary provided such attorney has filed such pleading in a court of record, and indorsed thereon his name, together with the words, "Lien claim. "^ Sec. 338. Contingent fee authorized— The statute. The statutes of this State provide that it is lawful for attorneys to contract for a percentage or portion of the proceeds of a client's cause of action, or claim, not to exceed fifty per centum of the net amount of such judgment as may be recovered, or such compromise as may be made with the consent of the attorney, whether the same arise ex contractu or ex delicto, and no compromise or settlement entered into without such attorney's consent, will affect or abrogate the 5 Snyder, 274; Act of June, 1909. §§339,340 merwine's trial of title to land. 276 lien provided for in the paragraph last foregoing, which lien shall apply to all contracts mentioned in this paragraph.'^ Sec. 339. Liability of adverse party for fees in case of set- tlement — The statute. Should a party to any action or proposed action, whose interest is adverse to the client contracting with an attorney, settle or compromise a cause of action or claim, wherein is involved any lien as mentioned in the preceding paragraph, Avithout the attorney having notice and an opportunity to be present at such settlement, such adverse party shall there- upon become liable to the attorney for the fee due him, or to become due him, under his contract of employment, and such attorney may enforce any lien provided for in the two preceding paragraphs, and the paragraph following, in any court of competent jurisdiction, by action filed within one year after he becomes aware of such compromise.'^ Sec. 340. The measure of the amount of recovery in case settlement is made without the consent of the attorney. Should the amount of the attorney's fee be agreed upon in a contract of employment, then such attorney's lien and cause of action against such adverse party will be for the amount so agreed upon. If the fee be not fixed by the con- tract, the lien and cause of action, as aforesaid, w^ill then be for a reasonable amount for not only the services actually rendered by such attorney, but for a sum which it might be reasonably supposed w^ould have been earned by him, had he been permitted to complete his contract; and such attorney may present, upon the hearing, the facts essential to estab- lish the merits of the cause in which he was employed. Should the contract be for a contingent fee and specify the amount for which the action is to be filed, then the lien and e Snyder, 275; Act of June, 1909. 7 Snyder, 276; Act of June, 1909. 277 SALE OP REAL ESTATE FOR ATTORNEY'S FEES. § 341 cause of action as aforesaid, will be for the percentage of the amount to be sued for as mentioned in such contract.* Sec. 341. Decided cases. In attempting to get a construction of these provisions of the statute, the cases decided by the courts of last resort in other States lend no aid. As was said by one of said courts : "The decided cases are in a mass of hopeless confusion, and are confusing instead of helpful." The reason for this is, that, so far, the writer has been unable to find any other State with a similar statutory provision. Indeed, there are many well considered cases holding that where the claim has not passed into a judgment, the client may settle his cause, and his attorney, whose services may have forced a settlement, will be without other remedy than suit against his client for a personal judgment. Some of these cases are based upon the common law doctrine of nonassignability of causes of action for injuries to persons, and others, upon the peculiar wording of the particular statute under which the charging lien is claimed.^ 8 Snyder, 277 ; Act of June, 1909. niencement of an action, or the 9 Miller v. Jersey, G6 N. J. Eq. filing of a pleading containing a 11, 57 Atl. 730; Handall v. Van counterclaim, the attorney who ap- w'agoner, 115 N.' Y. 527, 22 N. E. pears for the party has a lien on 561, 12 Sm. St. 828; North, etc., v. his client's cause of action or Ackley 171 111. 100, 49 N. E. 22; counterclaim, which attaches to any Anderson v. Itasca, 86 Minn. 480, verdict, report, decision or judg- 91 X. W. 12; LaMotte v. Washing- ment in his client's favor, and the ton, 47 Am.' Eep. 268; Keith v. proceeds thereof, into whosoever Beaver, 43 Am. Rep. (Wis.) 725; hands they may come, cannot be Allwar'd v. Lamarde, 29 Wis. 502; affected by any settlement between Howard v. Osceola, 22 Wis. 454; the parties before or after judgment. McCourtney v. McGavock, 23 Wis. In all suits in equity and in all 622. As an illustration, a copy of actions or proposed actions at law, the Missouri statute on this subject whether arising ex contractu or is here given: "The compensation ex delicto, it shall be lawful for an of an attorney or counselor for his attorney at law, either before suit services is governed by agreement, or action is brought, to contract express or implied, which is not with his client for legal services restrained by law. From the com- rendered, or to be rendered him. § 342 merwine's trial of title to land. 278 The reading of this statute (^Missouri Statute, quoted in note), at first blush, appears to thoroughly protect the attorney in his lien, but, in reality, gives him a claim on the proceeds of settlement only. In other words, if a defendant could induce an ignorant client who has a valid cause of action by which he would be able to recover a large sum of money, to believe he had no cause of action, and could induce a settlement for a very small sum, the attorney could claim only his share of the settlement. A careful analysis of the statute of our State is broader than this. It leaves no room for such claim. It bears all the marks of having been prepared by a lawyer of learning and wide experience, after having read all the decisions and statutes of other States on the subject, thereby excluding from the statute of this State the defects in the statutes of other States. Sec. 342. The effect of notice — "Lien claim" indorsed in writing on pleading filed. The statutes in other States provide only for written notice of the attorney's lien claim for services to be served for a certain portion or percentage centage thereof, which the client of the proceeds of any settlement of may have against the defendant, or his client's claim, or cause of action, defendants, and cannot be affected either before the institution of the by any settlement between the par- suit or action, or any stage after ties either before suit or action is the institution of the suit or action, brought, or before or after judgment and upon notice in ^^riting by the therein, and any defendant, or de- attorney wlio has made such agree- fendants, or proposed detendant or ment with his client served upon defendants, who shall, after notice the defendant or defendants, or pro- served as herein provided, in any posed defendant or defendants, that manner, settle any claim, suit, cause he has such an agreement with his of action or action at law, with client, stating therein the interest such attorney's client, before or he has in such claim or cause of after litigation is instituted thereon, action, then said agreement shall without first procuring the written operate from the date of service of consent of such attorney, shall be such notice, as a lien upon the liable to such attorney for such claim or cause of action, and the attorney's lien, as aforesaid, upon proceeds of any settlement thereof, the proceeds of such settlement, as for such attorney's portion or per- per the contract existing as herein- 279 SALE OF REAL ESTATE FOR ATTORNEY'S FEES. § 343 on the defendants. This is not made a public record, and innocent purchasers of the property might not be bound by the lien. In the statutes of this State, an attorney claiming such lien, can indorse in writing on the pleading filed, the words, "Lien claim," together with his name, designating for whom he appears as attorney, and there is thus made a public record of the lien of the attorney of which the world will have a constructive notice, that it is a matter of record, with the same force as any other recorded instrument of lien or conveyance. Sec. 343. The settlement without the notice to or knowledge of the attorney having a lien. The skill of the lawyer who prepared this law for the legislature of this State is to be again observed in that it nowhere provides that neither the client nor the defendant may settle the cause without the consent of the attorney claiming the lien. Indeed, both the client and defendant, or defendants, may settle the cause without giving the attorney notice or an opportunity to be present at such settlement. But if such settlement is so made, the attorney's lien still at- taches. By analogy, it attaches in the same manner as a lien of a mortgage attaches to real estate. The owner of real estate on which there is a mortgage may sell his real estate, but the lien still attaches; so the client may settle his cause of action, and the adverse party may compromise with the client, without the consent of the attorney who has a lieu on the cause of action, but the lien of the attorney on the cause of action is in no wise impaired. In other States the courts have held that a client may settle his cause without the consent of his counsel, but the attorney's lien attaches to the proceeds of the settlement.^* But the statute in this State evidently was intended to cover this weak point in the statutes of other States, as is disclosed above provided, between such attor- lo Fisher v. Railroad, 173 X. Y. ney and his client." Copied from 500, 66 X. E. 395; Waite v. Atcher- O'Connor v. St. Louis, 97 S. W. son, 103 S. W. 60. (Mo.) 150. § 344 MER wine's trial of title to land. 280 in the next paragraph. The statute under consideration makes not only the client who settles liable in any personal action for attorney's fee, or lien, but every defendant who settles with him.^^ Sec. 344. The attorney may have the cause heard to deter- , mine the amount of his fee. The statute of this State contains the wise provision that, after the amount of attorney's fee is agreed upon by his contract of employment, then the amount of his lien and cause of action will be the amount named in the contract. In other words, if a client in his contract by which he em- ploys the attorney, agrees with the attorney that his fee shall be one thousand dollars, then, if the defendant and client settle, the amount of the attorney's lien will be for one thousand dollars ; and the attorney can then file his action to foreclose and sell the property on which his lien attached, and secure a personal judgment against the client and adverse party for the same. The statute is still broader and more comprehensive than this. By its terms it provides that if the fee be not fixed by the contract, the lien and cause of action shall be a reasonable amount for not only the services actually rendered by such attorney, but for a sum which it might be reasonably supposed would have been earned by him, had he been permitted to complete his contract, and such attorney, upon the hearing of the action in which he seeks to foreclose his lien, or any action to secure a personal judgment against the client and adverse party, may present the facts essential to establish the merits of the cause in which he was employed. And if the contract of employment of the attorney be for a contingent fee, specifying the amount for which the action for client would be brought, then the attorney's lien and cause of action in 11 Flint V. HuWiard, 66 Pac. ing the settlement were personally (Cal.) 44G, in which it was held liable, that all parties concerned in mak- * 281 SALE OF REAL EST-^TE FOR ATTORNEY'S FEES. §§345,346 the suit of the attorney against the client or adverse party, or both, may be for the amount to be sued for in the orig- inal action as mentioned in said contract.^- Sec. 345. Right to lien when services partly performed by attorney. Upon this subject, one court has said : "We think, however, that if a disability occurs after such contract for services has been partly performed, this does not prevent the disabled party, if the breach of the contract was made through no fault of his own, but by an act of God, or other unavoidable casualty, from recovering the quantum meruit for the reasonable value of the services rendered prior to the disability. This is the modern idea, and we think it founded in right and justice. "^^ Sec. 346. Effect of agreement not to settle or compromise suit without the consent of the attorney. The statutes of this State authorize the attorney to make a contract with the client for a sum not greater than one-half of the recovery. The contract is thus authorized by law, it would seem that it would not be against public policy to agree in the contract not to settle without the consent of the attorney. The courts in another State have frequently held that a contract between an attorney and his client con- taining this stipulation not to settle the case without the consent of the attorney, is not void as against public policy. We here quote the language of the Supreme Court of that State : "A contract by which attorneys are employed to recover land by suit, and stipulating that they are to have the one- half of the land recovered, and in which the client agrees 12 Snyder, 277; Act of June, 1900. MeCumber, 17 R. T. 274, 24 Atl. 13 Lewis V. Omaha, 114 N. W. 464, 16 L. R. A. 858; Johnson v. (Neb.) 280; Coe v. Smith, 4 Ind. Board, 12 N. W. 237, 78 Pac. 43. 79, 38 Am. Dec. 618; Parker v. § 346 MERWINE 'S TRIAL OF TITLE TO LAND 282 not to compromise the suit or claim without their consent or approval, may, or may not be, unlawful, according to the circumstances of the case. And in this case where the client compromised with her adversary, after suit was brought, and in which as a result of the compromise, defendant is Avithholding from plaintiffs under a deed from the client, the one-half of the land to which they would have been entitled had not that compromise been made, it is held, that the contract not to compromise without their approval is lawful."^-* It would seem then, upon principle, that where there is no fraud upon the part of the attorney, a contract of this kind in this State is not void as against public policy; for the statute itself uses the language that no settlem,ent made tvith the client ivithout the consent of the attorney ivill destroy the attorney's lien. Indeed, the act itself is passed for the express purpose of preventing the client from settling the case, without the consent of the attorney. A careful reading of the statutes of this State upon the subject of protecting the attorney's fees in case of a settlement of the case by the client without the consent of the attorney, discloses that the legislature of this State has gone further in this direction than any other State of the Union. The statute is broader in that direction, than the statute of the State whose Supreme Court laid down the proposition above quoted. The Supreme Court of that State again held that such a contract is not void.^^ Courts of last resort in many of the States of the Union have held that a contract between attorney and client, con- taining the provision that the client cannot settle the cause without the consent of the attorney is void ; ^^ but it is to be observed that none of the statutes in any of the States in 14 Lipscomb v. Adams, 193 Mo. le Snyder v. DeForest, S2 X. E. 530, 91 S. W. 1,046. 742; Huber v. Johnson, 64 Am. St. 15 Wright V. Kansas, 126 S. W. 456; Davis v. Webber, 45 L. R. A. 616; Springfield v. Hobart, 9» Mo. 196, 15 Ohio, 167, 117 111. 100, 125 App. 227, 68 S. W. 942 Am. St. 694, 13 Ohio, 167. 283 S.U^E OF REAL ESTATE FOR ATTORNEY'S FEES. §§ 347, 348 which these decisions were rendered are as broad in this respect as the statutes of this State. Aside from this, the trend of the modern cases on this subject is in the direction of the protection of the client and the attorney both, by- holding that such a provision in the contract is not void as against public policy. The rule that courts will look with favor upon a compromise and settlement made by the parties to a suit, to prevent the vexation and expense of further litigation, only applies where all the rights and interests of all of the parties concerned, both legal and equitable, have been respected, and in good faith observed.^^ Sec. 347. Specific performance of contract for portion of land to be recovered, will be enforced. An agreement by counsel in writing with a client, whereby the attorney shall have a half interest in certain lands to be recovered by suit, will be specifically performed. And where the client, after the action is begun, settles with the adverse party without suit, by the execution and delivery of a deed to the real estate, the attorney will, by proper action, be given specific performance.^^ The reasonableness or unrea- sonableness of such contract is not to be determined by the value of the services actually rendered. The client, having prevented the full performance of the contract, cannot be heard to say that the attorney may not recover the quantum meruit of his services.^^ Sec. 348. Should the suit to foreclose the lien be a separate action or by cross-petition, or by intervening petition in the original action. There should be but little difficulty in determining the procedure in an action of this kind. If the client who set- 17 Potter V. Ajax, Hi Pac. (Utah), of the case without satisfying the 999; Weeks v. Circuit Judges, 73 demands of his attorneys." Mich. 256, 41 N. W. 269. One court is Topeka v. Root, 56 Kan. 187, lias put the proposition in this 42 Pac. 715. form: "A party should not be per- 1 9 Topeka v. Root, 56 Kan. 187, mitted to run away v/ith the fruits 42 Pac. 715. § 348 merwine's trial of title to land, 284 ties with the adverse party, and the adverse party are respon- sible, they can, without doubt, be made to pay a personal judgment. Then the action should be by the attorney against the client and adverse party. If the attorney desires to enforce his lien, then he will bring his action against the client and adverse party to foreclose his lien just as he would foreclose a mortgage, mechanic's or judgment lien, and there is but one cause of action in such suit.-" There is more difficulty, however, in the question as to whether the attorney may intervene in the original action, or whether he is required to bring a separate action. There is authority in other States under statutes very much unlike our statute, holding that the attorney should set up his claim by intervention in the original action.-^ Where the parties to the action settle it without the knowledge or consent of plaintiff's attorney, he may either institute an independent action to recover his fee, or proceed against him by pleading filed in the original action if the same be pending.^- And where he petitions to recover his fee in the same action, he need not make plaintiff a party.'^ He may have the case reinstated and heard in the name of the plaintiff to deter- mine the amount of his recovery.-* The cases here cited show that the statutes, under which the lien is claimed, are so different that it confuses the practitioner seeking to enforce a lien in our State, if he should attempt to follow the decisions upon the subject in other States. By giving careful attention to the statute of our State on the subject, there need be no confusion as to the 20 Coombs V. Knox, 72 Pac 22 Proctor v. Tye, 96 S, W. 612, (Mont.) Ml; Elliot v. Leopard, 52 .29 Ky. Law Rep. 804, Cal. 355 ; Flint v. Hubbard, 66 Pac. 23 lUd. (Cal.) 446. 24Merdricke v. Rank, 82 N. E. 21 Farry v. Davidson, 24 Kan. (Ind.) 119; Jackson v. Stearns, 84 418; Lewis v. Omaha, 114 N. W. Pac. 798; Waite v. Atcherson, 10.3 (Neb.) 280; Smith v. Railroad, 60 S. W. (Mo.) 60; Potter v. Ajax, N. W. (la.) 244; Kansas v. 57 Pac. 270. Thacher, 17 Kan. 92; Jones v. Duff, 95 N. W. (Neb.) 1. 285 SALE OF REAL ESTATE FOR ATTORNEY'S PEES. § 348 procedure. It is to be observed, as stated above, that the statute in no wise prevents, or attempts to prohibit a set- tlement. It is provided by general statute how cases may be settled. An action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court, where the trial is by the court.-^ The plaintiff may, in the beginning of the cause, and without order of court, dismiss any civil action brought by him at any time before a petition of intervention or answer, praying for affirmative relief against him, is filed in the action. A plaintiff may, at any time before the trial is commenced, on payment of the costs, without any order of court, dismiss his action, after the filing of a petition of intervention, or answer praying for affirmative relief, but such dismissal will not prejudice the right of the intervenor or defendant, to proceed with the action. Any defendant, or intervenor, may, in like manner, dismiss his action against the plaintiff, without order of court, at any time, before the trial is begun, by payment of the costs, on the claim filed by him. All parties to a civil action may, at any time, before the trial, without an order of court, on payment of the costs, by agreement, dismiss the action. Such dismissal is required to be in writing, and to be signed by the parties, and their attorneys, and is required to be filed with the clerk of the district court, the judge or clerk of the probate court, or deposited where the action is pending, who must note the fact on the proper record: Provided, that such dismissal must be held to be without prejudice, unless the words, "With prejudice" are expressed therein.-*' Thus, it is seen that by the statute, a defendant may dis- miss the action by stipulation in writing, signed by him, and filed with the clerk. The action being thus dismissed, it is quite difficult to see how the attorney could intervene therein by cross-petition. Aside from this, the language of the statute itself seems to indicate the necessity of a separate 25 Snyder, 5,918; Wilson, 4,375. 2a Snyder, 5,919; Wilson, 5,486. §349 merwine's trial of title to land. 286 action by the attorney to enforce his lien; for it says, "And such attorney may enforce any lien provided for by this act, in any court of competent jurisdiction, by action filed within one year after he becomes aware of such com- promise." "^ The safer practice is to bring a separate action, for there can be no error in so doing, and, on the other hand, in view of the statute authorizing the defendant to dismiss his action, it might be error to file an action by an intervening or cross- petition in the case. These views, to the writer, seem founded on principal and logic. The cases in other jurisdictions bear out these views.-® Sec. 349. Contract of infant or next friend to employ coun- sel, when. The question as to whether an infant, or next friend, or both, has the power to employ an attorney, and bind his estate for services rendered, or to be rendered in the re- covery of property for the infant, is a question now before the courts, and the practitioner in eastern Oklahoma. A large part of the lands in that part of the State, was allotted to infants. There, buyers and speculators have secured deeds and possession thereunder of many of their allotments. The infant, in many cases, has no guardian, and no means of employing counsel for its recovery, except to employ counsel by agreement to pay him as his fee, a portion of the lands to be recovered. The courts are confronted with a situation that ought to call for the protection of the infant. The law authorizes the next friend to bring an action on behalf of the infant to recover his lands. Having authorized the next friend to bring the action, the next friend ought to be em- powered to employ counsel and to bind the estate of the infant out of the recovery for the payment of the fee. Even 27 Snyder, 276; Act of June, 1909. Pac. (Mont.) 641; Taylor v. 28Kansas V. Thachcr. 17 Kan. 92; St. Louis, 97 S. W, 155, 198 Mo. Farry v. Davidson, 44 Kan. 377, 750. 24 Pac. 419; Coombs v. Knox, 72 287 SALE OF REAL ESTATE FOR ATTORNEY'S FEES. §§ 350, 351 if the question of the power of the next friend or of the infant, should be questioned, or even doubted, a wise public policy demands the courts of last resort of this State to cast the doubt in favor of the right and power of either the in- fant or next friend to employ counsel to recover his property. Any other decision would result in permitting fraud to retain the fruits of its cunning and deceit. In order to get at the expression and reason of the courts on this subject, great liberty has been taken in the follovvdng portion of this chapter in the use of language of the opinions of the de- cided cases; and we here repeat what has already been said at another place in this work on this subject. Sec. 350. The statute authorizing the prosecution or defense on behalf of an infant. The action of an infant must be brought by his guardian or next friend. "When the action is brought by his next friend, the court has power to dismiss it, if it is not for the benefit of the infant, or substitute the guardian of the infant, or any person as the next friend.'® Sec. 351. History of the law as to the functions of the next friend and guardian ad litem. It has been a rule of law from time immemorial that the next friend can bring an action for an infant. In the time of Lord Thurlow and Lord Hardwick, in England, the costs of the action and fee of counsel, were allowed as costs in an action for an infant. The former laid down the rule that no mistake or misapprehension would be sufficient to charge the f/rochein ami with the costs, and that anyone who would stand forward in that character on behalf of the infant ought to be encouraged to every possible extent, which he could be supposed to intend beneficial to the infant. And 29 Snyder, 5.563; Wilson, 4,229; Kansas, 4,459 (1901), identical; Nebraska, 1,032 (1907), identical. § 351 merwine's trial op title to land. 288 the latter laid down the rule that if it appears that the next friend was sufficiently warranted to bring the suit, and it was brought and continued in a reasonable manner, without laches, then the infant ought to reimburse him.^** It has always been the practice in English courts to bring the infant into court and ask permission to have a guardian ad litem appointed for him.^^ The highest tribunal in our land has declared the English practice its practice in the prosecution or defense of an infant by the next friend or guardian ad litemJ^ And this rule of practice has been adopted by the various States of the Union. In order to carry out the practice it is necessary that the guardian ad litem be empowered to secure and retain the services of an attorney, and the attorney's compensation will come under the allowance by the court out of the funds placed in the hands of the court, or under its control, by the services of such attorney.^^ The general guardian of an infant is required to appear for and represent his ward in all legal suits and proceedings, unless another person is appointed for that purpose as guardian or next friend.^* It is further provided by statute in the chapter relating to the general guardian of minors, that nothing contained therein shall affect or impair the power of any court to defend the interests of any minor interested in any suit or matter pending therein.^^ soWhittaker v. Marian, 1 Cox's 32 Marshall, J., in United States Case, 285; Tainer v. Ivie, 2 Ves. v. Eich, 8 Pet. 128. Jr. R. 466; Pierce v. Pierce, 9 33 Stewart v. Hoare, 2 Bro. C. C. Ves. R. 547.' 663; Fearns v. Young, 10 Ves. 184; siLoyd V. Carew, L. Eq. Ca. Abr. Crump v. Baker, 18 Ves. 285; Union 260; Johnson v. Pfeil, 9 Ves. 357; v. Van Eensaeler, 4 Paige, 84. Lushington v. Sewell, 6 Madd. 28; 34 Snyder. 5,490; Wilson, 1,832; Egremont v. Egremont, 2 DeG., M. California, 1,769 (Kerr), and G. 730. ss Snyder, 5,484; Wilson, 1,826. 289 SALE OP REAL ESTATE FOR ATTORNEY'S FEES. § 352 Sec. 352. The court has power to order payment of fee of guardian ad litem. It is now, and has been, the universal rule of the courts, to allow a fee to be paid to the counsel for the guardian ad litem, for his services in protecting the interests of the infant, out of any fund in the control of the court and placed there by the services of the attorney for the guardian ad litem. It cannot be seriously controverted that a guardian ad JUcm, appointed by the court for an infant, is entitled to compensation. If the law were otherwise, the rights of in- fants would be at the mercy of any one who saw fit to evade them. The statutes which make provision for the appoint- ment of these officers, imply that they should be compensated, and the proper court should fix their compensation, as the one which is a witness of their services. That proposition cannot be gainsaid, and has been uniformly so held.^'' Another court of last resort has held that where the at- torney appears for the guardian ad litem, the relation of the attorney to the infant is the same as it would have been to an adult, and it further held that this doctrine did not at all conflict with the cases holding that the infant cannot appear or plead by attorney. The ground is that after the guardian ad litem has been appointed, he aids the infant in selecting counsel and conducting the defense. That it is the employ- 36 Walton V. Yore, 58 Mo. App. 442; Boring v. Jude, 53 S. W. 763. 565; Nagel v. Schulling, 14 Mo. A suit was brought in the name of App. 576; In re Matthews, 27 Hun, certain minors by request of their 254 ; Gott V. Cook, 7 Paige, 52 ; guardian. The minors were the real Herbaugh v. Vance, 5 Lea (Tenn.), parties in interest. It did not ap- 113; Wilbur v. Wilbur, 138 111. pear that there was any intention 446; McCue v. O'Harra, 5 Radf. on the part of the attorneys to look (N. Y.) 336; Halloway v. Mcllhen- to the guardian for compensation, ney, 17 Tex. 657; Robinson v. nor, on the part of the guardian, to Fidelity, US. W. 106; Stewart v. become personally liable therefor. Hoare, 2 Bro. C. C. 663; Fearns Held, that a court of equity would V. Young, 10 Ves. 184; -Crump v. charge the estate of the minors Baker, 18 Ves. 285; Union v. Van with such compensation. Fillmore Rensaeler, 4 Paige, 84; American v. Wells, 10 Col. 228, 15 Pac. 343. V. Davis, 67 S. W. 864, 108 Tenn. §§353,354 MER wine's trial of title to land. 290 ment of the infant is evident from the fact that the infant, and not the guardian, pays such attorney. The legal services are, in such case, necessaries.^^ Sec. 353. The next friend no party to the action — Can em- ploy counsel. The relation of prochcin ami to the action and his duties are simple and well defined. He is no party to the suit in the technical sense of the term, although he is responsible for the costs. He is considered as an officer of the court, espe- cially appointed by it, to look after the interest of the infant in whose behalf he acts. One of the duties required of him is that of employing an attorney to conduct the suit, as he is not supposed to be a person learned in the law, and his intervention is, by no means, to dispense with the services of an attorney to carry on the proceedings and to try the case, if necessary.^^ Sec. 354. The next friend and guardian ad litem perform the same functions. A guardian ad litem, appointed by the court to protect the rights of an infant defendant, should file a general denial, and, in case the proper protection of the rights of his ward require it, he may take such affirmative action by petition or cross-petition and other pleading, as may be necessary for that purpose. At common law, infants were required to sue by guardian ad litem, but, by the statute of Westminster they were authorized to sue by next friend in all actions, and the remedy was held to be cumulative, leaving it optional for suit to be brought by the guardian or next friend. In respect to the represen- tation of an infant plaintiff there would seem to be little, if any, difference between the functions of a guardian ad litem and of a next friend. It may be well said that a guardian 37 Alexander v. Frarey, 9 Ind. 38 BaltimQre v. FitzPatrick, L6 484; Doe v. Brown, S Blackf. 443. . Md. C24. 291 SALE OP REAL ESTATE FOR ATTORNEY'S FEES. § 355 ad litem, appointed for an infant defendant, in addition to filing a general denial, would not only have the power, but it would be his duty to take affirmative action, and prosecute by cross-petition, if it should be found necessary, and it was for the protection of the interests of his ward.^'^ We here quote from a standard work on this subject: "A next friend is one, who though not properly appointed guardian, represents in a suit a party thereto w4io is not sui generis, as an infant. The term is synonymous with prochein ami. There is but little substantial difference between the office of next friend and that of guardian ad litem. The chief distinction is that the former is usually applied to one who appears on behalf of a plaintiff, Avhile the corresponding representation of a defendant is usually de- nominated guardian ad litem. ' ' **^ Sec. 355. The power of infant or next friend to employ counsel. The cases upon which the above authorities are predicated, establish the proposition that the functions of the guardian ad litem and the next friend are the same. The courts, from time immemorial, have had inherent power to fix and pay counsel's fees for the guardian ad litem out of any estate or fund under its control. The conclusion- necessarily follows that the next friend, or infant and next friend, have the power to bind the estate for the payment of counsel fees for the recovery of an estate, or of money for the infant, in the absence of the appointment of a general guardian by the probate court. When there is a duly appointed guardian for the infant, then such guardian should bring the action for the infant, and there is no need of a guardian or next 39 Scliade v. Connor, 120 X. W. describing him as such, has pre- (Xeb., 1910) 1,013; Grosovoskv v. vailed in this State, still he is in Goldenberg, 86 ]Minn. 378. all respects, the next friend of the 40 14 Enc. Plead, and Prac. 907. infant." Simpson v. Alexander, 6 "Although the practice of allowing Coldw. (Tenn.) 619. an infant to sue by his guardian, § 356 merwine's trial of title to land. 292 friend to institute the action. But in cases where the general guardian fails or refuses to bring the suit, then the action should be brought by the next friend, and the fee of his counsel should be paid out of any fund recovered for the infant by the attorney employed by the next friend. In- deed, if the next friend did not have the power to employ counsel for the infant, the next friend could not bring the action. The statute would be a vain and idle thing if the next friend could not employ counsel. The language of the statute authorizes a suit by the next friend, even when there is a general guardian. It says: "The action of an infant must be brought by his guardian or next friend. When the action is brought by his next friend, the court has power to dismiss it, or substitute the guardian of the infant. ' ' *^ Sec. 356. The employment of an attorney is a necessary, and the infant alone may make the contract — A "necessary" in an action for personal injuries. Usually, an infant who has an estate has a guardian, who may, and should, engage and pay counsel where the interests of the infant committed to his care, require it. When an infant has no guardian, but has rights involved in litigation, 41 Snyder, 6,563 ; Wilson, 4,223 ; acts fairly, and does not make Kansas, 4,459 (1901), identical; unreasonable demands for credit or Nebraska, 1,032 (1907), identical; allowance, he should be allowed Munson v. Washburn, 83 Am. Dec. compensation for services, and when (Conn.) 151. Attorneys who con- necessary, attorney's fees paid in tract with a minor, and perform the hearing of his account; and services under that contract, are where such guardian ad litem, who entitled to a reasonable compensa- is an attorney, employs counsel to tion; and the minor's administrator assist him in conducting the litiga- may set up the contract in his tions of his wards, he should be answer to a suit brought by the allowed reasonable compensation for heirs to compel an accounting, and such counsel for the performance of may show, if the contract is in- such services only as such guardian, valid, that the sum paid the attor- himself, could not properly be ex- neys is a reasonable compensation. pected to perform. Richardson v. Hamlon v. Wheeler, 25 S. W. (Tex.) Tyson, 86 N. W. (Wis.) 250. 822. Where a guardian ad litem 293 SALE OF REAL ESTATE FOR ATTORNEY'S FEES. § 356 and a lawyer has espoused the cause of such litigation, and as a result of the litigation an estate has been secured to the infant, it is just and proper that on the principle on which the infant is held liable for necessaries, that the reasonable fees of such counsel should be paid out of the estate thus obtained. If the infant had had a guardian who had em- ployed and paid counsel, he would have been entitled to reimbursement out of the estate of the ward, for the reason- able fees so paid, to be allowed on settlement. Should the fact that the infant had no guardian until the acquisition of the estate involved in litigation, in which the services of a counsel were rendered, made one necessary, deprive counsel of just compensation? Both the principles of public policy and the protection of infants, lead us to answer this question in the negative. It will operate for the benefit of infants to allow a just compensation for counsel fees and expendi- tures in their behalf, in maintaining their rights in litigation, which result in securing to them the means of supplying their wants.^- It was decided in another well considered case that if a suit be brought by an infant through her father, as her next friend, and she confers with counsel, and appears as a witness, and provides for the prosecution of the suit, a promise may be implied by her, to pay an attorney's fee for 42 Epperson v. Xugent, 57 Miss. band, with whom the suit was 45, 34 Am. Rep. 435; Trafts v. settled by marriage, if it appears Carr, 60 L. R. A. (R. L.) 128, 96 that the services of the attorney Am. St. 929; Askey v. Williams, were absolutely requisite for the 5 L. R. A. 176; Kilgore v. Rich, personal relief and protection and 12 L. R. A. (Me.) 860; Gay v. support of the minor. A minor Ballou, 21 Am. Dec. 158. "An at- may make a necessary contract for torney may recover of husband and the commencement and prosecution wife, fees for his services and of a civil suit, where, under peculiar moneys expended by him in com- circumstances of the case, it is the mencing and prosecuting a suit in only means by which he can pro- behalf of the wife alone, when she cure the absolute necessaries which was a femme sole and a minor, by he requires." Munson v. Wash- an action for breach of promise of burn, 31 Conn. 303, 83 Am. Dec. marriage, against her present bus- 151. §356 merwine's trul of title to land. 294 conducting the suit, and such attorney fees may be recovered against the infant where the services rendered by the counsel effected the infant's personal relief, protection or liberty, and when they are necessary and financially beneficial to the infant's estate.*^ The cases which have been most carefully considered by the courts hold as given in the foregoing paragraph, but there are many decisions holding that neither the infant nor the next friend can bind the estate of the infant for the payment of his counsel fees. A carefal reading of all decided cases on this subject has impressed the writer that the modern trend of the decisions is in the direction of enabling either the minor, or next friend, or both, to employ counsel to protect the estate of the infant, and to bind the infant's estate for the payment of such fees, especially, in all cases where there is no general guardian. The cases holding that the infant or next friend, or both, have such right, seem to be the more logical, and are founded on the necessities of the situation. Were any other rule to be adopted by the Supreme Court of this State, it would leave the infants and their lands, helpless in the hands of the land speculator. In the note below will be found a list of cases holding that the infant's estate cannot be bound for the payment of counsel fees for services rendered on his behalf.** The Supreme Court of Kansas, in a very late case, said : "The appellant's contention is that the plaintiff's contract with a minor, or with the next friend of the minor is void. Whether an express contract as to the attorney's compensation was en- 43 Crafts V. Karr, 24 R. I. 721, " McKee v. Hunt, 77 Pac. (Col.) 53 Atl. 275; Thrall v. Wright, 3S 1,104; Hunt v. Maldanado, 89 Cal. Ves. 494; Kilgore v. Rich, 12 G3fi, 27 Pac. 56; Morse v. Hinckley, L. R. A. 860; Barber v. Hibbard, 124 Cal. 154, 56 Pac. 896; Cobbey 54 N. H. 539, 20 Am. Rep. 160; v. Buchanan, 48 Neb. 391, 67 N. W. Hammaker v. Bank, 95 Wis. 359, 167; Phelps v. Worcester, 11 X. H. 70 N. W. 295; Thompson v. In- 51; Engelbert v. Troxell, 40 Neb. surance, 136 U. S. 287; Henry v. 145, 42 Am. St. 665. Henry, 103 Ala. 582; American v. Davis, 108 Tenn. 442, 67 S. W. 864. 295 SALE OF REAL ESTATE FOR ATTORNEY'S FEES. §§ 357-359 forceable as to its terms, the services ha\dng been rendered and having been beneficial to the minor, a liability exists to pay for them on the ground that they are necessaries. ' ' *^ Sec. 357. The action does not abate on the death of the next friend — Counsel fees in such case should be paid. An action by an infant by a guardian ad litem does not abate by the infant coming of age pending it, and he may without any amendment of the infant elect to proceed with the action, and his election is sufficiently shown by his re- ceiving the fruits of the judgment entered after he became of age.*° Sec. 358. The attorney for an infant has a lien on his client's cause of action for his fee. If the next friend, or the infant, or both, has the power to employ counsel to recover money or property, it follows, as a necessary sequence, that the attorney so employed has his lien on the client's cause of action, which the client cannot impair in any way, by settlement, provided the attorney at the time of filing the petition, or answer con- taining a counterclaim, serves notice on the defendant, or defendants, or proposed defendant or defendants, setting forth the nature of the lien he claims, and the extent thereof, or has indorsed on such pleading, in writing, his name, to- gether with the words, "Lien claim. "^^ Sec. 359. The infant, or next friend, or both, can make con- tract with an attorney for a contingent fee. Since the infant, or next friend, or both, in certain in- stances, may make a contract for the employment of counsel, 45 Sutton V. Heiyle, 115 Pac. refused to pay such fees, and the Kansas, May Term, 1911), 516. matter of the fee was referred to a 4« Connor v. Ashley, 35 S. E. 546. master for hearing, in which refer- In this latter case, the attorney for ence the master allowed and the the infants rendered services for court confirmed the payment of the them in an estate in which they fee. were interested, and the executor *' Snyder, 274; Act of June, 1909. §§360,361 merwine's trial of title to land. 296 to recover property for him, he, or they, may, under the statute authorizing the employment of counsel for a con- tingent fee, agree to give the attorney not more than half of the recovery.*® Sec. 360. The law as to procedure after judgment. In the chapter herein on sale of real estate under an execution, there will be found a full statement of the sale of real estate by an order of sale and also under the writ venditioni exponas, and also a statement of the law as to appraisement of the real estate and as to the procedure from the time of the order of sale to the delivery of the deed to the purchaser. Sec. 361. Procedure by which the lien of an attorney for his services is foreclosed on real estate — Form for the petition. District Court, County, State of Oklahoma. and , Plaintiffs, vs. No. . and , Defendants. PETITION. Come now plaintiffs, and for their cause of action herein, allege and state : 1. That on the day of , 19—, they entered into an agreement with one , who was the of the de- fendant, , and also with , who was then a minor, which agreement was in writing, and provided, in substance, that said plaintiffs, as attorneys at law, were employed by the said and to bring an action in the courts to recover all lands theretofore conveyed by the said , dur- ing his minority, and to quiet title to all of the lands allotted to said minor as a citizen of the Nation, and for 48 Snyder, 275; Act of June, 1909. *' 297 SALE OF REAL ESTATE FOR ATTORNEY'S FEES. § 361 their services as such attorneys under said employment, plain- tiffs were to be given and they were to accept the following described real estate, to-wit: (Here describe it.) Said agree- ment further provided that in case nothing was recovered for said minor, then said attorneys were to make no charge for their legal services, and that the said of said infant was to be the guardian and next friend for said minor in an action brought for the purposes mentioned in said written contract, a copy of which contract is hereto attached, and made a part hereof, and marked "Exhibit A." 2. That, in pursuance of said employment, on the day of , 19—, the plaintiffs, who were then and are now, regu- lar licensed attorneys, authorized to practice law in said county and State, filed a petition in the district court of County, Oklahoma, in which , an infant, by , his next friend, was plaintiff, and the above named and , and one , were defendants, alleging in substance, that the said was the and next friend of said ; that said was a citizen of the Nation, of the blood, and was on the day of , by the Dawes Com- mission, placed on the enrollment records of said Nation, as of the age of years, and as such citizen, there was allotted to him the follo^dng described real estate in County, Oklahoma, to-wit : (Here describe real estate) ; that on the day of , 19 — , said minor, and his said wife, by warranty deed, attempted to convey to the above named defendants, • and , the following described real estate, to-wit: (Here describe it), receiving therefor the sum of $ , and certain personal property, to-wit: (Here describe same); that said money had been spent and none of it is in his possession, but he still had said personal property (describing it), and would restore the same to the grantees, if the court should so order; that said deed was made without any order of court, and when said was a minor, and said deed was void, but operated as a cloud upon his said real estate to his great and irreparable damage and injury; that on the day of , 19 — , a deed purporting to have been made by said infant to one , § 361 MEE wine's trial op title to land. 298 conveying (Here describe real estate conveyed) was filed and recorded in the records of the deeds of said county and State, but that said deed had never been signed by said infant, or by anyone by him authorized to do so; that said deed was also a cloud upon his title thereto to his great and irreparable damage and injury ; that said and have received the rents and profits from said real estate, amounting to the sum of $ , and that said infant was in the possession of said real estate. Said petition prayed that the deeds made to said and ^ and to , be canceled and held for naught; that said parties, and each of them, be forever barred from asserting any claim to the real estate first herein described ; that said real estate be quieted in said infant, and that the court grant him such other and further relief as equity and the nature of the case miglit require, a copy of which petition, with all of the indorsements thereon, is hereto attached, marked "Exhibit B" and made a part hereof. 3. That in said cause, number , aforesaid, the said and , entered their appearance by filing a de- murrer to said petition, which demurrer alleged that said petition did not state a cause of action against them, a true copy of which demurrer is hereto attached, marked "Exliibit C" and made a part hereof. 4. That on the day of , 19 — , plaintiffs as such attorneys, procured from said court and filed in said cause, number , an order, in writing, suggesting that, since the bringing of said action, the and next friend had died, and in the meantime, said minor had reached his majority, and further ordering said cause to proceed in the name of the said , a true copy of said order is hereto attached, marked "Exhibit D" and made a part hereof. 5. That on the day of , 19 — , in the absence of his said attorneys, and without their knowledge or consent, and without turning over to plaintiffs the compensation agreed to be given by him to them, the said entered into a stipu- lation in writing with the said and — , for the settle- 299 SALE OF REAL ESTATE FOR ATTORNEY'S FEES. § 361 ment and dismissal of said action number , a copy of which is hereto attached, marked "Exhibit E" and made a part hereof, which said stipulation stated that he had received from the said , the sum of $ , in full settlement of said cause, and that the clerk of said court be directed to enter a dismissal thereof and charge the costs to plaintiff therein. 6. That before filing said stipulation of dismissal of said cause and after the said became of age and prior to the order of said court, authorizing and directing said cause to proceed in the name of said , the said authorized and directed said attorneys, plaintiffs herein, to proceed with said action in his name and for his benefit. 7. That at the time of the filing of said petition, the said plaintiffs, as such attorneys for said plaintiff in said action, indorsed on said petition in writing, the f ollowng : ' ' Lien Claim, and Attorneys for Plaintiff, ' ' and the same was so indorsed thereon at the time said suit was so settled and dis- missed, and said indorsement of said lien claim appeared on said petition at the time of the settlement of said action and at the time of the conveyance of said real estate hereinafter alleg-ed. 8. That at the time said settlement had been made as afore- said, the said and his wife, , by deed of general warranty, executed, acknowledged and delivered, conveyed (Here describe real estate conveyed), of said real estate to one . Said deed was so made under the direction of the said as a part of the settlement of said case aforesaid, and said deed was taken and accepted by the said , with knowledge of the lien of said attornej^s in said action on said land. 9. That on the day of , 19 — , the said , by deed of quitclaim, conveyed the real estate last aforesaid, to the defendant, , who took said deed with notice of plain- tiffs' lien thereon. 10. That on the day of , 19—, the said , by deed of quitclaim, conveyed the real estate last aforesaid, to the said , who took said deed with notice of plaintiffs' lien thereon. § 361 merwine's trial op title to land. 300 11. That said portion of said real estate which said plaintiffs, under said contract, were to receive for their said services were then, and are now, of the value of $ , and their lien on said (Here describe real estate) has become absolute, and plain- tiff is entitled to a foreclosure thereof. 12. That plaintiffs do not know the full Christian names of the defendants, , and , and therefore said parties are sued by the initial letters of their respective names. "Wherefore, plaintiffs pray that this court either decree them the fee simple title to said (Here describe real estate), freed from any claim of any of said defendants herein, or that the court hear and determine the value of said (Here describe real estate again) of said real estate, and give plaintiffs judgment for the value so to be found, and order and decree that said (Here describe real estate), or such portion thereof as this court may determine necessary, be sold, freed from the claims of any de- fendant herein, to satisfy said judgment and lien of plaintiffs; that said defendants, and each of them, be compelled to come into this cause by appropriate pleading and set forth the in- terest they may have in said real estate, or be forever barred from asserting the same thereto, and that plaintiffs may have such other and further relief to which they may be entitled. Attorney for Plaintiffs. EXHIBIT A.* This agreement, made and entered into by and between , a minor, and , , and next friend of said minor, party of the first part, and and , attorneys at law, party of the second part, Witnesseth, The party of the first part employs the said party of the second part as their attorneys to recover all lands heretofore conveyed by the said during his minority, and to quiet title to all the allotment of said minor, and for their services the said party of the first part agrees to give and said second party agrees to accept the following described real estate, to-wit : (Here describe it.) * Here attach other exhibits. 301 SALE OF REAL ESTATE FOR ATTORNEY'S FEES. § 362 The party of the second part is to make no charge for their professional services in case nothing is recovered for said infant, and party of the second part is to pay all court costs. The said action for the recovery of the rights of the said minor is to be brought in the name of as next friend for said minor. Witness our hands on this day of , 19 — . Party of the First Part. Party of the Second Part. Sec. 362. Form for decree of court foreclosing lien of attor- ney for services. District Court, County, State of Oklahoma. and , Plaintiffs, vs. No. . and , Defendants. DECREE OP FORECLOSURE OF ATTORNEY'S LIEN. Now, on this day of , 19 — , the same being one of the judicial days of the regular , 19 — Term of this court, this cause comes on for trial in its regular order, and the plaintiffs appearing in person and by their attorney, the de- fendants, and each of them, having been three times called in open court, to except, demur, answer or plead to the petition of the plaintiffs herein, came not, but each of them makes default, and it appearing to the court that said defendants, and each of them, have been duly notified, more than days prior to this date of the pendency of this action, by service of summons upon them, as required by law, and the court haWng read the pleadings and having heard the evidence adduced in support of plaintiffs' petition, the arguments of counsel, and being fully advised in the premises, tinds that all the material allegations contained in plaintiffs' petition are true; that there is due from said defendants to plaintiffs the sum of $ , on the cause § 362 mekwine's trial of title to land. 302 of action set forth in the petition herein, and the court further finds that plaintiffs have, by reason of tlie premises, and by reason of the services rendered to the defendants, , , an attorney's lien on the lands and tenements described in the petition herein, which said real estate is more specifically de- scribed as follows, to-wit: (Here specifically describe it.) It is Therefore considered, ordered and adjudged by the court that the plaintiffs have and recover of said defendants, the sum of $ , being the amount so found due them for their fees, as aforesaid, and that said judgment bear interest at the rate of per cent, per annum until paid. It is further ordered and adjudged by the court that in case said defendants fail for days to pay said judgment and said interest, and the costs of this action, an order of sale issue to the sheriff of said County, State of Oklahoma, com- manding him to appraise, advertise and sell, according to law, the lands and tenements in said petition described, to-wit: (Here describe same), with all the improvements thereon and the appurtenances thereunto belonging, and apply the proceeds aris- ing from such sale : 1st. In payment of the costs of said sale and of this action. 2d. In payment of said plaintiff's judgment and lien afore- said, together with the interest thereon. 3d. That the residue, if any there be, be paid over to the clerk of the district court of said county, to be disposed of according to the further orders of said court. And it is further ordered and adjudged by the court, that from and after the sale of said lands, under and by virtue of this judgment and decree, the said defendants, and each of them, and all persons claiming under them, or any of them, since the commencement of this action, be, and they are, forever barred and foreclosed of, to and from any lien upon, right, title, estate, interest or equity in and to said lands, or any part thereof. It is further ordered and adjudged that upon the sale of said real estate, and the confirmation thereof by the court, the sheriff of said county of place the purchaser at such sale, in 303 SALE OF REAL ESTATE FOR ATTORNEY'S FEES. § 363 peaceable possession of said premises, and that a writ of restitu- tion issue to that end out of this court. Judge of said Court. Sec. 363. Form for order of sale directed from the clerk to the sheriff. District Court, County, State of Oklahoma. and , riaintiffs, vs. No. . and , Defendants. ORDER OF SALE OF REAL ESTATE. State of Oklahoma, County, ss. : To the Sheriff of County, Oklalioma, Greeting: "Whereas, on the day of , 19 — , the same being one of the regular days of the , 19 — Term of this court, in an action then pending in said court, where in and were plaintiffs, and , , and were defendants, said plaintiffs recovered a judgment against said defendants, , , and , in the sum of $ , with interest thereon from the date of said judg- ment, at the rate of per cent, per annum until paid, and for the costs of this action, taxed at the sum of $ ; and, Whereas, on said day by said court, it was further consid- ered and ordered, in said cause, that in case said defendants, , , and , failed for days from said day of , 19 — , to pay to the plaintiffs said sum of $ , with interest thereon, and the costs of said action, an order of sale issue to the sheriff of County, State of Oklahoma, commanding him to appraise, advertise and sell ac- cording to law, the following described lands and tenements, to-wit: (Here describe same), with all improvements thereon and appurtenances thereunto belonging; and, Whereas, the order and judgment of said court in said cause require that the proceeds arising from such sale should be applied as follows, to-wit: § 364 merwine's trial of title to land. 304 1st. In payment of the costs of said sale and of this action. 2d. In payment to safd plaintiffs of the sum of $ , judg- ment, with interest thereon. 3d. That the residue, if any there be, be paid over to the clerk of this court to await the further order of this court. Now, Therefore, these are to command you that you proceed according to law to appraise, advertise and sell the lands and tenements hereinabove described, according to law, and apply the proceeds arising from such sale as directed by said judgment as aforesaid. You will make due return of this order of sale with your proceedings indorsed thereon, showing the manner in which you have executed the same within sixty days from the date hereof. In Witness Whereof, I have hereunto set my hand and affixed the seal of said court this day of , 19 — . [Seal.] Clerk of said Court. Sec. 364. Form for the appraisement of the real estate. District Court, County, State of Oklahoma. and , Plaintiffs, vs. and , Defendants. No. I, the undersigned, sheriff of County, State of Okla- homa, do hereby call an inquest of , and , three disinterested householders who are residents within said county of , to impartially estimate and appraise, upon actual view, the following described real estate, situated in said county of , to-wit : (Here describe real estate.) They will first take and subscribe the following oath, then proceed forthwith to make and return to me, under their hands, an estimate of the real value of said property. Witness my hand this day of , A. D. 19 — , Sheriff of said County of 305 SAL.E OF REAL ESTATE FOR ATTORNEY'S FEES. §§365-367 Sec. 365. The form for the oath of the appraisers. State of Oklahoma, County, ss. : We do solemnly swear that we are disinterested householders, residents within said county of ; that we will impartially appraise upon actual view the real estate above described, and forth\^ath return to the sheriff of said county of , under our hands, an estimate of the real value of said property. So help us God. Appraisers. Subscribed and sworn to before me this day of 19—. Sheriff of said County of , OklaJioma. Sec. 366. Form for the appraisement of the real estate. We, the undersigned, in pursuance of the foregoing appoint- ment and oath to appraise and estimate the real property afore- said, do hereby report to said sheriff that we have performed the duties assigned us, by going upon and making strict examination of said property, and we do, upon actual view of the same, estimate and appraise the real value of the same as follows : (Here specifically describe real estate), at $ . In Witness Whereof, we have hereunto set our hands this day of , 19 — . Appraisers. Sec. 367. Form for the publication of the notice of sale of the real estate by the sheriff. Notice is hereby given that, in pursuance of an order of sale issued out of the district court of County, Oklahoma, on the day of , 19 — , in an action wherein § 368 merwine's trial of title to land. 306 and were plaintiffs, and , , and were defendants, directed to me, the undersigned sheriff of said county of , commanding me to levy upon, appraise and sell the foUo^^dng described real estate, to-wit : (Here de- scribe it), to satisfy a judgment and decree of foreclosure of an attorney's lien for fee, in favor of said plaintiffs, and against said defendants, obtained and made in said court on the day of , 19—, for the sum of $ , with interest thereon at the rate of per cent, per annum, from the day of , 19 — , and costs in the sum of $ , and $ , accruing costs, I will, on the day of , 19_^ at the hour of o'clock, in the afternoon of said day, at the front door of the courthouse in the city of , in the county of , and State of Oklahoma, offer for sale and sell to the highest bidder for cash, said property above described, or so much thereof as will satisfy said judgment, with interest and costs. Witness my hand this day of , 19 — . Sheriff of County. Attorneys for Plaintiffs. Sec. 368. Form for proof of publication of notice of sale. State of Oklahoma, County, ss. : , being first duly sworn, says that he is of , a daily newspaper, printed and published in the city of , County, State of Oklahoma, which newspaper has been legally published with a bona fide subscription list, and of general circulation in said county for fifty-two consecu- tive weeks next preceding the date of the first publication of the notice of which the attached is a true copy, and said notice was published once each week for consecutive weeks in said newspaper, the same being in the regular issues of , , and , 19—. 307 SALE OP REAL ESTATE FOR ATTORNEY'S FEES. § 369 Subscribed and sworn to before me by , on the day of , 19 — . , [Seal.] Notary Fublic. My commission expires . Sec. 369. Form for the sheriff's return of his proceedings under the writ. SHERIFF'S EETURN. Received this writ on the day of , 19 — , at o'clock, — m., and, in obedience to the commands of said writ, I summoned , and , three disinter- ested householders, residents of this county, on the day of , 19 — , and administered to them an oath, impartially to appraise the lands and tenements described in this writ, upon actual view, and afterward, on the day of , 19 — , said appraisers returned to me under their hands and oath, that they did, upon actual view, estimate and impartially appraise the real value of said property at $ . I forthwith depos- ited in the office of the clerk of the district court of this county a certified copy of said appraisement, on the day of , 19 — . I thereupon caused public notice of the time and place of sale of said lands and tenements to be given by advertis- ing the same for more than days before the day of sale in , a newspaper of general circulation in said county, the first of said publications being made on the day of , 19 — , and once each week thereafter, for four consecu- tive w^eeks, until the day of sale. And, in pursuance of said notice, at the time and place mentioned therein, I did, on the day of , 19 — , at the hour of o 'clock — m., at the north door of the courthouse of this county, offer for sale said lands at public sale, and then and there came , who bid for said property the sum of $ , said sum being the more than two-thirds of the appraised value thereof, and he, being the highest and best bidder therefor, I then and there § 370 merwine's trial of title to land. 308 struck off and sold said lands and tenements to said for the sum of $ . Dated this day of , 19—. Sheriff of County. Sec. 370. The confirmation of the sale by the sheriff. District Court, County, State of Oklahoma. and , Plaintiffs, and , Defendants. No.- ORDER CONFIRMING SALE. This cause coming now to be heard upon the return of the sheriff of his sale of the real estate herein, to-wit: (Here de- scribe it), and of his proceedings under the order of sale here- tofore herein issued to him by this court, and the court, having examined said proceedings, and finding the same regular and according to the statutes in such case made and provided and according to the former orders of this court, it is ordered that the same be approved and confirmed. It is further ordered that said sheriff make, execute and deliver to a deed in due form of law of the said real estate so sold him. And the court coming now to distribute the proceeds of said sale amounting to $ , it is ordered that the sheriff out of the moneys in his hand pay: First. To the clerk of the court the sum of $ , the costs of this action. Second. To plaintiffs on their said judgment the sum of $ , the same being the amount found due them for their judgment herein. Third. To the defendant, , the balance remaining in the hands of said sheriff. It is further ordered that a ^Yrit of possession is ordered to put in possession of said real estate. JudgS of said Court. 309 SALE OF REAL ESTATE FOR ATTORNEY'S FEES. § 371 Sec. 371. Form for sheriff's deed to the purchaser. This indenture, made this day of , 19—, be- tween , the sheriff of County, in the State of Oklahoma, party of the first part, and , of the county of ^ State of Oklahoma, party of the second part, WIT- NESSETH: 1 1. e Thit, Whereas, by virtue of an order of sale issued out of the office and under the seal of the district court of the iudicial district of the State of Oklahoma, in and for — — County, attested the day of , 19-, npon a judg- ment for the sum of $ , ^vith interest thereon, at the rate of per cent, per annum from the day of 19- in case number , duly docketed in said court, said judgment being in favor of and , and against ^ and , and said judgment being m words and figures as follows, to-wit: (Here copy judgment and order of sale as found in the proceedings herein) ; and. Whereas, , sheriff aforesaid, having caused said prem- ises to be appraised by three disinterested householders, residents of said county, who having returned, under oath, their appraise- ment of the real value of said property at $ ; and. Whereas, said sheriff, having advertised the time and place of said sale in , a newspaper, printed and of general cir- culation in said county, for a period of days prior to the date of said sale, and othevvnse having complied with said order and the provisions of the statutes of this State, did, on the (Jay of , 19—, at the front door of the courthouse in said county, at -^— o'clock, - m., of said day, offer for sale, at public auction, the real estate herein described, and thereupon, , having bid for said premises the sum of $ , said sum being the highest and best bid therefor, and more than two-thirds of the appraised value thereof, said prem- ises were then and there sold to the said ; and. Whereas, the court, at its , 19- Term, ha^dng exam- ined the proceedings aforesaid, under the direction of said order of sale, and being satisfied that said sale has been held m all § 371 MERWINE 'S TRIAL OF TITLE TO LAND. 310 respects in pursuance to said judgment and order of sale, and in accordance with the provisions of the statute regulating such sales, did order that said sale be confirmed, and that said sheriff of said county should convey said premises to said , by good and sufficient deed. Now, Therefore, , as sheriff of County, State of Oklahoma, party of the first part, by virtue of said writ and order, and in pursuance of the statute in such case made and provided, and for and in consideration of the sum of $ , to me in hand paid, by , party of the second part, the receipt whereof is hereby acknowledged, does grant, bargain, sell and convey unto the said party of the second part, his heirs and assigns forever, the following described real estate, to-wit: (Here describe it), together wdth all the privileges and appur- tenances thereunto belonging. To Have and to Hold said premises, with the appurtenances, to said party of the second part, his heirs and assigns, as fully and completely as he, the said sheriff aforesaid, by virtue of said judgment and order of sale, confirmation and the statute in such ease may or ought to grant, bargain, sell and convey the same. In "Witness Whereof, the party of the first part has hereunto set his hand the day and year first above written. Sheriff of County, State of Oklalioma. State of Oklahoma, County, ss. : Before me, , a notary public in and for said county and State, on this day of , 19 — , personally appeared , to me known to be the identical person who executed the within and foregoing instrument and acknowledged to me that he executed the same in his capacity therein stated and as his free and voluntary act and deed, for the uses and purposes ther'ein set forth. , [Seal.] Notary Public. My commission expires . CHAPTER X. PROCEDURE BY WHICH TRUSTEE IN BANKRUPTCY SELLS REAL ESTATE AT PRIVATE SALE. SECTION 372. Ihe source of the trustee's authority to sell. 373. The appraisal of the real estate. 374. The manner in which the sale is conducted. 375. The order of the court ap- pointing appraisers. 376. The oath of appraisers, the appraisement and return of the appraisers. 377. The petition to sell real estate at private sale, subject to incumbrances. The order to sell real estate at private sale subject to incumbrances. 378. SECTION 379. The entry confirming such sale. 380. The petition for sale of real estate by public auction. 381. The order of the court author- izing sale at public auction. 382. The petition for sale of real estate at public auction, sub- ject to liens. 383. The order and decree of the court authorizing such sale. 384. The deed from tlie trustee to purchaser at trustee's sale of real estate in bankruptcy. Sec. 372. The source of the trustee's authority to sell. In every case where real estate of a bankrupt is to be sold under the national bankruptcy act, the petition and schedules must have been filed and all of the procedure of the act com- plied with up to and including the appointment of a trustee. Under the present bankruptcy law, the power of the trustee is derived from the authority given the trustee to collect and reduce to money the property of the estate.^ 1 Section 47 of tlie Bankruptcy Act of 1908. It is said by Black on Bankruptcy, that, "The bankrupt law of 18 07 conferred express au- thority upon assignees in bank- ruptcy to make sale of real and personal estates, either on their own motion, in certain cases, or by order and direction of the court, and prescribe the manner and effect cf such sales." Black on Bank- ruptcy, 159. 311 §§373,374 merwine's trial op title to land. 312 Sec. 373. The appraisal of the real estate. The real estate of the bankrupt must be appraised. The number of appraisers must be three, and they must be dis- interested. The appraisers must be sworn, as in other cases, and they must return their appraisement to the court.- Sec. 374. The manner in which the sale is conducted. The sale can be had at either public or private sale. Such sale is entirely under the direction of the court. The trustee, when a sale is desired, files his petition in the case, asking for authority to sell. The sale cannot be for less than three- fourths of the appraisement.^ The sale can be made subject to the wife's dower and to liens and incumbrances. This sale subject to incumbrances is usually asked when the liens and incumbrances amount almost to the value of the real estate, and there is not much to be gained by the sale for the creditors. However, the power to sell real estate is discretionary, and it may or may not be exercised as the court may deem proper. It some- times happens that the real estate is not sold and the lien- holders are left to work out their rights in the State courts.* But the usual and better way is for the court or the referee to sell the real estate free of every lien and in- cumbrance, as is done in the State courts. In such instances, as is the case in the State courts, the liens and various claims 2 Section 70b of the Bankruptcy form of petition for sale of real Act. See Section 375 for form for estate at public auction; see Sec- order of court appointing ap- tion 383 for order of court author- praisers; see Section 376 for form izing sale at public auction, subject of the oath and return of the ap- to liens; see Section 384 for deed praisement. by trustee to purchaser of real 3 Section 706, Bankruptcy Act. estate. See Section 377 for form of peti- 4 See 5 Cj'c. 383, citing Sessions tion to sell real estate at private v. Ramodka, 145 U. S. 29; Spar- sale subject to liens and incum- hawk v. Yerkes, 142 U. S. 1 ; Glanny brances; see Section 378 for form v. Langdon, 98 U. S. 20; In re for order for sale of real estate at Cogly, 107 Fed. 73, 5 Am. Bank, private sale; see Section 380 for Rep. 731. 313 REAL ESTATE AT PRIVATE SALE. §§ 375, 376 will attach to the fund for distribution. The sale cannot be made even in this manner, if such sale will result in injury to the general creditors or to the injury of a lienholder.^ Sec. 375. The order of the court appointing appraisers. In the District Court op the United States for the District of Oklahoma, Division. In the Matter of No. . , Bankrupt. In Bankruptcy. This day came the trustee in bankruptcy and represents to the court that it is necessary to a complete settlement of the estate, that the interest of the bankrupt in the real estate set forth in the schedule filed herein should be appraised, and asked that the court appoint three appraisers. Upon consideration whereof the court hereby appoints , and to act as such appraisers. Referee in Bankruptcy. Sec. 376. The oath, the appraisement and return of the ap- praisers. In the District Court of the United States for the District of Oklahoma, Division. In the ]\Iatter of No. . , Bankrupt. In Bankruptcy. , and , being first duly sworn, say that they will honestly and truly appraise the real estate belonging to the within bankrupt to the best of their ability and make due return thereof to the court. 6 In re Styer, 3 Am. Bankruptcy Rep. 424. § 877 merwine's trial of title to land. 314 Sworn to by the said , and , and by them subscribed in my presence this day of , 19 — . Notary Puldic, County, State of OJdahoma. My commission expires . We, the undersigned appraisers in the above entitled cause, hereby represent to the court that we personally inspected and viewed the premises belonging to the bankrupt, to-wit: (Here describe said real estate), and we do hereby fix the value of the same at $ . » Sec. 377. The petition to sell real estate at private sale. In the District Court of the United States for the District of Oklahoma, Division. In the :Matter of No. Bankrupt. lu Bankruptcy. Respectfully represents , the duly appointed trustee of the estate of the aforesaid bankrupt, that the following described real estate mentioned and set forth in the schedule of said bank- rupt (Here describe it) be sold. Said trustee asks that the same be sold at private sale for the folloAving reasons, to-wit: said real estate has been appraised at $ , and there is a mortgage of $ against said real estate, together wdth interest thereon from the day of , 19 — ; that there is also a lien for taxes on said real estate in amount more than the sum of $ ; that one has offered to pay to the said trustee the sum of $ for said real estate, and agrees to assume and pay said mortgage, taxes, assessment and penalties charged as a lien thereon, and that it would be impossible, in the opinion of your trustee, to sell said real estate in the open market for more than sufficient to pay the liens against the same, and respectfully represents that it is desirable and for the best interests of the estate to sell at private sale said real estate as aforesaid. 315 REAL ESTATE AT PRIVATE SALE. § 378 Wherefore he prays that he may be authorized to sell said real estate at private sale to said for the sum of $ , on the assumption by said purchaser of said mortgage, taxes, assessments and penalties. Dated this day of , 19 — . Trustee. State of Oklahoma, County, ss. : , being duly sworn, says that he is the trustee aforesaid, and that the allegations contained in the foregoing petition are true as he verily believes. Sworn to before me and subscribed in my presence, this day of , A. D. 19—. My commission expires . Notary Fiiblic. Sec. 378. The order to sell real estate at private sale. Tliis day this cause came on to be heard upon the application of the trustee herein for permission to sell the real estate here- inafter described at private sale to at terms hereinafter set out, and the same was submitted to the court upon said application and the evidence, and the court finds that said real estate was appraised at $ ; that the same is mortgaged to the gum of $ , together with interest on said sum from the day of , 19 — ; that it will be difficult, if net im- possible, to find a purchaser for such an interest so incumbered, that the same cannot be sold at public sale, and that it is to tli^ interest of said estate to accept the offer of said , to- wit : to take said interest of said and to pay the said trustee therefor the sum of $ in the manner following, to-wit: for cash; also said is also to pay any penalties that may be added to said taxes. The application of said trustee is therefore granted and said trustee is hereby ordered to convey to the said , at private sale, on the terms hereinabove set out, all the right, title and §§ 379, 380 merwine's trial or title to land. interest of the said , trustee in bankruptcy of the said , bankrupt, of, in and to the following described real estate situated in the county of , in the State of Okla- homa, and in the city of , and bounded and described as follows: (Here describe it.) And said trustee is ordered to report his proceedings there- under to this court. Sec. 379. The entry confirming said sale. In the District Court op tpie United States for the District of Oklahoma, Division. In the Matter of No. — , IBankrupt. In Bankruptcy. Now comes , trustee in bankruptcy of the estate of , bankrupt, and respectfully represents to the court that, in pursuance to an order of court hereinbefore made, he has sold to , at private sale, said real estate described in the petition herein, and it appearing to the court, upon the examina- tion of the proceedings of said trustee in connection with said sale of said real estate, that said sale has been made in strict accordance with the law and the orders of this co-urt, the said sale is therefore approved and confirmed, and the said , trustee is ordered to execute and deliver to the purchaser, , upon his compliance with the terms of sale, a proper deed of the real estate so by him sold as aforesaid. Sec. 380. Petition for sale of real estate at public sale. In the District Court of the United States for the — District of Oklahoma, Division. In the Matter of No. , Bankrupt. In Bankruptcy. Respectfully represents , trustee of the estate of said bankrupt, that it would be for the benefit of said estate that a certain portion of the real estate of said bankrupt, to-wit: (Here describe it and its estimated value) 'should be sold at 317 REAL ESTATE AT PRIVATE SALE. §§381,382 auction, in lots or parcels, and upon terms and conditions as follows: — • Wlierefore, he prays that he may be authorized to make sale by auction of said real estate as afoj-esaid. Dated this day of , A. D. 19—. Trustee. Sec. 381. The order of the court authorizing sale at public auction. The foregoing petition, having been duly filed, and having come on for a hearing before me, of which hearing ten days' notice was given by mail to creditors of said bankrupt, now, after hearing, no adverse interest being represented thereat (or after hearing in favor of said petition and in opposition thereto), it is ordered that the said trustee is au- thorized to sell the portion, by auction, keeping an accurate account of each lot or parcel sold and the price received therefor and to whom sold, which said account he shall file at once "snth the referee. Witness my hand this day of , A. D. 19 — . Referee in Bankruptcy. Sec. 382. Petition and order for sale subject to lien. In the District Court of the United States for the District of Oklahoma, Division. In the :\ratter of No. -, Bankrupt. In Bankruptcy. Respectfuly represents , trustee of the estate of said bankrupt, that a certain portion of said bankrupt's estate, to-Avit : (Here describe the estate or property and its estimated value) is subject to a mortgage (describe mortgage), or to a con- ditional contract (describe it), or a lien (describe the origin and nature of the lien), or (if the property be personal prop- erty) has been pledged or deposited and is subject to a lien for (describe the nature of the lien), and that it would be for the §§383,384 merwine's trial op title to land. 318 benefit of the said estate that said property should be sold, subject to said mortgage, lien or other incumbrance. "Wlierefore he prays that he may be authorized to make sale of said prop- erty, subject to the incum))rances thereon. Dated this day of , A. D. 19—. Trustee. Sec. 383. The order and decree of the court authorizing- such sale. The foregoing petition, having been duly filed and having come on for a hearing before me, of which hearing ten days' notice was given by mail to creditors of said bankrupt, now, after due hearing, no adverse interest being represented thereat (or after hearing in favor of said petition and • in opposition thereto), it is ordered that the said trustee be authorized to sell the portion of the bankrupt's estate, specified in the foregoing petition, by auction (or, at private sale), keep- ing an accurate account of the property sold and the price received therefor and to whom sold, which said account he shall file at once with the referee. "Witness my hand this — day of , A. D. 19 — . Referee in Bankruptcy. Sec. 384. Deed by trustee to purchaser. Know All jMen by These Presents, that, whereas, on the day of , A. D. 19 — , was duly adjudged bankrupt by the District Court of the United States for the District of Oklahoma, Division, and the said was duly appointed and qualified as trustee of the estate of the said in bankruptcy, and is now acting as said trustee, and on the day of , 19 — , said trustee filed a certain petition in said District Court for the United States for the District of Oklahoma, Division, praying, among other things, for an order of sale for said real estate therein mentioned and hereinafter described; and, 319 REAL ESTATE AT PRIVATE SALE. § 3S4 Whereas, proceedings were had on said petition in accord- ance with the bankruptcy laws of the United States in such case made and provided, and the petition coming on for hearing on the day of , 19 — , of which hearing ten days' notice had been given by mail to said creditors of said bankrupt, it was ordered that said trustee be authorized to sell the portion of the bankrupt's estate specified in his petition and hereinafter described, at private sale, keeping an accurate account of the property sold, and the price received therefor, and to whom sold, and on the same day, in pursuance of said order and judgment, an order of sale of said real estate therein described was issued out of said court under the seal thereof to said , trustee of the estate of in bankruptcy, as aforesaid directed, com- manding him to execute the said order, and of the same, to- gether with his proceedings thereon, to make due return to said court: and. Whereas, said , trustee of the estate of in bank- ruptcy, having caused said premises to be appraised and the report of said appraisement to be filed with , the referee, and having, on the day of , 19 — , returned said order of sale to said court, as commanded, vrith the proceedings thereon, stating in substance that, in obedience to said order, he sold the same to , which was the best price he could get for same, and being more than seventy-five per cent, of the appraised value of said premises, he then and there sold the same to said for said sum ; and. Whereas, on the day of , 19 — , the said court, having examined the proceedings of the said sale, aforesaid, under said order of sale, and it appearing to the court that said sale was in all respects legally made, ordered that the same be approved and confirmed, and that said , trustee as afore- said, should execute and deliver a proper deed to the purchaser of the real estate so sold, all of which will more fully appear by the record of said court, to which reference is here made. Now, Therefore, T, the said , trustee of the estate of • in bankruptcy aforesaid, by virtue of said order of sale, sale and confirmation, and of the statute in such case made and § 384 merwine's trial of title to land. 320 provided, and of the powers vested in me and for and in con- sideration of the premises, and the sum of $ paid to me by the said , the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell and convey to the said , his heirs and assigns forever, the following real estate situated in the county of , in the State of Oklahoma, and in the city of : (Here describe real estate in question.) To Have and to Hold said premises with all the privileges and appurtenances thereunto belonging to said , his heirs and assigns forever, as fully and completely as he, the said , as such trustee in bankruptcy, by virtue of said order of sale, sale and confirmation, and of the statute made and provided in such cases, might and should sell and convey the same. In Witness Whereof, the said , as such trustee, has hereunto set his hand this day of , A. D. 19 — . Trustee of the Estate of , Bankrupt. Signed and acknowledged in the presence of: The State of Oklahoma, County, ss. : Before me, , a in and for said county and State, on this day of , 19 — , personally appeared , as trustee of the estate of , bankrupt, to me known to be the identical person who executed the within and foregoing in- strument, and acknowledged to me that he executed the same as his free and voluntary act and deed, for the uses and pur- poses therein set forth, and as the free and voluntary act and deed of said trustee for the uses and purposes therein set forth. My commission expires . Notary Public. CHAPTER XI. CONVEYANCES. 1. Conveyancing. 2. Conveyance — SrEciFic Performance of. 3. Con\t.yance — Cancellation of. 4. Conveyance — Reformation op. 5. Conveyance — Fraud of Creditors. 1. CONVEYANCING. SECTIOX 385. Who may hold, convey and mortgage real estate. 386. Witnesses to execution of con- veyances not necessary. 387. Attorney in fact may execute instrument, when. 388. Deed or instrument affecting real estate must be in writ- ing. 389. When husband or wife may convey homestead. 390. Husband conveying homestead concluded thereby. 391. Who estopped from denying validity of deed. 392. Deeds executed by sheriff, how acknowledged. 393. Husband or wife may deed real estate not the homestead. 394. Words relating to real estate defined. 395. Contract valid against third persons, when. 396. What conveyances deemed mortgages. 397. Separate instruments deemed parts of each other. 398. Innocent purchasers protected, when. 399. Conveyance deemed an assign- ment, when. SECTION 400. Quitclaim deed — Wliat is con- veyed thereby. 401. Warranty deed — What is con- veyed thereby. 402. Power of attorney — How exe- cuted — Where filed. 403. What grantor is affected where land recovered by action — Grantors to be notified. 404. Who may recover on warranty — Attorneys' fees. 405. Procedure when Avarrantor fails to defend action. 406. What instruments entitled to record. 407. Duty of register of deeds when instrument presented for filing. 408. What instruments of convey- ance may be used as evidence in court. 409. Requirements as to printing; and writing in a conveyance. 410. Corporation may convey by attorney, when. 411. What instruments executed by a corporation or its attorney valid. 412. Conveyance void for w-ant of consideration, when. 321 §385 mebwine's trial of title to land. 322 SECTION 413. Every estate in land deemed fee simple unless limited by special words. 414. Will may be recorded with like effect as deed, when. 415. Judgment may be filed and recorded — Effect of. 416. Minor may hold title to real estate, when. 417. Form of acknowledgment of any instrument affecting real estate. 418. Before whom acknowledgments may be taken. 419. Certain acknowledgments le- galized by Legislature. 420. Statutory form for deed. 421. Difference in form for a wai-- ranty and quitclaim deed. 422. The manner in which instru- ments of conveyance by cor- poration must be executed. SECTION 423. When corporate seal to be attached to instrument. 424. Statutory form for acknowledg- ment by corporation. 425. Form for deea by a corpora- tion. 426. Form for deed conveying life estate with remainder over. 427. Form for deed conveying re- mainder estate subject to a life estate. 428. Form for deed by tenant for life. 429. Form for power of attorney to sell and convey real estate, price and terms discretion- ary. 430. Form for petition for breach of covenant of seizin. 431. Form for petition for breach of covenant against incum- bent. Sec. 385. Who may hold, convey and mortgage real estate. Male persons of the age of twenty-one years, and female persons of the age of eighteen years, being otherwise qualified thereto, and corporations to the extent and in the manner authorized by law, owning real estate in this State, may convey or otherwise dispose of or make any contracts relating to real estate or any interest therein: Provided, any persons of whatsoever age, who have been legally married and who are otherwise qualified, may dispose of and make contracts relating to real estate acquired after marriage.^ 1 Snyder, 1.184; Wilson, 877. As to power of corporation to make deed outside of its authorized au- thority, see Lafi"erty v. Evans, 17 Okla. 247, 87 Pac. 304. Conveyance under this statute considered most strongly against the grantor. Ed- wards V. Brusha, 18 Okla. 284, 90 Pac. 727. This statute does not apply to the lands and conveyance thereof by the Indian and freedman. The lands of these people are under control of Federal law and this law has provided that minors, as far as their lands are concerned, do not have the power to convey until they have reached the age of twenty-one and eighteen, respectively; and a minor within the meaning of Sees. 1, 2 and 6 of the Act of May 27, 1908 (see 199, 35 Stat. 312, pt. 1), includes males under the age of 323 CONVEYANCE OP REAL ESTATE §§ 386-388 Sec. 386. Witnesses to the execution of conveyances not necessary. No subscribing -witness is necessary to the validity of any deed, mortgage, contract, lease, bond, or other instrument conveying, affecting or relating to real estate.- Sec. 387. Attorney in fact may execute instrument, when. Any instrument affecting real estate may be made by an attorney in fact, duly appointed and empowered as herein- after provided.^ Sec. 388. Deed or instrument affecting real estate must be in writing. No deed, mortgage or other conveyance relating to real estate, or any interest therein, other than for a lease for a period not to exceed one year, will be valid until reduced to writing and subscribed by the grantor; and no deed, mortgage or contract relating to the homestead exempt by law, except a lease for a period not exceeding one year, will be valid unless in writing and subscribed by both hus- band and wife, where both are living and not divorced, except as to the extent hereinafter provided.* twenty-one years, and females under some officer having power to take the age of eighteen years, and the acknowledgments of deeds. If the marriage of such minor does not assignment is made by an attorney confer upon him or her the author- in fact, the power of attorney ity to convey his or her allotted must be executed and acknowledged lands independent of the jurisdic- in the same manner as deeds tion and supervision of the probate are executed and acknowledged. No courts of the State. Jefferson v. mere agent has power or authority Winkler, 26 Okla. 653^ 110 Pac. to assign and acknowledge the as- 755. signment of a tax certificate so as 2 Snyder, 1,185; Wilson, 878. to authorize a tax certificate to 3 Snyder, 1,186; Wilson, 879. A issue to such assignee. Wilson v. tax certificate represents an in- Wood, 10 Okla. 279, 61 Pac. 1,045. terest in real estate, and can only * Snyder, 1,187; Wilson, 880. As be assigned so as to entitle the to mortgage without wife's signa- assignee to a deed thereon by the ture, see Hall v. Powell, 8 Okla. assignor executing such instrument 276, 57 Pac. 168. Note not signed and acknowledging the same before by wife but mortgage signed by her, §§ 389-391 merwine's trial op title to land, 324 Sec. 389. When husband or wife may convey homestead. Where the title to the homestead is in the husband, and the wife voluntarily abandons him for a period of one year, or from any cause takes up her residence out of the State, he may convey, mortgage or make any contract relating thereto without being joined therein by her; and where the title to the homestead is in the wife, and the husband voluntarily abandons her, or from any cause takes up his residence out of the State, for a period of one year, she may convey, mortgage, or make any contract relating thereto without being joined therein by him.^ Sec. 390. Husband conveying- homestead concluded thereby. If the husband make any deed, mortgage or contract re- lating to the homestead without being joined therein by his wife, he will be concluded thereby and the same can only be avoided by the wife; and if the wife shall make any deed, mortgage or contract relating to the homestead without being joined therein by the husband, she will be concluded thereby, and the same can only be avoided by the husband; and in either case, the husband or wife entitled to avoid any such deed, mortgage or contract will be concluded by a failure, after due notice of any suit in a court of competent jurisdiction, to set forth his or her right, title or interest therein.^ Sec. 391. Who estopped from denying validity of deed. Any person or corporation, having knowingly received and accepted the benefits, or any part thereof, of any convey- ance, mortgage or contract relating to real estate, will be concluded thereby and estopped to deny the validity of such describing note as signed by her, 5 Snyder, 1,180; Wilson, 882. authorized the court to remove the 6 Snyder, 1,190; Wilson, 883. mortgage and decree foreclosure of the homestead. Bastin v. Schaffer, 15 Okla. 267, 85 Pac. 349. 325 CONVEYANCE OF REAL ESTATE. §§ 392-394 conveyance, mortgage or contract or the power of authority to make and execute the same, except on the ground of fraud; but this paragraph will not apply to minors or per- sons of unsound mind who pay or tender back the amount of such benefit received by themselves.'^ Sec. 392. Deeds executed by sheriff, how acknov/ledged. Deeds executed by any sheriff or other officer, for real estate sold under execution, order of sale, or pursuant to any order or decree of court, must be executed, acknowledged and recorded in the manner and with like effect as other deeds.* Sec. 393. Husband or wife may deed real estate not the homestead. The husband or wife may convey, mortgage or make any contract relating to any real estate other than the home- stead, belonging to him or her, as the case may be, without being joined by the other in such conveyance, mortgage or contract.® Sec. 394. Words relating- to real estate defined. The words "land," "real estate" and "premises" when used herein, or in any instrument relating to real property, are synonyms, and will be deemed to mean the same thing, and unless otherwise qualified, to include lands, tenements and hereditaments; and the word "appurtenances," unless otherwise qualified, will mean all improvements and every right of whatever character pertaining to the premises described. ^° "Signature" or "subscription" includes mark, when the person cannot write, his name being written near it, and written by a person who writes his own name as a witness. 7 Snyder, 1,191; Wilson, 884. 9 Snyder, 1,193; Wilson, 886. 8 Snyder, 1,192; Wilson, 885. lo Snyder, 1,194; Wilson, 887. § § 395-397 MERWINE 'S TRIAIv OF TITLE TO LAND. 326 The words "real property" are coextensive with lands, tenements and hereditaments/^ An officer's certificate of the grantor's acknowledgment of the execution of a deed filed for record, is a sufficient compliance with the requirement of attestation by witnesses to the grantor's signature by mark.^- Sec. 395. Contract valid against third persons, when. Except as hereinafter provided, no acknowledgment or recording will be necessary to the validity of any deed, mort- gage or contract relating to real estate as between the par- ties thereto ; but no deed, mortgage, contract, bond, lease or other instrument relating to real estate, other than a lease for a period not exceeding one year and accompanied by actual possession, will be valid as against third persons unless acknowledged and recorded as herein provided ; ex- cept actual notice to such third persons, shall be equivalent to due acknowledgment and recording.^^ Sec. 396. What conveyances deemed mortgages. Every instrument purporting to be an absolute or qualified conveyance of real estate or any interest therein, but in- tended to be defeasible or as security for the payment of money, shall be deemed a mortgage and must be recorded and foreclosed as such.^^ Sec. 397. Separate instruments deemed parts of each other. Every instrument explanatory of any deed or other writing purporting to be a conveyance, but intended to be defeasible or as security for the payment of money, will be deemed a 11 Snyder, 2,965; Wilson, 2,808. is Snyder, 1,195; Wilson, 888. 12 Campbell v. Hart, 122 Pac. 1 4 Snyder, 1,196; Wilson, 889. (Okla.) 127. 327 CONVEYANCE OP REAL ESTATE. §§ 398-400 part thereof, and must be filed and recorded therewith ; and unless such instruments are so filed and recorded together, they and each of them will have no other effect than an unrecorded mortgage, and the recording of the principal instrument will secure no rights to the holder thereof/^ Sec. 398. Innocent purchasers protected, when. Any person purchasing or taking any security against real estate in good faith and without notice from one holding under an instrument purporting to be a conveyance, but intended as security for the payment of money, and which in- strument has been duly recorded without any other instrument explanatory thereof, will be protected to the extent of the purchase price paid or actual outlay occasioned, with lawful interest, against all persons except those in actual possession at the time of such purchase or outlay.^® Sec. 399. Conveyance deemed an assignment, when. Any conveyance other than as above provided, by one held under an instrument purporting to be a conveyance, but intended as security, will be deemed and treated as an assignment and transfer of the mortgage rights of an indebt- edness due the maker thereof.^^ Sec. 400. Quitclaim deed — What is conveyed thereby. A quitclaim deed, made in substantial compliance with the provisions of this chapter, will convey all the right, title and interest of the maker thereof in and to the premises therein described.^* 15 Snyder, 1,197; Wilson, 890. claims under a sheriff's deed or 16 Snyder, 798; Wilson, 891. upon a judgment and execution 17 Snyder, 1,199; Wilson, 892. against a debtor, who it is not 18 Snyder, 1,201; Wilson, 894. shown ever had a title, either in Where the title of a party to real law or equity, the title conveyed by estate is evidenced by quitclaim quitclaim deed will be held to be deed and the adverse claimant § 401 merwine's trial of title to land. 328 Sec. 401. Warranty deed — What is conveyed thereby. A warranty deed, made in substantial compliance with the provisions of this chapter, will convey to the grantee, his heirs or assigns, the whole interest of the grantor in the premises described, and will be deemed a covenant on the part of the grantor, that at the time of the making of the deed he is legally seized of the indefeasible estate in fee simple of the premises and has good right and full power to convey the same; that the same are clear of all in- cumbrances and liens, and that he warrants to the grantee, his heirs and assigns, the quiet and peaceable possession thereof, and will defend the title thereto against all persons who may lawfully claim the same and the covenants and warranty will be obligatory and binding upon any such grantor, his heirs and personal representatives, as if written at length in such deed.^° To sustain an action for the breach of a covenant for quiet enjoyment in a lease, it is necessary for the plaintiff to show that he has been prevented from taking possession of the leased premises, or that his quiet enjoyment has been hindered or disturbed by the lessor, or some person deriving their right or title through him, or from a paramount title ; a hindrance or disturbance by a mere intruder is not suffi- cient.-" Covenants of seizin and good right to convey are synony- mous, and, if broken at all, are broken when made, and an actual eviction is unnecessary to consummate the breach. In an action for breach of the covenants of seizin and good right to convey, an eviction need not be alleged; but it is sufficient in charging a breach to negative the words of the covenant generally.-^ paramount. ]Mosier v. Monson, 13 -^ Brown v. International, etc., Okla. 41, 74 Pac. 90.1. 29 Okla. .341, 116 Pac. 799. 19 Snyder, 1,202; Wilson, 895. 21 Faller v. Davis, 118 Pac. (Okla.) 382. 329 CONVEYANCE OF REAL ESTATE. §§402,403 Sec. 402. Power of attorney — How executed — Where filed. A power of attorney in fact for the conveyance of real estate or any conveyance thereunder, or for the execution or release of any mortgage therefor, must be executed, ac- knowledged and recorded in the manner required by this chapter for the execution, acknowledgment and recording of deeds and mortgages, and must be recorded in the county where the land is situated, and no deed, mortgage or release of mortgage executed by an attorney in fact, will be re- ceived for record or recorded until the power under which the same is executed has been duly filed for record in the same office ; and the recording of any deed, mortgage or release of mortgage will be of no effect for any purposes until the power under which it is executed has been duly filed for record in the same office."- Sec. 403. What grantor is affected where land recovered by action — Grantors to be notified. In all cases where there is a recovery of land, or any interest therein, adverse to any warranty deed thereto, the judgment by which such recovery is had will not be effective or become the basis of an action, against previous grantors other than those who are parties thereto, or have been noti- fied in writing of the pendency thereof twenty days before such judgment is entered. In all cases where an action is brought against a grantee to recover real estate conveyed to him by warranty deed, he is required to notify the grantor, or person bound by the warranty, that such suit has been brought, at least twenty days before the day of trial, which notice must be in writ- ing, and request such grantor or other person to defend against such action ; and in case of failure to give such notice there will be no further liability upon such war- 22 Snyder, 1,203; Wilson, 896; Wilson v. Wood, 10 Okla. 279, 61 Pac. 1,045. §§404-407 merwine's trial of title to land. 330 ranty, except when it is clearly shown that it was impos- sible to make service of such notice.^^ Sec. 404. Who may recover on warranty — Attorneys' fees. "Where any grantor applies in any action to defend his warranty or fails to appear after due notice, the court must determine all the rights of all the parties, and in case the recovery is adverse to the warranty, the warrantee shall re- cover of the warrantor the price of the land paid for the conveyance at the time of the warranty, the value of all improvements lost, if any, and all suras necessarily expended, including reasonable attorneys' fees and interest at the rate of ten per cent, per annum on all sums so paid at the time of payment.^* Sec. 405. Procedure when warrantor fails to defend action. If a warrantor, or other person bound by a warranty, fails to appear and defend after due notice, as above provided, the warrantee may defend the action and recover in a sep- arate suit all sums expended the same as he might do in the same suit, as provided in this chapter.-^ Sec. 406. What instruments entitled to record. No deed, mortgage or other instrument affecting the real estate will be received for record or recorded unless exe- cuted and acknowledged in substantial compliance with the provisions of this chapter, and the recording of any such instrument not so executed and acknowledged Avill not be effective for any purpose.-'' Sec. 407. Duty of register of deeds when instrument pre- sented for filing. The register of deeds is required by law, whenever an in- strument is presented to him for record, to immediately note 23STivdpr, 1.204 and 1.205; Wil- =5 Snyder, 1,207; Wilson. 900. Bon, 897 and F9S. 26 Snyder, 1,208; Wilson, 901. 2* Snyder, 1,206; Wilson, 899. 331 CONVEYANCE OF REAL ESTATE. §§408,409 on the instrument the year, month, day, hour and minute of receiving the same, and the date of record of such instru- ment will be from the date of filing; he is then required to enter the same upon the receiving book, making all the entries in the approprite columns, as provided by law, and must, as soon thereafter as practicable, record said instru- ment in the proper record, enter it upon the proper indexes, and over his signature and seal note the book and page upon which said instrument is recorded." Sec. 408. What instruments of conveyance may be used as evidence in court. All instruments affecting real estate and executed and acknowledged in substantial compliance herewith will be received in evidence in all courts without further proof of their execution ; and in all cases where copies of other instru- ments might lawfully be used in evidence, copies of the same, duly certified from the records by the register of deeds may be received in evidence; and if the same need not be recorded to be valid for the purpose for which such evidence is offered, a copy duly verified by oath or affidavit of any person know- ing the same to be a true copy may be received in evidence.^'* Sec. 409. Requirements as to printing and writing in a con- veyance. No instrument affecting the title to real estate may be filed for record or recorded unless plainly printed or written or partly printed and partly written in the English lan- guage.'^ 27 Snyder, 1,740; Wilson, 1,284. 29 Snyder, 1,210; Wilson, 903. 28 Snyder, 1,209; Wilson, 902. §§ 410-413 merwine's trial of title to land. 332 Sec. 410. Corporation may convey by attorney, when. Corporations, as well as individuals, may make, acknowl- edge and deliver instruments affecting real estate by an attorney in fact.^° Sec. 411. What instruments executed by a corporation or its attorney valid. Every instrument affecting real estate or authorizing the execution of any deed, mortgage or other instrument relating thereto, executed and acknowledged by a corporation or its attorney in fact, in substantial compliance with the provisions of this chapter, will be valid and binding upon the grantor, notwithstanding any omission or irregularity in the proceed- ings of such corporation or any of its officers or members, and without reference to any provision in its constitution or by-laws.^^ Sec. 412. Conveyance void for want of consideration, when. Every conveyance of real estate or any interest therein, and every mortgage or other instrument in any way affect- ing the same, made without a fair and valuable consideration, or made in bad faith, or for the purpose of hindering, delay- ing or defrauding creditors will be void as against all per- sons to whom the maker is at the time indebted or under any legal liability.^^ Sec. 413. Every estate in land deemed fee simple unless lim- ited by special words. Every estate in land which may be granted, conveyed or demised by deed or will, will be deemed an estate in fee simple and of inheritance unless limited by express words.^^ 30 Snyder, 1,211; Wilson, 904. consideration, see Alton v. Staten, 31 Snyder, 1,212; Wilson, 905. 19 Okla. 252, 91 Pac. 892. And 32 Snyder, 1,213; Wilson, 906. promise to support grantor in fraud See, also, Kershaw v. Willwy, 22 of creditors, void, when, see Shelby Okla. 677, 98 Pac. 908. As to deed v. Siegler, 22 Okla. 799, 98 Pac. of wife in fraud of creditors, see 989. Jenks V. McGowan, 9 Okla. 306, 60 33 gnyder, 4,214; Wilson, 907. Pac. 239. For fraud and want of 333 CONVEYANCE OF REAL ESTATE. § § 414-417 Sec. 414. Will may be recorded with like effect as deed, when. Any will devising real estate or any interest therein, to- gether with a copy of the probate thereof, duly certified by the county judge, may be filed and recorded in the office of the register of deeds, with like effect as a deed duly executed and acknowledged.^* Sec. 415. Judgment may be filed and recorded — Effect of. Any judgment or decree of a court of competent jurisdic- tion finding and adjudging the rights of any party to real estate or any interest therein, duly certified, may be filed for record and recorded in the office of the register of deeds, with like effect as a deed duly executed and acknowledged.^^ Sec. 416. Minor may hold title to real estate, when. A minor may take and hold title to real estate, and an estate of freehold or inheritance may be made to commence in the future by express provisions of the deed, and without at the same time creating any intervening estate.^^ Sec. 417. Form for acknowledgment of any instrument af- fecting real estate. An acknowledgment by individuals of any instrument affecting real estate must be substantially in the following form, to-wit : State of Oklahoma, County, ss. : Before me, in and for said county and State, on this day of , 19 — , personally appeared and , to me kno^^^l to be the identical person — who executed the within and foregoing instrument, and acknowledged to me that executed the same as free and voluntary act and deed for the uses and purposes therein set forth." 34 Snyder, 1,215; Wilson, 908. 37 Snyder, 1221 ; Wilson, 914. As 35 Snyder, 1,216; Wilson, 909. between the parties to the mortgage, 30 Snyder, 1,220; Wilson, 913. the mortgage is valid, though not §§ 418-420 merwine's trial of title to land. 334 Sec. 418. Before whom acknowledgments may be taken. Every acknowledgment, except when taken by a justice of the peace, must be under the seal of the officer taking the same; and when taken in the State, may be taken before a justice of the peace of the county where the land is situated, or before any notary public, county clerk, clerk of the dis- trict court or county judge; and when taken out of the State, it may be taken before any notary public, clerk of a court of record, commissioner of deeds duly appointed by the Governor of the State for the county. State or Territory where the same is taken; and when taken in any foreign country, it may be taken before any court of record or clerk of such court, or before any consul of the United States.^'^ Sec. 419. Certain acknowledgments legalized by Legislature. In all eases where heretofore any county judge, reg- ister of deeds. United States commissioner, or United States court commissioner has taken acknowledgment of deeds or other conveyances of real estate in their respective counties, that the same be and are hereby legalized and made valid and binding; and such action will have the same force and effect as if taken before some officer heretofore empowered by the statute to take acknowledgments.^® Sec. 420. Statutory form for deed. A warranty deed to real estate may be substantially in the following form, to-wit: Know All Men by These Presents, that , part — of the first part, in consideration of the sum of dollars in hand paid, the receipt of which is hereby acknowledged, do — hereby grant, bargain, sell and convey unto the follow- recorded. Hess v. Trig, 8 Okla. also, Mosier v. IMorason, 13 Okla. 41, 287, 57 Pac. 159. And a substan- 74 Pac. 905. tial compliance with this statute 38 Snyder, 1,222. will be sufficient. Garten v. Hud- 39 Snyder, 1,223. son, 8 Okla. 631, 58 Pac. 946; see, 335 CONVEYANCE OF REAL ESTATE. §§421,422 ing described real property and premises situate in County, State of Oklahoma, to-wit : (Plere describe the prop- erty), together with all the improvements thereon and the appur- tenances thereunto belonging, and warrant the title to the same. To Have and to Hold said described premises unto said part — ■ of the second part, heirs and assigns forever, free, clear and discharged of and from all former grants, charges, taxes, judgments, mortgages and other liens and incumbrances of whatsoever nature. Signed and delivered this day of , 19 — .*'' Sec. 421. Difference in form for a warranty and quitclaim deed. A quitclaim deed to real estate may be substantially the same as a warranty deed, with the word "quitclaim" in- serted in connection with the words, do hereby grant, bar- gain, sell and convey, as follows: "Do hereby quitclaim, grant, bargain, sell and convey," and by omitting the words, *'and warrant the title to the same. "*^ Sec. 422. The manner in which instruments of conveyance by corporation must be executed. Every deed, or other instrument affecting real estate, made by a corporation, must have the name of such corporation subscribed thereto either by an attorney in fact or by the president or vice-president of such corporation, and when made by a public corporation the name of such corporation must be subscribed by the chief officer thereof.*^ 40 Snyder, 1,226; Wilson, 918. deed will not be required to be in Eor form of acknowledgment, see the exact language of the statute. Section 417, supra. Mosher v. Monson, 13 Okla. 41, 74 41 Snyder, 1,227; Wilson, 919. It Pac. 905. has been held that this statute is *- Snyder, 1,228 ; Wilson, 920. directory and the language of the §§ 423-425 merwine's trial of title to land. 336 Sec. 423. When corporate seal to be attached to instrument. Every deed, or other instrument affecting real estate, exe- cuted by a corporation, except when executed by an attorney in fact, must be attested by the secretary or clerk of such corporation with the corporate seal attached.*^ Sec. 424. Statutory form for acknowledgment by corpo- ration. Every deed, or other instrument affecting real estate, exe- cuted by a corporation, must be acknowledged by the officer or person subscribing the name of the corporation thereto, which acknowledgment must be substantially in the following form, to- wit : State of Oklahoma, County, ss. : Before me, a in and for said county and State, on this day of , 19 — , personally appeared , to me known to be the identical person who subscribed the name of the maker thereof to the foregoing instrument as its (attorney in fact, president, vice-president, or mayor, as the case may be) and acknowledged to me that he executed the same as his free and voluntary act and deed, and as the free and voluntary act and deed of such corporation, for the uses and purposes therein set forth.*^ , Notary Public. Sec. 425. Form for a deed by a corporation. Know All ]\Ien by These Presents, that the , by its president, duly authorized by resolution entered upon the min- utes of said company, party of the first part, in consideration of the sum of dollars, in hand paid, the receipt of which is hereby acknowledged, do hereby grant, bargain, sell and convey unto the following described real property and premises, situated in County, State of Oklahoma, to-wit: (Description), together with all the improvements thereon and 43 Snyder, 1,229; Wilson, 921. ** Snyder, 1,230; Wilson, 922. . 337 CONVEYANCE OF REAL ESTATE. § 426 the appurtenances thereunto belonging, and warrant the title to the same. To Have and to Hold said described premises unto the said party of the second part, heirs and assigns forever, free, clear and discharged of and from all former grants, charges, taxes, judgments, mortgages and other liens and incumbrances of whatsoever nature. Signed and delivered this day of , 19—. State of Oklahoma, County, ss. : Before me, in and for said county and State, on this (Jay of , 19 — , personally appeared , to me known to be the identical person who subscribed the name of the maker thereof to the foregoing instrument as its , and acknowledged to me that he executed the same as his free and voluntary act and deed and as the free and voluntary act and deed of such corporation for the uses and purposes therein set forth.*^ ' ]\Ty commission expires . Notary Public. Sec. 426. Form for deed conveying life estate, with re- mainder over. Know All ]\Ien by These Presents, that , party of the first part, in consideration of the sum of dollars in hand paid, the receipt of which is hereby acknowledged, do- hereby grant, bargain, sell and convey unto the following described real property and premises, situate in County, State of Oklahoma, to-wit: (Description), together with all the improvements thereon and the appurtenances thereunto belong- ing, and warrant the title to the same. To Have and to Hold said described premises unto the said party of the second part, beirs and assigns forever, for and during the natural life of said , and upon his death unto the said , his heirs and assigns forever, free, clear and discharged of and from all former grants, charges, taxes, 45 Snyder, 1,226 and 1,230. §427 merwine's trial of title to land. 338 judgments, mortgages and other liens and incumbrances of what- soever nature. Signed and delivered this day of , 19—. State of Oklahoma, County, ss. : 3efore , in and for said county and State, on this day of , 19—, personally appeared , to me known to be the identical person — who executed the within and foregoing instrument, and acknowledged to me that • executed the same as free and voluntary act and deed for the uses and purposes therein set forth. " > My commission expires . Notary Puhhc. Sec. 427. Form for deed conveying remainder estate, subject to a life estate. Know All Men by These Presents, that whereas, , of ^ the grantor, is the owner of an estate in remainder in the real property hereinafter described, subject to an estate for the life of one , which is vested in said , and that part— of the first part, in consideration of the sum of dollars in hand paid, the receipt of which is hereby ac- knowledged, do— hereby grant, bargain, sell and convey unto the estate in remainder of said grantor in and to the following described real property situate in the County, State of Oklahoma, to-wit: (Description), together with all the improvements thereon and the appurtenances thereunto belong- ing, and warrant the title to the same. To Have and to HoiiO the said described premises unto , part — of the second part, heirs and assigns forever, free, clear and discharged of and from all former grants, charges, taxes, judgments, mortgages and other liens and incumbrances of whatsoever nature. Signed and delivered this day of , 19 — . 339 CONVEYANCE OF REAL ESTATE. §428 State of Oklahoma, County, ss. : Before me, , a in and for said county and State, on this day of , 19—, personally appeared , to me known to be the identical person— who executed the within and foregoing instrument and acknowledged to me that executed the same as free and voluntary act and deed for the uses and purposes therein set forth. My commission expires . Notary PuUic. Sec. 428. Form for deed by tenant for life. Know All ]\Ien by These Presents, that , part— of the first part, in consideration of the sum of dollars m hand paid, the receipt of which is hereby acknowledged, do- hereby grant, bargain, sell and convey unto all the estate, title and interest of said grantor, being an estate for and during the natural life of said grantor, in and to the following described real estate situated in County, State of Oklahoma, to-wit: (Description), together with all the improvements thereon and the appurtenances thereunto belonging, and warrant the title to the same. To Have and to Hold said described premises unto said part— of the second part, heirs and assigns, for and during the natural life of said grantor, free, clear and discharged of and from all former grants, taxes, judgments, mortgages and other liens and incumbrances of whatsoever nature. Signed and delivered this day of , 19—. State of Oklahoma, County, ss. : Before me, in and for said county and State, on this (Jay of , 19—, personally appeared , to me known to be the identical person who executed the within and foregoing instrument, and acknowledged to me that exe- cuted the same as free and voluntary act and deed for the uses and purposes therein set forth. ^ ' J My commission expires • Notary Public. §§429,430 merwine's trial of title to land. 340 Sec. 429. Form for power of attorney to sell and convey real estate, price and terms discretionary. Know All Men by These Presents, that I, of , Oklahoma, do hereby make, constitute and appoint , of , Oklahoma, my true and lawful attorney in fact, for me and in my name, place and stead, to bargain, sell and convey in fee simple by deed, with or without covenants of general v/ar- ranty, or other covenants usual or customary in a warranty deed, or buy land, contract for on such price and upon such terms of credit, and to such person or persons, as my said attorney shall think fit, the whole or any part of any lands, tenements or hereditaments owned by me in County in the State of Oklahoma, or any interest therein : To pay and satisfy all mortgages, incumbrances, taxes and assessments that may be a lien or charge upon any of said lands, tenements or hereditaments; to ratify payment of the purchase money of any and all lands so sold, and of any and all prom- issory notes and bonds received in payment therefor, and to satisfy and discharge any and all mortgages securing said pur- chase money. Signed and delivered this day of , 19 — . State of Oklahoma, County, ss. : Before me, in and for said county and State, on this day of , 19 — , personally appeared , to me known to be the identical person who executed the within and foregoing instrument, and acknowledged to me that exe- cuted the same as free and voluntary act and deed for the uses and purposes therein set forth. My commission expires . Notary Public. Sec. 430. Form for petition for breach of covenant of seizin. District Court, County, State of Oklahoma. , Plaintiff, vs. No. . , Defendant. 341 CONVEYANCE OF REAL ESTATE. § 430 Comes now , plaintiff herein, and for his cause of action against the defendant herein, alleges and states : 1. That on day of , 19 — , plaintiff purchased from the defendant the following real estate, situate in County, State of Oklahoma, to-wit: (Here describe it), and paid said defendant for said real estate the sum of dollars, and said defendant executed and delivered to plaintiff his certain warranty deed signed by said defendant and , his wife, on the day of , 19 — , thereby conveying said prem- ises to this plaintiff in fee simple. 2. That said instruments of conveyance contained a covenant as follows: (Here insert the covenant complained of.) 3. That at the time of the execution and delivery of said deed by said defendant to plaintiff said defendant was not possessed of nor was the owner of a good and sufficient title to said real estate above described ; but, on the contrary, one was the true and lawful owner of a title paramount to that of said de- fendant, and that by reason of said paramount title so owned by said , this plaintiff was ousted and dispossessed of said premises by due course of law by said , and that the covenant so made as hereinbefore stated has been wholly broken by the said defendant. 4. That, by reason of the premises and all the facts herein stated and of the breach of covenant by said defendant, plaintiff has sustained damages in the sum of dollars. Wherefore plaintiff, the premises considered, prays judgment against said defendant for said sum of dollars, and for his costs herein expended, and for such other and further relief as may be proper.**' Attorneys for Defendant. 4« Where there has been a breach statutes of this State made and of covenant of \varrantj% each pre- provided. See Snyder, 1,204 and vious warrantor should be made a 1,205; Wilson, 897 and 898. party and relief asked as under the § 431 MEKWINE 'S TRIAL OF TITLE TO LAND. 342 Sec. 431. Form for petition for breach of covenant against incumbrance. District Court of County, State of Oklahoma. , Plaintiff, vs. No. . , Defendant. Comes now plaintiff herein, and, for cause of action against the defendant, alleges and states: 1. That on or about the day of , 19—, the de- fendant, in consideration of the sum of dollars, by deed conveyed to the plaintiff in fee simple the following described real estate, situated in County, State of Oklahoma, to-wit : (Here describe it.) 2. That said deed was in form as provided by the statutes of the State of Oklahoma and a general warranty deed, a copy of which is hereto attached, marked "Exhibit A" and made a part hereof. 3. That by the terms of said deed said deed contained a cove- nant on the part of the defendant by which he for himself, his heirs, executors and administrators, covenanted and agreed to and with the plaintiff, his heirs and assigns, that said premises were then free, clear and discharged of all incumbrances what- soever. 4. That at the time of the making and delivery of said deed said premises were not free of incumbrances, but, on the con- trary, were subject to the lien of a judgment recovered by against , in the court of County, State of Oklahoma, in cause number on the docket of said court, for the sum of dollars. 5. That, by reason thereof, plaintiff was obliged to pay, and did pay, on the day of , 19—, the sum of dollars for the purpose of extinguishing said incumbrances. 6. That no part of said sum has been repaid to plaintiff. Wherefore, plaintiff prays, the premises considered, judgment for the sum of dollars, with interest from the day of , 19—, and for all proper relief. ■ -, Attorneys for Plaintiff. us CONVEYANCE OF REAL ESTATE. 2. THE PROCEDURE BY WHICH A CONTRACT FOR THE PURCHASE AND SALE OF REAL ESTATE IS SPECIFICALLY ENFORCED— THE STATUTE OF FRAUDS. SECTION 432. Preliminary statement. 433. Proper parties. 434. Contract to be performed must be just and fair in all its parts. 435. Contract must not be uncon- scionable. 436. It must be certain in its terms. 437. It must be possible to per- form it. 438. Contracts specifically enforced though venaee at fault. 439. Contract optional as to one party optional as to both. 440. Defective description cured, when — Vendor estopped to object, when. 441. Contract by agent without naming principal cannot be specifically enforced. Time not the essence of a con- tract, when. Performance will not be de- creed where title is defective. Title, unless refused by pur- chaser, precludes an action by him for specific perform- ance. The evidence required in proof of the contract. Evidence — Tender of abstracts — Affidavits as part of ab- stract may be evidence, when. The statute of frauds. The statute of frauds — The writing excludes all other negotiations. Statute of frauds — Contracts made by agent of owner of real estate. Statute of frauds — Part per- formance satisfies the statute — Possession. 442. 443. 444. 445. 446. 447. 448. 449. 450. SECTION 451. Statute of frauds — Verbal con- tract partly performed may be specifically enforced. 452. Statute of frauds — Description defective — Undisclosed prin- cipal. 453. Statute of frauds — The parties to a written contract — Within the statute contract may not modify its terms orally. 454. Statute of frauds — Contract may be made partly by let- ters, writing and telegrams. 455. Statute of frauds — A receipt is not sufficient to satisfy the statute. 456. Bond to build may be specifi- cally enforced, when. 457. An agreement to dispose of property by will specifically enforced, when. 458. Compensation allowed when specific performance cannot be decreed. 459. Decree of court in default of deed to operate as a convey- ance — Sherifi' may make con- veyance. 460. Decree may contain terms of mortgage agreed upon by contract. 461. The procedure where the stat- ute of franids is interposed as a detense. 462. The venue of the acti'on. 463. The procedure by Avhich a con- tract for the sale of real estate is specifically enforced — Petition by vendor to com- pel vendee to complete con- tract of purchase. 464. The petition by vendee to compel vendor to make deed. §§ 432-434 merwine's trial of title to land. 344 SECTION SECTION 465. Petition to enforce perform- 468. Form for petition to compel ance of verbal contract of specific performance of agree- sale. ment for exchange of prop- 466. Another form for petition by erty. vendor against vendee for 409. The decree awarding specific specific performance. performance of a contract 407. Another form of petition by for the purchase and sale of vendee against vendor to real estate, compel performance of oral 470. Form where sheriff executes contract of sale. deed. Sec. 432. Preliminary statement. The courts of this State have not been called upon to pass upon questions relating to the practice on the subject of specific performance. The practice on the subject is prac- tically alike everywhere, and the practitioner is referred to the standard textbooks on the subject of pleading and prac- tice for the law and procedure connected with specific per- formance.^ Sec. 433. Proper parties. A subsequent owner of the land is the proper party against whom to enforce a contract made by the prior owner of the fee.^ A court of equity cannot enforce specific performance of a contract to sell real estate against several joint owners where all the joint owners were not parties to the con- tract.^ Sec. 434. Contract to be performed must be just and fair in all its parts. Upon this subject our Supreme Court, in a well considered case, has said: "That a contract to be subject to specific performance must be reasonably certain as to its subject-matter, its stipu- lations, its purposes, its parties, and the circumstances under 1 See Bates' Pleading and Practice, - Kolatchney v. Galbreath, 26 Forms and Precedents; Kinkead's Okla. 757, 110 Pac. 902. Code Pleading; Kinkead's Court 3 Gault v. Pyles, 19 Okla. 445, 92 [Practice; Whittaker'g Code Forms. Pac. 175. ' 345 CONVEYANCE OF REAL ESTATE. §§ 435-437 which it is made. It must be, in general, mutual in its obligations and in its remedy, and perfectly fair, equal and just in its terms and its circumstances, and be such that the remedy of specific performance will not be harsh or oppres- sive. A rule of unexceptional application is that specific performance will not be awarded unless the contract is cer- tain, fair and just in all its parts, and any fact showing that the contract is unfair, unjust and against good conscience, will justify the court in refusing such decree, although the same, if duly executed, would present no sufficient ground for cancellation, or would be enforceable at law.* Sec. 435. Contract must not be unconscionable. Equity will not enforce an unconscionable contract ; but the mere fact that one provision of a legal contract, or even the entire contract is more favorable to one party than to the other, does not ordinarily render it unconscionable.^ Sec. 436. It must be certain in its terms. A contract which a court of equity is called upon to spe- cifically enforce, must be certain in its terms. If the descrip- tion of the property agreed to be sold is so vague and indefinite in the contract as not to be identified with the property agreed to be conveyed, specific performance will be denied.^ Sec. 437. It must be possible to perform it. No action can be maintained for the specific performance of a contract to convey real estate where it is impossible to perform such contract.'^ 4 Superior v. Mehlin, 25 Okla. " Channto v. Gas, 62 Kan. 752, 809, 108 Pac. 545, quoted from 109 Pac. 398. Pomeroy's Equi. Jur., Sec. 1.405, 6 Powers v. Rude, 14 Okla. 381, citing Dalzell v. Dueber, 149 U. 8. 79 Pac. 90; Ferguson v. Blaekwell, 315, 13 Sup. Ct. 886, 37 L. Ed. 8 Okla. 489, 58 Pac. 647. 749; Fee. Oil Co. v. Western, 112 7 Xeuforth v. Hall, 6 Kan. App. Fed. 373; Ferguson v. Blaekwell, ^02, 51 Pac. 573. 8 Okla. 489, 58 Pac. 647. §§438,439 merwine's trial of title to land. 346 Sec. 438. Contracts specifically enforced though vendee at fault. Equity treats things agreed to be done as actually per- formed, and when real estate is sold, under a valid contract, the purchase money to be paid in part, and the deed exe- cuted at a future day, the equitable title passes at once to the vendee and equity treats the vendor as trustee for the purchaser of the estate sold, and the purchaser as trustee for the purchase money for the vendor. Where the language of the contract is that the vendor "has this day sold and agreed to convey" to the vedee his "building and lot," it clearly imports a binding contract of sale then executed and consummated. By such terms the title in equity passes from the date of the contract. ^ The contract is not for a sale, only for a conveyance at a future day. The whole foundation of this doctrine of equity is that the equitable title and interest pass by the contract of sale, and from the time of its execution, and it contemplates delivery of possession as well as payment of the purchase money, and a conveyance at a future period. Where the party seeking to enforce the contract had in time complied with all its terms, equity will compel specific performance in his favor, though the other party has made default in time.* Sec. 439. Contract optional as to one party optional as to both. The general rule in such cases is that contracts not per- formed, optional to one of the parties, are optional to both.® A court of equity will not do a vain and useless thing by rendering a decree settling the rights of parties which one of them at will may set aside. This rule is enforced where, under the cancellation clause of an instrument, one party 8 Dunn V. Yakish, 10 Okla. 3S8, Huggins v. Daley, 99 Fed. 606, 40 61 Pac. 926. C. C. A. 12, 48 L. R. A. 320; 9Kolatchney v. Galbreath, 26 Reece v. Zinn, 103 Fed. 97; Fed. Okla. 757, 110 Pac. 904; Venture Oil Co. v. Western, 121 Fed. 674, V. Fretts, 152 Pa. 451, 21 Ail. 732; 57 C. C. A.'428. 347 CONVEYANCE OF REAL ESTATE. § 440 would have it in his power to nullify the decree by exer- cising his right thereunder not to proceed further.^** This is following the well known rule that a court of equity never interferes where the power of revocation exists. But while the reservation of the right to cancel is not an in- firmity which renders the contract void ah initio, but it de- prives the party for whose benefit it was made of relief in equity in the nature of a specific performance." Sec. 440. Defective description cured, when — Vendor es- topped to object, when. In an action for the performance of a contract for the conveyance of land, where the vendor in the contract had incorrectly described the land, the defective description was cured by putting the purchaser in possession; and in such action where it appeared from the evidence that the pur- chasers who were so placed in possession under the contract, continued in possession until the action was brought, and received the owner's shares of the crops raised on the land, after they knew the condition of the legal title, they were estopped from setting up alleged defects in the title, where it further appeared at the trial that the plaintiff was able to convey the title free from doubt. In an action, to spe- cifically perform a contract, where there are liens of an in- considerable amount on the land, which the court provides shall be discharged out of the purchase money, the vendor has no cause to complain.^^ 10 Kolatchney v. Galbreath, 26 v. Galindo, 59 Cal. 28, 43 Am. Rep. Okla. 757, 110 Pac. 904. 239. 11 Express v. Railroad, 99 U. S. 12 Keeper v. Yoacum, 84 Kan. 191, 25 L. Ed. 319; Tausig v. 554, 114 Pac. 1,064; Borwn v. ■Corbin, 142 Fed. 660, 73 C. C. A. Ward, 110 la. 123, 81 N. W. 247; 656; Solomon v. Wilmington, 142 Work v. Welsh, 100 111. 468, 43 N. C. 439, 55 S. E. 300, 6 L. R. A.. .X. E. 719; Ottumwa v. McWilliams, N.S., 391; Rust V. Conrad, 47 71 la. 164, 32 X. W. 315; Engle Mich. 449, 11 N. W. 265, 41 Am. v. White, 104 Mich. 15, 02 N. W. Rep. 720; Knight v. Indian, 47 154. Ind. 105, 17 Am. Rep, 692; Sturgis §§441,442 merwine's trial of title to land. 348 Sec. 441. Contract by agent without naming principal can- not be specifically enforced. Under the statute requiring contracts for the sale of land to be evidenced by writing, where a written agreement for such a sale, says that one of the two persons by whom it is made incurs no individual liability, but acts merely as the agent of someone else, who is not named or described, specific performance thereof cannot be compelled at the suit of the principal, if his relation to the transaction can only be proved by parol evidence.^^ Sec. 442. Time not the essence of contract, when. The mere naming the day on or before which the contract for the conveyance of real estate shall be consummated, does not make time of the essence of the contract, and if an abstract showing marketable title is to be produced, it may be perfected, and title may even be perfected within a reasonable time beyond the day named. ^* But where it is especially stipulated in the contract that time is of the essence of the contract, then there must be a compliance within the time, and in the manner specified, in order to isMertz v. Hubbard, 75 Kan. 1, by Oglesby v. Williams, 112 Ga. i88 Pac. 529. Jt is settled law that 359, 37 S. E. 372; Clampet v. Bells, a memorandum, in order to meet 39 Minn. 272, 39 N. W. 495; Metz the requirements of the statute of v. Xeuwitter, 122 N. Y. 491, 25 frauds, shall give the names of the X. E. 1,044, 11 L. R. A. 97, 19 contracting parties, or some de- Am. St. Rep. 514; Breckenridge v. scription by which they can be Crocker, 78 Cal. 529, 21 Pac. 179; identified. Several courts have held Schenck v. Spenz, 47 N. J. Eq. this rule is not satisfied by the 44, 19 Atl. 881; O'Sullivan v. memorandum's naming nn agent Overton, 56 Conn. 102, 14 Atl. 300; who acts for one of the parties King v. King, 36 Ala. 267; Sher- throughout the transaction, but burne v. Shaw, 1 jST. H. 157, 8 Am. who is not personally bound. The Dec. 47; Wheeler v. Waldin, 17 leading case to this effect is Grafter iXeb. 122, 22 N. W. 346. V. Cummings, 99 U. S. 100, 25 i* Wiley v. Helen, 112 Pac. L. Ed. 366, which has been followed (Kan.) loS. 349 CONVEYANCE OP REAL ESTATE. § § 443, 444 enforce a specific performance of the same/^ Time fixed for the performance may be waived.^" And in such a case where none of the parties concerned suffer any specific injury, the abstract may be completed at any time before the decree.^'' Sec. 443. Performance will not be decreed where title is defective. Where a purchaser contracts for a title by warranty deed free from incumbrances, he cannot be compelled to take a title other than contracted for. This rule applies where the incumbrance is a mortgage which the party is unable to discharge.^^ A perfect title is one free from litigation, palpable defects and grave doubts, and consists of both legal and equitable title, fairly deducible of record.^^ Sec. 444. Title unless refused by purchaser precludes an action by him for specific performance. Where a contract is made for the conveyance of a tract of land, and it develops that the title is defective, an unconditional and final refusal by the purchaser, with full knowledge of the facts, to accept the only title the seller is able to convey, will prevent him from afterwards maintaining an action for specific performance of the contract."*' 15 Powers V. Rude, 14 Okla. 381, is Saxon v. White, 95 Pac. 79 Pac. 94; Johnson v. Burdette, (Okla.) 783; Kennedy v. Hazelton, 7 Kan. App. 134, 53 Pac. 87; 128 U. S. 667, 9 Sup. Ct. 202, 32 M., K. & C. B.WJ. V. Thompson, L. Ed. 576; Farrar v. Dean, 24 Mo. 24 Kan. 170; Cincinnati v. Busby, 16; Corby v. Drew, 55 N. J. Eq. 51 Fed. 738, 19 L. R. A. 796; 387, 36 Atl. 827; Snell v. Mitchell, Phillips V. Seymour, 91 U. S. 650, 65 Mo. 48. 23 L. Ed. 341; Jones v. United is Campbell v. Hawk, 122 Pac. States, 96 U. S. 24, 24 L. Ed. 644. (Okla.) 127. 16 Fletcher v. Painter, 105 Pac. -o Riley v. Allen, 81 Pac. 18G, (Kan.) 500. 71 Kan. 625. 17 Bell V. Sternberg, 53 Kan. 571, 36 Pac. 986; McNutt v. Mellins, 82 Kan. 424, 108 Pac. 434. §§445-447 merwine's trial of title to land. 350 Sec. 445. The evidence required in proof of the contract. The Supreme Court of Kansas established the rule that the agreement should be clearly and definitely established,==^ quoting with approval on this subject, the following: "But equally would it be the duty of a court of equity to refuse that relief where the agreement sought to be given effect is not certain and definite. Clearly it should hesitate to assume the grave responsibility of implying an agreement, whose existence depends upon circumstances inconclusive in their nature, and permitting an inference either way. It is not essential to the intervention of equity, in order to pre- vent the accomplishment of fraud, that an agreement should be established by direct evidence. It may be established by such facts and circumstances as will raise the implication that it was made; and may have reinforcement from the evidence of the conduct of the parties at the time and subsequently." " Sec. 446. Evidence — Tender of abstracts — Affidavits as part of abstract may be evidence, when. While it is true that affidavits employed to supply facts showing title to real estate are not competent evidence, yet, in an action to compel specific performance of a contract to purchase land, where it devolves upon the plaintiff to show that she tendered an abstract of title, the abstract itself, and ex parte affidavits accompanying the same, for the purpose of proving who are the heirs of a deceased person, are com- petent evidence showing the kind of abstract furnished.'^ Sec. 447. The statute of frauds. The following contracts are invalid, unless the same, or some note or memorandum thereof, be in writing and sub- scribed by the party to be charged, or by his agent : 21 Anderson v. Anderson, 75 Kan. 23 Harrel v. Neef, 102 Pac. 117, 88 Pac. 743. (Kan.) 838. 22 Edson V. Parsons, 155 N. Y. 555, 50 N. E. 265. 351 CONVEYANCE OP REAL ESTATE. § 447 1. An agreement that, by its terms, is not to be performed within a year from the making thereof. 2. A special promise to answer for the debt, default or miscarriage of another, except in the cases provided for under the statute relating to guarantees, found in the note below.^* 3. An agreement made upon consideration of marriage, other than a mutual promise to marry. 4. An agreement for the sale of goods, chattels or things in action, at a price not less than fifty dollars, unless the buyer accept or receive part of such goods and chattels, or the evidences of some of them, of such things in action, or pay at the same time some part of the purchase money; but when a sale is made by auction, an entry by the auctioneer in his sale book, at the time of the sale, of the kind of property sold, the terms of sale, the price and the names of the purchaser and person on whose account the sale was made, is a sufficient memorandum. 5. An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority 24 A promise to answer for the party making the promise the prin- obligation of another in any of the eipal debtor, and the person in following cases, is deemed an orig- whose behalf it is made his surety, inal obligation of the promisor, and (3) Where the promise, being for need not be in writing: (1) Where an antecedent obligation of another, the promise is made by one who has is made upon the consideration that received property of another upon the party receiving it cancels the an undertaking to apply it pur- antecedent obligation, accepting the suant to such promise, or by one new promise as a substitute there- who has received a discharge from for; or upon the consideration that an obligation, in whole or in part, the party receiving it releases the in consideration of such promise. property of another from a levy, (2) Where the creditor parts with or his person from imprisonment value, or enters into an obligation under an execution on a judgment in consideration of the obligation obtained upon the antecedent obli- in respect to which the promise is gation; or upon a consideration made, in terms or under circum- beneficial to the promisor, whether stances, such as to render the moving from either party to the §§ 448, 449 merwine's trial of title to land. 352 of the agent be in writing, subscribed by the party sought to be charged.-^ The fact that the parties to a written agreement had made a prior verbal agreement for the purchase and sale of real estate, will not invalidate the written agreement.-** Sec. 448. The statute of frauds— The writing excludes all other negotiations. The execution of a contract in writing, v.-hether the law requires it to be written or not, supersedes all oral negotia- tions or stipulations concerning its matter, which preceded or accompanied the execution of the instrument." Sec. 449. Statute of frauds— Contracts made by agent of owner of real estate. The employment, by the owner of real estate, of an agent to find a purchaser for it, need not be in writing.-^ But the mere employment of an agent to sell real estate, or the mere listing of the real estate that may be made for the sale of it, will not give the agent authority to enter into a contract for the sale thereof to the purchaser.-'' The owner, by executing a deed and accepting the benefits of such con- tract so made by an agent, may estop himself from denying any liability under the contract so made by the agent.^" The antecedent obligation, or from an- =5 Snyder, 1,089; Wilson, 7S0; other person. (4) Where a factor Xorth Dakota, 5,332 (1905); South undertakes, for a commission, to sell Dakota, 1,230 (1903), identical, merchandise and guarantees the =6 Larison v. Wilbur, 47 N. W. sale. (5) Where the holder of an (North Dakota), 38. instrument for the payment of 27 Snyder, 1,090; Wilson, 781; money, upon which a third person North Dakota, 5.333 (1905); South is, or may become liable to him, Dakota, 1,239 (1903), identical, transfers it in payment of a precod- 28 McLaughlin v. Wheeler, 47 ent debt of his, or for a new con- N. W. (South Dakota), 816. sideration, and in connection with 29 Ballon v. Bergvendson, 83 N. W. such transfer, enters into a promise, (Xorth Dakota), 10. respecting such instrument. Snyder, ^" Townsend v. Kennedy, 160 3,577; Wilson, 4,277. N. W. (Soath Dakota), 164. 353 CONVEYANCE OF RK.VL ESTxVTE. §450 agent's authority to execute a binding contract for the sale of land of his principal may be established by letters and telegrams.^^ Sec. 450. Statute of frauds— Part performance satisfies the statute — Possession. Taking possession of real estate under a parol agreement for the purchase thereof, and making valuable and lasting improvements thereon, takes the case out of the statute of frauds. ^- A parol agreement to convey land in full payment of the purchase price, will not alone operate to pass the title thereto, where no possession of the land is taken under the agree- ment, and no memoranda is in writing.^^ The possession 31 Farrel v. Edwards, 66 X. W. (South Dakota), 812. 32 Sutherland v. Taintor, 17 Okla. 427, 87 Pac. 900; Newkirk v. Mar- shall, 35 Kan. 77, 10 Pac. 571; Abrams v. Abrams, 74 Kan. 888, 88 Pac. 70; Gilmore v. Asbury, 64 Kan. 383, 67 Pac. 864; Hohndon V. Janes, 42 Kan. 758, 21 Pac. 591. The provisions of a parol contract respecting an interest in real estate is taken out of the operation of the statute of frauds by full perform- ance, and in such case injunction is an appropriate remedy to prevent the destruction of the easement so created. Moore v. Chicago, 7 Kan. App. 242, 53 Pac. 775. In an action to recover the possession of land, where the defendant's answer is a general denial, it is not error to prove by parol evidence that prior to the beginning of the suit, to settle the controversy between them respecting the land, they agreed upon a division thereof; that they made conveyances to each other by which they intended to convey the respective tracts according to the settlement; that they moved the division fence accordingly, and each went into possession of the tract intended to be conveyed, notwith- standing the deeds do not convey the land by reason of an insufficient description. Anderson v. Cantor, 10 Kan. App. 167, 63 Pac. 285. 33 Godard v. Donaha, 42 Kan. 754, 22 Pac. 708. Where a contract for the purchase and sale of real estate is made, and the vendor executes a title bond for the conveyance of the property to the vendee, and the vendee, with the consent of the vendor, accepts the title bond, takes possession of the real estate, exer- cises acts of ownership over the real estate, and pays a portion of the purchase money, the vendor may afterwards, when the remainder of the purchase money becomes due, maintain an action therefor against the vendee, notwithstanding the statute of frauds. The acts of the vendor, in connection with those of the vendee, are sufficient in such a §451 MER wine's trial OF TITLE TO LAND. 354 must also be actual, notorious and exclusive.^* Again, a part payment and possession which will take the case out of the statute of frauds, must be a possession authorized by the owners of the property, and must have been taken in good faith.^^ The mere payment of part of the purchase price will not be sufficient to take the case out of the regulations of the statute.^^ Sec. 451. Statute of frauds — Verbal contract partly per- formed may be specifically enforced. The theory upon which the courts will enforce a verbal contract for the purchase and sale of real estate is that it would be an act of fraud for the owner to place the other in possession, and accept money on the contract, and then refuse to abide by the agreement.^^ case, to take the eoutract out of the statute of frauds, and to make it binding on both parties. Green- less V. Roche, 48 Kan. 503, 29 Pac. 590; Wharton v. Stoutenburg, 25 N. J. Eq. 266; Waken v. Owen, 79 Mo. 563; Sleniger v. Williams, 63 Ga. 478; Laurence v. Railroad, 25 Hun, 467; Steenrod v. Railroad, 27 W. Va. 1; Brown's Stat, of Frauds, Sec. 471. The taking pos- session of and cutting growing grass under a verbal contract at a stated expense, will not satisfy the statute for the purchase of real estate. Ross V. Cook, 80 Pac. 38. The pos- session which will take the contract out of the statute of frauds must be connected with the contract. It must not refer to any other cause. Hartshorn v. Smart, 67 Kan. 543, 73 Pac. 73. 34 O'Brien v. Foulke, 79 Kan. 479, 77 Pac. 103; Baldwin v. Squier, 31 Kan. 284, 1 Pac. 501. 35 Gault V. Pyles, 19 Okla. 445. 92 Pac. 1,761; Eberville v. Lead- ville, 28 Colo. 24, 64 Pac. 200; McKinnon v. Nixon, 128 Ala. 612, 29 So. 690; Cockerell v. Mclntyre, 161 Mo. 59, 51 S. W. 648. 38Leese v. Potter, 68 Kan. 117, 74 Pac. 622; Guthrie v. Anderson, 41 Kan. 383, 28 Pac. 164; Schultz V. Pearson, 63 Kan. 38, 64 Pac. 963. 3T Halsell V. Renfrow, 14 Okla. 674, 78 Pac. 123; Pomeroy's Eq. Jur., 1,410. "The general principle to be extracted from the authorities is that if the plaintiff, with the knowledge and consent of the prom- isor, does acts pursuant to and in obvious reliance upon a verbal agreement, which so change the rela- tions of the parties as to render a restoration of their former condi- tion impracticable, it is a virtual fraud upon the part of the promisor to set up the statute in defense, and thus to receive to himself the bene- fit of the acts done by the plaintiff, while the latter is left to the chance of a suit at law for the 355 CONVEYANCE OF REAL ESTATE. §§ 452, 453 Sec. 452. Statute of frauds— Description defective— Undis- closed principal. The signing of a contract to convey real estate by a party to be charged in a suit for specific performance satisfies the statute of frauds; but want of mutuality in the contract because the party suing did not sign, is not a defense to the action.^^ Sec. 453. Statute of frauds — The parties to a written con- tract — ^Within the statute contract may not modify its terms orally. Where a contract is within the provisions of the statute of frauds, and is reduced to writing, they will not be per- mitted to engraft to its terms, by subsequent oral agreement, new stipulations. By so doing, there would be a new eon- tract resting partly in parol and partly in writing. Where the parties do make such a contract, and suit arises thereon, such subsequent agreement is not admissible in evidence. The theory of this rule is, that, if a contract can be altered by parol, it would practically render the statute useless.^^ reimbursement of his outlays, or to bury, 67 Kan. 762, 74 Pac. 279; an action upon a quantum meruit Galbreath v. Galbreath, 5 Kan. 403; for the value of his services. In Edwards v. Fry, 9 Kan. 417; New- discussing what are and what are kirk v. Marshall, 35 Kan. 77, 10 not acts done in part performance Pae. 571; Greenless v. Roche, 48 which will entitle the plaintiff to Kan. 503, 29 Pac. 590; Holcomb v. a decree in his favor, the entry into Dowell, 15 Kan. 378; Bogle v. possession of the land and the Jarvis, 58 Kan. 76, 48 Pac. 538; making of valuable improvements Schwindt v. Schwindt, 61 Kan. 377, thereon is treated by all the cases 59 Pac. 674; Gilmore v. Asbury, as one of the most satisfactory evi- 64 Kan. 388, 67 Pac. 864. dences of part performance, and 38 Wiley v. Helen, 112 Pac. entitling the plaintiff to a decree (Kan.) 158; Becker v. Mason, in his favor." Mr. Justice Brown 30 Kan. 697, 2 Pac. 850; Guthrie in Townsend v. Vanderwerker, 160 v. Anderson, 47 Kan. 383, 28 Pac, U. S. 171; Union v. McAlpine, 129 164; Schneider v. Anderson, 75 U. S. 305, 9 Sup. Ct. 286, 32 L. Ed. Kan. 11, 88 Pac. 525, 8 L. R. A. •673; Ryan v. Dox, 34 N. Y. 307, N.S., 1,043. 90 Am. Dec. 696 ; Lowry v. Tew, 39 Bonicamp v. Starbuck, 25 Okla. 3 Barb. Ch. 407; Overstreet v. Rice, 483, 106 Pac. 839; Dana v. Han- 96 Am. Dec. 279; Burrill v. Brad- cock, 30 Ver. 616; Reugie v. Holtz- §§454, 455 merwine's trial op title to land. 356 Sec 454. Statute of frauds — Contract may be made partly by letters, writings and telegrams. A contract within the meaning of the statute of frauds may be made by part writings, telegrams and correspond- ence between the parties concerning the transaction. But these must be concerning the subject-matter of the contract and must be so connected with each other that they may be stated to constitute one paper relating to the contract.*" The court in discussing this subject in Halsell v. Renfrow, supra, said: ''In order to be sufficient, the letters, telegrams and writ- ings relied upon must, by reference to each other, disclose every material part of a valid contract, and must be signed by the party sought to be charged. They must set out the parties, the subject-matter, the price, the description, terms and conditions, and leave nothing to rest in parol. It is a general rule that parol evidence cannot be admitted to supply an omission of any essential element of the contract."*^ Sec. 455. Statute of frauds — A receipt is not sufficient to satisfy the statute. A receipt signed by the vendor for part of the considera- tion will not satisfy the statute. The receipt is not objec- tionable because one party only signs it. The real objection is it does not state all the terms and conditions of the con- claw, 112 Mo. 519, 20 S. W. 800; Sup. Ct. 913, 34 L. Ed. 447; Bibb Dayton v. Stone, 111 Mich. 346, v. Allen, 140 U. S. 481, 13 Sup. Ct. 19 N. W. 29; Warden v. Williams, 950, 37 L. Ed. 819. 62 Mich. 50, 28 N. W. 796, 4 4i Fox v. Easter, 10 Okla. 527, Am. St. 814; Gates v. Gamble, 53 62 Pac. 283; Gaiilt v. Storm- Mich. 181, 18 N. W. 631; Beach on ont, 51 Mich. 636, 17 N. W. Contracts, 579. 214; Eggleston v. Wagoner, 46 40 Halsell v. Renfrow, 14 Okla. Mich. 610, 10 N. W. 37; Ferguson 67, 78 Pac. 121 ; Beckwith v. Talbot. v. Blackwell, 8 Okla. 449, 58 Pac. 95 U. S. 289, 24 L. Ed. 496; Ryan 647; Ryan v. United States, 136 V. United States, 136 U. S. 68, 10 357 CONVEYANCE OF REAL ESTATE. §§ 456-458 tract. When a receipt gives the description of the real estate, the consideration and all the terms of a valid con- tract, its identity is lost, and it then becomes a contract.*- Sec. 456. Bond to build may be specifically enforced, when. It has been held that a bond with penalty to erect a certain building by a named day, is, if the time to build is past, equivalent to a bond with penalty to convey, and that such bond is in equity treated as a contract to convey, which may ordinarily be specifically enforced.*^ Sec. 457, An agreement to dispose of property by will spe- cifically enforced, when. The general doctrine of the courts on this subject is that when a definite contract to leave property by will has been clearly and certainly established, and there has been per- formance on the part of the promisee, equity will grant relief, provided the case is free from objection on account of inadequacy of consideration, and there are no circum- stances or conditions which render the claim unequitable.** Sec. 458. Compensation allowed when specific performance cannot be decreed. It is a well settled principle that in cases where the courts are not permitted to grant the equitable remedy of specific XJ. S. 68, 10 Sup. Ct. 913, 34 L. Ed. dence, the description, without being 447. In the latter case the court contradicted or added to, can be said: "It is not essential that the connected with and applied to the description have such particulars very property intended, and to the and token of identification as to exclusion of all other property." render resort to extrinsic aid en- *- Fox v. Easter, 10 Okla. 527, tircly needless, when the writing 56 Pac. 283; Banckman v. Kuyder- comes to be applied to the subject- duell, 6 Blackf. 21; Lathorp v. matter. The terms may be abstract Bryant, 2 Bing. N. C. 735. and of a general nature, but they *3 Whetstone v. Ottawa, 13 Kan. must be sufficient to fix and com- 320. prebend the property which is the ** Anderson v. Anderson, 75 Kan. subject of the transaction, so that, 117, 88 Pac. 745; Eewhl v. Hau- with the assistance of external evi- masen, 114 Ind. 311, 15 N. E. 345; § 459 merwine's trial of title to land. 358 performance, compensation will be allowed to the extent of the purchase money actually paid on the alleged contract, and, where, in such a case, facts are shown entitling the plaintiff to have a lien declared on the real estate for reim- bursement, the court may retain the case for the purpose of affording such relief, and compensation may be awarded for the improvements made in good faith on the premises.*^ Sec. 459. Decree of court in default of deed to operate as a conveyance — Sheriff may make conveyance. Wlien a judgment has been rendered for a conveyance, release or acquittance, in any court of this State, and the party against whom the judgment has been rendered does not comply there- with by the time appointed, such judgment shall have the same operation and effect, and be as available as if the conveyance, release or acquittance had been executed conformably to such judgment; or the court may order such conveyance, release or acquittance to be executed in the first instance by the sheriff; and such conveyance, release or acquittance will have the same effect as if executed by the party against whom the judgment was rendered. This paragraijh shall apply to decrees rendered or to be rendered in suits now pending.^** Geil V. Geil, 64 Hun, 600, 66 Am. done. The rule upon which the Dec. 773. The principle upon which courts proceed is to construe such courts of equity undertake to en- an agreement, unless void, under the force agreements of this kind is statute of frauds, or for other rea- well stated in Bollman v. Overall, son, to bind the property of the 80 Ala. 451, 2 So. 2, 60 Am. Rep. testator or intestate, so far as to 107. It is not claimed, of course, fasten a trust on it in favor of that any court has power to com- the promisee, to enforce such trust pel a person to execute a last will against the heirs and personal rep- and testament, carrying out his resentatives of the deceased, or agreement to bequeath a legacy, for others holding under them, charged this can be done only in the life- with notice of the trust. See, also, time of the testator, and no breach Newton v. Lyon, 7 Kan. App. 811. of the agreement can be assumed 45 Superior v. Mehlin, 25 Okla. so long as he lives. And after his 809, 108 Pac. 545. death, he is no longer capable of 46 Snyder, 5,922; Wilson, 4,589; doing the thing agreed by him to be Kansas, 4,849 (1901), identical. 359 CONVEYANCE OF REAL, ESTATE. §§ 460-462 A decree requiring performance by one party will also require, if possible, performance by the other.*^ Sec. 460. Decree may contain terms of mortgage agreed upon by contract. Where a contract for the sale of real estate provides that the purchaser shall execute a mortgage to secure the pur- chase price, and is silent with respect to the terms and con- ditions of the mortgage, it is proper for the court to provide in the decree for specific performance, that the mortgage shall contain the usual terms and conditions of a real estate mortgage/* Sec. 461. The procedure where the statute of frauds is inter- posed as a defense. Where a contract is, by the statute of frauds, required to be in writing, the petition need not state affirmatively that it is in writing ; but if not in writing, the fact must be stated in the answer,*^ but where the defense is based upon a promise required by the statute of frauds to be in writing, the answer must show that such promise was in writing."'' A contract valid where it is made to be performed will be enforced in this State, although within the inhibition of the statute of frauds, of this State." Sec. 462. The venue of the action. An action to compel the specific performance of real estate may be brought in the county where the land lies, or where the defendants, or any of them, reside." 47 Craft V. Bent, 8 Kan. 324. si Eldridofe v. Hetiton, 7 C. C. 48 Barrel v. Neef, 102 Pac. (Ohio), 499. (Kan.) 838. 52 Snyder, 5.581 ; Act of April, 49Gladwell v. Hnmo, 18 C. C. 1908; Kansas, 4.477 (1901) , identi- (Ohio), 843. cal; Nebraska. 1.051 (1907). identi- soReinheimer v. Carter, 31 0. S. cal; see Close v. Wlieston, 65 Kan. 579. 830, 70 Pac. 891. § 463 mebwine's trial of title to land. 360 Sec. 463. The procedure by which a contract for the sale of real estate is specifically enforced — Petition by vendor to compel vendee to complete contract of purchase. District Court, County, State of Oklahoma. , Plaintiff, vs. No. . , Defendant. PETITION. Comes now the plaintiff, and, for his cause of action herein, alleges and states : 1. That on the day of , 19 — , he was the owner in fee simple of the following described premises, situated in the county of , State of Oklahoma, to-wit: (Here insert de- scription.) 2. That on the day of , 19—, plaintiff entered into a contract in writing with defendant, whereby it was agreed that plaintiff would sell said real estate, and defendant agreed to purchase the same for the sum of $ , upon the following payments, to-wit : $ , to be paid in cash, and the remainder thereof to be paid in years, said deferred payment to bear interest at the rate of per cent., and to be secured by mortgage on the real estate sold. 3. That it was agreed between plaintiff and defendant that the sale was to be completed and the deed and mortgage passed between them on the day of , 19 — . 4. That upon the date last aforesaid, plaintiff duly tendered said defendant a good and sufficient deed for the above described premises, and has complied with all the conditions on his part to be performed pursuant to said agreement. 5. That the defendant upon said date refused, and still refuses to perform and carry out said contract, to make said pur- chase, or to pay said sum of $ , or to execute said mort- gage. Plaintiff prays, the premises considered, that said defendant be required to carry out said contract, to pay said purchase money, to execute said mortgage, and for such .relief as is proper. 361 CONVEYANCE OF REAL ESTATE. § 464 Sec. 464. The petition by vendee to compel vendor to make deed. District Court of County, State of Oklahoma. , Plaintiff, vs. No. . , Defendant. PETITION. Comes now the plaintiff, and, for liis cause of action herein, alleges and states : 1. That on the day of , 19—, the defendant was the owner of and seized in fee simple of the following described real estate, to- wit: (Here give specific description of same.) 2. That on said day, to-wit : the day of , 19 — , plaintiff entered into an agreement in writing vnth the defend- ant, wherein it was agreed that, in consideration of the sum of $ , to be paid by this plaintiff, in the following manner: (Here insert terms of agreement), that said defendant should sell and convey said real estate to plaintiff, by good and sufficient deed of warranty. 3. That on the day of , 19 — , according to the terras of said contract, the plaintiff duly tendered to the defend- ant said sum of $ , and requested him to convey said prem- ises to plaintiff, as provided by said agreement, but the defend- ant then refused, and still refuses to execute and deliver said conveyance. 4. That the plaintiff has duly performed all the conditions of said agreement on his part to be performed, and is now ready and willing to pay said purchase money, and now brings said sum of $ into court, and offers the same to said defendant, upon his executing and delivering to plaintiff a sufficient con- veyance of said premises, according to the terms of said contract. Plaintiff prays, premises considered, that the court order and decree that the defendant convey said premises to plaintiff by good and sufficient deed, and for such relief as may seem equi- table. Attorneys for Plaintiff. § 465 merwine's trial of title to land. 362 Sec. 465. Petition to enforce performance of verbal contract of sale. District Court of County, State of Oklahoma. , Plaintiff, vs. No. . , Defendant. PETITION. Comes now the plaintiff, and, for his cause of action herein, alleges and states : 1. That on the day of , 19 — , the defendant was the owner in fee simple of the following described premises, to-wit: (Here specifically describe same), and on that day, said plaintiff and said defendant entered into a contract, not in writing, by which said defendant agreed to sell said premises to plaintiff for the sum of $ . 2. That the terms of said contract were as follows: (Here state terms of agreement in detail) ; that the plaintiff paid to defendant, on the day of making said contract, the sum of $ , as a part of the purchase price thereof, and agreed to pay the balance thereof in the following manner: (Here state terms thereof.) 3. That the plaintiff immediately went into possession of said premises, and is still in possession of the same, and has, while he has been in possession, made permanent and valuable im- provements thereon, to-Avit: (Here state improvements made.) 4. That on the day of , 19 — , plaintiff tendered to defendant the sum of $ , the balance of the purchase money remaining due from him on said sale, and demanded of defendant that he make and execute a deed for said premises in accordance with their said agreement, but that defendant then refused so to do, and still refuses to execute and deliver a deed to plaintiff for said premises. 5. That the plaintiff has duly performed all the conditions of said agreement by him to be performed, and is still willing 363 CONVEYANCE OF REAL ESTATE. § 466 SO to do, and now brings the balance of the unpaid purchase money into court and tenders the same to defendant, on con- dition that the defendant will carry out his contract and will make, execute and deliver a deed for said premises to plaintiff. Wherefore, plaintiff prays, premises considered, that the court decree that the defendant be compelled to specifically perform his said contract, and convey said premises to plaintiff, accord- ing to their said agreement, and that he may have such other and further relief as equity and the nature of the case may require.* Attorneys for Plaintiff. Sec. 466. Another form for petition by vendor against vendee for specific performance. District Court op County, State op Oklahoma. , Plaintiff, vs. No. . , Defendant. PETITION. Comes now the plaintiff, and, for his cause of action herein, alleges and states : 1. That on the day of , 19 — , he was, and still is, the owner in fee simple of the following described real estate, situated in the county of , State of Oklahoma, to-wit: (Here specifically describe the same.) 2. That on said day of , 19 — , plaintiff and defendant made and entered into an agreement in writing, whereby plaintiff agreed to sell to defendant said real estate, and defendant thereby agreed to purchase the same for the sum of $ , upon the following terms: The defendant to pay the sum of $ upon the execution of said agreement, and the balance, amounting to the sum of $ , in cash, when the deed should be delivered. 3. That by said written agreement, plaintiff further agreed that, on receiving payment of said sum of $ , at said time, he would, at his own proper cost and expense, execute and deliver * The three foregoing forms adopted from Whittaker's Code Forms. § 467 MER WINE 'S TRIAL OF TITLE TO LAND. 364 to defendant a proper deed for said premises, and thereby con- vey to him good title in fee simple, free from all incumbrances, which deed, it was agreed by said parties, should be delivered on the day of , 19 — . 4. That the defendant, upon the execution of said agreement, paid to plaintiff said sum of $ , as provided therein. 5. That plaintiff has always been, and still is ready and willing to perform said agreement on his part, and that on the day of , 19 — , the said date named, the plaintiff tendered to defendant a deed of the said premises, in accordance with the terms of said agreement, and then and there demanded payment of the balance of the purchase money and interest, but defendant then refused, and ever since has refused to receive said deed and pay the balance of the purchase money, according to said agreement. Wherefore, plaintiff prays judgment that the defendant per- form said agreement and pay to plaintiff the sum of $ , and all interest from the day of , 19 — , and that plaintiff may have such other and further relief as equity and the nature of the case may require. Attorneys for Plaintiff. Sec. 467. Another form of petition by vendee against vendor to compel performance of oral contract of sale. District Court of County, State op Oklahoma. , Plaintiff, vs. No. . , Defendant. PETITION. Comes now the plaintiff, and, for his cause of action herein, alleges and states : 1, That the defendant is, and was, on the day of , 19 — , the owner in fee of the following described real estate, situated in the county of , State of Oklahoma, to-wit: (Here specifically describe the same^.) 565 CONVEYANCE OF REAL ESTATE. § 467 2. That on said day the defendant sold said premises to plaintiff for the sum of $ , payable as follows: (Here state amounts and time of payment), and thereby agreed to convey said premises to plaintiff by deed of general warranty, upon payment of said several sums of money. 3. That the defendant thereupon delivered possession of said premises to plaintiff, and ever since he has continued in, and still is in possession of the same, with the consent of the de- fendant. 4. The plaintiff has paid to the defendant the following sums of money on said contract of sale : (Here state amounts of pay- ment). 5. That there was on the day of , 19—, and still is due said defendant, the sum of $ , under said contract, which sum the plaintiff tendered to the defendant on said day, according to the terms of said contract, but defendant then refused, and still refuses, to execute and deliver a proper deed therefor to the plaintiff. 6. That plaintiff, during the occupancy of said premises, under said contract, has made lasting and valuable improve- ments thereon as follows: (Here state the improvements), of the value of $ . 7. That plaintiff has duly performed all the conditions of said contract on his part to be performed, and now brings said sum of money into court, and offers the same to defendant upon his making and delivering to plaintiff a conveyance of said real estate according to the terms of his said agreement. Wherefore, plaintiff prays that the defendant be required to perform his said agreement, by executing and delivering to him a good and sufficient deed for said real estate, and that he may have such other and further relief as equity and the nature of the case may require. , Attorneys for Plaintiff. § 468 meewike's trial of title to land. 366 Sec. 468. Form for petition to compel specific performance of agreement for exchange of property.* District Court of County, State of Oklahoma. , Plaintiff, vs. No. . , Defendant. PETITION. Comes now the plaintiff, and, for his cause of action herein, alleges and states : 1. That on the day of , 19—, at , the plaintiff and defendant entered into an agreement in writing of that date, whereby, in consideration of the covenants on the part of plaintiff hereinafter mentioned, the defendant covenanted that he would, on the day of , 19 — , convey to plaintiff in fee, by warranty deed, the following described real estate, to-wit : (Here specifically describe same), in consideration whereof, the plaintiff covenanted in and by said agreement, to convey to defendant in fee simple the following described real estate, to-wit: (Here specifically describe same), and it was further provided in said agreement that each party might enter into possession of the premises so to be conveyed to him, and receive the profits thereof to his own use. 2. That thereafter, in pursuance of said agreement, plaintiff and defendant took possession of the real estate respectively to be conveyed to them, and still severally occupy the same. 3. That the plaintiff duly performed all the conditions of said agreement, on his part, and on the day of -^ 19 — ^ tendered to the defendant a warranty deed to said prem- ises, duly signed by the plaintiff, and demanded of him a deed to said premises, but that defendant refused to execute and de- liver said deed to said plaintiff, and still refuses so to do. Wherefore, premises considered, the plaintiff prays judg- ment that the defendant be decreed to specifically perform said agreement; that he receive plaintiff's said deed, and convey to plaintiff said tract of land, and that he may have such other and further relief as equity and the case may require. The three foregoing forms adopted from Whittaker's Code Forms. 367 CONVEYANCE OF REAL ESTATE. § 469 Sec. 469. The decree awarding specific performance of a con- tract for the purchase and sale of real estate. District Court of County, State of Oklahoma. — , Plaintiff, vs. No. . , Defendant. DECREE AWARDING SPECIFIC PERFORMANCE. Now, on this day of , 19—, this cause came on to be heard upon the petition of the plaintiff, the answer thereto of the defendant, and the reply thereto, and was heard upon the evidence and the argument of counsel, and upon due considera- tion whereof, the court finds that the plaintiff and defendant entered into a contract, as alleged in the petition, and that plain- tiff is entitled to specific performance of said contract. It is Therefore ordered, adjudged and decreed that upon the plaintiff's paying to defendant the sura of $ , as agreed upon in said contract, then the defendant shall, within days from the date of this decree, deliver to plaintiff a warranty deed, executed and acknowledged in due form by him, with the usual covenants of warranty, for the following described real estate, to-wit: (Here specifically describe same), and that if defendant default in making and delivering said deed, as or- dered, within days from the date of this order, then the sheriff of this county is ordered and directed to make, acknowl- edge and deliver a deed for said real estate as by the statute authorized and directed, and in default of said sheriff's making said deed, then this decree of the court will operate as a con- veyance of the fee simple estate in said real estate from defend- ant to plaintiff, as fully and completely as if said deed had been made as ordered herein. It is considered that plaintiff recover from defendant his costs herein taxed at $ . Judge of said Court. § 470 mebwine's trial op title to land. 368 Sec. 470. Form where sheriff executes deed. Know All Men by These Presents, that, whereas, on the day of , 19 — , plaintiff, , filed his petition against in the district court of County, State of Oklahoma in case number , praying, among other things, for the specific performance of a certain contract for the con- veyance of the real estate hereinafter set forth; and. Whereas, such proceedings were had in said cause, on the day of , 19 — , that said court ordered , as sheriff of County, Oklahoma, to execute, acknowledge and deliver to the defendant a deed, according to the statute in such cases made and provided, conveying the fee simple title to the real estate hereinafter described. Now, Know Ye, that I, the said , sheriff of said county of , by virtue of said judgment, and of the statute for such cases made and provided, and for and in consideration of the sum of $ , and of the premises herein, do hereby grant, sell and convey unto said the following described real estate, to-wit: (Here specifically describe same), together with the privileges and appurtenances thereunto belonging. To Ha^^ and to Hold said real estate unto said , his heirs and assigns, as fully and completely as said , sheriff of said county of , by virtue of said judgment, decree and the statute made and provided for such case, might or should sell and convey the same. In Witness Whereof, I have hereunto set my hand this the day of , 19 — . Sheriff of County, State of Oklahoma. State of Oklahoma, County, ss. : Before me, , a notary public in and for said county and State, on this day of , 19 — , personally ap- peared , to me known to be the identical person who executed the withm and foregoing instrument, and acknowledged to me that he executed the same in his capacity therein stated. 369 CONVEYANCE OF REAL ESTATE. § 470 and as his free and voluntary act and deed, for the uses and purposes therein set forth. ]My commission expires . Notary Public. §§471,472 mebwine's trial of title to land. 370 3. CONVEYANCES— THE LAW AND PROCEDURE BY WHICH INSTRUMENTS OF CONVEYANCE ARE CANCELED. SECTION SECTION 471. Procedure — General statement. 478. The rvile as to notice. 472. Specific acts of fraud should -^TSa. Allegations of olTer to restore be alleged and proved. consideration. 473. The jury in the action to can- 478b. Federal court has power to eel instruments of conveyance. cancel conveyance of Indian 474. The petition need not allege lands. inadequacy of legal remedy. 479. Form for petition for cancella- 475. The statutory regulations as tion of deed. to when party may rescind a 480. Another form for cancellation contract. of deed, mortgage and lease. . 476. Eescission ana cancellation al- 481. Decree of court canceling in- lowed for mistake, wlien. struments set forth in tlie 477. Canceling and rescinding — ^How petition. and when allowed. 482. Another form for decree for 477a. Mental incapacity to execute cancellation of deeds, deed. Sec. 471. Procedure — General statement. The rules applicable to the procedure for the reformation of instruments of conveyance, apply to the action to cancel the same. In actions to reform instruments, the mistake must be mutual, but in an action to cancel such instruments, the mistake of one party will permit its cancellation.^ Sec. 472. Specific acts of fraud should be alleged and proved. In an action to cancel an instrument conveying real estate, the same rules apply as are used in other actions, and conclusions of law, or facts, should not be alleged. When fraud is the basis for the action to cancel such instrument, it is insufficient to make a mere allegation that the instru- ment sought to be canceled was procured by fraud. The 1 2 Kinkead's Code Pleading, Sec. 1,100; Benson v. Marhoe, 37 Minn. 30, 5 Am. St. Rep. 816. 371 CONVEYANCE OF REAL ESTATE. §§473,474 specific acts relied on as ^constituting the fraud should be alleged with particularity.- In an action to cancel a deed alleged to have been pro- cured by false and fraudulent promises, a specific averment that the grantee did not intend, at the time he made said promise, or contract, to carry out the same is not necessary, if from the facts alleged the existence of his fraudulent intent not to carry out his contract can be clearly inferred.^ Sec. 473. The jury in the action to cancel instruments of conveyance. A jury, if used at all in an action to cancel an instrument of conveyance, sits only in an advisory capacity, and as such its verdict and findings must be treated." Sec. 474. The petition need not allege inadequacy of legal remedy. The right to relief does not depend upon the adequacy or inadequacy of the plaintiff's legal remedies, but upon the sound discretion of a court of equity, to be admitted or refused according to its own idea of what is reasonable and right.^ 2Statev. Williams, 39 Kan. 577, illegality consists. Allegations of 18 Pac 727; Railroad v. Commis- fraud or illegality, without a state- sioners,' 18 Kan. 169; Clark v. Day- ment of the facts constituting the ton, 6 Neb. 192; Pelton v. Bemis, same are mere legal conclusions 44 b S 51 4 N E 714; Ockendon and of no force m a pleading. .No V Barnes, 43 la. 615; Railroad v. issue is presented by such averments Neighbors 51 Miss. 412; Smith v. and no proof is admissible there- lliTool: 13 Barb. 209; 2 Kin- under. State v. Williams, 39 Kan. kead's Code Pleading, See. 1,100. 579, 18 Pac. 727. The pleader did not undertake, s Blackburn v. Munson, 29 Okla. however, to state, and we are unable 510, 118 Pac 402; -, also Skimes, to learn from the petition, wherein et al., v. Scott, et al., 29 Okla. 364 the advertising, offering for sale, 118 Pac. 394, where plaintiff guilty or sale of the lands were defective of laches. or fraudulent. There are other . Mosier v. Walter, 17 Okla. 30o, charges of illegality in the petition ^^^^Z^ Walter, 17 Okla. 305. but there are no accompanying facts ^^^^"'^'^ Jj , ' . T^n Tnr to inform the court in what the 87 Pac. 877; 1 Story s Eq. Jur., § 475 merwine's trial op title to land. 372 The Supreme Court of our State, in a well considered case, has, upon this subject, well said: ''And while it is the general rule that a contract or con- veyance, which is improvident or based upon an inadequate consideration, will not be set aside for these reasons alone, yet, certainly, where, as in the case at bar, there is not only nonperformance and clouding of title, but entire want of consideration, and proof of such facts, as furnishing in itself, convincing evidence of fraud, this court will not hesitate to deem such a condition a sufficient occasion for invoking the equitable remedy of cancellation. In such a ease, the exer- cise of equitable jurisdiction is not dependent upon the inadequacy of the legal remedy, but rescission and cancella- tion may be sought irrespective of any question of a remedy at law."^ Sec. 475. The statutory regulations as to when party may rescind a contract. A party to a contract may rescind the same in the fol- lowing cases only: 1. If the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party. 2. If through the fault of the party as to whom he rescinds, the consideration for his obligation fails in whole or in part. 3. If such consideration becomes entirely void from any cause. 206, 602; Jones v. Poles, 9 Wall. John Hancock, etc.. v. Dick, 114 364; Pom., Eq. Jur., Sec. 221, 911, Mich. 337, 72 N. W. 179, 43 L. R. A. 914, 1,377; Gefken v. Graef, 77 Ga. 566; Ranney v. Warren, 13 Hun 340; Shaeffer v. Sleade, 7 Blackf. (N. Y.), 11; Holden v. Hoyt, 134 (Ind.) 178. Mass. 181. 6 Garretson v. Wither spoon, 15 Okla. 473, 83 Pac. 415; 6 Cyc. 291; 373 CONVEYANCE OF REAL ESTATE, §§476,477 4. If such consideration, before it is rendered to him, fails in a material respect, from any cause; or, 5. By consent of all the other parties/ Sec. 476. Rescission and cancellation allowed for mistake, when. A stipulation that errors of description will not avoid a contract, or shall be the subject of compensation, or both, does not take away the right of rescission for fraud, nor for mistake, where such mistake is in a matter essential to the inducement of the contract, and is not capable of exact and entire compensation.^ Sec. 477. Canceling and rescinding — How and when allowed. Rescission, when not affected by consent, can be accom- plished only by the use, on the part of the party rescinding, of reasonable diligence to comply with the following rules: 1. He must rescind promptly, upon discovering the facts which entitle him to rescind, if he is free from duress, menace, undue influence, or disability, and is aware of his right to rescind ; and, 2. He must restore to the other party everything of value which he has received from him under the contract; or must offer to restore the same, upon condition that such party shall do likewise, unless the latter is unable, or positively refuses to do so.* 7 Snyder, 1,135; Wilson, 825; Bank v. Taylor, 58 N. W. (S. D.) North Dakota, Sec. 5,378 (1905), 297; Fletcher v. Arnett, 57 N. W. identical; South Dakota, 1,283 (S. D.) 915; Hull ^. Caldwell, 54 (1903), identical; see McNinch v. N. W. (S. D.) 700: see Stevens v. Northwest, etc., 23 Okla. 386, 100 Elliott, 118 Pac. (Okla.) 407, for Pac. 524 ; Bank v. Maddox, 4 Okla. rule of return of consideration where 583, 46 Pac. 563 ; Davis v. Beman, plaintiff is a minor Creek freedman. 60 N. W. (N. D.) 836; Fahy v. Estuly, 55 N. W. (N. D.) 580; 8 Snyder, 1,136; Wilson, 826; Hilton'v. Advance, 66 N. W. (S. D.) Dakota Code, 3,590 (1887). 816; Rosmussen v. Reedy, 84 N. W. » Snyder, 1,137; Wilson, 827; (S. D.) 205; Ames v. Burnham, North Dakota, 5,380 (1905), iden- 108 N. W. (S. D.) 549; National tical; South Dakota, 1,285 (1903), § 477a MERWINE 'S TRLVL OF TITLE TO LAND. 374 Sec. 477a. Mental incapacity to execute a deed. It is not necessary, in order to entitle one to have a deed canceled upon the ground of mental incapacity, to show that he was at the time of the execution of the deed, insane, or so mentally weak that he was entirely disqualified to trans- act any business. It is sufficient to show that his mental weakness and infirmity is such that he is incapable of under- standing the nature and magnitude of the transaction, and that there is gross inadequacy for the conveyance. From these circumstances imposition or undue influence will be inferred, and they alone are sufficient to secure the aid of a court of equity. The court in setting forth these proposi- tions, quoted from an opinion by Judge Story, as follows: "Extreme weakness will raise an almost necessary pre- sumption of imposition, even when it stops short of legal capacity; and, though a contract in the ordinary course of things, reasonably made with such a person might be per- mitted to stand, yet if it appeared to be of such a nature as that such person could not be capable of measuring its extent or importance, its reasonableness, or its value fully and fairly, it cannot be that the law is so much at variance with com- mon sense to uphold it. ' ' ^'^ identical. One cannot claim a bene- 24 L. Ed. 260; Harding v. Wheaton, fit and repudiate the burden. Wil- 2 Mason, 378; Harding v. Handy, loughby V. Fidelity, 16 Okla. 546, 11 Wheat. 103, 6 L. Ed. 429; Jones 185 Pac. 713. The property received v. Magruder, 87 Va. 360, 12 S. E. must be returned. Guss v. Nelson, 792; Fishburn v. Ferguson, 84 Va. 14 Okla. 296, 78 Pac. 170. The 87, 4 S. E. 575; Turner v. Utah, consideration must be returned. etc., 10 Utah, 61, 37 Pac. 91; Johnson v. Bennadi, 52 N. W. Taylor v. Atwood, 47 Conn. 498; (S. D.) 1,057; Lovell V. McGaughey, Ashmead v. Reynolds, 134 Ind. 139, 66 N. W. (S. D.) 1,085. There 38 N. E. 763, 39 Am. St. Rep. must not be any laches. Equitable 238; Ikerd v. Beavers, 106 Ind. V. Detroit, 97 N. W. (S. D.) 17. 483, 7 N. E. 326; Wiikie v. Sassen, Payments made prior to discovery 123 la. 421, 99 N. W. 124; Clark do not prevent rescinding after dis- v. Lopez, 75 Miss. 932, 23 South. covery. Grewing v. Wmn., 80 N. W. 648 ; Richard v. Donnert, 72 Cal. (S. D.) 176. 207, 13 Pac. 584; Walling v, loPaulter v. Mnnuel, 108 Pac. Thomas, 133 Ala. 426, 31 South. 752; Allore v. Jewell, 94 U. S. 506, 982. 375 CONVEYANCE OP REAL ESTATE. §§ 478-478b Sec, 478. The rule as to notice. The rule sustained by the better weight of authorities is, that where there has been no attempt to perform any part of the contract, and the time for performance has expired, the vendor may rescind without notice to the vendee of his intention to do so, and convey the land to another." Sec. 478a. Allegation of offer to restore consideration. In an action for rescission and cancellation of a deed fraud- ulently obtained, an allegation in the petition that plaintiff is ready and willing to execute and deliver a deed for the property is sufficient offer to restore to bring him within the terms of the statute.^^ Sec. 478b. Federal court power to cancel conveyance of Indian lands. Where the Indian department, under the provisions of law, has made a reservation of tribal lands for a town site, and there are outstanding invalid conveyances which cloud the title of purchasers of lots, the United States may maintain a suit in equity for the cancellation of such instruments.'^ 11 Mosier v. Walter, 17 Okla. 305, as to create a reasonable belief oa 87 Pac. 877; Kennedy v. Embry, the part of the vendor that he has 72 Tex. 387, 10 S. W. 88. "Nor do forsaken his contract, and no longer we think notice of the disaffirmance considers himself obligated by it, of the contract was recessary to be the vendor may rescind without pleaded, since under the facts in notice to the vendee of his intention this case, no such notice was neccs- to do so." Herbert v. Stanford, 12 sary to be given. Some of the Ind. 503; Knappen v. Freeman, 47 authorities go to the extent of hold- Minn. 491, 50 N. W. 533, Kirby v. ing that no notice whatever is re- Harrison, 2 0. S. 326, 59 Am. Dec. quired to be given, other than the 677. institution of the suit, and all unite i^Gedney v. Chappcll, 110 Pac. in upholding the doctrine that (Okla.) 1,105. where, in purchase and sale of real i^ United States v. Dowden, 194 estate, and the vendee has so acted Fed. 476. §§479,480 merwine's trial of title to land. 376 Sec. 479. Form for petition for cancellation of deed. District Court of County, State of Oklahoma. , Plaintiff, vs. No. . , Defendant. PETITION. Comes now the plaintiff, and, for his cause of action against the defendant, alleges and states : 1. That on the day of , 19 — , plaintiff was the owner in fee simple and possessed of the following lands, to-wit : (Here describe same.) 2. That on the day of , 19 — , the defendant procured and caused plaintiff to execute and deliver to him a deed of said real estate, conveying the same to the defendant in fee simple, by the fraudulent representation to the plaintiff that said deed of conveyance was a lease on said lands to the defend- ant for the term of years. 3. That the plaintiff, being an ignorant person and unable to read and write, and having kuown defendant for a long time, and believing him to be honest and of undoubted integrity, and relying on said representations of defendant, but for which he would not have executed said lease, executed and delivered the said deed to defendant, as and for a lease, and plaintiff believed it to be such lease, and accepted it for no other purpose whatever. Wherefore, the premises considered, plaintiff prays that said deed be ordered to be delivered up, canceled and held for naught, and for all proper relief. , Attorneys for Plaintiff. Sec. 480. Another form petition for cancellation of deeds, mortgage and lease. District Court of County, State of Oklahoma. , Plaintiff, vs. No. . and , Defendants. * 377 CONVEYANCE OP REAL ESTATE. § 480 PETITION. Comes now the plaintiff, and, for her cause of action herein, alleges and states : 1. That she is a citizen of the Tribe of Indians, of the blood; that she was duly enrolled as such citizen and blood upon the enrollment records by the commissioner to the Five Civilized Tribes, on the day of , 19—, as of the age of years, and as such citizen she received an allotment of one hundred and sixty acres of land, described as follows, to-wit: (Here describe it.) 2. That while she was under the age of eighteen years, she made, executed, acknowledged and delivered the following in- struments of conveyance to the following persons, all of which were made without any order, decree or authority of any court, and all of which affect the real estate hereinabove specifically described : (a) One certain oil and gas lease to the defendants, , and , executed on or about the day of ^ 19 — ^ and recorded in the records of the register of deeds of said county in book , at page (h) One certain warranty deed to the defendant, , executed on or about the day of , 19—, recorded in the records of the register of deeds of said county in book , at page . (c) One certain oil and gas lease, to the defendants, and , executed on or about the day of , 19 — ^ recorded in the records of the register of deeds of said county, in book , at page (d) One certain note and mortgage, to the defendant, , executed on or about the day of , 19 — , and re- corded in the records of the register of deeds in said county, in book , at page . (e) One certain agricultural lease to the defendant, , executed on or about the day of , 19—, for the term of years from said date, and recorded in the records § 481 MERWINE 'S TRLU. OF TITLE TO LAND. 378 of the register of deeds in said county, in book , at page . 3. That she is still the o^^^le^ of said real estate herein spe- cifically described ; that said real estate is wild and uncultivated land; that each of said instruments is a cloud on plaintiff's title thereto, to her great and irreparable damage; that the consid- eration received for said instruments was spent by her while under the age of eighteen years, and she has none of it now in her possession, and is unable to restore the same ; that each of said deeds, leases and mortgage were void and did not convey any interest therein to the parties, lessees, grantee, or mortgagee therein. Wherefore, plaintiff prays that said deed and leases, and said note and mortgage be canceled, set aside, held for naught and ordered surrendered, and that she be given such other and further relief as the nature of the case may require. Attorneys for Plaintiff. Sec. 481. Decree of court canceling instruments set forth in the petition. District Court of County, State of Oklahoma. , Plaintiff, vs. No. . and , Defendants. DECREE. Now, on this day of , this cause coming on for hearing upon the petition, answer thereto and the reply, and was heard upon the evidence and arguments of counsel, upon due consideration thereof, the court finds : ]. That at the times of the execution of the oil and gas leases to the defendants, and , recorded in book , at page , in the office of the register of deeds in said county, and the execution of the deed to the defendant, , recorded in book , at page > in the office of the Qiyg CONVEYANCE OF REAL ESTATE. § 482 register of deeds in said county, and the execution of the note and mortgage to the defendant, , recorded in book , at page , in the office of the register of deeds of said county, the said plaintiff was a citizen of the Creek Tribe of Indians of the half-blood, and under the age of eighteen years; that said land was allotted to her as such citizen; that she has squandered the consideration she received therefor, and is unable to return the same. It is Therefore Ordered, Adjudged and Decreed by the court that each of the said instruments aforesaid be, and the same 'are, hereby canceled, set aside and held for naught, and that the plaintiff recover from said defendants and eachof them, her costs, herein expended, taxed at the sum of $ , for the payment of the same let an execution issue. Done this day of , 19—- — — ~ J Judge of the District Court. Sec. 482. Another form for decree for cancellation of deeds. District Court of County, State of Oklahoma. . , as Guardian of the Person and Estate of , a minor, Plaintiff, No. vs. and , Defendants. DECREE CANCELING CONVEYANCES. This cause came on to be heard upon the petition of the plain- tiff the disclaimer filed by the defendant, , the answer of the defendants, , and , and the reply to said answer, after hearing the e^adence in said cause and the argu- ment of counsel, and having given the same due consideration, the court finds that said defendants, and each of them have submitted themselves to the jurisdiction of the court, and upon the issues joined by said pleadings, the court finds m favor of the plaintiff and against said defendants and each of them. §482 MEK wine's trial of title to land. 380 It is Therefore Ordered, Adjudged and Decreed, that each of the following deeds set out in plaintiff's petition, purporting to convey the following described real estate, to-wit : (Here de- scribe it) be canceled, set aside and held for naught: 1. A deed from to , executed on the day of , 19 — , and recorded in the office of the register of deeds of County, State of Oklahoma, in book , at page . 2. A deed from to and , executed on the day of , 19 — , and recorded in the office of the register of deeds of County, Oklahoma, in deed book , at page . 3. A deed from and to , executed on the day of , 19 — , and recorded in the office of the register of deeds of County, Oklahoma, in deed book , at page . 4. A deed from and to and , executed on the day of , 19 — , and recorded in the office of the register of deeds of County, Oklahoma, in deed book , at page . 5. A deed from and to , executed on the day of , 19 — , and recorded in the office of the register of deeds of County, Oklahoma, in deed book , at page . It is Therefore Ordered, Adjudged and Decreed, that each of the aforesaid conveyances be canceled, set aside and held for naught ; and it is considered that said plaintiff recover of said defendants and each of them, his costs of suit herein, taxed at $ , for the ptiyment of which let execution issue. Done this day of , 19 — . Judge of said District Court. 381 CONVEYANCE OP REAL ESTATE. §483 4. CONVEYANCES— REFORMATION OF INSTRUMENTS OF. SECTION 483. The parties defendant in an action to reform an instru- ment of conveyance. 484. The petition may be amended so as to reform a mortgage sued on. 485. The nature of the action to reform a deed or other in- strument of conveyance. 486. When a court of equity should interfere. 487. The instrument may be re- formed and specific perform- ance decreed. 488. The rule as to hona fide pur- chasers. 489. The lien of a mortgage re- formed prior to the lien of attaching creditors, when. 490. A deed may be corrected so as to make the grantee assume existing mortgages, when. 491. Party seeking reformation must have superior equity. SECTION 492. Mutuality not always an essen- tial requisite. 493. Equity will interfere sometimes to correct a mistake of law. 494. Estoppel. 495. Form for petition correcting description in a mortgage and setting aside a release of mortgage made under mis- take. 496. Decree of court correcting mortgage, finding service by publication and appointment of guardian ad litem for minor defendants. 497. Procedure by which a deed is reformed — Form for petition. 498. Form for praecipe. 499. Form for summons. 500. Form for affidavit for service by publication. 501. Form for the notice. 502. Form for proof of publication. 503. Form for decree reforming deeds. Sec. 483. The parties defendant in an action to reform an instrument of conveyance. Each and every party vrhose rights will be affected, either directly or consequentially, must be made parties defendant.^ The rule is that where a mistake runs through successive deeds and reformation is asked, every person who has given an instrument where the mistake occurs, or if such persons be dead, the heirs, are necessary parties.- 1 3 Bates' Pleading and Practice, Parties and Forms, Sec. 2,529, citing Oliver v. Clifton, 39 Ark. 187; Center v. Lindsey, 21 Utah, 192, 60 Pac. o59; Cumberland v. Pad- gett, 61 Atl. (N. Y. Eq.) 837; Busby v. Littlefield, 31 N. H. 193; :Morgan v. Meuth, 60 Mich. 238, 27 iX. W. 509; Pierce v. Faurce, 47 Me. 507; Wyche v. Green, 32 Ga. 34; Moore v. Munn, 69 111. 591. 2 3 Bates' Pleading and Practice, Parties and Forms, Sec. 2,530, citing Indian v. Wooten, 48 Fla. 271, 37 §§484,485 merwine's trial of title to land. 382 In such equitable actions it is necessary to make all par- ties interested, parties to the suit. When the land has passed through several owners by successive conveyances or a series, all the grantors, or their heirs, if they themselves are dead, are necessary parties defendant.^ Sec. 484. The petition may be amended so as to reform a mortgage sued on. A petition setting forth a defective description of the land may be amended to give the correct description, so as to conform to the intentions of the parties thereto, and such amendment will not introduce a new cause of action. And a foreclosure suit will not be barred by limitation of time, although the amendment was made more than five years after the note and mortgage were executed.* Sec. 485. The nature of the action to reform a deed or other instrument of conveyance. The power is peculiarly an equitable one, and its exercise should be used with a great deal of care and caution. In- deed, it is and should be exercised with more caution by the chancellor than in the rescission and cancellation of a deed or other instrument in writing. He who seeks to reform an instrument of conveyance on the ground of mistake only, must establish most clearly and satisfactorily that the alleged intention to which he asks it to be conformed, continued concurrently in the minds of the parties down to the time of its execution.^ It has been held that the evidence of the mistake or other cause requiring a reformation of the in- So. 731; Flanders v. McClenahan, 4 Keys v. Lardner, 59 Kan. 545, 24 la. 486; Farm v. Detroit, 12 53 Pac. 758. Mich. 445. s Phillips' Code Pleadings, Sec. sPomeroy's Remedies, Sec. 371; 509 ; Bispham's Principles of Equity, 2 Kinkead's Code Pleading, Sec. Sec. 469. 1,099; Witte V. Lockwood, 39 0. S. 143. 383 CONVEYANCE OF REAL ESTATE. § 486 strument must be clear and convincing." And the court must be satisfied beyond a reasonable doubt of the mutual mistake of both parties.'^ But where a mutual mistake is conceded, the ordinary rule as to conveyances controls as to the consideration, the performance and the prejudices.^ The party alleging the mistake should show exactly in what it consists.^ Sec. 486. When a court of equity should interfere. A court of equity will always interfere and will reform a deed which includes property the parties never intended to be conveyed, and which the grantor was under no obligation to convey, and which the grantee in good conscience has no right to retain.^" The rules of law applicable to the reformation of instru- ments conveying or incumbering real estate, are plain and founded in good sense. These rules are well settled, and where the agreement is reduced to writing and omits or contains terms or stipulations contrary to the common intention of the parties, the instrument will be corrected so as to conform to the real intention of the parties.^^ The mistake must be mutual and common to both parties to the instrument. It must appear that e Critchfield v. Kline, 39 Kan. 8 Conoway v. Gore, 24 Kan. 389. 721, 18 Pac. 898; Baltzer v. Rail » Hope v. Bourland, 21 Okla. 864, way, 6 Sup. Ct. Rep. 216; Grizwold 98 Pac. 583. V. Hazard, 26 Fed. 135; Gilmartin lo Burton v. Handy, 54 Kan. 13, V. Urquart, 1 So. (Ala.) 897; Fred- 37 Pac. 108; 2 Pomeroy's Eq. Jur., erick v. Henderson, 7 S. W. (Mo.) Sec. 843; Beson v. Nearkve, 33 186; Little v. Webster, 1 N. Y. N. W. 38; Canedy v. Marcy, 13 Sup. Ct. 315; Rossin v. Lynn, 23 Gray, 373; Stidwell v. Anderson, Fed. 107; Cimmins v. Monteith, 16 21 Conn. 139; Clayton v. Freet, N. W. (la.) 591; Wachendorf v. 10 0. S. 544. Lancaster, 14 N. W. (La.) 316; n Hope v. Bourland, 21 Okla. 864, Alilbon V. WolfT, 11 Atl. (Va.) 799. 98 Pac. 580; Horner v. Mowine, 20 7Bodwell V. Heaton, — Kan. Wall. 478, 22 L. Ed. 595; Kerr on 31, 18 Pac. 901; Brundidge v. Fraud and Mistake, 419. Blair, 23 Kan. 482; Schaefer v. Wells, 69 Kan. 25, 76 Pac. 436. § 487 MER wine's trial of title to land. 384 both have done what neither intended.'- And where the minds of the parties have never met ihere is no contract, and, hence, none to be rectitied/^ To warrant the court to reform any instrument of convey- ance, the mistake must have been material, and must not have occurred by the fault of the party asking its reforma- tion/* Sec. 487. The instrument may be reformed and specific per- formance decreed. The Supreme Court of this State in a very recent decision held that when, through accident or mistake, from an exec- utory contract or instrument, founded upon a valid con- sideration, for the sale of real estate, there was omitted matter intended to have been included, it may be reformed and specific performance decreed.'^ The minority of the courts, not having full equity juris- diction hold that a contract within the statute of frauds may not be reformed, so as to extend the contract beyond what its terms import/" However, the majority of the Amer- ican courts which have full equity jurisdiction hold that equitable relief by way of reformation may be applied with- 12 Hope V. Bourland, i21 Okla. a decree that will injure another in 864, 98 Pac. 580 ; Rooke v. Kensing- order that the plaintiff may not ton, 2 K. and J., Sec. 753; Eaton suffer loss. Drovers, etc., v. Bank, V. Benton, 34 Beavan, 49G. 19 Okla. 302, 91 Pae. 850. 13 Hope V. Bourland, 21 Okla. « At wood v. Mikesa, 29 Okla. 586, 98 Pac. 580. 69, 115 Pac. 1,011. 14 Marshal v. Homier, 13 Okla. is Atwood v. Mikesa, 29 Okla. 69, 264, 74 Pac. 368. Equity will not 115 Pac. 1,011; Elder v. Elder, 10 subject the property of one party Me. 80, 25 Am. Dec. 205; Glass v. to the payment of the debt of an- Hulbert, 102 Mass. 24, 3 Am. Rep. other; and a mistake will not be 418; Dwight v. Pomeroy, 17 Mass. corrected in an equitable action, 303, 9 Am. Dec. 148; Attorney- unless the plaintiff shows by his general v. Sitwell, 5 L. J. Exch. 86, bill that without such correction 93 I., Y. and C. Exch. 559. it will suffer loss or injury; but even then the court will not enter 385 CONVEYANCE OF REAL ESTATE. § § 4:88, 489 out restriction, because the purpose of the statute was to promote justice and prevent wrong, and not to hinder justice.^'^ Sec. 488. The rule as to bona fide purchasers. The rules of law applicable to the reformation of instru- ments of conveyance apply as to the original parties only, and equity will not interfere as against bona fide purchasers/* Sec. 489. The lien of a mortgage reformed prior to the lien of attaching creditors, when. A mortgage lienholder on property attached may intervene where the defendant in the action is served by publication only, and makes default, and such intervener may ask that the mortgage which purports to be a lien on a different piece of land may be reformed on the ground of mutual mistake of the defendant and himself in the description, so that it may be a lien on the property attached as was the intention of both parties to the mortgage.^" Attaching creditors on land cannot resist the proper ap- plicant to have the mortgage reformed so as to make the lien cover the property attached and become a prior lien.-*' "Ahvood V. Mikesa, 29 Okla. Hall, 3 Paige (X. Y.), 313; Gower 69, 115 Pac. 1,011; Thompson v. v. Sterner, 2 Whart. (Pa.) 75; Marshall, 36 Ala. 504; 76 Am. Dec. Flaigler v. Peiss, 3 Rawle (Pa.), 328; Blackburn v. Randolph, 33 345; Blodgett v. Hobart, 18 Vt. Ark. 119; Murphy v. Rooney, 45 418, 2 Pom. Eq. Jr. (2d ed.). Sees. Cal. 78; Morrison v. Collier, 79 864-866. Ind, 417; Dutch v. Boyd, 81 Ind. is Byrne v. Ft. Smith, 1 Ind. T 146; Moate v. Buchanan, 11 Gill 680, 43 S. W. 957. and J. (Md.) 314; Smith v. Greely, is Bodwell v. Heaton, 40 Kan. 14 Jv\ H. 378; Tilton v. Tilton, 9 36, 18 Pac. 901. N. H. 385; DePeyster v. Hasbrook, 20 Bush v. Bush, 33 Kan. 556, 11 N. Y. 582; Gouverenor v. Titus, 6 Pac. 794. 6 Paige (N. Y.), 347; Wishall v. §§490-493 MER wine's trial op title to lakd. 386 Sec. 490. A deed may be corrected so as to make the grantee assume existing mortgages, when. The court has power to correct a mutual mistake of the parties so as to make the grantee assume and agree to pay mortgages against the real estate conveyed.^^ Sec. 491. Party seeking reformation must have superior equity. It is a maxim in equity that he who seeks equity, must do equity; and he who comes into court asking for the reforma- tion of some instrument of conveyance must stand upon some equity superior to that of the party against whom he seeks it.^^ Sec. 492. Mutuality not always an essential requisite. Where the terms of the bargain and sale of real estate have been agreed upon by the parties and thoroughly understood by each of them, but the terms and conditions of the per- formance of the contract by mistake were not entered into the written contract, so as to express the intention and mean- ing of the parties, as they previously understood it, a court of equity will correct the instrument of conveyance so as to make it conform to the contract originally agreed upon. And where the terms of the agreement prior to the making of an instrument of conveyance were understood and agreed upon, it is not always an essential requisite that each of the parties understand it exactly alike.^^ Sec. 493. Equity will interfere sometimes to correct a mis- take of law. Generally speaking, courts of equity will not reform in- struments so as to correct a mistake of law, but such courts 21 Stephenson v. Elliott, 53 Kan. Pac. 398; Holcomb v. Thompson, 50 550, 3G Pac. 980. And when so Kan. 59S, 32 Pac. 1,091. corrected, a personal judgment may 22 Connoway v. Gore, 21 Kan. 725. be secured against the party as- 23 Drummond v. Krebs, 8 Kan. suming the mortgage. Ibid; Burn App. 180, 55 Pac. 478. ham V. Larkin, 36 Kan. 246, 13 387 CONVEYANCE OF REAL ESTATE. §494 do sometimes interfere to correct mistakes of law occurring to parties. A well known and able jurist has said on this subject : "Wherever a person is ignorant or mistaken with respect to his own antecedent and existing private legal rights, interests, estates, duties, liabilities or other relation, either of property or contract or personal status, and enters into some transaction, the legal scope and operation of which he cor- rectly apprehends and understands, for the purpose of affect- ing such assumed rights, interests or relations, or of carrying out such assumed duties or liabilities, equity will grant its relief, defensive or affirmative, treating the mistake as analagous to, if not identical with, a mistake of fact."^'' Sec. 494. Estoppel. There can be no estoppel preventing the reformation of an instrument as against one whose situation is no different from what it would be had there been no mistake therein."^ 24 Jeakins v. Frazier, 64 Kan. 267, 67 Pac. 854; 2 Pom. Eq. Jur., Sec. 849; Pvenard v. Clink, 91 Mich. 1, 51 X. W. 602. The equitable remedy of reformation is not lim- ited to cases of mutual mistake. Where mistake, unmixed with fraud, is the basis of the relief sought, it must be a mistake common to both parties; but the remedy is available whereby the mistake of one party, induced by the fraud of another, there is omitted from a deed, land, which it was stipulated, should be conveyed, and which the first party was led to believe was covered by the description. Cox v. Beard, 75 Kan. 369, 89 Pac. 671; Welles V. Yates, 44 N. Y. 525; Husted V. Van Xess, 158 X. Y. 104; 52 X. E. 645; Kyle v, Fehley, 81 Wis. 67, 51 X. W. 257, 29 Am St. Rep. 866; Place v. Johnson, 20 Minn. 219, 229 (Gil., 198) ; Crooks- ton Imp. Co. V. Marshall, 57 Minn. 333, 59 X. W. 294, 47 Am. St. Rep. 612; Simmons Creek Coal Co. v. Doran, 142 U. S. 417, 12 Sup. Ct. 239, 35 L. Ed. 1,063; Higgins v. -Parsons, 65 Cal. 280, 3 Pac. 881, Kinney v. Ensminger, 87 Ala. 340, 6 So. 72; Jones v. Warren, 134 X. C. 390, 46 So. 740; Archer v Lumber, 24 Ore. 341, 33 Pac. 526 1 McCormick v. Woulph, 11 S. D. 252, 76 X. W. 929; Goodenow v. Curtis, 18 Mich. 298; Citizens v. Judy, 146 Ind. 322, 43 X. E. 259; San- ford V. Gates, 21 Mont. 277, 53 Pac. 749; Dane v. Berber, 28 Wis. 216, 24 Am. & Eng. Enc. of Law, 652; 2 Current Law, 1,492; 3 Pom. Eq. Jur., Sec. 1,376; 3 Page on Con- tracts, Sec. 1,239; 42 Cent. Dig. 1,111. 25 Detweiler v. Swartley, 74 Kan. 88, 86 Pac. 141. § 495 merwine's trial of title to land. 388 Sec. 495. Form for petition correcting description in a mort- gage and setting aside a release of mortgage made under mistake. In the District Court of County, State of Oklahoma. vs. -, Plaintiff, -, a minor, and , a minor, Defendants. No. PETITION. Comes now the plaintiff in the above entitled action and re- spectfully shows to the court that on the — day of , 19 — ^ defendant, , and his wife, , made, executed and delivered, under their hands and seals, a mortgage, of which the following is a true copy: (Here copy mortgage.) That thereafter, , wife of , died in County, Oklalioraa, leaving surviving her as her only heirs, the defendants above named ; that the description given in said mort- gage as the south half of the northeast quarter and the north erroneous in this; that the lands were described in said mort- gage as the south half of the northeast quarter and the north half of the southwest quarter of section twenty-seven (27), township fourteen (14) north, range eleven (11), east, in County, Oklahoma; that the description should have been, and the premises intended to be conveyed by said mortgage were the south half of the northwest quarter and the north half of the southwest quarter of section twenty-seven (27), township fourteen (14) north and range eleven (11) east in County, Oklahoma; that said erroneous description in writing the word ' ' east ' ' instead of the word ' ' west ' ' was made by the parties to said instrument by mutual mistake. That said and said , and none of the defendants herein named were, or are, the owners of that portion of the tract which was so erroneously described ; that, in order to make said instrument convey to this plaintiff the security contemplated by the parties, it is necessary that said description be amended 389 CONVEYANCE OF REAL ESTATE. § 496 by inserting the word "west" instead of the word "east," as aforesaid, thus making the proper description, to-wit: (Here insert proper description.) That plaintiff has heretofore paid to said and the consideration set forth in said mortgage, to-wit: the sum of $ That thereafter, on the day of , 19—, this plain- tiff, for the purpose of releasing from the mortgage above set forth, the lands so erroneously described, executed a partial re- lease of mortgage, and caused the same to be filed for record on the day of , 19—, in the office of the register of deeds of County, Oklahoma, said partial release being recorded in the records of said county, in book , at page That through an error, said partial release of mortgage failed to properly describe the portion desired to be released, but, in truth and in fact, described a portion of the tract originally in- tended to be included in said mortgage, to-wit: (Here describe it), instead of the lands intended to be released, to-wit: (Here describe it.) That said release was executed without consideration and by mistake. Wherefore, plaintiff prays judgment that said mortgage be reformed as aforesaid, and that said partial release of mortgage be canceled and held for naught, and for such other and further relief as may be equitable. > Attorney for Plaintiff. Sec. 496. Decree of court correcting said mortgage, finding service by publication and appointment of guardian ad litem for minor defendants. In the District Court of County, State op Oklahoma. , Plaintiff, vs. No. . , a minor, and , a minor. Defendants. § 496 MEEWINE 'S TRIAL OF TITLE TO LAND. 390 DECREE. This cause coming on for hearing on this the day of -, 19 — , the same being a regular day of the regular 19 — Term of said court ; and it appearing to the court that on the day of , 19 — , plaintiff filed his petition against said defendants; that thereafter, plaintiff filed his good and sufficient affidavit for publication for the reason that said defendants, and all of them, were at said time nonresidents of the State of Oklahoma, showing further that plaintiff had used due diligence in trying to get service on said defendants, and each of them, in said State of Oklahoma; and, thereafter, on said affidavit, summons by publication was issued by the clerk of this court, commanding said defendants, and each of them, to answer the petition of plaintiff on or before the day of ^ 19 — ^ said date being more than forty-two (42) days from the date of the first publication of said summons, and that said summons further contained a statement notifying the defend- ants that the plaintiff' demanded a decree against them, reform- ing a certain mortgage, executed by and his wife, , now deceased, on the following described premises, to-wit : (Here describe premises), so that said mortgage will, when reformed, convey to the plaintiff the security contemplated by the parties, making the proper description the following, to-wit: (Here de- scribe it), and for a decree further canceling a certain release of mortgage on the following described premises, to-wit: (Here describe same), said description having been erroneously given, it being intended to describe (Here describe premises), and said decree so demanded being to correct said misdescription, and, it further appearing that said summons by publication was pub- lished for successive weeks in , being a newspaper printed and published and in general circulation in County, State of Oklahoma, for more than one year prior to the first publication of said summons, and said summons having been properly proved by the affidavit of , of said newspaper, said affidavit having been introduced in evidence in open court ; and, it appearing to the court thftt and 391 CONVEYANCE OF REAL ESTATE. § 496 are persons of full age, and that said persons entered their appearance in said cause, by appearing by their attorney, , at this hearing; and, it appearing further that all said other defendants were properly summoned by publication, and that this cause is one in which summons by publication is proper; and, it appearing that, after the return date of said summons, said was, upon proper motion, appointed by this court, guardian ad litem for said minor defendants; that he, as such guardian ad litem, did, on the day of , 19 — , file an answer for said minor defendants, denying all the material allegations of the petition, said , guardian ad litem, being an attorney of this court and appearing at this hearing in propria persona, and the court, having heard the testimony and being fully advised in the premises, doth find that all of the allegations of the petition are true ; that plaintiff is entitled to the relief therein demanded. Now, Therefore, it is considered, ordered and adjudged that a certain conveyance executed on the day of , 19 — , being in words and figures as follows, to-wit: (Here make copy of the same) contains an erroneous description in that the land described in said mortgage as (Here describe it) were not the lands intended to be conveyed by said mortgage ; that said de- scription should have been (Here describe the same), and said instrument is hereby reformed so that the lands conveyed thereby, and the only lands conveyed thereby, are (Here describe same). And it appearing further that there- after, on the day of , 19 — , plaintiff exe- cuted a partial release of said mortgage to said defendants, said partial release appearing in the records of the register of deeds of County, Oklahoma, in book , at page ; that said release described the following lands, to-wit: (Here describe same), which said premises were not intended to be released by the plaintiff, and were not intended by either party thereto to be included in said release, and that said description is an error of both parties; and, it appearing further that the lands intended to be included in said release, and to be released from said mortgage, are (Here describe same). § 497 merwine's trial of title to land. 392 Now, Therefore, it is considered, ordered and adjudged that said release be reformed so that the lands erroneously described and released and the description thereof, shall be and read as follows, to-wit: (Here specifically describe same), and that said release, so far as it affects (Here describe lands), is hereby can- celed and held for naught. Done in open court this day of , 19 — . Judge of the District Court in and for said County and State. Sec. 497. Procedure by which a deed is reformed — Form for petition. In the District Court of County, State of Oklahoma. , Plaintiff, vs. No. . and , Defendants. PETITION. Now comes the plaintiff in the above entitled cause, and, for her cause of action against the defendants herein, alleges and says: Plaintiff is the equitable owner and in the peaceable possession of the following described real estate, situated in County, State of Oklahoma, to-wit: (Here describe real estate), and is entitled to an absolute fee simple title to said lots and tracts of land. That plaintiff derived her title to said lots and tracts of land by mesne conveyances from one , one of the defendants herein, in the following manner, to-wit: On the day of , 19—, the defendant, , and the defendant, , wife of the said , agreed to, and did sell to the defendants, and , for a valuable consideration, all their right, title, interest and estate, both legal and equitable, in and to said lots and tracts of land, and did, at 393 CONVEYANCE OF REAL ESTATE. § ^9 ' the same time and place, agree with the said and to execute and deliver to them, the said and -—, a warranty deed, in writing, to said lots and tracts of land, and the said and , his wife, at the same time and place, did execute, acknowledge and deliver to the said — — and a warranty deed, in writing, which was intended by all of said parties thereto to be an absolute warranty deed from the said and , his mfe, to the said and to said lots and tracts of land, a copy of which warranty deed is' hereto attached, marked "Exhibit A" and made a part of this petition. i? i, i^ That said deed is recorded on page , of book » of warranty deed records in the office of the register of deeds of County, Oklahoma. Plaintiff says that, by inadvertence and mutual mistake ot all the parties to said deed, the lots and tracts of land intended by said parties to be conveyed by said deed, were mistakenly described in said deed as (Here describe the same) ; whereas it was the true intent of the said parties, to-wit, of the said . and and and , that the description of said land so intended to be conveyed by said deed from the said and , his wife, to the said and , should read as follows: (Here give description.) That thereafter, to-wit, on the day of , 19 , the defendant, , he being then one of the owners m com- mon of said tracts of land, agreed to sell and did sell to one for a valuable consideration, all his right, title, interest and esiate, both legal and equitable, in and to said lots and tracts of land, and did, at the same time and place, agree with the said to make, execute and deliver to him, the said a warranty deed, in writing, to said lots and tracts of land, a^d the said , at the same time and place, did make, execute, acknowledge and deliver to the said -, his war- ranty deed, in writing, which was intended by both of said parties to be an absolute warranty deed from the ^aid -— to the said to said lots and tracts of land, a copy of which deed is hereto attached, marked "Exhibit B" and made a part § 497 MER wine's trial of title to land. 394 of this petition; that said deed is recorded on page of l)Ook of warranty deed records in the office of the register of deeds of County, Oklahoma. Plaintiff says that, by inadvertence and mutual mistake of both of said parties to said deed, the lots and tracts of land intended by said parties to said deed to be conveyed by said deed, were mistakenly described in said deed as (Here describe the same) ; whereas, it was the true intent of said parties to said deed, to-wit : the said and , that the descrip- tion of the said lots and tracts of land so intended to be con- veyed by said deed from the said to the said • should read as follows: (Here give description.) That thereafter, to-wit: on the day of , 19 — , the defendant, , who was then the owner in common with the defendant, her husband, of said lots and tracts of land, agreed to and did sell to one , he, the said , being the same to whom the defendant, , had, on the day of , 19 — , sold his interest in said lots and tracts of land, all her right, title, interest and estate, both legal and equitable, in and to said lots and tracts of land, and the said did, at the same time and place, agree with the said to make, execute and deliver to him, the said , a quitclaim deed, in writing, to all her right, title and interest in and to said lots and tracts of land, and the said did, at the same time and place, make, execute, acknowledge and de- liver to the said a quitclaim deed, in writing, which was intended by both of said parties to be a quitclaim deed from the said to the said to said lots and tracts of land, a copy of which quitclaim deed is hereto attached, marked "Exhibit C," and made a part of this petition; that said deed is recorded on page of book of quitclaim deed records in the office of the register of deeds of County, Oklahoma. Plaintiff says that, by inadvertence and mutual mistake of both parties to said deed, the lots and tracts of land intended by both parties to said deed to be conveyed by said deed, were mistakenly described as (Here give description), whereas, it 395 CONVEYANCE OF REAL ESTATE. § 497 was the true intent of said parties that the description of said lots and tracts of land should be as follows: (Here insert de- scription.) Plaintiff further alleges and says that thereafter, to-wit : on the day of , 19—, the said , by his general warranty deed of that date, granted, bargained, sold and con- veyed to plaintiff the said real estate (Here describe real estate), and that a copy of said deed is hereto attached, filed herewith, marked ''Exhibit D," and made a part of this petition. Plaintiff says that, by reason of the mutual mistakes herein- before complained of in the deeds referred to, copies of which are attached to this petition, and marked respectively Exhibits "A, B and C," the naked legal title to said lots and tracts of land remains in the defendant, , but that the said has no equitable right or interest in or to said land ; that at the time plaintiff purchased said land from the said , as here- inbefore alleged, to-wit: on the day of , 19 — , plaintiff was entirely ignorant of the said defects in the title to said lots and tracts of land, and that she did not discover said defects in said title for a long time after said date; that the said mistakes in said deeds were made without any fault on the part of this plaintiff and were entirely the results of inadver- tence and mutual mistake and misunderstanding on the part of the respective parties to said deeds at the times when said deeds were respectively executed; that plaintiff has no full and com- plete and adequate remedy at law. Wherefore, plaintiff prays the court that the deed hereinbe- fore referred to as being executed and delivered by the defend- ants, and , to the defendants, and , on the day of , 19 — , and which is recorded on page of book of warranty deed records in the office of the register of deeds of County, Oklahoma, and a copy of which is attached to this petition, marked "Exhibit A," be reformed and rectified and that the words and figures (Here give correct description) be inserted in said deed in lieu of said erroneous words and figures (Here give them) ; that the deed hereinbefore referred to as having been executed ."r 1 d?- § 498 MEBWINE 'S TRIAL OF TITLE TO LAND. 396 livered by the said to the said , on the day of , 19 — , and which is recorded on page of book of warranty deed records in the office of the register of deeds of County, Oklahoma, and a copy of which is at- tached, to this petition and marked "Exhibit B," be reformed and rectified, and that the words and figures (Here set them out) be inserted in said deed in lieu of the erroneous words and figures (Describe them) ; that the. deed hereinbefore referred to as having been executed and delivered by the said to the said , on the day of , 19—, and which is recorded on page of book of quitclaim deed rec- ords in the office of the register of deeds of County, Oklahoma, and a copy of which is attached to this petition and marked "Exhibit C," be reformed and rectified, and that the words and figures (Here set them out) be inserted therein in lieu of the erroneous words and figures (Here describe them) ; and that the court adjudge and decree the plaintiff to have an absolute fee simple title in and to the said (Here describe real estate) in County, Oklahoma, and for such other and further relief as may to the court seem just and equitable.* Attorney for Plaintiff. Sec. 498. Form for praecipe. PRAECIPE FOR SUMIMONS. In tpie District Court of County, State of Oklahoma. , Plaintiff, vs. No. and , Defendants. To the Clerk of said Court: Issue summons in the above entitled cause and direct the same to the sheriff of County, State of Oklahoma, to or for the defendants, , , and . Action brought for reformation of deeds and to declare in- terest of plaintiff in (Here describe real estate) in County, Oklahoma. ^. '•' Here attach exhibits. 397 CONVEYANCE OF REAL ESTATE. § 499 Make summons returnable day of , 19 — . Defendants required to answer on or before the day of , A. D. 19—. Dated this day of , 19- Attorney for Plaintiff. Sec. 499. Form for summons. SUMMONS— UNITED STATES OF AMERICA. In the District Court Avithin and for County, State of Oklahoma, Judicial Dis- trict, at the Courthouse in State of Oklahoma, County, ss. : The State of OJdaJioma to the Sheriff of County in said State, Greeting: You are hereby commanded to notify the defendants, , • , and , that they have been sued by the plaintiff, , in the district court, sitting in and for said county of , and that unless answer by the day of , 19 — , the petition of the said plaintiff, , against said defendants, filed in the clerk's office of said court, such petition will be taken as true and judgment rendered ac- cordingly. You will make due return of this summons on the day of , 19—. Witness my hand and seal of said court affixed at my office in , County, State of Oklahoma, this day of , A. D. 19—. , [Seal.] Clerk of the District Court. By , Deputy. Suit brought for reformation of deeds to decree title to land. Clerk of District Court. § 500 merwine's trial of title to land. 398 State of Oklahoma, County, ss. : Eeceived this writ on the day of , 19 — , and, as commanded therein, I summoned the following persons of the defendants within named at the times following, to-wit: The following persons of the defendants within named not found in said county : , , and . Sheriff. By , Deputy. Sec. 500. Form for afTidavit for service by publication. In the District Court of County, State op Oklahoma. Plaintiff, vs. No. . and , Defendants. AFFIDAVIT FOR PUBLICATION. , of lawful age, being first duly sworn, on his oath, says that he is one of the attorneys for the plaintiff in the above entitled cause ; that the defendants in said cause, the said , and , are nonresidents of the State of Oklahoma; that summons has been issued for defendants in this county, and as to them returned not found; that inquiry has been made for their place of residence, and the same cannot be found (or such other acts as showdng diligence) ; that they are not now in the State of Oklahoma, and that with due dili- gence on the part of the plaintiff in said action, she is unable to make service of summons in said cause of action on any of the said defendants therein in the State of Oklahoma, and that said action is one brought for the determination of the interest of the said plaintiff in certain real estate in County, State of Oklahoma, set out and described in her petition, and for a decree of the court declaring plaintiff to be the owner in fee simple of said real estate, and for the reformation of certain general conveyances thereof 399 CONVEYANCE OF REAL ESTATE. § 501 Wherefore, plaintiff asks that notice of said action be served on all of said defendants therein by publication. Subscribed and sworn to before me this day of 19—. ' rgg^L -j Clerk of the District Court. Sec. 501. Form for the notice. In the District Court of County, State of Oklahoma. , Plaintiff, No. vs. and , Defendants. PUBLICATION NOTICE. The said defendants, , , ^^^ 7' ^^ take notice that the plaintiff, , did, on the day ot 19_ file her petition in the district court of the county of L_ State of Oklahoma, against said defendants, the object and prayer of which petition is the reformation of a certain warranty deed to (Here describe real estate) in ■ County, Oklahoma, executed on the day ot , 19_ by defendants, and , to and , for the reformation of a certain warranty deed to said tract of land, executed by the defendant, , to one , on the ^^y of ^ 19—; for the reformation of a certain quitclaim deed to said'tract of land executed by the defendant, , to the said , on the day of , 19-, and for a judgment of said court decreeing the plaintiff, , to be the absolute owner, in fee simple, of the title to said tracts of land, and that the said defendants must answer the petition tiled therein on or before the day of 19-, or the allegations therein contained will be taken as true and judgment rendered in said action against said defendants, so reforming each §§ 502, 503 merwine's trial of title to land, 400 of said deeds as to properly describe said land as (Here insert description), and decreeing the absolute title in fee simple in said lands to be in the plaintiff, . Witness my hand and the seal of said court this day of , 19—. , [Seal.] Clerk of said Court. Sec. 502. Form for proof of publication. State of Oklahoma, County, ss. : , of lawful age, being first duly sworn, says that he is the of , a weekly newspaper published and printed in , County, Oklahoma, and of general circulation in said county and State ; that the said has been pub- lished for more than fifty-two consecutive wrecks next prior to the dates on which the notice herein referred to was published, and a notice, of which a true copy is hereto attached, was pub- lished in a regular and entire edition of said , and not in a supplement thereof, for weeks, the first publication being on the day of , 19—, and the last on the day of , 19—. Sworn to before me and subscribed in my presence this day of , 19—. [Seal.] Notary Public. My commission expires . Sec. 503. Form for decree reforming deeds. In the District Court op County, State op Oklahoma. , Plaintiff, vs. and , Defendants. No. DECREE. Now, on this day of , 19—, the same being one of the regular judicial days of the 19— Term of the district court of County, State of Oklahoma, this cause 401 CONVEYANCE OF REAL ESTATE. § 503 comes on for hearing on plaintiff's petition, the defendants, and each of them, being in default for answer, demurrer or other plea, and upon the evidence ; and the court, being fully advised in the premises, each of said defendants being first called three times in open court, finds : First. That the defendants herein, and each of them, to-wit : the said , , and , were, at the com- mencement of this action, and now are, nonresidents of the State of Oklahoma, and were duly and legally served with notice of this action by notice by publication, published in the for consecutive weeks after the commencement of this action, and before the date hereof, the said being, at the time of said publication, a weekly newspaper printed, published and of general circulation in the county of and State of Oklahoma, at the time of said publication and for more than fifty-two consecutive weeks prior to the date of the first publi- cation thereof, and that the first publication of said notice was made more than days prior to the date hereof. Second. That the allegations contained in plaintiff's petition herein are true, and that, by inadvertence and mutual mistake of all parties concerned, the certain warranty deed, made, exe- cuted and delivered on the day of , 19 — , by the defendants, and , his wife, to the defendants, and , to land therein described as (Here set out description in deed), in County, Oklahoma, incorrectly described the land sought to be conveyed thereby, and that it was the true intent of said parties to said warranty deed to therein describe the land then and there sought to be conveyed by the said and to the said and , as (Here describe it), in County, Oklahoma; that, by inadver- tence and mutual mistake of all parties concerned, the certain w^arranty deed, made, executed and delivered by the defendant, , to one , on the day of , 19 — , to land therein described as (Here insert description as given in deed), in County, Oklahoma, incorrectly described the land sought to be conveyed thereby, and that it Avas the true intent of said parties to said warranty deed to therein describe § 503 merwine's trial of title to land. 402 the land then and there and thereby sought to be conveyed by the said to the said , as (Here describe it), in County, Oklahoma ; that, by inadvertence and mistake of all parties concerned, the certain quitclaim deed, made, executed and delivered on the day of , 19—, by the defend- ant, , to one , to land therein described as (Here insert description as given in said deed), in County, State of Oklahoma, incorrectly described the land sought to be con- veyed thereby, and that it was the true intent of the said parties to the said quitclaim deed, to therein describe the land then and there and thereby sought to be conveyed by the said to the said , as (Here describe it), in County, Okla- homa ; and that on the day of , 19—, by his gen- eral warranty deed of that date, the said , for a valuable consideration, granted, bargained, sold and conveyed to the plaintiff herein, the said , the said real estate, to-wit: (Here describe it), and that the said plaintiff is now the equi- table owner of and in the actual peaceable possession of said tract of land. Wherefore, it is considered, ordered, adjudged and decreed by the court, that the warranty deed bearing date of , 19_^ to the land described therein as (Here insert description of land as given in said deed), and executed by and to and , and recorded on page of hook of warranty deed records in the office of the register of deeds of County, Oklahoma, be, and the same is, hereby reformed sjid rectified, and that the words and figures (Here give correct description) be inserted in said deed in lieu of the erroneous words and figures (Here set them out) ; that the warranty deed bearing date of the day of , 19_^ to the land described therein as (Here describe it), and executed by to one , and recorded on page of book of warranty deed records in the office of the regis- ter of deeds of County, Oklahoma, be, and the same is, hereby reformed and rectified, and that the words and figures (Here set them out) be inserted in said deed in lieu of the erroneous words and figures (Here set them out) ; that the quit- 403 CONVEYANCE OF REAL ESTATE. § 503 claim deed bearing date of the day of , 19 — , to the land described therein as (Ilere set out description as given in said deed), and executed by to one , and re- corded on page of book of quitclaim deed records in the office of the register of deeds of County, Oklahoma, be, and the same is, hereby reformed and rectified, and that the words and figures (Here set them out) be inserted therein in lieu of the erroneous words and figures (Here insert them), and that plaintiff herein, the said , be, and she is, hereby decreed to be the absolute owner of, and to have an absolute fee simple title in and to the said real estate, to-wit: (Here describe it), in County, in the State of Oklahoma. Judge of said Court. §504 MERWINE S TRIAL OF TITLE TO LAND. 404 CONVEYANCES IN FRAUD OF CREDITORS- LAW AND PROCEDURE. -THE SECTION 504. Fraudulent conveyance — Tlie statute. 505. Debtor may prefer creditors. 500. The preference by mortgage. 507. The preference may be given under a general assignment for the benefit of creditors. 508. Exceptions as to exempt prop- erty. 509. The fraud may be avoided, wlien. 510. Question of fraudulent intent one of fact — Exceptions. 511. Fraudulent debt due when lia- bility occurred. SECTION 512. The procedure by which a con- veyance in fraud of creditors is set aside — The petition — Ordinary form. 513. Petition of judgment creditor to set aside fraudulent mort- gage and marshal liens. 514. Petition to set aside fraudulent conveyance for sale of prem- ises. 515. Petition to set aside fraudu- lently confessed judgment and deed made thereunder. 516. Another form for petition to set aside fraudulent deed. Sec. 504. Fraudulent conveyances — The statute. Every conveyance of real estate, or any interest therein, and every mortgage or other instrument in any way affecting tlie same, made without a fair and valuable consideration, or made in bad faith, or for the purpose of hindering, delay- ing or defrauding creditors, will be void as against all per- sons to whom the maker is at the time indebted, or under any legal liability.^ Every transfer of property, or charge thereon made, every obligation incurred, and every judicial proceeding taken, with intent to delay or defraud any creditor, or other person, of his demands, is void against all creditors of the debtor, and their successors in interest, and against any persons upon whom the estate of the debtor devolves in trust for the benefit of others than the debtor.^ 1 Snyder, 1,213; Wilson, 906. 2 Snyder, 2,932; Wilson, 2,774; Dakota Code, 4,656; California, 3,439 (Kerr), identical; Judson v Lyford, 84 Cal. 505. 24 Pac. 286; Mason v. Vestal, 88 Cal. 296, 26 Pac. 213, 22 Am. St. Rep. 310; Swinford v. Rogers, 23 Cal. 233. Deed void in the hands of subse- quent purchaser with notice, see Bull V. Ford, 66 Cal. 176, 4 Pac. 1,175; but 'see Morrow v. Graves, 405 CONVEYANCE OF REAL ESTATE. §505 The words, "other person," in the statute has been con- strued to include a wife who has a claim for alimony, even though she may not in law be called a creditor.^ Sec. 505. Debtor may prefer creditor. A debtor may pay one creditor in preference to another, or may give to one creditor security for the payment of his demand, in preference to another.* This law does not avail where the debtor is thrown into bankruptcy, unless the period has passed by in which a pref- erence is allowed in such proceeding. Much that is embodied in the statute is the rule of the common law. Under the common law, it has always been the rule that a conveyance to the use of the grantor, or which purports upon its face to be absolute, when there exists a secret conveyance, creating a trust in favor of the grantor, or by which a benefit is reserved to him, is fraud- ulent in law, and void as to creditors without regard to the 77 Cal. 218, 19 Pac. 489. Valid as between grantor and grantee. Law- ton V. Gordon, 34 Cal. 36, 91 Am. Dec. 670; Frinck v. Roe, 70 Cal. 296, 11 Pac. 820; First v. Eastman, 144 Cal. 487, 77 Pac. 1,043. Full consideration will not protect grantee if he has notice. Fluegel v. Henschel, 7 X. D. 276, 74 X. W. 996; Sec. 2,774 (Wilson, 1,903). Can havi no application where, in an action originally brought by one partner against the other to dissolve the copartnership, and secure the ap- pointment of a receiver, with the intent to delay and defraud cred- itors, creditors have intervened, se- cured the removal of the receiver, the appointment of another, and an order of the court preserving the assets of the partnership for dis- tribution among the creditors, and the action as to such assets has passed wholly beyond the control of the partners. Foster v. Field, 13 Okla. 230, 74 Pac. 190. 3 Bennett v. Bennett, 15 Okla. 286, 81 Pac. 632, 70 L. R. A. 864. 4 Snyder, 2,930; Wilson, 2,772; California, 3.432 (Kerr), identical; Xorth Dakota, 6,63o (1905), iden- tical; Paulson V. Ward, 4 X. D. 100, 58 X. W. 792. Debtor to in- clude corporation. Merced v. Ivett, 127 Cal. 134, 59 Pac. 393. In the absence of fraud, creditor may be preferred by an insolvent. See In re Luce, 83 Cal. 303, 23 Pac. 350; Haas V. Whittier, 97 Cal. 411, 32 Pac. 439; In re Strock, 128 Cal. 658, 61 Pac. 282; Roberts v. Burr, 135 Cal. 166, 67 Pac. 46; Summer- ville V. Stockton, 142 Cal. 529, 76 Pac. 243. As to what constitutes a valid preference, see Gardner v. Haines, 19 S. D. 514, 104 X. W. 244. § 506 merwine's trial of title to land. 406 intent with which it was rnade.^ This rule of the common law was in force in the Territory of Oklahoma as a part of the common law, and it is provided by the statute of this State, that the common law, as modified by the constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the general statute.*' In the making of a preference under the statute, a debtor will not be allowed in any way, to fasten a secret trust on the property so given as a preference, or, in any way, derive any advantage therefrom, if the grantee knows the secret advantage, or has knowledge of any facts calculated to put him on inquiry as to them. It makes no difference in the legal aspect of the case that the interest reserved was not of great value.'' Sec. 506. The preference by mortgage. Any person in this State indebted to other persons, has a right to prefer one or more of such creditors in good faith, to secure a valid debt, which preference may be manifested by sHopp, etc., V. Bain, 21 Okki. 334; Ely v. McLaughlin, 78 Mo. 177, 93 Pac. 765; Lukins v. Aird, App. 578; Red River v. Freman. 6 Wall. 78, 18 L. Ed. 750; Robin- 1 K D. 196, 46 X. W. 36; Newell son V. Elliott, 22 Wall. (U. S.) 527, v. Wagoner, 1 N. D. 62, 42 N. W. 22 L. Ed. 758. 104; see, also, Ross v. Sedgwick, 6 Snyder, 5,534; Wilson, 4,200; 09 Cal. 247, 10 Pac. 400; Swinford see, also, Snyder, 2.968. v. Rogers, 23 Cal. 233; Pac. ; 7 Hopp V. Bain, 21 Okla. 177, 93 Woods v. Franks, 67 Cal. 42, 7 Pac. Pac. 705; Lukins v. Aird, 6 Wall. 50; Cooper v. Nolan, 138 Cal. 248, 78, 18 L. Ed. 750; Robinson v. 71 Pac. 179; Judson v. Lyford, 84 Elliott, 22 Wall. (U. S.) 527, 22 Cal. 505, 54 Pac. 285; Tures v. L. Ed. 758; Means v. Dowd, 128 Tures, 131 Cal. 625, 63 Pac. 1,008; U. S. 273, 9 Sup. Ct. 68, 32 L. Ed. Bull v. Bray, 89 Cal. 286, 26 Pac. 429; McDowell v. Steele, 87 Ala. 873, 13 L. R. A. 576; Dalrymple v. 493, 6 So. 288; Stephens v. Regen- Security, 9 N. D. 306, 83 N. W. stein, 89 Ala. 561, 8 So. 68, 18 345; Cerf v. Phillips, 73 Cal. 145, Am. St. Rep. 156; McDonald v. 16 Pac. 778. Hoover, 142 Mo. 484, 44 S. W. 407 CONVEYANCE OF REAL ESTATE. § 507 mortgages either real or chattel, or by the transfer of per- sonal property or real estate, and if received by the creditor in good faith, such conveyance or mortgage will be valid in the hands of the mortgagee, and constitute a preference to the extent thereof, subject to the laws relating to the filing and recording of mortgages.^ Sec. 507. The preference may be given under a general as- signment for the benefit of creditors. Anyone has the right, under the general assignment laws of this State, if he choose so to do, to assign all his property to an assignee, for the benefit of his creditors. If he does so, he may not then make a preference to one or more of his creditors. The property of a general assignment must be for the benefit of his creditors. The right of an insolvent debtor to pay one or more of his crediters in preference to others, and the right to make a general assignment for the benefit of all his creditors, ratably, are distinct and independent rights." If the instrument by which the general assignment is made, is made upon condition, or secret trust of preference, the assignment is invalid.^" The language of the statute is too clear, concise and un- mistakable to require any technical rule of construction, and under the statute, a debtor in failing or insolvent circum- stances, has a right to pay one creditor in preference to another, or to give one creditor security in payment of his demand, in preference to another; and if accepted by the creditor in good faith for the payment or securing of a subsisting, honest debt, due from the debtor to the creditor, 8 Act of March 8, 1895; Wilson, lo Hockaday v. Drye, 7 Okla. 288, 2,778. 54 Pac. 475. 9 Smith V. Baker, .5 Okla. 326, 43 Pac. 61. § § 508, 509 MERWINE 'S TRIAL OP TITLE TO LAND. 408 it will be sustained although it has the effect to delay, hinder or defraud other honest debts of the debtor/^ Sec. 508. Exceptions as to exempt property. The same rule does not apply as to the disposal of exempt property as to property that is not exempt. Property not exempt is always subject to the payment of debts, and any conveyance thereof is subject to the rights of creditors. A husband can transfer exempt property without consideration, and his creditors cannot complain.^- This has been the theory that a debtor in disposing of his property, can commit fraud upon his creditors only by dis- posing of such of his property as the creditor has a legal right to look to for his pay, and that a creditor of a husband cannot inquire into the good faith of the husband in deeding the homestead to the wife.^^ Sec. 509. The fraud may be avoided, when. A creditor may avoid the act or obligation of his debtor for fraud, only where the fraud obstructs the enforcement, by legal process, of his right to take the property affected by the transfer or obligation.^* 11 Brittain v. Burnham, 7 Okla. creditors, and no one can complain 522, 60 Pac. 241; Cutler v. Pollock, if the wife of an insolvent husband 4 N. D. 205, 59 N. W. 1,062. refuses to sign a deed for tlie sale 12 Kershaw v. Wiley, 22 Okla. of the homestead until her husband 672; 98 Pac. 909; Hixon v. George, agrees that the money procured as 18 Kan. 253. the proceeds of such sale may be 13 Kershaw v. Wiley, 22 Okla. transferred to her, and the execution 672, 98 Pac. 908; Monwe v. May, of such deed by her is ample con- 9 Kan. 466; Mitchell v. Skinner, sideration to support the trans- 17 Kan. 563; Sproul v. Atchinson. action. Kershaw v. Wiley, 22 Okla. 22 Kan. 336; Merchants v. Copplin, 672, 98 Pac. 909. 1 Kan. App. 599, 42 Pac. 263. The "Snyder, 2,934; Wilson, 2,776; spirit of the homestead law is to Dakota Code, 4,658 (1887); Cali- protect the wife and family against fornia, 3,441 (Kerr), identical; the improvidence of the head of the Brown v. Campbell, 100 Cal. 635, family as well as against urgent 35 Pac. 433, 38 Am. St. Rep. 314. 409 CONVEYANCE OP REAL ESTATE. §§510,511 In California it was held that where the officers and stock- holders of one corporation form another, and convey all the property of the former to it, in fraud of creditors, the latter corporation will be regarded as a continuation of the former, and a court of equity will hold the assets of the latter liable for the debts of the former, though there has been recovery of judgment for the debt, and the return of the execution unsatisfied, as required by the code (Civil Code, 3441), which declares that: "A creditor can avoid the act or obligation of his debtor for fraud only when the fraud obstructs the enforcement, by legal process, of his right to take the prop- erty affected by the transfer or obligation. ' ' ^^ Sec. 510. Question of fraudulent intent one of fact — Excep- tions. In all cases arising under this chapter, except as other- wise provided in the statute (Snyder, 2933; Wilson, 2775), the question of fraudulent intent is one of fact, and not of law; nor can any transfer or charge be adjudged fraudulent solely on the ground that it was not made for a valuable consideration.^^ Sec. 511. Fraudulent debt due when liability occurred. In all cases where a debtor has fraudulently contracted a debt, or fraudulently incurred a liability or obligation, for which suit is about to be, or has been brought, such debt, liability or obligation will be deemed due at the time such liability was incurred.^'^ 15 Blanc V. Paymaster, 95 Cal. 524, i7 Act of March 8, 1895; Wilson, 30 Pac. 765. 2,778. 10 Snyder, 2.935; Wilson, 2,777; Dakota Code, 4,059 (1887). § 512 merwine's trial of title to Lu\nd. 410 Sec. 512. The procedure by which a conveyance in fraud of creditors is set aside — The petition — Ordinary form. District Court of County, State of Oklahoma. , Plaintiff, vs. No. . and , Defendants. PETITION. Comes now the plaintiff, and, for his cause of action herein, alleges and states : 1. That at the Term of the court of County, Oklahoma, the plaintiff recovered a judgment against the defendant, , for the sum of $ , with interest thereon from the day of , 19 — , and costs, amount- ing to $ , which judgment still remains in full force and unsatisfied. 2. That on the day of , 19 — , plaintiff caused an execution to be issued out of said court against the property of the said defendant, , which execution, on the • day of , 19 — , was, by the sheriff of said county, returned unsatisfied, and there is now due to plaintiff, on said judgment, the sum of $ . 3. That on the day of , 19 — , said defendant, , conveyed the following described property to , defendant, without consideration, and with intent to hinder, de- lay and defraud his creditors, as said defendant, , then well knew, to-wit: (Here specifically describe the real estate con- veyed.) Wherefore, plaintiff prays that the deed of conveyance from the said to may be declared null and void, and that said property may be ordered sold as required by law, and the proceeds thereof applied to the payment of plaintiff's judg- ment, and for such other relief as is just and equitable.* Attorneys for Plaintiff. 'Adopted from Whittaker's Code Forms. » 411 CONVEYANCE OF REAL ESTATE. § 513 Sec. 513. Petition by judgment creditor to set aside fraud- ulent mortgage and marshal liens. District Court of County, State of Oklahoma. , Plaintiff, vs. No- and , Defendants. PETITION. Comes now the plaintiff, and, for his cause of action herein, alleges and states : 1. That on the day of , 19—, at the • Term of the court of County, Oklahoma, he re- covered a judgment against the defendant, , for the sum of $ , debt, and $ , costs of suit, with interest at the rate of per cent, from the date of judgment, according to the stipulations of a certain promissory note, upon which said action was brought, which said judgment is in full force and wholly unpaid and unsatisfied, and which said judgment is a lien upon the real estate hereinafter described. 2. That on the day of , 19—, the said , being then seized in fee simple of the following described real estate, in County, Oklahoma, to-wit: (Here specifically describe same), conveyed the same by deed of mortgage to his creditor and codefendant, , ostensibly for the purpose of securing a certain promissory note of that date, executed and delivered by said to said , or order, for the sum of $ , due years after date, with interest thereon from date until paid, which said note and mortgage were, in truth, executed and delivered by said to said , witliout any consideration therefor, but with intent, then and there, and thereby, to cheat, hinder, delay and defraud the creditors of the said , and especially the plaintiff, , who was at the time a creditor of the said defendant, , who then owed plaintiff the debt for which said judgment was recovered, all of which facts were then and there well knowTi to said at the time of his taking such note and mortgage. § 513 merwine's trial of title to land. 412 3. That at the time of the making of said mortgage, the said was in failing circumstances, and thereby conveyed and incumbered the real estate of which he was then possessed, with- out consideration as aforesaid, with intent to cover the same up and place it beyond the reach of his creditors, and reserved no estate whatever, out of which plaintiff's claim could be made, or can be made, and is now wholly insolvent. 4. That on the day of , 19—, and while the actions were pending against him in which the judgments afore- said were recovered, he, the said , executed and delivered to his deed of assignment, thereby conveying the real estate aforesaid, being all the real estate of which he was then possessed, together with all his personal estate and property, for the use and benefit of the creditors of him, the said , which said deed was filed for record according to law, and said duly qualified as said assignee, and has been acting as such ever since; that plaintiff called upon said , as such assignee, and requested him to commence an action in this court, for the purpose of setting aside the fraudulent mortgage and conveyance, and ascertain the validity, amounts and priorities of the claims and liens of the creditors of said upon said premises, but he absolutely refused so to do, and still refuses, and will not give his consent to be made a party plaintiff to this action for that purpose, and he is, for that reason, made a party defendant to this action. 5. That said , as said assignee, on the — day of ^ 19__^ filed his petition in the proper court of said county of , in which petition he asked for an order to sell the real estate described in the petition of plaintiff in this action, which said real estate had come to him, the said , under and by virtue of said assignment, for the purpose of being administered, and applied to the payment of the debts of said assignor, and that plaintiff asked leave to be made a party de- fendant in said action, with leave to answer, which leave was, by said court, refused. 6. That the defendants, and , claim some in- terest and lien on said premises, the precise' nature of which is 413 CONVEYANCE OF REAL ESTATE. § 514 unknown to plaintiff, and he asks that they be required to answer touching the premises, and to specifically set forth the nature and character of their respective liens and claims upon said premises. Wherefore, plaintiff praj^s that said mortgage deed may be declared fraudulent and void, to all intents and purposes; that the amounts and priorities of the claims and liens of the plaintiff and the several defendants may be found, and definitely fixed and declared by the court, and that the defendant, , as assignee, may be enjoined and restrained from proceeding to sell said real estate, upon his said petition, until final hearing in this action, and until said cloud is removed from said title, and for such other relief as the circumstances and nature of the case may require.* , Attorneys for Plaintiff. * Adapted from Kinkead's Code Pleading. Sec. 514. Petition to set aside fraudulent conveyance for sale of premises. District Court of County, State of Oklahoma. and , Plaintiffs, vs. No. . and , Defendants. PETITION. Come now the plaintiffs, and, for their cause of action herein, allege and state : 1. That on the day of , 19 — , , and recovered a judgment in the court of County, Oklahoma, by the judgment of said court, at its Term, 19 — , to-wit : , 19 — , in their favor, against , in a certain action therein pending against him and others, of which he had due notice, for the sum of $ , and $ costs, which judgment remains unpaid, unreversed and in full force, and that said afterward transferred to said , plaintiff, his interest therein, who now owns the same. § 514 merwine's trial of title to land. 414 2. That on the day of , 19—, the plaintiffs caused a writ of execution to issue out of said court of County, Oklahoma, by its clerk, directed to the sheriff of said county of , directing him to levy upon and sell of the property of said , sufficient to pay said judgment and costs, upon which said writ the sheriff of said county of made his lawful levy on the day of , 19—, upon the interest of said , to-wit : the undivided of the farm of said , of about acres, hereinafter described, which farm descended to the heirs of the said , at the time of his death, about , 19—, one of whom was said . 3. That soon after his father's death, the said , to-wit: on the day of , 19 — , without any valuable or sufficient consideration, and for the purpose of placing said prop- erty beyond the reach of his creditors, and hindering and delay- ing said plaintiffs in the collection of their said judgment, conveyed said land to his brother-in-law, , who, by deed on the same day, without any valuable consideration, and for the purpose aforesaid, conveyed said land to , wife of said , who, as plaintiffs are informed and believe, and from such information and belief aver the fact to be, that said now holds the legal title thereof, subject to the rights of plain- tiffs therein. 4. That, by virtue of such judgment and levy on the prem- ises, the plaintiffs have and hold a lien on said lands for the payment of said judgment and costs, and have a right in equity, to have said lands sold to pay the same, which they cannot, by reason of said conveyances, made for the purposes aforesaid, now obtain by sale on said execution. 5. That said real estate is described as follows, to-wit: (Here specifically describe the same), and that said has not any property or real estate unincumbered and liable to sale, upon said judgment, and was insolvent until said real estate descended to him on the death of his father. Wherefore, plaintiffs pray that said defendants may be made parties by summons, and that on final hearing liereof an order 415 CONVEYANCE OP REAL, ESTATE. § 515 of sale be granted plaintiffs, for the sale of said real estate, if the said defendants fail for such time as the court may order, to pay said judgment, costs and increased costs, and that such other and further relief be granted to them as law and equity may authorize.* , Attorneys for Plaintiffs. * Adapted from Kinkead's Code Pleading. Sec. 515. Petition to set aside fraudulently confessed judg- ment and deed made thereunder. District Court of County, State of Oklahoma. • , Plaintiff, vs. No. . and , Defendants. PETITION. Comes now the plaintiff, and, for his cause of action herein, alleges and states : 1. That at the Term of the court of County, Oklahoma, to-wit: on the day of , 19 — , he recovered a judgment against , for the sum of $ , which judgment still remains in full force and is unsatisfied. 2. That on the day of , 19—, the plaintiff caused an execution to be issued out of said court against the property of said , which execution, on the day of , 19 — , was, bj'- the sheriff of said county, returned wholly unsatisfied, and there is now due plaintiff, on said judgment, the sum of $ , together with $ , costs, and increased costs. 3. That the said , from the date of the conveyance here- inafter mentioned, continuously until the present time, has been and now is, wholly insolvent. 4. That on the day of , 19 — , before the entry of plaintiff's judgment, but after the indebtedness upon which it was rendered, had accrued, said defendant, , authorized and directed judgment for $ to be entered against him by confession, in the court of County, Oklahoma, in § 516 MEB wine's trial op title to land. 416 favor of , defendant, on a pretended indebtedness for money alleged to have been loaned by to . 5. That on the day of , 19—, executions were duly issued out of said court, upon said judgments, which, for want of goods and chattels of said , whereon to levy, were duly levied on the following described real estate belonging to said , to-wit: (Here specifically describe same), and that said premises were sold in said proceeding under said levy, to , for the sum of $ , and that the amount thereof was credited to said judgment. 6. That said judgments were fraudulently confessed by said to said , for the sole purpose on the part of both, to incumber the property of said and defraud the plain- tiffs, and said was not indebted to said in any sum whatever, at the time of the confession of said judgments, and there was no consideration whatever for the same. Wherefore, plaintiff prays that said judgments may be de- clared fraudulent and void as to creditors; that said lands be subjected to the payment of plaintiff's judgment, and for such other relief as is just and equitable.* Attorneys for Plaintiff. * Adapted from Kinkead's Code Pleading. Sec. 516. Another form for petition to set aside fraudulent deed. District Court of County, State of Oklahoma. and , Copartners under the Firm Name of and Company, Plaintiffs, No. . and , Defendants. PETITION. Come now the plaintiffs, and, for their cause of action herein, allege and state: 1. That they are copartners in the business of , in the city of , under the firm name and style of and 417 CONVEYANCE OF REAL ESTATE. § 516 Company, and that a certain was, and is now, engaged in the business in said city of , and that said prior hereto has become largely indebted to plaintiffs for goods sold by them to him. 2. That said indebtedness being long overdue, plaintiffs brought suit thereon in court in County, Okla- homa, against the said , on the day of , 19 — , and obtained a judgment against him for $ and costs, on the day of , 19 — , and they caused an execution under said judgment to be issued to the sheriff of • County, Oklahoma, and the same was levied upon certain real estate in the county of , Oklahoma, to-wit: (Here specifically describe same), then, and for a long time previously in the possession of said . 3. That said real estate, and all the right, title and interest of said therein, was, on the day of , 19 — , sold under said execution to satisfy said debt, and plaintiffs became the purchasers thereof, and thereafter received from the sheriff of said county of a deed therefor. 4. That at the time of the institution of plaintiffs' suit, and up to the day before they obtained judgment thereon, the said was seized and possessed in fee simple of said real estate, but that on said day, before plaintiffs obtained judgment, to-wit : the day of , 19 — , the said , for a pretended consideration of $ , conveyed said real estate by deed, of that date, to a certain . 5. That, notwithstanding the said conveyance to said , the said has ever since, and still continues to live on and occupy the real estate described in said deed. 6. That at the time of his making said deed, said was largely indebted and insolvent, and had no means of paying his said debt, or any part thereof, but by the property so conveyed by him, and since said conveyance has been possessed of no other property whatever, and that said conveyance was fraudulently made and for a simulated and pretended consideration, and was § 516 merwine's trial of title to land. 418 made to hinder, delay and defraud the plaintiffs and his other creditors of their just and lawful debts. Wherefore, the plaintiffs pray that said deed from said to said , of said real estate, may be declared to be void and may be vacated and annulled, and that plaintiffs may have such other and further relief as their case may require.f Attorneys for Plaintiffs. t Adapted from Kinkead's Code Pleading. CHAPTER XII. DESCENT AND DISTRIBUTION. 1. Oklahoma Statute. 2. Five Civilized Tribes. 3. Arkansas Statute. 4. Dow^R AND Assignment thereof under Arkansas Stat- ute. 5. Law^ of Wills. 6. Probate of Wills. 1. TITLE BY DESCENT— THE OKLAHOMA STATUTES. SECTION 617. General discussion. 518. Dower and curtesy abolished in Oklahoma. 519. Discussion of terms — Statutory definition of succession. 520. Proper persons to take prop- erty of a deceased. 521. Wliat property passes to the heirs. 522. Inheritance by illegitimate child. 523. Inlieritance from an illegiti- mate child. 524. Degrees of kindred, how estab- lished. 525. Lineal and collateral descent. 526. Tlie lines ascending and de- scending. 527. The degrees in the direct line. 528. The degrees of the collateral line. 529. Inheritance by kindred of the half-blood. 530. Advancement of child's part. 531. Advancement — Excees not re- funded. 532. Advancement defined. SECTION 533. Advancement — Expressed value governs, when. 534. Advancement — When the de- scendant receiving it dies before decedent. 535. Inheritance by representation. 536. Aliens may inherit. 537. An estate escheats, when — Subject to what charges. 538. Heirs must pay obligations of decedent. 539. The order of succession — ^Wife and children — ^Lineal descend- ants. 540. Where decedent was married more than once. 541. Where decedent leaves no sur- viving liusband or wife. 542. Where decedent leaves no issue. 543. Where property acquired by joint industry of husband and wife. 544. Where there is no issue, no husband, no wife, no father and no mother. 545. Where there is no issue, no husband, no wife, no father, no brother and no sister. 419 § 517 MERWINE 'S TRIAL OP TITLE TO LAND. 420 SECTION SECTION 546. Where decedent leaves a sur- and not having been married, viving husband or wife, no holding an estate of inherit- issue, no father, no mother, ance. no brother and no sister. 549. Where decedent dies under age, 547. Where decedent leaves no issue, unmarried, and all the other no husband, no wife, no children of his parents are fatlier, no mother, no brother, dead, and any of them no sister. have lawful issue, leaving an 548. Where the decedent leaves sev- estate of inheritance from his eral children, or one child parents. and the issue of one or more 550. The estate will escheat, when, children, and any such sur- 550a. Change in Oklahoma statute viving child dies under age of descents. Sec. 517. General discussion. The subject of descent, or, as it is more commonly called, descent and distribution, is one of the intricate topics of the law, and, in this State, especially, that portion of the law applicable to what was formerly known as the Indian Ter- ritory, the law of the subject is doubly difficult. It is diffi- cult both as to the determination of who are the heirs of an ancestor and also, in understanding the law of the subject. The loose marriage customs among the Indians and freedmen in the Creek country, and among the other peoples of the five civilized tribes, make it difficult to ascertain who the descendants are, and the frequent changes of the law made by the Federal Government as to the subject of descent, necessitates a great deal of labor on the part of the prac- titioner in mastering the laws of inheritance in this State. Of course, since statehood, the subject is no more difficult than in the other States, but prior to that time, the law of the subject of descent in the Indian Territory is found in the subject of descent and distribution as found in Mansfield's Digest of the statutes of Arkansas, and the laws of the Creek nation of Indians and the laws of the other five civilized tribes in Indian Territory. Later in the discussion of the subject of descent there will be found the Federal law and the Indian laws on the subject. 421 DESCENT AND DISTRIBUTION. §§518-520 Sec. 518. Dower and curtesy abolished in Oklahoma. In the discussion of this subject the Oklahoma law will be first set forth. Then the Arkansas law and the various Indian laws beginning with the Creek law, will be taken up and discussed. As the Legislature of the State of Oklahoma has abolished the subject of dower and curtesy, neither of these subjects will be discussed in this chapter.- Sec. 519. Discussion of terms— Statutory definition of suc- cession. The subject of descent and distribution is now regulated in this State by statute, and the provisions of this chapter now govern. The term "descent" is applied to real property, and the term "distribution" is applied to the division made by the law of the personal property of one dying without a will. The statute says that succession is the coming in of another to take the property of one who dies without dis- posing of it by will.^ Sec. 520. Proper persons to take property of a deceased. This subject is regulated by statute. It is provided that all the property of a decedent, except as otherwise provided for the homestead, and personal property set apart for the surviving wife or husband, and minor child or children, shall be chargeable with the payment of the debts of the deceased, the expenses of the administration, and the allowance to the family. And the property, personal and real, may be sold as the court may direct in the manner provided by statute. 2 Snyder, 8,986; Wilson, 6,896. s Snyder, 8,983; Wilson, 6,893; Dakota Code, 3,397 (1887). § § 521, 522 MERWINE 'S TRIAL OF TITLE TO LAND. 422 There can be no priority as between personal and real prop- erty for the above purposes.* The executor or administrator is entitled to the possession of all the real and personal estate of the decedent, and to receive the rents and profits of the real estate, except the realty and improvements thereon properly belonging to the homestead, and such personal property as is reserved by law to the widow and children of the decedent, or either of them, until the estate is settled or delivered over by order of the county court to the heirs and devisees; and must keep in good tenantable repair all houses, buildings and fences thereon, which are under his control. The heirs or devisees may themselves, or jointly with the executor or administrator, maintain an action for the possession of the real estate, or for the purpose of quiet- ing the title to the same, against anyone, except the executor or administrator.^ Sec. 521. What property passes to the heirs. The property, both real and personal, of one who dies with- out disposing of it by will, passes to the heirs of the intestate, subject to the control of the county court, and the possession of any administrator appointed by that court for the purpose of administration.'' Sec. 522. Inheritance by illeg-itimate child. Every illegitimate child is the heir of the person who in writing, signed in the presence of a competent witness, ac- knowledges himself to be the father of such child; and in all cases is an heir of his mother ; and inherits his or her estate, in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock ; but he does not represent his father or mother by inheriting any part of the estate of his or her kindred, either lineal or col- 4 Snyder, 5,299; Wilson, 1,641. e Snyder, 8,984; Wilson, 6,894. 5 Snyder, 5,259; Wilson, 1,601. 423 DESCENT AND DISTRIBUTION. §§ 523-525 lateral, unless before his death his parents shall have inter- married, and his father after such marriage, acknowledges him as his child, or adopts him into his family ; in which ease such child and all the illegitimate children are consid- ered brothers and sisters, and on the death of either of them, intestate, and without issue, the others inherit his estate, and are heirs as hereinbefore provided, in like manner as if all the children had been legitimate, saving to the father and mother respectively their rights in the estate of all the children in like manner as if all had been legitimate. The issue of all marriages null in law or dissolved by divorce, are legitimate.'^ Sec. 523. Inheritance from an illegitimate child. If an illegitimate child, who has not been acknowledged or adopted by his father, dies intestate, without lawful issue, his estate goes to his mother, or, in case of her decease, to her heirs at law.^ Sec. 524. Degrees of kindred, how established. The Legislature of this State has provided that the degree of kindred is established by the number of generations, and each generation is called a degree.^ Sec. 525. Lineal and collateral descent. The series of degrees from the line; the series of degrees between persons who descend from one another is called direct or lineal consanguinity ; and the series of degrees be- tween persons who do not descend from one another, but spring from a common ancestor, is called the collateral line or collateral consanguinity.^" 7 Snyder, 8,987; Wilson, 6,807; 8 Snyder, 8,988; Wilson, 6,898; California, 230 (Kerr), identical; Dakota Code, 3.404 (1887). North Dakota Code, 5,189 (1905), 9 Snyder, 8,9S9; Wilson, 6,899; similar; Allison v. Bryan, 21 Okla. Dakota Code, 3,405 (1887). 537, 97 Pac. 382; Pina v. Peck, lo Snyder, 8,990; Wilson, 6,900; 31 Cal. 359; Blythe v. Ayers, 96 Dakota Code, 3,406 (1887). Cal. 532, 31 Pac. 915; Estate of Warden, 57 Cal. 484. §§526-529 merwine's trial op title to land. 424 Sec. 526. The lines ascending and descending. The direct line is divided into the direct line descending and the direct line ascending. The first is that which con- nects the ancestor with those who descend from him. The second is that which connects a person with those from whom he descends.^^ Sec. 527. The degrees in the direct line. In the direct line there are as many degrees as there are generations. Thus, the son is with regard to the father in the first degree, the grandson in the second; and vice versa with regard to the father and grandfather toward the sons and grandsons.^^ Sec. 528. The degrees of the collateral line. In the collateral line the degrees are counted by genera- tions from one of the relations up to the common ancestor, and from the common ancestor to the other relations. In such computation the decedent is excluded, the relative in- cluded, and the ancestor counted hut once. Thus, brothers are related in the second degree, uncle and nephew in the third degree, cousins germane in the fourth degree, and so on.^^ Sec. 529. Inheritance by kindred of the half-blood. Kindred of the half-blood inherit equally with those of the whole blood in the same degree, unless the inheritance come to the intestate by descent, devise or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestor must be excluded from such inheritance." 11 Snyder, 9,881; Wilson, 6,901; i* Snyder, 8.994; Wilson. 6,904; Dakota Code, 3,407 (1887). California, 1.394 (Kerr), identical; 12 Snyder, 8.992; Wilson, 6,902, Estate of Smith, 131 Cal. 433, 63 Dakota Code, 3.408 (1887). Pac. 729; Estate of Pearson, 110 13 Snyder, 8,993; Wilson, 6,903; Cal. 524, 42 Pac. 960. Dakota Code, 3,409 (1887). 425 DESCENT AND DISTRIBUTION, §§-530-533 Sec. 530. Advancement of child's part. Any estate, real or personal, given by the deceased in his lifetime, as an advancement to any child or lineal descendant, is a part of the estate of the decedent for the purpose of division and distribution thereof among his issue, and must be taken by such child, or* other lineal descendant, toward his share of the estate of the decedent.^^ Sec. 531. Advancement — Excess not refunded. If the amount of the advancement exceeds the share of the heir receiving the same, he must be excluded from any further portion in the division and distribution of the estate, but he must not be required to refund any part of such ad- vancement; and, if the amount so received is less than his share, he is entitled to so much more as will give him his full share of the estate of the decedent.^* Sec. 532. Advancement defined. All gifts and grants are made as advancements if expressed in the gift or grant to be so made, or if charged in writing as an advancement, or acknowledged in writing as such by the child or other successors, or heirs." Sec. 533; Advancement — Expressed value governs, when. If the value of the estate so advanced is expressed in the conveyance, or in the charge thereof made by the decedent, or in the acknowledgment of the party receiving it, it must be held as of that value in the division and distribution of the estate; otherwise it must be estimated according to its value when given, as nearly as the same can be ascertained.^* 15 Snyder, 8,995; Wilson, 6,905: "Snyder, 8.097; Wilson, 6,907; Dakota Code, 3,411 (1887). Dakota Code, 3,413 (1887). 16 Snyder, 8,996; Wilson, 6,906; is Snyder, 8,998; Wilson, 6,908; Dakota Code, 3,412 (1887). Dakota Code, 3,414 (1887). §§534-537 MERWINE^S TRIAL. OF TITLE TO LAND. 426 Sec. 534. Advancement— When the descendant receiving it dies before decedent. If any child or other lineal descendant receiving an ad- vancement dies before the decedent, leaving issue, the ad- vancement must be taken into consideration in the division and distribution of the estate, and the amount thereof must be allowed accordingly by the representatives of the heirs receiving the advancement, in like manner as if the advance- ment had been made directly to them.^** Sec. 535. Inheritance by representation. Inheritance or succession by right of representation takes place when the descendants of any deceased heir take the same share or right in the estate of another person that their parents would have taken if living. Posthumous chil- dren are considered as living at the death of their parents.'** Sec. 536. Aliens may inherit. Aliens may take in all cases by succession as well as citizens. And no person capable of succeeding under the provisions of this chapter is precluded from such succession by reason of the alienage of any relative.'^ Sec. 537. An estate escheats, when— Subject to what charges. If there is no one capable of succeeding under the pre- ceding sections, and the title fails from a defect of heirs, the property of the deceased devolves and escheats to the State; and an action for the recovery of such property, and to reduce it into the possession of the State, or for its sale and conveyance may be brought by the county attorney in the district court of the county, or Federal subdivision in which the property is situated. Real property passing to the State, under the preceding provision, whether held by the 19 Snyder. 8,909; Wilson, 6,909; 21 Snyder, 9,001; Wilson, 6,911; Dakota Code, 3,415 (1887). Dakota Code, 3,417 (1887)., 20 Snyder, 9,000; Wilson, 6,900. 427 DESCENT AND DISTRIBUTION. §§ 538-540 State, or its grantee^, is subject to the same charges and trusts to which it would have been subject if it had passed by succession.^^ Sec. 538. Heirs must pay obligations of decedent. Those who succeed to property of a decedent are liable for his obligations in the cases and to the extent prescribed by the probate code.^^ ^, Sec. 539. The order of succession— Wife and children— • Lineal descendants. When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, it descends and must be distributed in the manner following: If the decedent leave a surviving husband or wife, and only one child, or the lawful issue of one child, in equal shares to the surviving husband or wife and child, or issue of such child. If the decedent leave a surviving husband or wife, and more than one child living, and the lawful issue of one or more deceased children, one-third to the surviving husband or wife and the remainder in equal shares to his children and the lawful issue of any deceased child, by right of representation; and if there be no child of the decedent living at his death, the remainder goes to all of his lineal descendants; and if all the descendants are in the same degree of kindred to the decedent, they share equally, other- wise, they take according to the right of representation.^* Sec. 540. Where decedent was married more than once. When any person having title to any estate not otherwise limited by marriage contract, dies v/ithout disposing of it by will, it descends and must be distributed : 22 Snyder, 9,002 and 9,003; Wil- 23 Snyder, 8,904; Wilson, 6,914; son, 6,912 and 6,913; Dakota Code, Dakota Code, 3,419 (1887). 3,418 and 3,419 (1887). 24 Snyder, 8,985 ; Act of March 20. 1909. §§ 541, 542 merwine's trial of title to land. 428 If the decedent shall have been married more than once, the spouse at the time of death shall inherit of the property not acquired during coverture with such spouse, only an equal part with each of the living children of decedent, and the lawful issue of any deceased child by right of representa- tion.^** Sec. 541. Where decedent leaves no surviving husband or wife. If a decedent having title to any estate not otherwise lim- ited by marriage contract, dies intestate, leaving no surviving husband or wife, but lawful issue, the whole estate goes to such issue, and if such issue consists of more than one child living, or one child living and the lawful issue of one or more deceased children, then the estate goes in equal shares to the children living and the issue of the deceased child or children by right of representation.^^ Sec. 542. Where decedent leaves no issue. When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, if he leave no issue, the estate goes one-half to the surviving husband or wife, and the remaining one- half to decedent's father or mother, or, if he leave both father and mother, to them in equal shares. If there be no father then one-half goes, in equal shares, to the brothers and sisters of the decedent and to the children of any de- ceased brother and sister, by right of representation. If decedent leave no issue, nor husband or wife, the estate must go to the father or mother, or if he leave both father and mother, to them in equal shares.-'' 25 Snyder, 8,985; Act of :\Tarch 20. 27 Snyder, 8,985; Act of March 20, 1909. 1909- 26 Snyder, 8,985 ; Act of March 20, 1909. 429 DESCENT AND DISTRIBUTION. §§ 543-545 Sec. 543. Where property acquired by joint industry of hus- band and wife. "When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, in all cases where such property is acquired by the joint industry of husband and wife during cover- ture, and there is no issue, the whole estate will go to the survivor, at whose death, if any of the said property remain, one-half of such property will go to the heirs of the husband and one-half to the heirs of the wife, according to the right of representation.-® j 1 Sec. 544. Where there is no issue, no husband, no wife, no father and no mother. When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of it by will, if there be no issue, nor husband, nor wife, nor father nor mother, then the same shall descend in equal shares to the brothers and sisters of the decedent, and the children of any deceased brother or sister by right of rep- resentation ; if the decedent, being a minor, leave no issue, the estate must go to the parents equally, if living together; if not living together, to the parent having had the care of such deceased minor.-^ Sec. 545. Where there is no issue, no husband, no wife, no father, no brother and no sister. When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, if the decedent leave no issue, nor husband nor wife, nor father and no brother or sister is living at the time of his death, the estate goes to his mother, to the exclu- sion of the issue, if any, of deceased brothers and sisters."'*' 28 Snyder, 8,985; Act of March 20, 3o Snyder, 8,985; Act of March 20, 1909. 1909. 29 Snyder, 8,985; Act of March 20, 1909. §§ 546-548 mebwine's trial of title to land. 430 Sec. 546. Where decedent leaves a surviving husband or wife, no issue, no father, no mother, no brother and no sister. When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, if the decedent leave a surviving husband or wife and no issue, and no father nor mother nor brother nor sister, the whole estate goes to the surviving husband or wife.^^ Sec. 547. Where decedent leaves no issue, no husband, no wife, no father, no mother, no brother, no sister. When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, if the decedent leave no issue, nor husband nor wife and no father or mother, nor brother nor sister, the estate must go to the nearest of kin in equal degree, except- ing that there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestors must be preferred to those claiming through an ancestor more remote, however.^^ Sec. 548. Where the decedent leaves several children, or one child and the issue of one or more children, and any such surviving child dies under age and not having been married, holding an estate of in- heritance. When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, if the decedent leave several children, or one child, and the issue of one or more children, and any such surviving child dies under age, and not having been married, all the estate that came to the deceased child by inheritance from such decedent descends in equal shares to the other 31 Snyder, 8,985 ; Act of March 20, 32 Snyder, 8,985 ; Act of March 20, 1909. 1909. 431 DESCENT AND DISTRIBUTION. §§ 549-550a children of the same parent, and to the issue of any such- other children who are dead, by right of representation.^' Sec. 549. Where decedent dies under age, unmarried, and all the other children of his parents are dead and any of them have lawful issue, leaving an estate of inheritance from his parents. When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, if, at the death of such child, who dies under age, not having been married, and all the other children of his parents are also dead, and any of them have lawful issue, the estate that came to such child by inheritance from his parent descends to the issue of all other children by the same parent; and if all the issue are in the same degree of kindred to the child, they share the estate equally, otherwise, they take according to the right of representation.'* Sec. 550. The estate will escheat, when. When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, if the decedent leave no husband, wife or kindred, the estate escheats to the State for the support of common schools.'^ Sec. 550a. Change in statutes of Oklahoma. Attention is here called to the fact that the law of descent as it was at statehood has been since modified materially by the Legislature, and the modification is to be carefully ob- served.'® 33 Snyder, 8,985 ; Act of March 20, ss Snyder, 8,985 ; Act of March 20, 1009. 1909. 34 Snyder, 8,985 ; Act of March 20, 36 See Wilson's Stat., 1903, and 1909. the foregoing. §551 merwine's trial of title to land. 432 2. TITLE BY DESCENT FOR FIVE CIVILIZED TRIBES. SECTION 551. Descent for Creek, Cherokee, Choctaw, Chickasaw and Seminole nations. Sec. 551. Descent for Creek, Cherokee, Choctaw, Chickasaw and Seminole nations. The subject of descent for each of these nations is discussed under separate chapters, under the topic of Indian Land Laws. For Creek law of descent, see Sec. 1735, and following; for Cherokee law of descent, see Sec. 1817, and following; for Choctaw and Chickasaw law of descent, see Sec. 1776, and following, and for the law of descent for the Seminole Nation, see Sec. 1842, and following. 433 DESCENT AND DISTRIBUTION. §552 3. LAW OF DESCENTS— THE ARKANSAS STATUTE. SECTIO^ 552. Children inherit, when. 553. Inheritance when there are no children nor their descend- ants, no father, no mother, no brother, or sister, or their descendants. 554. Construction of statutes — ^Ivelly V. McGuire — Ancestral and nonancestral property — De- scent per stirpes and per capita. Posthumous children. Illeuitimate children inherit from the mother — Marriage will legitimatize, when. 557. Children where marriage is null. An alien may inherit. Where there are no children nor their descendants, no father, no mother, nor their descendants, or any paternal or maternal kindred capable of inheriting. 555. 550. 558. 559. SECTIOX 560. Per capita and per stirpes. 501. Ancestral and nonancestral property. 502. Where there is default of father and mother. 503. Half-bloods. 564. Where not provided by statute inheritance to go as at com- mon law — Several inherit as descendants in common. 565. Conflict of laws. 566. Construction of certain terms of the statutes of descent. 567. Heir at law may be made by declaration m writing — Dec- laration must be recorded or same shall have no force. 568. Advancement by settlement of portion to child — ^How reckoned and effect of — When not equal lo share of estate — Value of such advance- ment, how ascertained — Main- tenance, education, and the like not to be taken as advancement, when. Sec. 552. Children inherit, when. When any person shall die, having of inheritance, or personal estate, not wise limited by marriage settlement, as to such estate, it shall descend parcenary, to his kindred, male and payment of his debts, and the widow's manner : To children, or their descendants, in title to any real estate disposed of, nor other- and shall be intestate and be distributed, in female, subject to the dower, in the following equal parts.^ 1 Section 2,522, Mansfield's Digest of Statutes of Arkansas; Sec. 1,820, Ind. Ter. Stat. (1899). §§ 553, 554 merwine's trial of title to land. 434 Sec. 553. Inheritance when there are no children nor their descendants, no father, no mother, no brother or sister or their descendants. When any person shall die, having title to any real estate of inheritance, or personal estate, not disposed of, nor other- wise limited by marriage settlement, and shall be intestate as to such estate, it shall descend and be distributed, in parcenary, to his kindred, male and female, subject to the payment of his debts and the widow's dower, in the manner following : If there be no children, then to the father, then to the mother; if no mother, then to the brothers and sisters, or their descendants, in equal parts.^ If there be no children nor their descendants, father, mother, brothers or sisters, nor their descendants, then to the grandfather, grandmother, uncles and aunts and their de- scendants, in equal parts, and so on in other cases, without end, passing to the nearest lineal ancestor and their children and their descendants, in equal parts.^ Sec. 554. Construction of statute — Kelly v. McGuire — An- cestral and nonancestral property — Descent per stirpes and per capita. The Supreme Court of Arkansas early in its history, in a very lengthy and able opinion, construed the foregoing and other kindred statutes of descent and distribution in this 2 Section 2,522, Mansfield's Di- scents (Mansfield's Digest, 2,522), gest of tiie Statutes of Arkansas; although his father paid the fees Sec. 1,820, Ind. Ter. Stat. (1899). necessary to obtain the deed, and 3 Section 2,522, Mansfield's Digest on his dying intestate and without of the Statutes of Arkansas; Sec. issue, it descended first to his 1,820, Ind. Ter. Stat. (1899). father and then to his mother for Where, under the Statute found in life. In such case, no interest in English's Digest, Chap. 97, Art. 1, the land can be devised by the and the Act of December 12, 1850, father, and on his death the sister amendatory thereof, land was do- of the deceased cannot maintain nated by the State to a minor, it ejectment for it without proving the was a new acquisition by him within death of the mother. Hogan v. the meaning of the statute of de- Finley, 52 Ark. 55. 435 DESCENT AND DISTRIBUTION. § 554 State. The decision has since been followed by the later decisions of the case. We here quote from the decision: It is a general rule of construction, that a statute should be so considered as that every clause, sentence, or part, shall stand, if possible; and that general words or clauses may be restrained by particular words or clauses in the same statute; and when there are different provisions in the same statute expressed in different words, they ought to be so construed as to avoid inconsistency. It would be unsafe to construe a statute according to mere grammatical rules, or to rely on punctuation, as any material aid in ascertaining the true meaning. Neither bad grammar nor bad English will vitiate a statute. The true construction of our statute of descents and distributions is: (a) That, as to both real and personal property, it was the design of the Legislature, when there were descendants of the intestate, to send down both to them, per capita, if in equal degree, and per stirpes, if in unequal degree, without any regard to the fact as to how the estate was acquired. (&) That, as to personal estate, it was the design, where there were no descendants, that it should go to collaterals, in the same way it would have gone to descendants, if there had been any; that is to say, per capita, if in equal degree, and per stirpes, if in unequal degree, without inquiry as to how the property was acquired by the intestate. (c) That, as to real estate, it was the design of the Legis- lature, where there were no descendants, to point out the lines of the succession, and that this to depend on the fact whether the inheritance is ancestral or new; and, if ancestral, then whether it come from the paternal or maternal line. (d) If the inheritance was ancestral, and come from the father's side, then it will go to the line on the part of the father, from whence it came, not in postponement, but in exclusion of the mother's line; and so, on the other hand, if it come from the mother's side, then to the line on the part of the mother, from whence it came, to the exclusion of the father's line. § 554 merwine's trIxVl op title to land. 436 (e) If the inheritance be not ancestral, but a new acquisi- tion, then, after lawful estate reserved in succession to the father and mother, if alive, it will go in remainder, first, to the line of the intestate's paternal uncle and aunts, and their descendants, in postponement of the mother's line, until the former becomes extinct; and then to the line of the intestate's maternal uncles and aunts and their descendants; unless there should be kindred lineal or collateral, who, either in right of propinquity, or by right of representation, stand in a nearer relation to the intestate than the uncles and aunts : in which case, such nearer kindred would take the inheritance to the exclusion of both of these collateral lines ; and, in their hands it would become an ancestral estate, and afterwards go into the blood of the relative from \vhence it came, in the ordinary course of descent, prescribed for ancestral inher- itances. (/) That, when the inheritance is fixed by these facts, in any given line, it will pursue that line until it becomes extinct, and the objects of bounty, and the order in which they succeed one another, and the proportion they take, are to be ascertained by the first section, which is to be consid- ered as the general rule of descent. The father, mother, brothers, sisters, and so on, mentioned in that section, are those who are to be considered when counting from any propositus, whether the propositus of a single line only or con- current propositus of both lines, as the intestate is as to personal property. (g) In all cases where the inheritance is in any one line, it there goes in succession per capita, if in equal degree, and per stirpes, if in unequal degree, precisely as if the other line was extinct, and precisely as the inheritance of a bastard would take a course in his mother's line, he having no father's line at all. (h) The half-blood and their descendants, take personalty, as well as realty, equally with the whole blood, except that 437 DESCENT AND DISTRIBUTION. §554 they are excluded from real estate, when ancestral, if they lack the blood to the transmitting ancestor.* This decision has become a rule of property. Indeed, it has been said that the foregoing decision, rendered after full argument and patient consideration, endeavored to shape into form and order our confused and incongruous law of descents and distributions. The rules educed from the pro- visions of the statute of descents and distributions of this State, and formulated in that case, met with the approbation of the profession, and the principles therein set forth have since been followed until they have become rules of property — so much so, that the rules in what the Supreme Court afterwards has seen fit to designate as the Kelly case, have been oftener cited and are more familiar to the pro- fession than the rule in Shelly 's case. It must now be left to the Legislature to disturb them, if right and justice may ever seem to require it. Nothing in our judicature calls more emphatically for the application of the policy of the courts, stare decisis.^ 4 Kelly V. McGuire, 15 Ark. 556. The facts in this case are, that, about the rear, ISIO, Charles Kelly migrated to what is i^ow Arkansas: and, in 1815, married Mrs. Craig, a widow, who had two children by a former marriage, named Elizabeth and Emmeline. Charles Kelly, an enterprising, shrewd business man, aided by the prudence, skill and good management of his wife, ac- cumulated in Arkansas, where he lived, a large estate, consisting of real and personal property. He died intestate in 1834, and, by the law in force, his real estate de- scended and his personal property Avas distributed to James Dewitt Clinton Kelly, who was the only surviving issue of the marriage with Mrs. Craig. She died in 1836, and the son above mentioned, called for brevity, Clinton Kelly, died in- testate in Arkansas, the place of his domicile, in 1844, at the age of 17 years, without having married and without issue, leaving, as claim- ants for his property, his paternal grandfather, Greenberry Kelly, the descendants of Mary Eikelburner, his paternal aunt, and his two sisters of the half-blood, Elizabeth and Emmeline, the first of whom is the present Mrs. Marsh, and the second, Mrs. INIcGuire. The half- blood claimed the entire estate of Clinton Kelly, real and personal, as his next of kin, to the exclusion of all other descendants. 5 Oliver v. Vance, 34 Ark. 567. § 554 merwine's trial, of title to land. 438 Where the owners of land which has been acquired by pur- chase, died intestate without descendants, and left a father, a brother and a sister, her heirs surviving, the land ascends to the father for his lifetime, and then descends in remainder to the brother and sister." In a controversy which involves the right of the husband to the personal estate of his deceased wife, both being citizens of the Creek nation, where there is no showing as to what was the law or custom of that nation, applicable to that matter, it is error to presume that the common law was in force therein, and to decide the controversy accord- ing to its rules, and where such controversy is an action in the United States court, for the Indian Territory, the rule of the decision, in the absence of evidence as to what the Creek law is, is the law of the forum which is to be found in Mansfield's Digest of the laws of Arkansas, put in force in the Indian Territory by act of Congress of ]\Iay two, eighteen hundred and ninety, and where the common law as to the right of the husband to the wife's property has never been adopted, or has been abrogated, the crops produced on the wife's land are the wife's property, although the husband contributed his labor to their production/ 6 McFarlane v. Grober, 70 Ark. slavery could sustain that relation. 371. After the civil vv^ar, Gibson, the de- 7 Davison v. Gibson, 5G Fed. Rep. fendant in the controversy, went to 443. The facts in this case were the Creek nation in 1805, and he these: Julia Gibson was born a and Julia reassumed the relation of slave in the Creek nation in the husband and wife, which relation Indian Territory. Her master sold continued until Julia's death on the her to a slave owner in Missouri, 29th day of April, 1891. Bj^ virtue and took her to that State, where of her residence in the Creek nation she was held as a slave until 1854, at the time of the treaty of June Avhen her mother purchased her free- 14, 1866 (14 Stat.. 785), Julia ac- dom and brought her back to the quired under Art. 2 of that treaty, Creek nation. During the time she all the rights and privileges of the was a slave in Missouri, she and native citizens of the nation. Be- Edward Gibson, who was also a fore Gibson went to the Creek na- slave, sustained towards each other tion, Julia owned and occupied the relation of husband and wife, forty acres of land in that country, so far as persons in a state of ^. 439 DESCENT AND DISTRIBUTION, § 554 As showing some light upon the customs of the Indians as to their marriage and inheritance laws, we here quote at length from the opinion in the case from which the para- graphs just preceding appear as the syllabus thereof. The published laws of the Creek nation contain this pro- vision: "The lawful or acknowledged wife of a deceased hus- band shall be entitled to one-half of the estate if there are no other heirs, and an heir's part if there should be other heirs, in all cases where there is no will. The husband surviving shall inherit of a deceased wife in like manner." (Laws Muskogee Nation, c. 10, sec. 8.) In Colonel Hawkins' history of the Creeks and their cus- toms and laws, published in the collection of the Georgia Historical Society (vol. 3, pt. 1, p. 74), it is said: "Marriage gives no right to the husband over the prop- erty of his wife, and when they part, she keeps the children and the property belonging to them." Colonel Hawkins was at one time a senator in Congress from South Carolina, in 1801, and was appointed by Mr. Jef- ferson, "Principal agent for Indian affairs south of the Ohio," and was agent of the Creek Indians from 1801 to 1816, and continued to reside in the Creek country until 1825. His official position and long residence among the Creeks must have made him perfectly familiar with their customs and laws, and it is highly improbable he would have misrepre- sented them. ]\rr. Schoolcraft makes substantially the same statement as Colonel Hawkins in reference to the customs given to her by her mother and pointed administrator of her estate, brother. She also owned some per- and brought this action of replevin sonal property. She left four chil- against Gibson in the United States dren surviving her, two of them not Court for the Indian Territory, for the children of the defendant, Gib- the personal property, alleging that son. After her death, Gibson, her it belonged to the wife at the time husband, claimed the personal prop- of her death, and that, as her ad- erty of the farm, and took posses- ministrator, he was entitled to pos- sion of the same. J. P. Davison, session of the same, one of Julia's children, was ap- § 554 merwine's trial of title to land. 440 and laws on this subject, of the Creek and some other nations in the Indian Territory,^ That such is the law of the Cherokee nation appears from a printed volume of the laws of that nation, published by authority. By an act of the National Council of the Cherokee nation, approved November 9, 1825.'* That such is the law of the Cherokee nation appears from a printed volume of the laws of that nation, published by authority. By an act of the National Council of the Cherokee nation, approved No- vember 9, 1825, it is provided that where a husband dies having a wife and children, his property shall be equally divided among the children, "allowing the widow an equal share with the children," and that when a wife dies, "leaving a husband and children, her property shall revert to her hus- band and children in the same manner." The following preamble appears to an act passed in 1829 : "Whereas, it has long been the established custom in this nation, and admitted by the courts as law, yet never com- mitted to writing, that the property of Cherokee women after their marriage, cannot be disposed of by their husbands, or levied upon by an officer to satisfy the debt of the husband, contracting contrary to her will or consent, and disposable only at her option, therefore," etc.^° And by act approved October 25, 1843, it is declared: "That it shall not be lawful to expose at public sale by virtue of an execution obtained from any court of this nation, any property belonging to a Cherokee woman and citizen of this nation, to satisfy the debts of her husband."" It is very well known that the general customs and laws of the several nations in the Indian Territory relating to the domestic relations are substantially the same. The devise to a trustee to protect the separate property of the wife from the operation of the common law, was, of course, unknown 8 Schoolcraft's History of the lo 7(7., page 142. Indian Tribes, Part 1, pa Sec. 664. Ambiguities, how explained. Where the meaning of any part of a will is ambiguous or doubtful, it may be explained by any reference thereto, or recital thereof, in another part of the will." Sec. 665. Words taken in ordinary sense. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be collected, and that other can be ascer- tained.*^ Sec. 666. Rule of construction. The words of a will are to receive an interpretation which will give to every expression some effect rather than one which will render any of the expressions inoperative.*^ 79 Snyder, 8.931; Wilson, 6.841; Estate of Martin, 132 Cal. 666, 61 California, 1,321 (Kerr), identical; Pac. 964. see, on this subject, Estate of Ladd, si f^nyde^, 8.933; Wilson, 6,843. 94 Cal. 670, 30 Pac. DO; Estate of 82 Snyder, 8,934; Wilson, 6,844. McCaulay, 138 Cal. 432, 71 Pac. s" Snyder, 8.935; Wilson, 6,84.5; 512. California, 1,325 (Kerr), identical; 80 Snyder, 8,932; Wilson, 6,842; see Estate of Stratton, 112 Cal. 513, California, 1,322 (Kerr), identical; 44 Pac. 1,028.* 501 DESCENT AND DISTRIBUTION. §§ 667-671 Sec. 667. Validity of will favored. Of two modes of interpreting a will, that is to be preferred which will prevent a total intestacy.^* Sec. 668. Technical words. Technical words in a will are to be construed in their tech- nical sense unless the context clearly indicates a contrary intention. Again, technical words are not necessary to give effect to any species of disposition by will.^^ Sec. 669. Words of inheritance. The term ''heirs," or other words of inheritance, are not requisite to devise a fee, and a devise of real property passes all the estate of the testator, unless otherwise limited. And real or personal property embraced in a power to devise passes by a will purporting to devise all the real or personal property of the testator.**^ Sec. 670. De\dse in general terms. A devise or bequest of all the testator's real or personal property, in express terms, or in any other terms denoting his intent to dispose of all his real or personal property, passes all the real or personal property which he was enti- tled to dispose of by will at the time of his death." Sec. 671. Residue of real estate. A devise of the residue of the testator's real property passes all the real property which he was entitled to devise 84 Snyder, 8.936; Wilson, 6,846; 85 Snyder, 8,937 and 8,938; Wil- California, 1,326 (Kerr), identical; son, 6,847 and 6,848. LeBreton v. Cook, 107 Cal. 410, 40 ss Snyder, 8,939 and 8,940; Wil- Pac. 552; Toland v. Toland, 123 son, 6,849 and 6,850. Cal. 140, 55 Pae. 681; Estate of 87 Snyder, 8.941; Wilson, 6,851; Fay, 145 Cal. 82, 28 Pac. 340. California, 1,331 (Kerr), identical. §§ 672-675 merwine's trial of title to land. 502 at the time of his death, not otherwise effectually devised by his will.** Sec. 672. Residue of personalty. A bequest of the residue of the testator's personal property passes all the personal property which he was entitled to be- queath at the time of his death not otherwise effectually be- queathed by his will.*® Sec. 673. Effect of certain terms. A testamentary disposition to "heirs," "relations," "near- est relations," "representatives," "legal representatives," or "personal representatives," or "family," "issue," "descend- ants," "nearest," or "next of kin," or any person, wdthout other words of qualification, and when the terms are used as words of donation, and not of limitation, vests the property in those who would be entitled to succeed to the property of such person according to the provisions of Chapter twenty - seven of the Statutes of the State of Oklahoma.®" Sec. 674. Terms mentioned are v/ords of donation. The terms mentioned in the last section are used as words of donation, and not limitation, when the property is given to the person so designated, directly, and not as a qualifica- tion of an estate given to the ancestor of such person.®^ Sec. 675. Postponement of possession. Words in a will referring to death or survivorship, simply, relate to the time of the testator's death, unless possession is 88 Snyder, 8,942; Wilson, 6,852; so Snyder, 8.044; Wilson, 6,854; California, 1,332 (Kerr), identical; California, 1,334 (Korr), identical. Estate of Granniff, 132 Cal. 1, 75 Estate of Schedel, 73 Cal. 594, 15 Pac. 324; Estate of Mullen, 48 Cal. Pac. 297; Rhoton v. Blevin, 99 Cal. 165; Estate of Uphani, 122 Cal. 90, 645; 35 Pac. 513. 59 Pac. 315. 9i Snyder, 8,945; Wilson, 6,855. 89 Snyder, 8,943; Wilson, 6,853. 503 DESCENT AND DISTRIBUTION. §§ 676-679 actually postponed, when they must be referred to the time of possession.^- Sec. 676. Class includes all. A testamentary disposition to a class includes every person answering the description at the testator's death; but when the possession is postponed to a future period, it includes also all persons coming within the description before the time to which possession is postponed.^^ Sec. 677. Conversion of realty. When a will directs the conversion of real property into money, such property and all its proceeds must be deemed personal property, from the time of the testator's death.''* Sec. 678. Unborn child included. A child conceived before, but not born until after a tes- tator's death, or any other period when a disposition to a class vests in right or in possession, takes, if answering to the description of the class.^^ Sec. 679. Imperfect description corrected, how. When applying a will, it is found that there is an imperfect description, or that no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence; but evidence of the declarations of the testator as to his intentions cannot be received.^** 92 Snyder, 8,940; Wilson, 6.856; 94 Snyder, 8,948; Wilson, 6,858; California, 1,336 (Kerr), identical; California, 1,338 (Kerr), identical; Estate of Winter, 114 Cal. 186, 45 Fatjo v. Swassey, 111 Cal. 628, 44 Pac. 1,063. Pac. 325; Estate of Walkerly, 108 93 Snyder, 8,947; Wilson, 6,857; Cal. 627, 41 Pac. 772. California, 1,337 (Kerr), identical; as Snyder, 8,949; Wilson, 6,859. Goldtree v. Thompson, 79 Cal. 613, 96 Snyder, 8,950; Wilson, 6,800; 32 Pac. 50. California, 1,340 (Kerr), identical; §§ 680-684 merwine's trial of title to land. 504 Sec. 680. Testamentary dispositions vest at death. Testamentary dispositions, including devises and bequests to a person on attaining majority, are presumed to vest at the testator's death/-*^ Sec. 681. Can be divested, when. A testamentary disposition, when vested, cannot be divested unless upon the occurrence of the precise contingency pre- scribed by the testator for that purpose.''^ Sec. 682. Death of devisee — Effect of. If a devisee or legatee dies during the lifetime of the testator, the testamentary disposition to him fails, unless an intention appears to substitute some other in his place, except as provided in Section 8922, Snyder; Section 6832, Wilson,^^ Sec. 683. Interest of persons in remainder. The death of a devisee or legatee of a limited interest, before the testator's death, does not defeat the interests of persons in remainder, who survive the testator.^ Sec. 684. Conditional disposition defined. A conditional disposition is one which depends upon the occurrence of some uncertain event, by which it is either to take effect or be defeated.^ Estate of Young, 123 Cal. 337, 55 m Snyder, 8,953; Wilson, 6,863; Pac. 1,011; Estate of Walkeiiy, 108 California, 1,343 (Kerr), identical; Cal. 627, 41 Pac. 772; Estate of Estate of Bennet, 134 Cal. 320, 06 Mitchell, 102 Cal. 202, 34 Pac. 614; Pac. 370; Estate of Sutro, 139 Cal. Estate of Stratton, 112 Cal. 513, 87, 72 Pac. 827; Estate of Hittell, 44 Pac. 1,028. 141 Cal. 432, 75 Pac. 53. 97 Snyder, 8,951; Wilson, 6,861; i Snyder, 8,954; Wilson, 6,864. ■California, 1,341 (Kerr), identical; 2 Snyder, 8,955; Wilson, 6,865; Williams v. Williams, 73 Cal. 99, California, 1,345 (Kerr), identical; 14 Pac. 394; Estate of Brown, 143 Born v. Horstann. 80 Cal. 452, 22 Cal. 450, 77 Pac. 160. Pac. 169, 5 L. R. A. 577; Estate of 98 Snyder, 8,952; Wilson, 6,862. Walkerly, 108 Qal. 627, 48 Am. St. Rep. 91, 41 Pac. 772. 505 DESCENT AND DISTRIBUTION. §§ 685-690 Sec. 685. Condition precedent defined. A condition precedent in a will is one which is required to be fulfilled before a particular disposition takes effect.^ Sec. 686. Unknown unavoidable event — Effect of. Where a testamentary disposition is made upon a condition precedent, nothing vests until the condition is fulfilled, except where such fulfillment is impossible, in which case the dis- position vests, unless the condition was the sole motive thereof, and the impossibility was unknown to the testator, or arose from an unavoidable event subsequent to the execu- tion of the will.* Sec. 687. Substantial compliance sufficient. A condition precedent in a will is to be deemed performed when the testator's intention has been substantially, though not literally, complied with.^ Sec. 688. Condition subsequent defined. A condition subsequent is where an estate or interest is so given as to vest immediately, subject only to be divested by some subsequent act or event." Sec. 689. Devise to more than one person, A devise or legacy given to more than one person vests in them as owners in common.'^ Sec. 690. Gifts do not reduce legacies. Advancements or gifts are not to be taken as ademptions of general legacies, unless such intention is expressed by the testator in writing.^ 3 Snyder, 8,956; Wilson, 6,866. Estate of Utz, 43 Cal. 200; Estate 4 Snyder, 8.957; Wilson, 6,867. of Hittell, 141 Cal. 432, 75 Pac. 53. 5 Snyder, 8,958; Wilson, 6,868. « Snyder, 8,961; Wilson, 6,871; 6 Snyder, 8,959; Wilson, 6.869. California, 1,351 (Kerr), identical; 7 Snyder, 8.960; Wilson, 6,870; Estate of Zelle, 74 Cal. 125, 15 Pac. California, 1,350 (Kerr), identical; 455. §§ 691-693 mebwine's trial of title to land. 506 Sec. 691. Legacies classified. Legacies are distinguished and designated, according to their nature, as follows : First. A legacy of a particular thing, specified and dis- tinguished from all others of the same kind belonging to the testator, is specific ; if such legacy fails, resort cannot be had to the other property of the testator. Second. A legacy is demonstrative when the particular fund or personal property is pointed out from which it is to be taken or paid; if such fund or property fails in whole or in part, resort may be had to the general assets as in case of a general legacy. Third. An annuity is a bequest of certain specified sums periodically; if the fund or property out of which they are payable fails, resort may be had to the general assets, as in case of a general legacy. Fourth. A residuary legacy embraces only that which re- mains after all the bequests of the will are discharged. Fifth. All other legacies are general legacies.^ Sec. 692. Property chargeable with payment of debts. "When a person dies intestate, all his property, real and personal, without any distinction between them, is charge- able with the payment of his debts, except as otherwise pro- vided in this chapter and under the code of civil procedure.'" Sec. 693. Order in which property applied to debts. The property of a testator, except as otherwise especially provided in this chapter and under the code of civil pro- 9 Snyder, 8,962; Wilson, 6,872; lo Snyder, 8,963; Wilson, 6,873; California, 1,357 (Kerr), identical; California, 1,358 (Kerr), identical; Estate of Woodwortli, 31 Cal. 595; Fallow v. Butler, 21 Cal. 24, 81 Estate of Zelle, 74 Cal. 125, 15 Pac. Am. Dec. 143; Booth v. Pendola, 455; Estate of Brown, 143 Cal. 450, 88 Cal. 36, 23 Pac. 200; Estate of 77 Pac. 160; Estate of Mackay, 107 Crosby, 55 Cal. 574; McDonald v. Cal. 303, 40 Pac. 558; Estate of 'McElroy, 60 Cal. 484. Williams, 112 Cal. 521, 53 Am. St. Rep. 224, 44 Pac. 808; Abila v. Burnett, 33 Cal. 658. 507 DESCENT AND DISTRIBUTION. §§ 694-695 cedure, must be resorted to for the payment of debts in the following order: First. The property which is expressly appropriated by the will for the payment of the debts. Second. Property not disposed of by the will. Third. Property which is devised or bequeathed to a residuary legatee. Fourth. Property which is not specifically devised or bequeathed ; and, Fifth. All other property ratably. Before any debts are paid, the expenses of the administration and the allowance to the family must be paid or provided for.^^ Sec. 694. For payment of legacies. The property of a testator, except as otherwise especially provided in this chapter and under the code of civil pro- cedure, must be resorted to for the payment of legacies in the following order : First. The property which is expressly appropriated by the will for the payment of the legacies. Second. Property not disposed of by the will. 'Third. Property which is devised or bequeathed to a residuary legatee. Fourth. Property which is specifically devised or be- queathed.^- Sec. 695. Preferred legacies. Legacies to husband, widow or kindred of any class, are chargeable only after legacies to persons not related to the testator.^^ 11 Snyder, 8,964; Wilson, 6,874: Estate of Eoss, 140 Cal. 282, 73 California, 1,359 (Kerr), identical; Pac. 976; Estate of Smith, 145 Cal. Estate of Woodwortli, 31 Cal. 595; 118, 78 Pac. 369. Estate of Traver, 145 Cal. 508, 78 1 3 Snyder, 8,966; Wilson, 6,876; Pac. 1,058; Estate of Heydenfeldt, California, 1,361 (Kerr), identical; 106 Cal. 434, 39 Pac. 788. Estate of Apple, 66 Cal. 432, 6 12 Snyder, 8,965; Wilson, 6,875; Pac. 7. California, 1,360 (Kerr), identical; §§ 696-699 merwine's trial of title to land. 508 Sec. 696. Class only affected. Abatement takes place in any class only as between legacies of that class, unless a different intention is expressed in the will.^* Sec. 697. Representative may sell. In a specific devise or legacy, the title passes by the will, but possession can only be obtained from the personal rep- resentative ; and he may be authorized by the county court to sell the property devised or bequeathed, in the cases herein provided.^^ Sec. 698. Proved devise impairs deed by heir. The rights of a purchaser or incumbrances of real property in good faith, and for value, derived from any person claim- ing the same by succession, are not impaired by any devise made by the decedent from whom succession is claimed unless the instrument containing such devise is duly proved as a will and recorded in the office of the county court having jurisdiction thereof, or unless written notice of such devise is filed with the county judge of the county where real property is situated, within four years after the devisor's death.i« Sec. 699. Succession to limited devises. Where specific legacies are for life only, the first legatee must sign and deliver to the second legatee, or, if there is none, to the personal representative, an inventory of the property, expressing that the same is in his custody for life only, and that, on his decease, it is to be delivered and to remain to the use and for the benefit of the second legatee, or to the personal representative, as the case may be.^^ i4Siiyflcr, 8,0G7; ^Yilson, 6,877; is Snyder, 8,968; Wilson, 6,878; Californiii, 1,362 (Kerr), identical; California, 1,363 (Kerr), similar. Estate of ^'eistrath, 66 Cal. 330, ic Snyder, 8,069; Wilson, 6,879; 5 Pac. 507. California, 1;364 (Kerr), similar. "Snyder, 8,970; Wilson, 6,880. 509 DESCENT AND DISTRIBUTION. §§700-705 Sec. 700. Income after death. In case of a bequest of the interest or income of a certain sum or fund, the income accrues from the testator's death/' Sec. 701. Legacy, etc., may be satisfied before death. A legacy, or a gift in contemplation, fear or peril of death, may he satisfied before death.^® Sec. 702. Legacies due in one year. Legacies are due and deliverable at the expiration of one year after the testator's decease. Annuities commence at the testator's decease.^" Sec. 703. Interest on legacies. Legacies bear interest from the time when they are due and payable, except that legacies for maintenance, or to the testator's widow, bear interest from the testator's decease.-^ Sec. 704. Intention controls. The four preceding sections are in all cases to be controlled by a testator's express intention." Sec. 705. Unnamed executor. Where it appears by the terms of a will that it was the intention of the testator to commit the execution thereof and the administration of his estate to any person as executor, such person, although not named executor, is entitled to letters testamentary in like manner as if he had been named executor.2' 18 Snyder, 8,971; Wilson, 6,881; Estate of Balke, 137 Cal. 429, 70 California, 1,366 (Knrr), identical; Pac. 303; Estate of James, 65 Cal. Estate of Brown, 143 Cal. 450, 77 25, 2 Pac. 494. Pac. 160. 22 Snyder, 8,975; Wilson, 6,885. 19 Snyder, 8,972; Wilson, 6,882. 23 Snyder, 8,976; Wilson, 6,886; 20 Snyder, 8,973;' Wilson, 6,883. California, 1,371 (Kerr), identical; 21 Snyder, 8,974; Wilson, 6,88 i; Morffew v. San Francisco Co., 107 California, 1,369 (Kerr), identical; Cal. 587, 40 Pac. 810. §§ 706-711 merwine's trial of title to land. 510 Sec. 706. Authority void, when. An authority to an executor to appoint an executor is void.-* Sec. 707. Power of executor begins, when. No person has any power, as an executor, until he qualifies, except that before letters have been issued, he may pay funeral charges and take necessary measures for the preserva- tion of the estate.^^ Sec. 708. Limitation of power. No executor of an executor, as such, has any power over the estate of the first testator.-'^ Sec. 709. Will includes codicil. The term ''will," as used in this chapter, includes all codicils as well as wills.-^ Sec. 710. Law of place governs, when. Except as otherwise provided, the validity and interpreta- tion of wills is governed, when relating to real property within this State, by the law of this State; when relating to personal property, by the law of the testator's domicile.-^ Sec. 711. Liability of devisees and legatees. Those to whom property is given by will are liable for the obligations of the testator in the cases and to the extent prescribed by the code of civil procedure, or the statutes in such cases made and provided.^® 24 Snyder, 8,977; Wilson, 6,887. 26 Snyder, 8,979; Wilson, 6,889. 25 Snyder, 8,978; Wilson, 6,888; =7 Snyder, 8,980; Wilson, 6,890. California, 1,373 (Kerr), identical; 28 Snyder, 8.981; Wilson, 6,891. Bowden v. Pierce, 73 Cal. 459, 14 29 Snyder, 8,982; Wilson, 6,892. Pac. 302; Pryor v. Downey, 50 Cal. 388, 19 Am. Eep. 656; Larcp. v. Casaneuava, 30 Cal. 560. 511 DESCENT AND DISTRIBUTION. §§712, 712a Sec. 712. Will may be recorded with like effect as a deed. Any will, devising real estate or any interest therein, to- gether with a copy of the probate thereof, duly certified by the county judge, may be filed and recorded in the office of the register of deeds, with like effect as a deed duly executed and acknowledged.^" Sec. 712a. Manner in which will may be made by fuU blood Indian of the five civilized tribes. Every person of lawful age and of sound mind may by last will and testament devise and bequeath all of his estate, real and personal, and all interest therein : Provided, That no will of a full blood Indian devising real estate shall be valid, if such last will and testament disinherits the parent, wife, spouse, or children of such full blood Indian, unless acknowledged before and approved by a judge of the United States court for the Indian Territory, or a United States commissioner.^^ This law has since been amended so as to permit the will to be also acknowledged and approved by a judge of any county court in the State of Oklahoma. ''- If any member of the five civilized tribes of one-half or more Indian blood shall die leaving issue surviving, born since March fourth, nineteen hundred and six, the homestead of such deceased allotee shall remain inalienable, unless re- strictions against alienation are removed therefrom by the secretary of the interior in the manner provided in section one hereof, for the use and support of such issue, during their life or lives, until April twenty-sixth, nineteen hundred and thirty-one ; but if no such issue survive, then such allotee, if an adult, may dispose of his homestead by will free from all restrictions ; if this be not done, or in the event that the issue hereinbefore provided for die before April twenty-sixth, 30 Snyder. 1,215; Wilson, 908. S2 Act of May 27, 1908, 35 31 Act April 26, 1906, 34 Stat. L. Stat. L. 312. 137. § 712a MER wine's trial of title to land. 512 nineteen hundred and thirty-one, the land shall then descend to the heirs, according to the laws of descent and distribution of the State of Oklahoma, free from all restrictions.^'^ Chapters forty-nine and one hundred and fifty-five of the Mansfield's Digest, entitled "Descents and Distribution" and "Wills and Testaments," respectively, as modified by acts of Congress,"* were in force in the Creek nation on the thirteenth day of November, nineteen hundred and five. There being no children born to a noncitizen Creek allotee after the twenty-fifth day of ]\Iay, nineteen hundred and one, she was entitled to dispose of her homestead by will, and such devise was subject to the imitations contained in the statute which reads: When any person shall make his last will and testament, and omit to mention the name of a child, if living, or the legal representatives of such child born and living at the time of the execution of such will, every such person so far as regards such child shall be deemed to have died intestate, and such child shall be entitled to such proportion, share and dividend of the estate, real and personal, of the testator as if he had died intestate; and such child shall be entitled to recover from the devisees and legatees in proportion to the amount of their respective shares, and the court exercising probate jurisdiction shall have power to decree a distribution of such estate according to the provisions of this and the preceding sections. Where such allotee executes a will for such homestead, naming therein her husband as sole devisee, and dies leaving surviving her an only child by a former husband, born prior to the twenty-fifth day of May nineteen hundred and one, such child is the sole heir of such allotee, and is entitled to the whole of her estate as if she had died intestate.^'^ 33 Act of May 27, 1908, 35 35 in re Brown's Estate, 22 Okla. Stat. L. 312. 216, 97 Pac. 216. 34 Act of May 2, 1890, Chap. 182, 26 Stat. L. 81; Act of June 30, 1902, Chap. 1,323, 32 Stat. L. 500. 513 DESCENT AND DISTRIBUTION. § 712b Sec. 712b. Will by Choctaw and Chickasaw. The words "alienable" and "inalienable," used to restrict the disposition of lands in the supplemental agreement with the Chickasaws and Choctaws,^^ include disposition by will. The right and equity of an enrolled member of the Chick- asaw nation, who died intestate in nineteen hundred and three before receiving an allotment, to a just share of the lands of the Chickasaws and Choctaws, was not devisable, and the title to the lands subsequently derived therefrom was not affected by the will. Prior to the fourth day of March, nineteen hundred and six, the Chickasaw Indians had the right to dispose of their devisable property by will made in accordance with the laws of the Chickasaws, the proper Chickasaw probate court had jurisdiction to probate these wills and its judgments are impervious to collateral attack.^'^ 36 Act of July 1, 1902, Chap. 37 Hays v. Barringer, 168 Fed, 1,362, 32 Stat. L. 642. Rep. 220. merwine's trial op title to land. 514 6. THE PROCEDURE IN THE PROBATE AND CONTEST OF A WILL. SECTION 713. Jurisdiction ot probate court. 714. Proceedings of the court, how construed — Process, how is- sued and served. 715. Under substitution of juris- diction rights remain the same. 716. Where wills proved — Letters testamentary granted. 717. Custodian of wills — Tliirty days — Must deliver to whom. 718. Executor or other person in- terested may petition for probate of will. 719. What petition must show. 720. When executor held to re- nounce his right to letters. 721. Will in possession of third person — Procedure. 722. Petition filed — Will produced— Court must fix day for hear- ing. 723. Notice to heirs — How given. 724. Court may receive petition at chambers or out of term time. 725. Proof of service of notice — Hearing proof of will. 726. Persons interested may appear and contest will. 727. Procedure where no person appears to contest. 728. Holographic will — How proved. 729. Written grounds of opposition to probate must be filed. 730. The court must give in writing findings of fact and conclu- sions of law. 731. Subscribing witnesses who must be produced and examined — Proof of handwriting ad- mitted. 732. Testimony of each witness re- duced to writing. SECTION 733. Certificate of proof and facts found to be issued, if court satisfied upon proof. 734. Certificates together with evi- dence must be filed. 735. W'ill duly proved and allowed in any foreign country or state may be recorded, when. 736. Copy of will duly authenticated produced by executor must be filed — Petition hearing. 737. Must be admitted to probate, when, and letters testamen- tary issued. 738. Within one year after probate any person interested may contest same — Petition — Ma- terial facts to be shown. 739. Executors or administrators and all legatees and devisees must be cited. 740. If will offered by petition it must show all required in original case. 741. After service of citations, court must proceed to try the issues — Judgment. 742. Revocation being made, powers of executors cease — Acts done in good faith, executor not liable. 743. Fees and expenses paid by con- testing party or by party re- sisting revocation. 744. Probate conclusive after one year. 745. Lost or destroyed will — How probated. 746. Lost or destroyed M'ill must have been in existence at death of testator. 747. Lost will established — ^Provi- sions distinctly stated and certified — Filed and recorded — Letters issued. 515 DESCENT AND DISTRIBUTION. SECTION 748. Pending application to prove lost or destroyed will, court may restrain administrators. 749. Nuncupative wills — Probate of — Petition — Testamentary words. 750. Court must not entertain peti- tion until lapse of fifteen days — Interested parties noti- fied. 751. Contest of probate of nuncupa- tive wills — How conducted. 752. Court admitting will to pro- bate must issue letters. 753. Persons competent to serve as executor. 754. Who may file objections to granting letters testamentary. 755. No executor of an executor authorized to administer es- tate of first testator. 756. Qualified executor may act during minority or absence of another executor. 757. When all executors named are not appointed those appointed may act — When coexecutor may act for all. 758. Administrators with will an- nexed have same authority as executors. 759. Form of letters. 760. Letters of administration with will annexed — Form of. 761. Letters must be signed by judge under seal. 762. Form for will leaving estate to wafe. 763. Another foi'm for will leaving estate to wife, also giving executrix power of sale and compromise. 764. Another form for will making specific bequests with devise to widow for life or during widowhood, with residuary clause. 765. Form for a provision in a will in trust for wife during life with remainder to children, advancements to be deducted. SECTION 766. Form for provision in a will giving power to trustee to continue business. 767. Form for devise of real estate to wife for life with re- mainder to brothers and sisters. 768. Form for devise to wife for life with remainder to chil- dren. 769. Skeleton form for codicil to last will and testament. 770. Ihe procedure by which a last will and testament is ad- mitted to probate — The form for the petition for probate of a will. 771. Form for order of hearing peti- tion for probate of a will. 772. Form for notice of hearing of probate of will. 773. iorm for proof of posting and mailing the foregoing notice. 774. Form for written testimony of subscribing witness to last will and testament. 775. Form for protest of heirs against allowing probate of last will and testament. 776. Form for order appointing guardian ad litem for infant heirs. 777. Form for the protest of guard- ian ad litem of minor heirs against the probate of the alleged last will and testa- ment. 778. Form for ihe answer of pro- ponents to protestants to will. 779. Form for order of court ad- mitting will to probate. 780. Form for order of court re- fusing to probate last will and testament. 781. The procedure by which a will is contested after the same has been admitted to probate — The petition in s'lch case. 782. Form for praecipe for sum- mons in the action. §§713,714 mebwine's trial op title to land. 516 SECTION SECTION 783. Form for agreement by parties 791. Form for certificate of proof to have cause referred to of foreign will, special judge for the deter- 792. Form for order admitting mination of the question as foreign will to probate. to the setting aside of will. 793. The procedure by which a lost 784. Form for official oath of special will is admitted to probate — ^ufjcre. Form for petition. 7S5. Form for citation for executors 794. I'orm for order of hearing to appear and answer peti- petition to take proof of lost tion. ^vill. 786. Form for sheriff's return of 795. Form for proof of publication. his service of said citation. 796. Form for annexed notice by 787. Form for answer to the peti- publication. tion. 797. Form for order for hearing 788. Form for reply to answer. proof of lost will. 789. Form for finding of facts and 798. Form for notice of the hearing conclusions of law of the of the proof of lost will, special judge. 799. Form for proof of publication 790. Form for petition for the pro- of the foregoing notice. bate of a foreign will. 800. The form for the decree of court restoring lost will. Sec. 713. Jurisdiction of probate court. The comity court has jurisdiction, and the judge thereof, power, which must be exercised in the cases, and in the manner prescribed by statute: 1. To open and receive proof of last wills and testaments, and to admit them to proof, and to revoke the probate thereof, and to allow and record foreign wills. 2. To grant letters testamentary, of administration and guardianship, and to revoke the same.^ Sec. 714. Proceedings of the court, how construed — Process how issued and served. The proceedings of the probate court are construed in the same manner, and with like intendments, as the proceedings of courts of general jurisdiction, and to its records, orders, judgments and decrees, there are accorded like force, effect and legal presumption as to the records, orders, judgments and decrees of district courts.^ 1 Snyder, 5,136; Wilson, 1,477. 2 Snyder, 5,137; Wilson, 1,478. 517 DESCENT AND DISTRIBUTION. §§715,716 All process issued by the county court shall be served in the same manner, and by the persons and officers as pro- vided for the service of process of the district court, with the same fees.^ Sec. 715. Under substitution of jurisdiction rights remain the same. Under the substitution or transfer of jurisdiction provided in Section 5939 (Snyder), the law and the rights of parties shall in all other respects be and remain the same; and if, before the issues so transferred are decided, or the admin- istration of such estate is closed, another person be elected or appointed and qualified as judge of the county court, who is not disqualified to act in the settlement of the estate, he must resume full jurisdiction of the case, and upon notice of that office from the county court, the clerk of district court must return all papers and records to the county court.* Sec. 716. Where wills proved — Letters testamentary granted. Wills must be proved, and letters testamentary or of ad- ministration granted : 1. In the county of which the decedent was a resident at the time of his death, in whatever place he may have died. 2. In the county in which the decedent may have died, leaving estate therein, he not being a resident of the State. 3. In the county in which any part of the estate may be, the decedent having died out of the State, and not resident thereof at the time of his death. 4. In the county in which any part of the estate may be, the decedent not being a resident of the State, but dying M^thin it, and not leaving estate in the county in which he died. 5. In all other cases, in the county where application for letters is first made.^ 3 Snyder, 5,138; Wilson, 1,479. 5 Snyder, 5,142; Wilson, 1,483. 4 Snyder, 5,140; Wilson, 1,481. §§ 717-719 merwine's trial of title to land. 518 Sec. 717. Custodian of wills — Thirty days — Must deliver to whom. Every custodian of a will, within thirty days after receipt of information that the maker thereof is dead, must deliver the same to the county court having jurisdiction of the estate, or to the executor named therein. A failure to comply with the provisions of this section makes the person failing responsible for all damages sustained by any one injured thereby.^ Sec. 718. Executor or other person interested may petition for probate of will. Any executor, devisee or legatee named in any will, or any other person interested in the estate may at any time after the death of the testator, petition the court having juris- diction to have the will proved, whether the same be in writing, in his possession or not, or is lost or destroyed, or beyond the jurisdiction of the State, or a nuncupative will.* Sec. 719. What petition must show. A petition for the probate of a will must show: 1. The jurisdictional facts. 2. Whether the person named as executor consents to act, or renounces the right to the letters testamentary. 3. The names, ages and residence of the heirs and devisees of the decedent so far as known to the petitioner. 4. The probable value and character of the property of the estate. 5. The name of the person for whom letters testamentary are prayed. No defect of form, or in the statement of jurisdictional facts actually existing, shall make void the ^irobate of a will.^ 6 Snyder, 5,145; Wilson, 1,486. Estnto of Edwards, 154 Cal. 91, 97 * Snyder, 5,146; Wilson, 1,487; Pac. 23. California, 1,299 (Kerr), identical Estate of Olmstead, 120 Cal. 447 7 Snyder,* 5,147; Wilson, 1,488; California, 1,300 (Kerr), similar. 519 DESCENT AND DISTRIBUTION. §§ 720-722 Sec. 720. When executor held to renounce his right to letters. If the person named in a will as executor, for thirty days after he has knowledge of the death of the testator, and that he is named as executor, fails to petition the proper court for the probate of the will, and that letters testamentary be issued to him, he may be held to have renounced his right to letters, and the court may appoint any other competent person administrator, unless good cause for delay is shown.^ Sec. 721. Will in possession of third person— Procedure. If it is alleged in any petition that the will is in the pos- session of a third person, and the court is satisfied that the allegation is correct, an order must be issued and served upon the person having possession of the will, requiring him to produce it in the court at the time named in the order. If he has possession of the will and neglects or refuses to pro- duce it in obedience to the order, he may by warrant of the court be committed to the jail of the county, and kept in close confinement until he produces it.** Sec. 722. Petition filed— Will produced— Court must fix day for hearing. When the petition is filed and the will produced, the judge of the county court must fix a day for hearing the petition for the probate thereof, not less than ten nor more than thirty days from the production of the will, and he shall cause notice of such hearing to be given by posting the same in three of the most public places in the county, one of which shall be at the courthouse in which said hearing is to be had, and by mailing copies of such notice to all persons interested in the estate, residents of this State, at their last known place of residence. If the postoffice address of any of the heirs, legatees or devisees of said will is unknown, 8 Snyder, 5,148; Wilson, 1,489; 50 Pac. 399 ; Estate of Von Buncken, California, 1,301 (Kerr), identical; 120 Cal. 343, 52 Pac. 819. Estate of McDonald, 118 Cal. 277, 9 Snyder, 5,149; Wilson, 1,490. §§723,724 merwine's trial of title to land. 520 said notice shall be published in some newspaper of general circulation printed in the county. If the notice be published in a weekly newspaper, it must appear therein on two dif- ferent days, and said hearing shall not be less than ten days from the date of the first publication of such notice, and if it is a newspaper published oftener than once a week, it shall be published so that there must be two publications, both the first and the last days being included. If the notice is by posting, it must be given at least ten days before the hearing.^** Sec. 723. Notice to heirs — How given. Written or printed copies of the notice of the time ap- pointed for the probate of the will, must be addressed to the heirs of the testator resident in the State, at their places of residence, if known to the petitioner, and deposited in the postoffice, with the postage thereon prepaid by the petitioner, at least ten days before the hearing; the notice must be issued by the judge over the seal of the court. Proof of the mailing of the notice must be made at the hearing; the same notice and proof of service thereof on the person named as executor must be made if he be not the petitioner; also on any person named as coexecutor, not petitioning, if their place of residence be known.^^ Sec. 724. Court may receive petitions at chambers or out of term time. The judge of the county court may, out of term time, or at chambers, receive petitions for the probate of wills, and make and issue all necessary orders and Avrits to enforce the production of wills and the attendance of witnesses, and may appoint special terms of his court for hearing the petitions, trials of issues, and admitting wills to probate.^- 10 Snyder, .5,150; Act approved n Snyder, 5,151; Wilson, 1,492; March 27, 1909; California, 1,303 California, 1,304 (Kerr), similar. (Kerr), similar. 12 Snyder, 5,152; Wilson, 1,493. 521 DESCENT AND DISTRIBUTION. §§ 725-727 Sec. 725. Proof of service of notice — Hearing proof of will. At the time appointed for the hearing, or at the time to which the hearing may have been postponed the court, unless the parties appear, must require proof that the notice has been given, which being made, the court must hear testimony in proof of the will. If such notice is not proved to have been given, or if from any other cause it is necessary, the hearing may be postponed to a day certain, and notice to absentees given thereof, as original notice is required to be given. The appearance in court of parties interested is a waiver of notice.^^ Sec. 726. Persons interested may appear and contest will. Any person interested may appear and contest the will. Devisees, legatees or heirs of an estate may contest the will through their guardians, or attorneys appointed by them- selves, or by the court for that purpose ; but a contest made by an attorney appointed by the court does not bar a con- test, after probate, by the party so represented, if commenced within one year after such probate; nor does the nonappoint- ment of an attorney by the court of itself invalidate the probate of a will.^* Sec. 727. Procedure where no person appears to contest. If no person appear to contest the probate of a will, the court may admit it to probate on the testimony of one of the subscribing witnesses only, if satisfied from the testimony of such witness that the will was executed in all particulars as required by law, and that the testator was of sound mind at the time of its execution.^^ 13 Snyder, 5,153; Wilson, 1,494; Ward v. Bd. Com., 12 Okla. 267, 70 California, 1,306 (Kerr), similar. Pac. 378; State v. McGlynn, 20 Cal. 14 Snyder, 5,154; Wilson, 1,495; 233, 81 Am. Dec. 118; Estate of California, 1,307 (Kerr), similar. Warfield, 22 Cal. 51, 83 Am. Dec. 15 Snyder, 5,155; Act of March 7, 49; Tracy v. Muir, 151 Cal. 3C3, 90 1909; California, 1,308, similar; Pac. 832. §§ 728-730 merwine's trial of title to land. 522 Sec. 728. Holographic will — How proved. An holographic will may be proved in the same manner that other private writings are proved.^^ Sec. 729. Written grounds of opposition to protate must be filed. If anyone appears to contest the will, he must file written grounds of opposition to the probate thereof, and serve a copy on the petitioner and other residents of the county interested in the estate, and any one or more of whom may demur thereto upon any of the grounds of demurrer allowed by law in civil actions. If the demurrer be sustained, the court must allow the contestant a reasonable time, not ex- ceeding ten days, within which to amend his written opposi- tion. If the demurrer is overruled, the petitioner and others interested may jointly or separately answer the contestant's grounds, traversing or otherwise obviating or avoiding the objections. Any issues of fact thus raised, involving : 1. The competency of the decedent to make a last will and testament. 2. The freedom of the decedent at the time of the execu- tion of the will from duress, menace, fraud, or undue in- fluence. 3. The due execution and attestation of the will by the decedent or subscribing witnesses ; or, 4. Any other question substantially affecting the validity of the will must be tried and determined by the court. On the trial the contestant is plaintiff, and the petitioner is defendant.^^ Sec. 730. The court must give in writing findings of fact and conclusions of law. The court, after hearing the case, must give in writing the findings of fact and conclusions of law upon the issues suh- 16 Snyder, 5,156; Wilson, 1,497; 1 7 Snyder, 5,157; Wilson, 1,498; California, 1,309 (Kerr), similar. California, 1,312 (Kerr), similar. 523 DESCENT AND DISTRIBUTION. §§ 731-733 mitted, and upon these the court must render judgment, either admitting the will to probate or rejecting it. In either case, the proofs of the subscribing witnesses must be reduced to writing. If the will be admitted to probate, the judgment, will and proofs must be recorded.^^ Sec. 731. Subscribing witnesses who must be produced and examined—Proof of handwriting admitted. If the will is contested, all the subscribing witnesses who are present in the county, and who are of sound mind, must be produced and examined; and the death, absence or in- sanity of any of them must be satisfactorily shown to the court. If none of the subscribing witnesses reside in the county, and are not present at the time appointed for proving the will, the court may admit the testimony of other wit- nesses to prove the sanity of the testator, and the execution of the will; and, as evidence of the execution, it may admit proof of the handwriting of the testator and of the sub- scribing witnesses, or any of them.^^ Sec. 732. Testimony of each witness reduced to writing. The testimony of each witness, reduced to writing and signed by him, shall be taken, kept and filed by the judge, and shall be good evidence in any subsequent contests or trial concerning the validity of the will, or the sufficiency of the proof thereof, if the witness be dead, or has permanently removed from this State.-^ Sec. 733. Certificate or proof and facts found to be issued, if court satisfied upon proof. If the court be satisfied upon the proof taken that the will was duly executed, and that the testator was, at the time of 18 Snyder, 5,158: Wilson, 1,499. 20 Snyder. 5,160; Wilson, 1,501; 19 Snyder, 5.159; Wilson, 1,500; California, 1,316 (Kerr), identical; California, 1,315 (Kerr), identical; Estate of Warfield, 22 Cal. 51. Estate of Tyler, 121 Cal. 405, 53 Pac. 928; Estate of McCarty, 58 Cal. 335. §§ 734-737 MER wine's trial of title to land. 524 the execution thereof of sound and disposing mind, and not acting under duress, menace, fraud or undue influence, a certificate of the proof and the facts so found, signed by the judge and attested by the seal of the court, must be attached to the will.-^ Sec. 734. Certificates together with evidence must be filed. The will and the certificate of the proof thereof, together with all the evidence taken, must be filed "by the judge, and recorded by him in a book to be provided, at the charge of the county, for that purpose.^^ Sec. 735. Will duly proved and allowed in any foreign country or State may be recorded, when. Every will duly proved and allowed in any other of the Territories, or in any of the United States or the District of Columbia, or in any foreign country or State, may be allowed and recorded in the county court of any county in which the testator shall have left any estate, or any estate for which claim is made.-^ Sec. 736. Copy of will duly authenticated produced by ex- ecutor must be filed — Petition hearing. When a copy of the will and the probate thereof, duly authenticated, shall be produced by the executor, or by any other person interested in the will, with a petition for letters, the same must be filed, and the court or judge must appoint a time for the hearing, notice whereof must be given as pro- vided for an original petition for the probate of a will.-* Sec. 737. Must be admitted to probate when, and letters tes- tamentary issued. If, on the hearing, it appears upon the face of the record that the will has been proved, allowed and admitted to pro- 2iSnydpr, 5J61; Wil«on, 1,502. 24 Snyder, 5,164; Wilson, 1,505; 22 Snyder, 5,162; Wilson, 1,503. California, 1,323 (Kerr), similar. 23 Snyder, 5,163; Wilson, 1,504; California, 1,322 (Kerr), similar. 525 DESCENT AND DISTRIBUTION. § 738 bate, in any other of the Territories, or any State of the United States, the District of Columbia, or in any foreign country or State, and that it was executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, or in conformity with the laws of this State, it must be admitted to probate, be certified in like manner according to the facts, and recorded, and have the same force and effect as a will first admitted to probate in this State, and letters testamentary or of admin- istration issued thereon.^^ Sec. 738. Within one year after probate any person inter- ested may contest same — Petition — Material facts to be shown. When a will has been admitted to probate, any person in- terested therein may at any time within one year after such probate, contest the same or the validity of the will. For that purpose he must file in the court in which the will was proved a sworn petition in writing containing his allegations, that evidence discovered since the probate of the will, the material facts of which must be set forth, shows : 1. That a will of a later date than the one proved by the decedent, revoking or changing the former will, has been dis- covered, and is offered; or, 2. That some jurisdictional fact was wanting in the former probate ; or, 3. That the testator was not competent, free from duress, menace, fraud or undue influence when the will allowed was made ; or, 4. That the former will was not duly executed and at- tested. =^« 25 Snyder, 5,165; Wilson, 1,506; 20 Snyder, 5,166; Wilson, 1,507; California, 1,324 (Kerr), similar. California, 1,327 (Kerr), similar. §§ 739-741 merwine's trial of title to land. 526 Sec. 739. Executors or administrators and all legatees and devisees must be cited. Upon filing the petition, a citation must be issued to the executors of the will, or to the administrators with the will annexed, and to all the legatees and devisees mentioned in the will, and heirs residing in the State, so far as known to the petitioner, or to their guardian, if any of them are minors, or their personal representatives, if any of them are dead, requiring them to appear before the court on some day of a regular term therein specified, to show cause why the probate of the will should not be revoked.-^ Sec. 740. If will offered by petition, it must show all required in original case. If another wall be offered by the petition, it must show all that is required in the original case of a petition for the probate of a will, and like notices must be served in the same manner, and upon all the parties, as required before the hearing of proof of any will originally: Provided, That such notices need not be served on any persons upon whom the citation required in the preceding section is to be served.^^ Sec. 741. After service of citations, court must proceed to try the issues — Judgment. At the time appointed for showing cause, or at any time to which the hearing is postponed, personal service of the citations having been made upon the persons named therein, and the required publication, posting and service of the notices having been made, and all duly proved, the court must proceed to try the issues joined in the same manner as in an original contest of a will. If upon hearing the proofs of the parties the court shall decide that 1he will is, for any of the reasons alleged, invalid, or that it is not proved to 27 Snyder, 5,167; Wilson, 1,508; 28 Snyder, 5,168; Wilson, 1,509. California, 1,328 (Kerr), similar. 527 DESCENT AND DISTRIBUTION. §§ 742-744 be the last will of the testator, the probate must be annulled and revoked; and if the court shall decide that the new will is valid, it may admit the same to probate in the same manner as originally upon the probate of a contested will.-'* Sec. 742. Revocation being made, powers of executors cease — Acts done in good faith, executor not liable. Upon the revocation being made, the powers of the executor or administrator with the will annexed, must cease ; but such executor or administrator shall not be liable for any act done in good faith previous to the revocation.^** Sec. 743. Pees and expenses paid by contesting party or by party resisting revocation. The fees and expenses must be paid by the party contesting the validity or probate of the will, if the will in probate be confirmed. If the probate be annulled and revoked, the costs must be paid by the party who resisted the revocation, or out of the property of the decedent, as the court directs.^^ Sec. 744. Probate conclusive after one year. If no person, within one year after the probate of a will, contests the same or the validity thereof, the probate of the will is conclusive, saving to infants and persons of unsound mind, a like period of one year after their respective dis- abilities are removed.^^ 29 Snyder, 5,169; Wilson, 1,510; si Snyder, 5,171; Wilson, 1,512; California, 1,329 (Kerr), similar. California, 1,332 (Kerr), identical; 30 Snyder, 5,170; Wilson, 1,511; Estate of Crozier, 65 Cal. 332, 4 California, 1,331 (Kerr), identical; Pac. 109; Goldtree v. McAlister, 83 Estate of Graves, 6 Cal. App. 716, Cal. 93, 24 Pac. 801; Estate of 96 Pac. 729; Estate of Crozier, 65 McKinney, 112 Cal. 447, 44 Pac. Cal. 332, 4 Pac. 109; Estate of 743; Estate of Bump, 152 Cal. 271, Freud, 73 Cal. 555, 15 Pac. 135; 92 Pac. 642; Estate of Olmstead, Clements v. McGinn, 33 Pac. 920; 120 Cal. 447, 52 Pac. 804. Samson v. Samson, 64 Cal. 327, 30 32 Snyder, 5,172; Wilson, 1,513; Pac. 979. California, 1,333 (Kerr), identical; §§,745-747 merwine's trial of title to land. 528 Sec. 745. Lost or destroyed will — How probated. Whenever any will is lost or destroyed, the county court must take proof of the execution and validity thereof, and establish the same, notice to all persons interested being first given, as prescribed in regard to proofs of wills in other cases. AU the testimony given must be reduced to writing, signed by the witnesses, filed and preserved.^^ Sec. 746. Lost or destroyed will must have been in existence at death of testator. No will shall be proved as a lost or destroyed will, unless the same is proved to have been in existence at the time of the death of the testator, or is shown to have been fraud- ulently destroyed in the lifetime of the testator, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses.^* Sec. 747. Lost will established — Provisions distinctly stated and certified — Filed and recorded — Letters issued. When a lost will is established, the provisions thereof must be distinctly stated and certified by the judge of the county court, under his hand and the seal of the court, and the certifi- cate must be filed and recorded as other wills are filed and recorded, and letters testamentary or of administration with the will annexed, must be issued thereon in the same manner as upon wills, produced and duly proved; the testimony must be reduced to writing, signed, certified, and filed as in other cases, and shall have the same effect as evidence as provided in sections from 5157 to 5162, inclusive.^^ Samson v. Samson, 64 Cal. 327, 30 33 Snyder, 5,173; Wilson, 1,514. Pac. 979; Clements v. McGinn, 33 34 Snyder, 5,174; Wilson, 1,515; Pac. 920; Estate of Freud, 73 Cal. California, 1,339 (Kerr), similar. 555, 15 Pac. 135; Estate of Pritch- 35 Snyder, 5,175; Wilson, 1,516. ett, 51 Cal. 568, 52 Pac. 94; Estate of Maxwell, 74 Cal. 384, 16 Pac. 206. 529 DESCENT AND DISTRIBUTION. §§ 748-750 Sec. 748. Pending application to prove lost or destroyed will, court may restrain administrators. If before or during the pendency of an application to prove a lost or destroyed will, letters of administration are granted on the estate of the testator, or letters testamentary of any previous will of the testator are granted, the court may restrain the administrators or executors so appointed from any acts or proceedings which would be injurious to the legatees or devisees claiming under the lost or destroyed wilL^« Sec. 749. Nuncupative wills — Probate of— Petition — Testa- mentary words. Nuncupative wills may at any time, within six months after the testamentary words are spoken by the decedent, be admitted to probate on petition and notice as provided for the probate of wills executed in writing. The petition, in addition to the jurisdictional facts, must allege that the tes- tamentary words or the substance thereof, were reduced to writing within thirty days after they were spoken, which writing must accompany the petition.^^ Sec. 750. Court must not entertain petition until lapse ol fifteen days — Interested parties notified. The county court must not receive or entertain a petition for the probate of a nuncupative will until the lapse of fifteen days from the death of the testator, nor must such peti- tion be at any time acted on, unless the testamentary words are, or their substance is, reduced to writing, and filed with the petition, nor until the surviving husband or wife, if any, and all other persons resident in the State or county, inter- ested in the estate, are notified, as provided in sections 5145 to 5156, inclusive."^ 36 Snyder, 5,176; Wilson, 1,517. 38 Snyder, 5,178; Wilson, 1,519= 3T Snyder, 5,177; Wilson, 1,518. §§ 751-754 mebwine's trial of title to land. 530 Sec. 751. Contest of probate or nuncupative wills — How con- ducted. Contests of the probate of nuncupative wills and appoint- ments of executors and administrators of the estate devised thereby must be had, conducted and made as hereinbefore provided in cases of the probate of written wills: Provided, that double the period allowed for the petition of revocation of the probate of a written will shall be allowed in which to petition for the revocation and annulling of the nuncupa- tive will."® Sec. 752. Court admitting will to probate must issue letters. The court admitting the will to probate after the same is proved and allowed, must issue letters thereon to the persons named therein as executors, who are competent to discharge the trust, who must appear and qualify unless objections be made as provided in the second section following.*"* Sec. 753. Persons competent to serve as executor. No person is competent to serve as executor who at the time the will is admitted to probate, is: 1. Under the age of majority. 2. Convicted of an infamous crime. 3. Adjudged by the court incompetent to execute the du- ties of the trust by reason of drunkenness, improvidence, or want of understanding and integrity. If the sole executor or all the executors are incompetent, or renounce or fail to apply for letters, or to appear and qualify, letters of administration with the will annexed must be issued.*^ Sec. 754. Who may file objections to granting letters tes- tamentary. Any person interested in a will may file objections in writ- ing, to granting letters testamentary to the persons named 39 Snvdcr, 5,179; Wilson, 1,520. « Snyder, 5,181; Wilson, 1,522; 40 Snyder, 5,180; Wilson, 1,521; California, 1,350 ( Kerr ), similar. California, 1,349 (Kerr), similar. 531 DESCENT AND DISTRIBUTION. §§ 755-757 as executors, or any of them; and the objections must be heard and determined by the court. A petition may, at the same time, be filed for letters of administration, with will annexed.*^ Sec. 755. No executor of an executor authorized to admin- ister estate of first testator. No executor of an executor shall, as such, be authorized to administer on the estate of the first testator, but on the death of the sole or surviving executor of any last will, letters of administration with the will annexed, of the estate of the first testator, left unadministered, must be issued.** Sec. 756. Qualified executor may act during minority or ab- sence of another executor. "Where a person absent from the State, or a minor, is named executor, and there is another executor who accepts the trust and qualifies, the latter may have letters testamentary and administer the estate until the return of the absentee, or the majority of the minor, who may then be admitted as joint executor. If there is no other executor, letters of admin- istration with the will annexed, must be granted; but the court may, in its discretion, revoke them on the return of the absent executor, or the arrival of the minor at the age of majority.** Sec. 757. When all executors named are not appointed, those appointed may act — When coexecutor may act for all. "When all the executors named are not appointed by the court, those appointed have the same authority to perform all the acts and discharge the trust required by the will, 42 Snyder, 5,182; Wilson, 1,523. 44 Snyder, 5,185; Wilson, 1,526; 43 Snyder, 5,184; Wilson, 1,525; California, 1,354 (Kerr), identical; California, 1,353 (Kerr), identical; Estate of Brown, 80 Cal. 381, Z2 Wetzler v. Fitch, 52 Cal. 638. Pac. 233; Estate of Kelley, 122 Cal, 379, 55 Pac. 136. §§ 758, 759 MBR wine's trial of title to land. 532 as effectually for every purpose as if all were appointed and should act together; when there are two executors or admin- istrators, the act of one alone shall be effectual, if the other is absent from the State, or laboring under any legal dis- ability from serving, or if he has given his coexecutor or coadministrator authority, in writing,- to act for both ; and when there are more than two executors or administrators, the act of a majority of them is valid.^^ Sec. 758. Administrators with will annexed have same au- thority as executors. Administrators with the will annexed have the same au- thority over the estates which executors named in the will would have, and their acts are effectual for all purposes. Their letters must be signed by the judge of the county court, and bear the seal thereof.*" Sec. 759. Form of letters. Letters testamentary must be substantially in the following form: State of Oklahoma, County, ss. : The last will of A. B., deceased, a copy of which is hereto an- nexed, having been proved and recorded in the county court of the county of , C. D., who is named therein, is hereby appointed executor. Witness, G. H., judge of the county court of the county of , with the seal of the court affixed, the day of , A. D. 19—. , (Seal and Official Signature of the Judge. )*^ 45 Snyder, 5,186; Wilson, 1,527; 157, 11 L. R. A. 2G4; Estate of California, 1,355 (Kerr), identical; Sanderson, 74 Cal. 199, 15 Pac. 753; Willis V. Farley, 24 Cal. 490; Estate of Scott, 1 Cal. App. 740, 83 Estate of Carver, 123 Cal. 102, 55 Pac. 85. Pac. 770; Hope v. Jones, 24 Cal. 46 Snyder, 5,187; Wilson, 1,528; 90; Avila v. Burnett, 33 Cal. 658; California, 1,356 (Kerr), similar. Estate of Osborn, 87 Cal. 1, 25 Pac. 4r Snyder, 5JS8; Wilson, 1,529. 533 DESCENT AND DISTRIBUTION. §§ 760-762 Sec. 760. Letters of administrator with will annexed — Form of. Letters of administration with will annexed must be sub- stantially in the following form: State of Oklahoma, County, ss. : The last will of A. B., deceased, a copy of which is hereto annexed, having been proved and recorded in the county court of the county of , and there being no executor named in the will (or, as the case may be), C. D. is hereby appointed ad- ministrator, with the will annexed. Witness, G. H., judge of the county court of the county of , with the seal of the court affixed, the day of , A. D. 19—. , (Seal and Official Signature of the Judge. )^« Sec. 761. Letters must be signed by judge under seal. Letters of administration must be signed by the judge, under the seal of the court, and substantially in the following form: State of Oklahoma, County, ss. : C. D. is hereby appointed administrator of the estate of A. B., deceased. Witness, G. H., judge of the county court of the county of , with the seal thereof affixed, the day of , A. D. 19—. , (Seal and the Official Signature of the Judge. )*« Sec. 762. Form for will leaving estate to wife. LAST WILL AND TESTAMENT. I, , of the of , county of and State of Oklahoma, being of full age and sound mind and mem- ory, do make, publish and declare this to be my last will and testament, hereby revoking all former wills by me heretofore made: 48 Snyder, 5,189; Wilson, 1,530. 49 Snyder, 5,190; Wilson, 1,531; California, 1,362 (Kerr), similar. § 763 merwine's trial of title to land. 534 Item I. I direct that all my just debts and funeral expenses be paid out of my estate as soon as practicable after the time of my decease. Item II. All the property, real and personal, of every kind and description, wheresoever situated, which I may own or have the right to dispose of at the time of my decease, I give, bequeath and devise to my wife, , absolutely and in fee simple. Item III. I make, nominate and appoint my said wife, , to be executrix of this my last will and testament, and I request that no bond be required of her as such, and I further request that no inventory of my estate be made or taken in so far as the same may be lawfully omitted. In Testimony Whereof, I have hereunto affixed my hand and seal this day of , 19 — . r Seal. 1 . Signed and acknowledged by the said as and for his last will and testament in our presence, and by us subscribed as attesting witnesses in his presence, and at his request and in the presence of each other, this day of , 19 — . Residing at Residing at Sec. 763. Another form for will leaving estate to wife, also giving executrix power of sale and compromise. LAST WILL AND TESTAMENT. I, , of the , county of and State of Okla- homa, do make and publish the following as my last will and testament, hereby revoking all former wills made by me. Item I. I direct that all my debts and funeral expenses be first paid out of my estate. 535 DESCENT AND DISTRIBUTION. § 763 Item II. Reposing full confidence in my beloved wife, , and knowing that the welfare of our children, and can be fully intrusted to her, I give, devise and bequeath all my estate, real, personal and mixed, wheresoever situated, to my said wife, , and to her heirs forever. Item III. I hereby nominate and appoint my said wife, , the executrix of this, my last will and testament, and hereby authorize and empower my said executrix to compound, compromise, settle and adjust all debts and claims which may be presented against my estate, or which may be due to my estate; and to sell, at private or public sale, at such prices and upon such terms of credit or otherwise, as she may deem best, the whole or any part of my real estate or personal property, and to execute, acknowledge and deliver deeds and other proper instru- ments of conveyance thereof, to the purchaser or purchasers, as fully and completely as I could do if I were living, and were to execute, acknowledge and deliver such instruments of con- veyance and transfer, hereby relieving the purchaser thereof from seeing to the proper application of the purchase money thereof. I direct that no bond be required of my said executrix, and that no inventory or appraisal of my estate be made so far as the law will permit. In Witness Whereof, I have hereunto set my hand and seal at , Oklahoma, this day of , 19 — . [Seal.] . Signed, sealed and acknowledged by the said , to be his last will and testament, before us and in our presence, and by us signed as witnesses at his request and in his presence, and in the presence of each other, at , Oklahoma, on this day of , 19—. Residing at , Oklalioma. Residing at , Oklahoma. § 764 MERWINE 'S TRIAL OF TITLE TO LAND. 536 Sec. 764. Another form for will making specific bequests with devise to widow for life or during widow- hood, with residuary clause. LAST WILL AND TESTAMENT. I, , of the of , county of and State of Oklahoma, being of full age and sound mind and memory, do make, publish and declare this to be my last will and testa- ment, hereby revoking all wills by me heretofore made. Item I. I direct that all my just debts and funeral expenses be paid out of my estate as soon as practicable after the time of my decease. Item II. I give and bequeath to my sister, , of , the sum of $ , in cash. Item III. I give and bequeath to College, of , the sum of $ , in cash, to be applied for the general pur- poses of such college. Item IV. I give and bequeath to my wife, , all house- hold furniture, books, pictures and all other household effects which shall be in and about my residence at the time of my decease. Item V. I give and devise to my wife, , during her natural life, or so long as she remains my widow, my real prop- erty situated in the county of , State of Oklahoma, and more particularly described as follows, to-wit: (Here specifically describe same.) After the death of my said wife, , or in event of her remarriage, I give and devise said real estate to my sister of , her heirs and assigns forever. Item VI. All the residue of my estate, real and personal, of every kind and description, wheresoever situated, which I may own or have the right to dispose of at the time of my death, I give and devise to and , absolutely and in fee simple. Item VII. I make, nominate and appoint and to be executors of this, my last will and testament. 537 DESCENT AND DISTRIBUTION. § 765 In Testimony Whereof, I have hereunto set my hand and seal at , Oklahoma, this day of , 19 — . [Seal.] . Signed and acknowledged by the said as and for his last will and testament in our presence, and by us subscribed as attesting witnesses in his presence and at his request, and in the presence of each other, this day of , 19 — . Residing at Residing at Sec. 765. Form for a provision in a will in trust for wife during life with remainder to children, advance- ments to be deducted. Item . I give, devise and bequeath to my executor, here- after named, in trust, all of my property, real and personal, of every kind and description, wheresoever situated, to be held and used by him during the life of my wife, , upon the fol- lowing trusts, to-wit : I give, devise and bequeath to my beloved wife, should she need or desire the same, the entire net income from all of my estate, so long as she may live. If, for any reason, the net income of my estate shall not be sufficient to amply support my said wife, then my said executor is hereby authorized, in the exercise of his discretion, to use so much of the principal of my estate as shall be needed for such purpose. I have made gifts and advances from time to time to my chil- dren, , and , all of which gifts and ad- vances, whether now or hereafter made by me, as they appear in a book kept by me, now in the possession of my son, shall be considered as advances to my said cliildren, and they shall each and all be bound thereby, and I fully authorize and empower my said executor, whenever he may deem it prudent so to do from the income of my estate, if not all used by my §§766,767 merwine's trial op title to land. 538 said wife, or from the principal, if it is necessary so to do, to equalize the advances to my said children, by advancing to such of said children who have received less amounts than the others, such sum, or sums, at such time or times, as my executor shall deem proper, as shall equalize the advances made to each and all of my said children. The judgment and discretion of my said executor, as exercised in making any advances or distributions, shall be final and conclusive. Upon the death of my wife, , I give, bequeath and devise all my estate, both real and personal, then remaining undisposed of in the possession of my executor, to my children, J and , and their heirs and assigns forever, to be divided among them in such manner that my children shall all share equally in my estate. All gifts and advances which shall have up to that time been made by full authority of myself, as appears upon my said book, or by my executor as hereinbefore provided, shall be charged to each of said children to whom such gifts or advances shall have been made, and their amounts equalized, to the end that all of my said children shall share alike and equally in my estate. Sec. 766. Form for provision in a will giving power to trus- tee to continue business. I further authorize and empower my said trustee heretofore appointed herein by me, in the exercise of his discretion, to carry on any or all business conducted by me at the time of my decease, or in which I may be then interested, whether alone or in part- nership with others, and to continue the same for such time as, in the judgment of such trustee, shall be for the best interest of my estate, and to extend or renew any such partnership, or terminate the same, as said trustee shall think fit. Sec. 767. Form for devise of real estate to wife for life with remainder to brothers and sisters. Item . I give and devise to my wife, , during her natural life, all my real estate wheresoever situated, and, 539 DESCENT AND DISTRIBUTION. §§768,769 after her death, I give and devise all my said real estate to my brothers and sisters, , , and , equally, share and share alike. Sec. 768. Form for devise to wife for life with remainder to children. Item . I give and devise to my wife, , the fol- lowing described real estate in County, Oklahoma, to-wit : (Here specifically describe same), for and during her natural life ; and, after her death, I give and devise the same to my chil- dren, , and , in equal shares, absolutely and in fee simple. Sec. 769. Skeleton form for codicil to last will and testament. CODICIL TO FOREGOING LAST WILL AND TESTAMENT. I, , of the county of and State of Oklahoma, do hereby make, publish and declare this codicil to my last will and testament, dated the day of , 19 — : T hereby revoke and annul Item and Item of said will, and in lieu thereof, I substitute the following to be deemed and taken as if originally inserted in said will as said Items and , respectively: (Here insert the pro- visions indicated, giving to each the Item of the will to which the codicil is attached.) I hereby ratify and confirm my said will in all other respects. In "Witness Wiiekeop, I have hereunto set my hand and seal this day of , 19 — . [Seal.] . Signed and acknowledged by the said as and for a codicil to his last will and testament in our presence, and by us subscribed as attesting witnesses in his presence, at his request § 770 merwixe's trial of title to land. 540 and in the "resence of each other, this day of , 19—.* , Residing at , OklaJioma. Residing at , Oklahoma. Sec. 770. The procedure by which a last will and testament is admitted to probate — The form for the peti- tion for probate of a will. In the County Court in and for County, Oklahoma. In the Matter of the Estate of Deceased. No. . PETITION FOR PROBATE OF WILL. Comes now and shows to the court that departed this life near , Oklahoma, on or about the day of , 19 — , and that said decedent was, at the time of his death, a resident of County, Oklahoma; that decedent left an estate in said county and State, the general character and value of which is hereinafter stated : that said decedent left a will bearing date of the day of , 19 — , which petitioner alleges to be the last will and testament of deceased, and which is herewith presented for probate ; that the person named in said will as executor, consents to act as such, and that for whom letters testamentary are prayed herein, is a resident of County, Oklahoma ; that the names, ages and residences of the heirs and devisees of decedent, so far as known to petitioner, are as folloM^s: (Here insert same) : that the gen- eral character and probable value of said estate is as follows: (Hore insert same.) "Wherefore, petitioner prays tnat, upon a hearing hereof, said Mnll be admitted to probate, and letters testamentary be issued to . ■ , Petitioner. * The fore?oin'T forms are adapted sion of the W. H. Anderson Com- from Couse's Form Book hy permis- pany, publishers, Cincinnati, Ohio. 541 DESCENT AND DISTRIBUTION. §§771,772 Sec. 771. Form for order of hearing petition for probate of will. State of Oklahoma, County, ss. : In the CoTinty Court. In the Matter of the Estate of . Deceased. No. . ORDER FOR HEARING PETITION FOR PROBATE OF WILL. On this day of , 19—, having filed in this court an instrument purporting to be the last will and tes- tament of , deceased, with a petition that the same be admitted to probate, and that letters testamentary issue thereon to . It is ordered that said petition be, and hereby is, set for hearing on the day of , 19—, at o'clock, — m., and that notice thereof be given by posting copies of the notice for hearing said petition in three public places in County, Oklahoma, and that copies of said notice be mailed to the heirs at law or devisees of deceased, residents of said State, as required by law. ■ ' Judge of the County Court. Sec. 772. Form for notice of hearing of probate of will. State of Oklahoma, County, ss. : In the County Court. In the Matter of the Estate of , Deceased. ^o- • NOTICE OF HEARING PROBATE OF WILL. Notice is hereby given to all persons interested in the estate of , deceased, that on the day of , 19—, produced and filed in the county court of the county of , State of Oklahoma, an instrument in writing, purport- ing to be the last will and testament of , deceased, and also filed in said court his petition, praying for the probate of said will, and that letters testamentary issue thereon to , §§773,774 merwine's trial of title to land. 542 the executor named in said will, and that said petition will be heard at the courtroom of said court, in the city of , in said county and State on the day of , 19 — , at the hour of o'clock, — m., of said day, when and where all persons interested can appear and show cause, if any they have, why the prayer of said petition should not be granted. In Testimony Whereof, I have hereunto set my hand and affixed the seal of the county court this day of , 19—. [Seal.] Judge of the County Court. Sec. 773. Form for proof of posting and mailing the fore- going notice. State of Oklahoma, County, ss. : I, , being first duly sworn, on oath, state that on the day of , 19 — , I posted copies of the above and foregoing notice in three public places in County, Okla- homa, to-wit : one at , one at and one at , all in , in the said county of , and that I deposited in the postoffice in , in said County, Oklahoma, on the day of , 19 — , copies of the above notice, postage paid, and addressed to the following persons, to-wit: (Here insert names as given in petition), whose postoffice ad- dresses are as follows: (Here insert same.) Subscribed and sworn to before me this day of , 19—. , My commission expires . Notary Public. Sec. 774. Form for written testimony of subscribing witness to last will and testament. State of Oklahoma, County, ss. : In the County Court. In the Matter of the Estate of , Deceased. No. . , being first duly sworn, on oath states : I reside in the county of and State of Oklahoma ; I am years of 543 DESCENT AND DISTRIBUTION. §775 age ; I knew on the day of , 19 — , the date of the instrument now shown to me, marked as filed in this court on the day of , 19 — , purporting to be the last will and testament of said , deceased. I am , whose name appears as one of the subscribing witnesses to said instrument; said name so subscribed is my signature. I also knew at the date of said instrument the other of said subscribing witnesses. This said instrument was signed by said , at , in the county of , State of Oklahoma, on the day of , 19 — , the day it bears date, in the presence of said and myself, and said , upon signing the same, declared to us that said instrument was his last will and testa- ment and requested us to sign the same as witnesses; the said , and I thereupon, in the presence of said , and in the presence of each other, subscribed our names thereto. On said day, at the time said instrument was executed, said was of the age of years, or thereabouts, and was of sound and disposing mind, and was not acting under duress, menace, fraud, undue influence or misrepresentation, and that said will was executed in all particulars as required by law. Subscribed and sworn to in open court this day of -, 19-. [Seal.] Judge of the County Court. Sec. 775. Form for protest of heirs against allowing probate of last will and testament. In the County Court in and for County, Oklahoma. In the :\Iatter of the Probate of the Last Will and Testament of , Deceased. No- • PROTEST OF HETRS AGAINST ALLOWING PROBATE OF LAST WILL AND TESTAMENT Come now and , ■» and an(i , and , minors, by , their § 775 MEBWINE 'S TRIAL OF TITLE TO LAND. 544 next friend, and enter this their protest and objection to the granting of letters to , and the probate of the pretended last will and testament of , for the following causes : 1. The protestants charge that said last will and testament is not executed as required by law, in that it was not signed by said , nor was it executed by him, either by mark or in any manner recognized as an execution of any last will and testament under the law. 2. Because the said last will and testament was never pub- lished by said , as his last will and testament, and de- clared to be his last will and testament as required by law. 3. Because said was, at the time of making said will, and at the time of his death, a full blood Creek citizen, and the lands attempted to be conveyed and alienated by said will were, by the laws of the United States, restricted from alienation, as the allotment of the said during his lifetime. 4. That the said will, if probated, and the estate distributed under and according to the terms of said will, will effectually disinherit the above named persons, who are all children of said , and that said will was not acknowledged or ap- proved by any United States commissioner or judge of any United States court for the Indian Territory, as provided by the laws of the United States. 5. Because the said did not know or understand the meaning, purport and consequences of his act in signing the said purported last will and testament, for the reason that he was a full blood Creek Indian, and had little, if any, understanding of the English language, and was wholly ignorant of the Anglo- Saxon race regarding the making of wills ; that said had never heard of such a thing as a Creek Indian alienating lands by means of a will, and the effect and consequences of the making of said will were not sufficiently translated and inter- preted to him, so that he could act intelligently in the making of said will, and so that he could fully realize the consequences and effect of the making thereof; that said decedent had no desire or intention of cutting off his children and disinheriting 545 DESCENT AND DISTRIBUTION. § 776 them, and did not realize the effect of said will; that, being unable to understand the purpose and effect of said will, he did not publish the same as required bv the statute of this State, and did not declare the said will to the witnesses thereof, as his last will and testament. Wherefore, the above named heirs at law pray that said will be denied probate, and that no letters issue to the executor named in said pretended last will and testament, but that the court appoint an administrator, and said heirs at law do hereby nominate and select as such administrator. Attorney for Protestants. Sec. 776. Form for order appointing guardian ad litem for infant heirs. In tpie County Court in and for County, Oklahoma. In the Matter of the Estate of , Deceased. No. . ORDER APPOINTING GUARDIAN AD LITEM. It appearing to the court that has filed in this cause a last will and testament, purporting to be executed by , in which said is made the principal devisee; and it further appearing that said is guardian of the following named minors: , , and , and that said minor children are heirs at law of ; that their in- terest is adverse to the interest of said — . It is Therefore ordered and adjudged that , a prac- ticing attorney of the bar of County, Oklahoma, be, and he is hereby, appointed guardian ad litem to defend the inter- ests of said minors in said proceedings, and he is hereby ordered to take the necessary steps to protect the interests and rights of said minors. [Seal,] Judge of the County Court. § 777 merwine's trial of title to land. 546 Sec. 777. Form for the protest of guardian ad litem of minor heirs against the probate of the alleged last will and testament. In the County Court in and for County, Oklahoma. In the Matter of the Estate of , Deceased. No. . PROTEST BY GUARDIAN AD LITEM FOR MINOR HEIRS AGAINST PROBATE OF ALLEGED LAST WILL AND TESTAMENT. Come now , , and , minors, by their guardian ad litem, , heretofore duly appointed to represent the interests of said minors in said matter, and protest against the probate of said last will and testament of said • , deceased, which said will, together with a petition for the probate of the same, was duly filed in this court on the day of , 19 — , for the following reasons : 1. Because this court has no power or jurisdiction to probate said will. 2. Because said was a citizen of the Creek Nation, duly enrolled by the commission of the five civilized tribes as a full blood Indian, and because said land, described in said will, to-wit: (Here describe it) was restricted land, it being the allotment of , deceased, which he was prohibited from alienating, conveying or incumbering during his lifetime. 3. Because said will is an attempt to charge the allotment of with a debt or obligation, due from said to the devisee, in violation of the act of Congress kno^^^l as the Sup- plemental Creek Treaty, enacted June 30, 1902. 4. Because said will disinherits these contestants, who are children of said , deceased. 5. Because said will was never approved by any United States Court for the Indian Territory, or United States commissioner, or judge of a county court of the State of Oklahoma, in accord- ance with Federal law. 6. Because said will was not signed by , by his own signature or by mark. 547 DESCENT AND DISTRIBUTION. § 778 7. Because said will was made under duress in that the said , deceased, was in great need of money and the neces- saries of life at the time of the execution of said will, and executed the same upon the promise of devisee, , that he would furnish him money and the necessaries of life ; that said will was not his free and voluntary act and deed, and that he did not understand the nature and consequences of his act. 8. Because said had no capacity to make a will, he being a full blood Indian, and the land which he has attempted to devise being his own allotment, and is restricted, which the said was prohibited from alienating, conveying or in- cumbering during his lifetime. Wherefore, the above named contestants pray that said will be not admitted to probate ; that this court declare said will void and of no effect, and that some competent and suitable person be appointed administrator of the estate of said , deceased. Guardian Ad Litem for said Minor Heirs. Sec. 778. Form for the answer of proponents to protestants to said will. In the County Court in and for County, Oklahoma. In the Matter of the Probate of Last Will and Testament of , Deceased. No. , ANSWER TO PROTEST. Comes now , proponent of the will of , deceased, and, for answer to the protest filed herein, alleges and states: 1. Said proponent denies that said will was not executed as required and described by law, but alleges the truth to be that said will was executed as required by law; that the name of the testator was signed thereto by his permission and at his request, and in his presence; that, at the time of the making and execu- tion of said will, Mansfield's Digest of the Statutes of Arkansas § 779 MERWINE 'S TRIAL OF TITLE TO LAND. 548 was in force in the Indian Territory where said will w^as exe- cuted. 2. Said proponent denies that said will was never published by said , but alleges the truth to be that said will was published by the said to be liis last will and testament as required by law. 3. Said proponent admits that the Creek Treaty of 1902 contains the provision set out in the protest, but denies that the same was in force and effect at the time of the execution of said will, or at the time of the death of said . 4. Proponent denies that said will was not acknowledged or approved by a United States commissioner as provided by law in the act of Congress of the United States of April 26, 1906, but avers the truth to be that said will was executed in accord- ance with said act. 5. Proponent denies that said did not understand fully the effect and consequences of his said act in signing said will, and denies that said will was not sufficiently translated and interpreted to him. 6. Said proponent denies each and every allegation in said protest contained, except such as are herein specifically admitted. Wherefore, proponent prays the court that said will be ad- mitted to probate, and that the protest of said herein filed be dismissed. , Attorneys for Proponent. Sec. 779. Form for order of court admitting will to probate. State of Oklahoma, County, ss. : In the County Court. In the Matter of the Estate of , Deceased. No. . ORDER ADMITTING WILL TO PROBATE. The petition of , heretofore filed herein, praying for the admission of probate of a certain instrument in writing, pur- porting to be the last will and testament pf , deceased, and that letters testamentary be issued to said petitioner, to- 549 DESCENT AND DISTRIBUTION. § 779 gether with the protest of , and , minors, by their guardian ad litem, , and the protest of , and heretofore filed herein, this day coming on regularly to be heard, the hearing having been continued from the day of , 19 — , to this day, and it being proved to the satisfaction of this court that notice has been given as required by law, to all persons interested, of the time appointed for proving said will, and for hearing said petition ; and and , two of the subscribing witnesses of said will, pro- duced in behalf of said petitioner, whose testimony has been reduced to writing and filed with the papers in this cause ; and the court also having heard the evidence against the probate of said will by protestants above named, and, after having heard and considered the evidence offered in support and against the probate of said will, it appears that said instrument is the will of the said , deceased, and that it was executed in all particulars as required by law; that said testator, at the time of the execution of the same, was of sound and disposing mind, and not under any duress, menace, fraud or undue influence ; that said died on or about the day of , 19 — , being a resident of the county of , State of Okla- homa, and at the time of his death left real estate in said State, for and in respect to which, the probate of said will is applied for, which said estate is of the approximate value of $ , and said applicant being competent to act as executor of said estate, it is ordered that said instrument heretofore filed, pur- porting to be the last will and testament of said , de- ceased, be admitted to probate as the last will of the said , deceased; that said be, and he is, hereby appointed executor of said estate, and that letters testamentary issue to said petitioner upon his taking the oath required by law, and giving the bond required by law for the faithful execution of the duties of his trust as such executor, in the sum of $ , with sureties to be approved by the judge of this court.* * The foregoing forms are sub- for the purpose merely of giving mitted not as determining any of the forms of procedure, the law questions raised therein, but § 780 MERWINE 'S TRIAL OF TITLE TO LAND. 550 Done in open court this day of , 19 — . [Seal.] Judge of the County Court. Sec. 780. Form for order of court refusing to probate last will and testament. State of Oklahoma, County, ss. : In the County Court. In the Matter of the Estate of , Deceased. No. . ORDER REFUSING ADMISSION OF LAST WILL AND TESTAMENT TO PROBATE. The petition of , heretofore filed herein, praying for the admission to probate of a certain instrument in writing, pur- porting to be the last will and testament of , deceased, and that letters testamentary be issued thereon to the executor therein named, together with the protest of and , heretofore filed herein, and asking that be appointed administrator of the estate of , deceased, this day coming on regularly to be heard, and it being proved to the satisfaction of this court that notice has been given as required by law to all persons interested in said will, of the time appointed for the proving of said will, and for the hearing of said petition, and and , two of the subscribing witnesses of said will, produced in behalf of said petitioner, whose testimony has been reduced to writing and filed herein, and the court also having heard the evidence offered against the probate of said will by the protestants above named, and after having heard the evidence offered in support of and against the probate of said will, it appears that said instrument in writing is not the last will and testament of said , deceased; that it was not executed in all particulars as required by law ; that said testator at the time of the execution of the same, was not of sound and disposing mind and memory, but was under undue influence, and did not, at the time he executed the same, understand he 551 DESCENT AND DISTRIBUTION. § 781 was signing his last will and testament; that said died on or about the day of , 19 — , being a resident of the county of , State of Oklahoma, at the time of his death, leaving real estate in said county and State, for and in respect to which, the probate of said will was applied for, as aforesaid, which said estate is of the approximate value of $ . It is Therefore ordered that said instrument in writing here- tofore filed herein, purporting to be the last will of the said , be refused probate as the last will of the said , deceased; that said be not appointed executor of said will, and that be appointed administrator of the estate of said , deceased, upon his taking the oath as required by law, and giving the bond required by law, for the faithful execution of the duties of his trust as such administrator, in the sum of $ , with sureties to be approved by the judge of this court. Done in open court this day of , 19 — . Judge of the County Court. Sec. 781. The procedure by which a will is contested after the same has been admitted to probate — The petition in such case. In the County Court in and for County, Oklahoma. In the Matter of the Estate of , Deceased. No. . PETITION TO SET ASIDE PROBATE OF ALLEGED WILL OF , DECEASED. Comes now , \)y her guardian , and states : 1. That she is an infant of tender years, to-wit : years of age. 2. That is her legally appointed and acting guardian, and that she is now and for the past years has been a resident of County, in the State of Oklahoma. § 781 merwine's trial of title to land. 552 3. That she is the only surviving child of , deceased. 4. That the said was a full blood Creek Indian citizen of the Creek nation, and died some time in the month of , 19 — , in what is now County, State of Oklahoma, and left surviving him a widow and one child, the said . 5. That a very short time before the death of the said a paper was executed, signed and witnessed, which pretended to be the last will and testament of the said , and that said pretended will w^as afterwards filed and admitted to probate in the United States Court for the Western District of the Indian Territory, at . 6. That said , by said pretended will, disinherited his wife and deprived her of her dower interest in said estate, and left out a small portion of his property to , his only child, and left the bulk of all his estate to and , both white men, strangers to him in blood, who were his phy- sicians, attending him at his last sickness at the time said pre- tended will w^as made. 7. That at the time said pretended will was made said was on his deathbed, and was so worn out by pain and suffering that his mind was so enfeebled as to be utterly incapable of transacting any business whatever, or to understand in any way the making of a will. 8. That said pretended will was made while said was under duress of said and , and was obtained by them, through duress, undue influence and fraud, which acts of duress, undue influence and fraud were as follows: (Here set cut specific acts of fraud, duress and undue influence.) 9. That said pretended will w^as prepared by the said • and , of their ow^n volition, and was not dictated or sug- gested by the said , and the same was not read over to him before his pretended signature or mark was affixed thereto ; that there was no one present who could read said will in Eng- lish and interpret the same in Creek ; that the said could neither talk or understand the English language, and had no knowledge whatever of the contents of said^will, and that said pretended will was signed and witnessed at the instance, solici- 553 DESCENT AND DISTRIBUTION. § 782 tation and request of the said and , for the purpose of obtaining the property of the said , and de- priving his wife and child of the same. 10. That said pretended will was not executed in accordance vnih the laws then in force in Indian Territory as to the maldng and execution of wills, and could not vest any rights of prop- erty in the devisees named. "Wherefore, your petitioner prays the court that the paper heretofore admitted to probate as said last will and testament of said , deceased, be revoked and canceled and for naught held, and that the probate of the same be set aside; that the proponents, the said and , be taxed with the costs of this proceeding, and that it be adjudged and decreed that said died intestate, and for such other and further relief as to the court may seem just and proper. Attorney for Plaintiff. State of Oklahoma, County, ss. : , being duly sworn, says that he is the legally appointed and acting guardian of said , a minor; that he has read the foregoing petition and knows the contents thereof, and that the same is true to the best of his knowledge and belief. Subscribed and sworn to before me this day of 19—. jMy commission expires . Notary Public. Sec. 782. Form for praecipe for summons in such action. State of Oklahoma, County, ss. : In the County Court. In the i\Iatter of the Estate of , Deceased. No. . To the Clerk of said Court: Please issue summons in the above entitled cause to and , of County, Oklahoma, making same return- able on the day of , 19 — , and designate therein § 783 MER wine's trial of title to land. 554 the day of , 19 — , as answer day, and deliver same to the sheriff of County, and indorse thereon that if defendants fail to answer, judgment will be taken for revoca- tion and cancellation of a will. Attorney for Plaintiff. Sec. 783. Form for a^eement by parties to have cause re- ferred to special judge for the determination of the question as to the setting aside of the will in controversy. In the County Court in and for County, Oklahoma. In the Matter of the Estate of , Deceased. No. . STIPULATION. It is hereby stipulated and agreed by and between the parties to the above entitled cause that said cause may be referred to the Honorable , of , Oklahoma, a member of the bar of County, in good and regular standing, to sit as special judge of the county court of said County, to try said cause, because of the fact that , the regular judge of the county court of said County, has disqualified himself to sit in said cause by reason of his having formed and expressed an opinion as to some of the matters therein, in the discharge of his official duties as judge in probate matters. And it is hereby further stipulated that any irregularity as to the selection of the Honorable as special judge, and as the disqualification of the Honorable , as regular judge, are hereby waived. > Attorney for Plaintiff, Attorney for Defendants. 555 DESCENT AND DISTRIBUTION. §§784,785 Sec. 784. Form for ofiacial oath of special judge. State of Oklahoma, County, ss. : I, , special judge in Probate No. , do solemnly swear that I will support and obey the Constitution of the United States and the Constitution of the State of Oklahoma, and will discharge the duties of my office as special judge in such matter with fidelity; that I have not paid, or contributed, either directly or indirectly, any money or other valuable thing, to procure my appointment, except for necessary and proper expenses expressly authorized by law; that I have not, know- ingly, violated any election law of the State, or procured it to be done by others in my behalf; that I will not, knowingly, receive, directly or indirectly, any money or other valuable thing, for the performance or nonperformance of any act or duty pertaining to my office, other than the compensation al- lowed by law, and I further swear that I will not receive, use or travel upon any free pass or on free transportation during my term of office. • Subscribed and sworn to before me this day of , 19—. , My commission expires . Notary Public. Sec. 785. Form for citation for executors to appear and answer petition. State of Oklalioma, County, ss. : In the County Court. In the Matter of the Estate of , Deceased. No. . To and , Greeting: Whereas, letters were, on the day of , 19 — , issued out of the county court of County, to and , as executors of the estate of — , deceased ; and, Whereas, , by her guardian, , has filed in said court her petition to set aside the probate of the alleged will of §§786,787 merwine's trial op title to land. 556 , deceased, and has asked for a citation to issue in said cause to and : YoTT are Therefore hereby notified and cited to be and appear before said county court at the regular term thereof, to be held at the courtroom in , in said county of , on the day of , 19 — , at the hour of o'clock, — m., of said day, then and there to appear and answer said petition, and show cause, if any exists, why the prayer thereof should not be granted, and, further, to do and perform what shall tlien and there be ordered by said court in said matter. And hereof fail not. By order of the judge of said county court. Witness my official signature and seal of said court this day of , 19—. Clerk of the County Court at , Oklahoma. [Seal. Sec. 786. Form for sheriff's return of his service of said citation. Received this citation on the day of , 19 — , and served the same in my county on the within named and , by delivering to each person a true and correct copy of the within citation on the day of , 19 — . Sheriff. Sec. 787. Form for answer to the petition. In the County Court in and for County, Oklahoma. In the Matter of the Estate of , Deceased. No. . ANSWER OP AND . Come now the above named and , and, for their answer to the petition to set aside the probate of the will of said , deceased, state : * 557 DESCENT AND DISTRIBUTION. § 787 1. That it does not appear that said ever procured the consent of the county court of County, or of any other county, to bring this proceeding, and, therefore, he has no authority to sue. 2. That these defendants state that they have no sufficient knowledge upon which to base a belief as to whether , as alleged, is a child of , deceased, and, therefore, these said defendants deny the same. 3. That they have no sufficient knowledge as to whether , as alleged, was a full blood Creek Indian, and, therefore, they deny the same; they admit that he was a member of the Creek Tribe of Indians by blood. 4. That they deny that by and in the will as alleged, the said disinherited his wife, if wife he had, or that he deprived her of any dower interest, or that he had power to do so, but defendants state that if the said had a wife at that time, she was fully provided for under the law^s in existence; and, further, they state that he had no wife. 5. That they deny that at the time of the execution of said will the said was so worn out with pain and suffering that he was incapable of transacting any business whatever, or that he was in extremis, and wholly lacked any testamentary capacity; that they deny that said was under duress of the said and , or any other person, or that said will was obtained by them, or anyone, through duress, undue influence or fraud. G. That they deny that said wall was prepared by said and of their own volition, and they deny that said will was not read to the said , before his signature thereto was annexed: that they deny that said could not speak Eng- lish, but state that he could speak and understand the English language readily, and that he understood the contents of said will, and that its provisions were as he desired; they further state that relatives and friends of the deceased were constantly wdth him, and that he and they understood said will and the contents thereof. § 788 merwine's trial of title to land. 558 7. Further answering, these defendants state that said will was executed in accordance with law, and with the washes of deceased, and that the same was free from all duress, undue influence or fraud ; that there has been a previous adjudication of this court adverse to the petitioner herein ; that the same was appealed from the county to the district court, where said appeal was dismissed, and that said matter is, therefore, res adjudicata in favor of these defendants ; that said adjudication in the county court was on the day of , 19 — , and that said adjudication in the district court was on the day of , 19 — , at the Term thereof. Wherefore, these defendants pray that the petitioner herein be granted no relief whatever and that this cause be dismissed as to these defendants; that they have judgments for costs by them herein expended, and that they have such other relief as may be just and proper. , Attorneys for and . State of Oklahoma, County, ss. : , being first duly sworn, on his oath states that he is one of the defendants above named ; that he has read the fore- going answer, and that he verily believes the statements therein to be true. . Subscribed and sworn to before me this day of , 19—. , My commission expires . Notary Public. Sec. 788. Form for reply to answer. In the County Court in and for County, Oklahoma. In the Matter of the Estate of , Deceased. No. . REPLY TO ANSWER. Comes now , by her guardian, , and attorneys of record in this case, and, for reply to the answer filed herein, denies each and every material allegation contained in said answer. ; , Attorneys for Plaintiff. 559 DESCENT AND DISTRIBUTION. § 789 Sec. 789. Form for finding of facts and conclusions of law of the special judge. In the County Court of County, OKLAHOiiA. In the Matter of the Estate of , Deceased. No. . FINDING OF FACTS AND CONCLUSIONS OF LAW. This action is to revoke the probate of the last will of deceased, admitted to probate in court, on the (^ay of , in the year , and to have said will declared invalid. The petition alleges that was a full blood Creek Indian, and, at the time he made the will, was mentally incom- petent to make a valid will. The petition further alleges that said , at the time he made said will, was overcome by undue influence exerted by the beneficiaries in said will, and that said instrument was not his ^vill. The petition alleges that said left a child, , an infant, the plaintiff in this action. All the material facts in the petition are denied by the defendants and . Upon the issues thus joined the court heard the testimony of various witnesses on the (Jay of , 19 — , and submits the following findings in writing : FINDINGS OF FACT. 1. was a full blood Creek Indian, more than eighteen years of age at the time of the execution of said last will and testament. 2. The plaintiff, , is the child of , and is a minor of the age of about years, and is his heir at law. 3. It is doubtful if possessed testamentary capacity at the time of making the will in question. 4. That at the time of the execution of the will in question, the relation of physician and patient, a confidential relation, existed between , and the defendants. Doctors and , the beneficiaries under said will. § 790 merwine's trial of title to land. 560 5. That at the time of making said will said was very- weak physically, and was in the practical control of the bene- ficiaries. 6. I find, from undisputed testimony, that one of the bene- ficiaries, , suggested to the making of the will, and that the idea of the will being made originated with Doctor , one of the defendants, and not with , deceased. 7. I find that the terms of the will are unnatural, in one portion recognizing an infant child as his own, and in another portion, giving an unnatural portion of his bounty to strangers to his blood and of a different race. 8. I find that the plaintiff, , by her guardian, , has proper authority to maintain this action. 9. I find that the will in question was not executed in com- pliance with the United States law relating to wills, enacted by Congress, April 26, 1906. CONCLUSIONS OF LAW. From the foregoing findings of fact I conclude, as matter of law, that the will in question is not entitled to probate, and that the order admitting the same to probate should be set aside and held for naught. It is Therefore considered, ordered and adjudged by the court, that the order of the said court of , at , ad- mitting said will to probate, is hereby set aside and held for naught, and that and pay the costs of this action, to which the said and except, and exceptions for them are allowed. Dated this day of , 19 — . Special Judge. Sec. 790. Form for the petition for the probate of a foreign will. State of Oklahoma, County, ss. : In the County Court. In the Matter of the Probate of the Foreign Will of , Deceased » No. . 561 DESCENT AND DISTRIBUTION. § 790 PETITION FOR THE PROBATE OF FOREIGN WILL. Comes now , of the county of , and State of , and represents as follows : (a) That on or about the day of , 19 — , died at , in the county of , in the State of , and at the time of his death he was a resident of the county of , and State of , and left property in the county of , and State of , the character of which and the probable value thereof are as follows, to-wit: (Here specifically describe property, giving its approximate value), the total estate and effects of which the probate of the will herein applied for is asked, does not exceed in value the sum of $ . (&) That on the day of , 19 — , said de- ceased, left a last will and testament, which was duly proved and allowed and admitted to probate by court of ■ County, State of , a duly authenticated copy of which, and the probate thereof, is hereto attached, and made a part hereof, marked "Exhibit A." (c) That said court, at the time of admitting said will to probate, was a court of competent jurisdiction and had jurisdic- tion of said matter and of the parties interested in said estate, and your petitioner is the person named in said will as the executor thereof and consents to act as such executor; that the following persons, together with their postoffice addresses and their ages, are named therein as devisees and legatees, to-wit : (Here specifically set forth same.) (d) That the follo%ving persons are the next of kin of said testator, together with their names, ages and residences, to-wit: (Here insert same.) The Premises Considered, your petitioner prays that said foreign will may be admitted to probate and letters testamentary issue to him ; that this court fix and appoint a time for the proof of said will; that all persons interested be notified to appear at the time appointed for proving the same, and that all necessary and proper orders be made in the premises. Petitioner. § 791 merwine's trial of title to land. 562 State of Oklahoma, County, ss. : , being first duly sworn, says that he is the executor of the estate of said , deceased, and that the facts stated and allegations contained in the foregoing petition are true.* Subscribed and sworn to before me this day of 19—. My commission expires . Notary Public. Sec. 791. Form for certificate of proof of foreign will. State of Oklahoma, County, ss. : In the County Court. In the Matter of the Probate of the Foreign Will of , Deceased. No. . CERTIFICATE OF PROOF OF FOREIGN WILL. I, , judge of the county court of County, Okla- homa, do hereby certify that there was produced by a copy of the last will and testament of , deceased, and the probate thereof in court of the county of , and State of , duly authenticated, and said will, a copy of which is annexed hereto, was, on the day of , 19 — , admitted to probate in this court as the last will of , and from the proceedings taken and from the examination had thereon, on said day, the court finds as follows: That, on the day of , 19 — , in the county of , and State of , said died, at the time of his death being a resident of the county of , and State of . The court further finds that the will, a copy of which is hereto annexed, was duly proved and allowed and admitted to probate as the last will and testament of , deceased, in court of the county of , and State of , by order of said court, duly entered therein on the day of The court further finds that said court, in making said order at said time, was a court of competent jurisdiction, and that aU * The procedure for the notice a resident of the county. The and service of notice upon the practitioner will there find forma parties interested is the same as applicable io such transaction, that for the probate of a will of 563 DESCENT AND DISTRIBUTION. § 792 persons interested in the estate of said decedent were under the power and jurisdiction of said court, and that said will, a copy of which is hereto annexed, was executed according to the laws of , in which State it "w^as made. In Testimony Whereof, I have hereunto signed this certi- ficate and caused the same to be attested by the clerk of this court under the seal thereof, this day of , 19 — . [Seal.] Judge of the County Court. Attest: , Clerk. Sec. 792. Form for order admitting foreign will to probate. State of Oklahoma, County, ss. : In the County Court. In the Matter of the Probate of the Foreign Will of , Deceased. No. . ORDER ADMITTING SAID WILL TO PROBATE. The petition of , heretofore filed herein, praying for the admission to probate of a certain instrument in writing, pur- porting to be the last will and testament of , deceased, heretofore probated in the court of County, State of , this day coming on regularly to be heard, and it being proved to the satisfaction of this court that notice has been given of this hearing as required by law, to all persons interested of the time appointed for admitting said foreign will to probate in this court, and the court also having heard the evidence offered on behalf thereof, and, after having fully con- sidered the same, the court finds that said will has been duly proved, allowed and admitted to probate in the court of County, State of , on the day of , 19 — , and that said will was executed according to the laws of the said State of , in which State the same was made : It is Therefore ordered that said instrument in writing, so filed in the court of County, State of , and made and executed in accordance with the laws of said State, §793 merwine's trial of title to land. 564 a copy of which said last will and testament is hereto attached, be admitted to probate in this county, as the last will of said , deceased, and that be appointed executor of said estate, and that letters testamentary issue to said , on his taking the oath required by law and giving bond as required by law for the faithful execution of the duties of his trust in the sum of $ , vnth sureties to be approved by the judge of this court. Done in open court this day of , 19 — , [Seal.] Judge of the County Court. Sec. 793. The procedure by which a lost will is admitted to probate. In the County Court in and for County, Oklahoma. In the Matter of the Estate of , Deceased. No. . PETITION FOR LEAVE TO MAKE PROOF OF LOST WILL. Comes now and states to the court that he is of , deceased; that said died on the day of , 19 — , in what is now County, Oklahoma ; that said left no children or other descendants, but left as his only heirs at law, the following named persons, to-wit: , his widow; , of , Oklahoma, a brother; , of , Oklahoma, a brother; , of , Oklahoma, a sister ; and that said left a last "u^ll and testament, which was unrevoked and uncanceled at the time of his death ; that said will, at the time of the death of the said , was in the care and custody of one , of , and was, by the said , sent to , the then clerk of the court for the County of ; that said will, while in the pos- session of said , has been inadvertently lost or destroyed ; that diligent search has been made for the same both among the public and private papers of the said , but no trace of said will can be found; that by said will, ^aid disposed 565 DESCENT AND DISTRIBUTION. § 794 of his property of every kind and nature whatsoever, and made one , his niece, a daughter of the above named , his sole heir and legatee ; that said left almost no personal property, and his estate was almost altogether real estate, situ- ated near , in what is now County, Oklahoma; that said will was properly signed, executed, acknowledged and witnessed according to law, and was a valid and subsisting will ; that the will of said was never filed or admitted to probate, and no letters testamentary or of administration have been issued on his said estate; that there has been no legal set- tlement of his affairs, and his property and effects have never been placed in the hands of any legal custodian. Wherefore, your petitioner prays the court that notice be issued to all persons interested that a day be set for the hearing of this petition, and that proof be taken of said last will and testament of said , according to the statute made and provided in case of a lost or destroyed will. Attorney for . State of Oklahoma, County, ss. : , being first duly sworn, on his oath, says that he is the of , mentioned in the above petition, and a nephew of , deceased ; that the facts stated in the above and fore- going petition are true to the best of his knowledge and belief. Subscribed in my presence and sworn to before me this day of , 19—. [Seai..] Notary Public. My commission expires . Sec. 794. Form for order of hearing petition for leave to take proof of lost will. State of Oklahoma, County, ss. : In the County Court. In the Matter of the Estate of , Deceased. No. . § 795 merwine's trial op title to land. 566 ORDER FOR HEARING PETITION TO TAKE PROOF OP LOST WILL. Now, on this day of , 19 — , having filed herein his petition, praying the court that a day be set for hearing proof of the last will and testament of , deceased, and alleging that said will has been lost or destroyed : It is ordered that said petition be, and hereby is, set for hearing on the day of , 19 — , at o'clock, — ■ m., at which time, all persons interested in said estate are required to appear and show cause, if any they have, why the prayer of said petition should not be granted. It is further ordered that a copy of this order be served per- sonally on all persons interested in said estate, residing in County, and that publication thereof be made by printing the same in the , a newspaper of general circulation in this county, for consecutive weeks prior to said day of , 19—. , [Seal.] Judge of the County Court. Sec. 795. Form for proof of publication. State of Oklahoma, County, ss. : , being duly sworn, deposes and says : that he is the of the , a w^eekly newspaper printed and published at , in said county, and having a general circulation therein ; that a notice, of which the annexed is a true copy, was published for consecutive weeks in said newspaper, the first publication in said newspaper being in the issue thereof bearing date of , 19 — , and the last publication of said notice in said newspaper being in the issue thereof bearing date of , 19—. . Subscribed and sworn to before me by , this day of , 19—. , [Seal.] Notary Public. My commission expires . * 567 DESCENT AND DISTRIBUTION. §§796,797 Sec. 796. Form for the annexed notice by publication. State of Oklahoma, County, ss. : In the County Court. In the Matter of the Estate of , Deceased. No. . Now, on this day of , 19— having filed herein his petition, praying the court that a day be set for hear- ing proof of the last will and testament of , deceased, and alleging that said will has been lost or destroyed : It is ordered that said petition be, and hereby is, set for hear- ing on the day of , 19— at o'clock, — m., at which time all persons interested in said estate are required to appear and show cause, if any they have, why the prayer of said petition should not be granted. It is further ordered that a copy of this notice be served per- sonally on all persons interested in said estate, residing m County, and that publication thereof be made by print- ing the same in the , a newspaper of general circulation in this county, for consecutive weeks prior to the day of , 19—. ■ -' ^gEAL.] Judge of the Countij Court. Sec. 797. Form for order for hearing proof of lost will. In the County Court tn and for County, Oklahoma. In the INIatter of the Estate of , Deceased. N^- • ORDER FOR HEARING PROOF OF LOST WILL. This cause coming on this day for hearing on the petition of wherein he states that died at , Oklahoma, on or about the day of , 19—, leaving a last will and testament, which since his death has been lost or destroyed, and prays the court that a day be set for hearing proof taken of said lost \^dll, as provided by law ; and the court, after hearing said petition and the evidence and the arguments of counsel, and § 798 MERWINE 'S TRIAL OP TITLE TO LAND. 568 being fully advised in the premises, finds the facts as stated in said petition to be true, and that the prayer of said petition should be granted. It is Therefore considered by the court and so ordered, that notice be served on all persons interested according to law, and that proof be taken of said lost will at the county court of County, sitting in probate, on the day of , 19 — , at o'clock, — ra., and said proof reduced to writing and filed in this court according to the statute in such cases made and provided. Witness my hand and the seal of said court this day of , 19-. , [Seal.] Judge of the County Court. Sec. 798. Form for notice of the hearing of the proof of lost will. In the County Court in and for County, Oklahoma. In the Matter of the Estate of , Deceased. No. . NOTICE OF HEARING PROOF OF LOST WILL. Whereas, did, on the day of , 19 — , file in this court a petition in which he alleges that died on or about the day of , 19 — , and left a last will and testament disposing of all the property of said , and that said last will has been lost or destroyed, and praying that a day be set for hearing, and an order be made to take proof of said last will as by law provided; and the court, on the day of , 19 — , after hearing the said petition, found the facts stated in said petition were true, and that the prayer of said petition should be granted; thereupon the court directed that proof be taken of said lost will at the office of the judge of the county court in , Oklahoma, and that notice of the time and place of said hearing be served on all persons interested according to law. . » 569 DESCENT AND DISTRIBUTION. §§799,800 Public notice is hereby given that, on day of 19 — , at o'clock, — m., proof of said lost will will be taken at the office of the judge of the county court in County, Oklahoma, and said proof reduced to writing and filed in the office of the judge of said county court, as by law pro- vided, at which time and place all persons interested in said estate are required to appear and show cause, if any they have, why said proof should not be taken. [Seal.] Judge of the County Court. Sec. 799. Form for proof of publication of the foregoing notice.* Sec. 800. The form for the decree of court restoring lost will. State of Oklahoma, County, ss. : In the County Court. In the ]\Iatter of the Estate of , Deceased. No. . DECREE OF COURT RESTORING LOST WILL AND TESTAMENT. This day this cause coming on for hearing, the same having been regularly joined for trial, the court finds that each and every person interested in said matter was served with the notice required by law, or \^ith service by publication in the manner and form as required by law and the statute, and that said executed said last will and testament as in the petition set forth. It is ordered and decreed that all the testimony of the \\dt- nesses shall be reduced to writing and signed by them, and said testiinony filed with the papers in this case and preserved for future reference. * This is the same in manner anfl form as the one just preceding herein. § 800 merwine's trial of title to land. 570 It is further ordered and decreed that the following be, and hereby are, declared to be each and all of the terms and pro- visions, together with the signing, execution and acknowledg- ment of said last will and testament, to-wit: (Here insert the will as found by the court), and I hereby certify under the seal of this court, that the foregoing are oil the terms and provisions of said will as required by the statute in such cases made and provided. Done in open court this day of , 19 — . [Seal.] Judge of the County Court. CHAPTER XIII. LAW AND PROCEDURE IN FORCIBLE ENTRY AND DETENTION ACTIONS. SECTION 801. History of subject. 802. Forcible entry and detainer, a misdemeanor. 803. In what court action to be brought. i804. The notice to quit — How served. SOo. The proof of service of the notice. 806. The three days counted how. 807. The justice shall give restitu- tion, when. 808. The extent of jurisdiction. 809. The action -^ill never try title. 810. The action will lie against the holder of a valid title, who acquires possession by force. 811. The complaint. 812. Xo pleadings required of de- fendant. 813. Procedure — The summons. 814. Service of summons. 815. Trial if defendant fails to appear. 816. Continuance — How secured. 817. The measure of damages for unlawfully detaining prop- erty. 818. Trial and judgment by justice. SECTION 819. Trial and verdict by jury. 820. Exceptions. 821. The issues on appeal to the county court. 822. Execution — Form provided by statute. 823. Stay of proceedings. 824. Form for notice to vacate. 825. Form for complaint generally. 826. Form for complaint for peace- able entry and forcible hold- ing. 827. Form for complaint against occupier of lands without color of title. 828. Another form for complaint. 829. Form for summons and officer's return of. 830. Form for affidavit for continu- ance. 831. Form for jury venire and officer's return of. 832. Form for verdict for plaintiff. 833. Form for verdict for defendant. 834. Form for judgment on the ver- dict. 835. Form for writ of restitution. Sec. 801. History of subject. This action originated by statute in England. It grew out of the fact that, at common law, a man disseized of his land, might recover possession by force. By using force to get possession, the party thus acquiring possession, subjected him- self to a criminal action for the wrong, and the party disseized had no legal method whereby he could acquire possession. 571 §§802,803 merwine's trial of title to land. 572 Following the acts of Parliament on this subject, the various States of the Union have provided remedies for anyone so disseized. The Legislature of this State has provided a remedy not only in cases where the possession is lost by force and arms, but where the possession was lawfully ob- tained, but afterwards, unlawfully held and detained. It is a criminal as well as a civil action. Sec. 802. Forcible entry and detainer, a misdemeanor. The criminal statutes of this State provide that every person guilty of using or procuring, encouraging or assisting another to use any force, or violence, in entering upon or detaining any lands or other possession of another, except in the cases and manner allowed by law, is guilty of a mis- demeanor.^ The statute further provides that, every person who has been removed from any lands by process of law, or who has removed from any lands pursuant to the lawful adjudication or direction of any court, tribunal or other officer, and who afterward, without authority by law, returns to settle or reside upon said lands, is guilty of a misde- meanor.- It further provides that every person who intrudes or squats upon any lot or piece of land within the bounds of any incorporated city or village, without license or authority from the owner thereof, or who erects or occupies thereon any hut, hovel, shanty or other structure whatever without such license or authority ; and every person who places, erects or occupies within the bounds of any street or avenue of such city, or village, any hut, hovel, shanty or other structure whatever, is guilty of a misdemeanor.^ Sec. 803. In what court the action to be brought. The action can be brought only in the court of justices of the peace. The jurisdiction so conferred is original to try all actions for forcible entry and detention, or detention 1 Snyder, 2,513; Wilson, 2,390; 2 Snyder, 2,514; Wilson. 2,391; Dakota Code, 6,693 (1887); Faust Dakota Code, 6,694 (1887). V. Territory, 8 Okla. 541, 58 Pac. 3 Snyder, 2,515: Wilson, 2,392; 728. Dakota CoBe, 6,695 (1887). 573 FORCIBLE ENTRY AND DETENTION § 804: only, of real property,* and the judgment in this court, or any other court to which the action may be appealed, will not be a bar to any other action brought by either party.^ The Legislature wisely made this provision in order that title may be tried in an appropriate action in the district court; for, if it were not for this provision, the judgment of the justice court might be regarded as res adjudicata, and it would thus preclude the district courts deciding questions of title.*^ Sec. 804. The notice to quit — How served. It is made the duty of the party desiring to commence an action under this chapter, to notify the adverse party to leave the premises, for the possession of which the action is about to be brought, and the notice must be served at least three days before the commencement of the action, by leaving a written copy with the defendant, or at his usual place of abode, if he cannot be found ; such notice may also be served by leaving a copy thereof with some person over twelve years of age, on the premises described in the notice/ If any considerable interval of time intervene between the giving of the notice and the commencement of the action, it will operate as a waiver of the notice.^ The notice is waived in cases where the action is brought for failure to pay rent, and the relation of landlord and tenant is denied by the defendant.® The names of the parties who claim the property need not appear in the body of the notice to quit, if the names are signed to the notice given/*' 4 Snyder, 6,428; McDonald v. Richardson v. Penny, 6 Okla. 328, Stiles, 7 Okla. 327, 54 Pac. 487; 50 Pac. 231. McClung V. Penny, 11 Okla. 477, » New, etc., v. Collins, 21 Okla. m Pac. 499; Anderson v. Ferguson, 430, 96 Pac. 607. 12 Okla. 307, 71 Pac. 225. 9 Poison v. Parsons, 104 Pac. 336. 5 Snyder, 6,431; Wilson, 5,088; lo Vansellous v. Huene, 108 Pac. Kansas, 5,016 (1889). 1,102; Oklahoma City v. Hill, 4 eZahn v. Obert, 103 Pac. 704. Okla. 521, 46 Pac. 568; Conoway v. 7 Snyder, 6,432; Wilson, 5,089; Core, 22 Kan. 216; Douglass v. Kansas, 5,017 (1889); Gardner v. Whitaker, 32 Kan. 381, 4 Pac. 874. Kime, 20 Okla. 784, 95 Pac. 242; §§805,806 merwine's trial of title to land. 574 In the State of Ohio, where its statutes are similar to those of this State, it has been held that three days' notice to the tenant holding over, to quit, may be served as well before, as after the end of the term.^^ The notice may be given by an agent in his own name as agent.^^ But the person who claims the premises is the only person who may bring the action under the notice." Sec. 805. The proof of service of the notice. It is not competent to prove the service of this notice to quit, by the indorsement on the same of the manner of service by the person who serves it. Such service is an in- dependent fact and must be proved as any other item of evidence in the case. The notice should clearly show who claims the right of possession, and who makes the demand, as such person alone can maintain the action under the notice,^* Sec. 806. The three days counted, how. In computing the three days for the service of the notice required by statute, the time is counted by excluding the first day. The statute of this State fixes the manner of com- puting the time within which the act must be done. It says, 11 Leutzy v. Herchelrode, 20 0. S. i* Best v. Frazier, 16 Okla. 523, 334. 85 Pac. 1,119. Where the com- 12 Fitzgerald v. Kunn, 18 0. C. C. plaint is founded on a notice which (Ohio), 608. fails at the trial, the plaintiff may 13 Best V. Frazier, 16 Okla. 523, be allowed to amend his pleadings 85 Pac. 1,119. The following cases to conform to the proof, and base show the nature and kind of notice his case upon another notice served required in forcible entry and dc- more than three days before the tainer actions. Douglass v. Ander- commencement of the action. Best son, 4 Pac. (Kan.) 257; Stullar v. v. Frazier, 16 Okla. 529, 85 Pac. Parks, 31 Pac. (Kan.) 301; Peddi- 1,119. cord V. Beck, 86 Pac. (Kan.) 465; Douglass V. Parker, 5 Pac. 178. 575 FORCIBLE ENTRY AND DETENTION. §§807,808 "The time shall be computed by excluding the first day and including the last; if the last be Sunday, it shall be ex- cluded. "^^ Sec. 807. The justice shall give restitution, when. Any justice, within his proper county, is given power to inquire, in the manner hereinafter directed in this chapter, as well against those who make unlawful and forcible entry into lands and tenements, and detain the same, as against those who, having a lawful and peaceable entry into lands or tenements, unlawfully and by force, hold the same, and if it be found, upon such inquiry, that an unlawful and forcible entry has been made, and that the same lands or tenements are held unlawfully, then such justice, under the law, is required to cause the party complaining to have restitu- tion thereof.^'' Sec. 808. The extent of jurisdiction. Proceedings under the law, as set forth in this chapter, may be had in all cases against tenants holding over their terms; in sales of real estate on execution, orders or other judicial process, where the judgment debtor was in posses- sion at the time of the rendition of the judgment, or decree, by virtue of which such sale was made in sales by executors, administrators, guardians and on partition, where any of the parties to the partition were in possession at the com- mencement of the suit, after such sales, so made, on execution or otherwise, have been examined by the proper court, and the same by said court, adjudged legal; and in cases where 15 Snyder, 5,558; Wilson, 4,918; 214; Buck v. Davidson, 79 Pac. Kansas, 5,218 (1901); Schultz v. 119; Van Lear v. Kansas, etc., 43 Hine, 18 Pac. (Kan.) 221; Hook v. Pac. 1,134; City v. Jones, 44 Pac. Bixby, 13 Kan. 164; Dougherty 273; Dwelling v. Osborne, 40 Pac. V. Porter, 18 Kan. 206; Neutzel v. 1,089; Beckwith v. Douglass, 25 Hunter, 19 Kan. 291; Worthy v. Kan. 229. Cooper, 23 Kan. 432; Warner is Snyder, 6,429; Wilson, 5,086; V. Bucher, 24 Kan. 478; English v. Kansas, 5,014 (1889); Nebraska, Williamson, 34 Kan. 212, 8 Pac. 1,962 (1907). § 809 merwine's trial of title to land. 576 the defendant is a settler or occupier of lands and tenements without color of title, and to which the complainant has the right of possession. This provision of the statute is not to be construed as limiting the other provisions hereinbefore set forth.i^ Sec. 809. The action will never try title. The forcible entry and detainer statute providing a speedy- recovery for the possession of real estate, can never be used to try the title to lands in question. The action is to recover possession. It is difficult to understand, sometimes, what is meant, when it is said that the action can never be made to determine title ; for even in the simple action of getting possession, the possession must necessarily involve the validity of some legal conveyance. The deeds and other conveyances of title may be offered in evidence as proof of the right of possession. ^^ The question of title may be an incident to, or evidence of, the right of possession, and in the trial of a forcible entry and detainer case, the title may be inquired into suffi- ciently to determine the right of possession, and for such purpose only.* If the question of ownership, or in which party the title may be, is not properly in issue in the case, then the mere claim of title, or offer in evidence of a deed of conveyance by one of the parties, will not raise the question of title so as to divest the justice of jurisdiction. Title is only involved where its validity may properly call for decision. ^^ 17 Snyder, 6,430; Wilson, 5,087; ton, 12 Okla. 130, 69 Pac. 1,038; Kansas, 5,015 (1889). Cunningham v. Morris, 12 Okla. 18 Oklahoma City v. Hill, 4 Okla. 132, 69 Pac. 1,133. Under the stat- 521, 46 Pac. 568. iite it is not necessary for the * McDonald v. Stiles, 7 Okla. defendant to show that he claimed 327, 54 Pac. 487 ; Bunn v. Harts- the ownership of the premises, horn, 12 Okla. 121, 69 Pac. 1,049; Where it is showTi that he has, by Olds V. Congar, 1 Okla. 231, 32 Pac. force, dispossessed the plaintiflF, the 337. action need not be predicated on laChisholm v. Weise, 5 Okla. 217, landlord and tenant. Ibid. 47 Pac. 1,086; McQuestion v. Wal- 577 FORCIBLE ENTRY AND DETENTION. § 810 The title to real estate where the right to possession of the same is in controversy in the action, may not be put in issue so as to adjudicate such title, for in such action the title, as such, cannot be determined ; it being merely intended that only the right of possession should be tried in the action.^" Sec. 810. The action will lie against the holder of a valid title, who acquires possession by force. The very purpose of the law of forcible entry and de- tainer is that anyone in the possession of real estate shall not be turned out by force and violence. The party so using force may have a superior title, and may have a better right to the present possession, but the policy of the law has always been in such case, to forbid any person righting him- self in cases of that kind, by his own hand and by violence, and to require the party who has in this manner obtained possession, to restore it to the party from whom it has been so obtained. The rule, therefore, in such case, is that the action of forcible entry and detainer may be main- tained against any person who commits forcible entry and ouster, even though the latter is the owner of the property and entitled to the immediate possession, if the plaintiff had, at the time of the forcible entry and ouster, the actual and peaceable possession thereof.-^ zoBrennan v. Shanks, 103 Pac. 487; Petit v. Black, 12 N. W. 841; 704; Oklahoma City V. Hill, 4 Okla. Worthington v. Woods, 34 N. W. 531, 46 Pac. 568; Chisholm v. 368 ; Connoly v. Giddings, 37 N. W. Weise, 5 Okla. 217, 47 Pac. 1,086; 939; Malloy v. Malloy, 40 X. W. Bunn V. Hartshorn, 12 Okla. 121, 235; Post v. Bohner, 36 X. W. 308; 69 Pac. 1,049; McQniston v. Wal- Green v. Morris, 77 N. W. 925; Luck ton, 12 Okla. 130; 69 Pac. 1,048; v. Sulpher, 10 N. W. 409; Tarpenny ■Conoway v. Gore, 27 Kan. 122; v. King, 82 N. W. 409. Buettenger v. Hurley, 34 Kan. 585, 21 Oklahoma City v. Hill, 4 Okla. 9 Pac. 197; Owen v. Wickham, ?8 521, 46 Pac. 568; Campbell v. Coon- Kan. 225, 16 Pac. 335; McClain radt, 22 Kan. 704; Conaway v. V. Jones, 60 Kan. 639, 57 Pac. 500; Gore, 27 Kan. 127; Burdette v. Stover V. Hagebaker, 60 N. W. Corgan, 27 Kan. 275; Buettinger v. 597; Wilson v. Young, 19 N. W. Hurley, 9 Pac. 197; Emssley v. §810 MERWINE S TRIAL OF TITLE TO LAND. 578 Since the question of title cannot be tried in the action, the defense that plaintiff's deed was procured by fraud, is invalid, and cannot be set up in the action.-^ Again, when, in order to determine whether either party has the right to the paramount legal or equitable title, then the rights of the parties cannot be determined in the action.-'' Equities between the parties cannot be determined, but the action will lie to recover from the settler with color of title, the lands to which plaintiff has the right of possession.^* In concluding the discussion of the propositions hereinabove set forth the author would suggest to the practitioner, to keep in mind always, that the action of forcible entry and detainer will determine only whether the plaintiff or defendant have, on the face of the instrument under which either claim the right to the possession, the right to the immediate possession. If, in order to determine this right of immediate possession, the Bennett, 37 la. 1 5 ; Brown v. Fagiiis, 55 K W. (Neb.) 1,048; Railroad V. Johnson, 119 U. S. f.08, 7 Sup. Ct. 340. An action of forcible entry and detainer may, under the statute of this territory, as construed by the Supreme Court of Kansas, before its adoption, be maintained by one who was, without right, in the actual and peaceable possession of the premises, even against the true owner, who ousts him of such pos- session by force; and in a case where it is shown that the plain- tiffs were in the actual and peace- able possession of certain town lots, lots, with the buildings thereon, in one of which the plaintiffs were running a saloon, and the sheriff arrested the plaintiffs under a charge of violation of the liquor laws, and removed them and their goods and furniture fiom the build- ing, and while they were under arrest for a short time, the sheriff permitted the officers of the city who were standing by, to enter into possession of the building, and keep the plaintiffs therefrom, it is held, that the plaintiffs may maintain their action of forcible entry and detainer, and that in such case, it is not error to sustain an objection to the introduction of evidence tending to show that the sheriff had a right to arrest the plaintiffs, and take their goods and furniture froin the premises, and that the defendant had a deed to said premises, and that the plaintiffs had no right to the possession thereof. 22Dysart v. Enslow, 7 Okla. 386, 54 Pac. 550. 23 Jones V. Seawell, 13 Okla. 711, 76 Pac. 154. 24 Cope V. Braden, 11 Okla. 291, 67 Pac. 475. 579 FORCIBLE ENTRY AND DETENTION. §§ 811-813 title must be corrected in any way, or a trust declared, then the action must be brought in the district court for that purpose. Sec. 811. The complaint. The action is brought by filing the complaint in the justice's court. The property for the possession of which the action is brought should be described accurately. However, a slight error in the description, which does not mislead the defend- ant, will not be regarded."^ And the complaint need not allege with particularity all the facts relied on. It will be sufficient if it contains the language of the statute.'" Sec. 812. No pleadings required of the defendant. The defendant in an action for forcible entry and detainer, is not required to file any pleadings; and since a defense may be interposed, it is not reversible error to strike from the files any special defense which may have been interposed.^^ Sec. 813. Procedure — The summons. The summons cannot issue in the action until the plaintiff has filed his complaint in writing under oath, with the justice, which must particularly describe the premises so entered upon and detained, and which must set forth either an unlaw- ful or forcible entry and detention, or an unlawful and forcible detention after a peaceable or lawful entry of the described premises.-* 25Congor V. Olds, 1 Okla. 232, S2 28 Snyder, 6,433; Wilson, 5,090; Pac. 337; Murphy V. Lucas, 2 Okla. Kansas, 5,018 (1889); Nebraska, 255. 1,966 (1907); Blaco v. Hallar, 1 26 Greenameyer v. Coate, 12 Okla. N. W. 978; Moore v. Parker, 80 452, 72 Pac. 377; McClungv. Penny, N. W. 572; Lock v. Skowell, 91 11 Okla. 477; 69 Pac. 499; Rice v. N. W. 572; Blanchel v. Freeze, 52 West, 10 Okla. 1, 33 Pac. 706; N. W. 1,101; Keykundall v. Clinton, Schlegel v. Link, 105 Pac. (Okla.) 3 Kan. 78; Wilson v. Campbell, 652, overruling Rice v. West, 33 75 Kan. 159, 88 Pac. 548; Richard- Pae. (Okla.) 706; Barto v. Abbe, son v. Penny, 6 Okla. 328, 50 Pac. 16 Ohio, 408; Brown v. Burdick, 231; Rice v. West, 10 Okla. 1, 33 25 0. S. 260. Pac. 706 (overruled) ; Greenameypr 2T Smith V. Finger, 15 Okla. 120, v. Coate, 12 Okla. 452, 72 Pac. 377; 79 Pac. 759 ; Oklahoma City v. Hill, Schlegel v. Link, 25 Okla. 263, 105 4 Okla. 521, 46 Pac. 568. Pac. 652. §§ 814-817 merwine's trial of title to land, 580 Sec. 814. The service of summons. The summons must be issued and directed, and must state the cause of the complaint, and the time and place of trial, and must be served and returned as in other actions. It may also be served by leaving a copy thereof with some person over twelve years of age, on the premises sought to be recovered, and such service must be at least three days before the day of the trial appointed by the justice.-^ Sec. 815. Trial if defendant fails to appear. If the defendant does not appear in accordance with the requisition of the summons, and it shall have been properly served, the justice is required to try the case as though he were present.^** Sec. 816. Continuance — How secured. No continuance will be granted for a longer period than eight days, unless the defendant applying therefor, give an undertaking to the adverse party, Avith good and sufficient surety to be approved by the justice, conditioned for the payment of all damages, and double the rent that may accrue, if judgment be rendered against the defendant.^^ Sec. 817. The measure of damages for unlawfully detaining property. The detriment caused by the Avrongful occupation of real property, in cases not embraced in Sections (2909, 2915, 2916 and 2917, Snyder, and 2751, 2758 and 2757, Wilson), is deemed to be the value of the use of the property for the time of such occupation, not exceeding six years next preceding the 29 Snyder, 6,434; Wilson, 5,091; si Snyder, 6,436; Wilson, 5,093; Kansas, 5,019 (1903). Kansas, 5,321 (1889). The applica- 30 Snyder, 6,435 ; Wilson, 5,092 ; tion for continuance is addressed Kansas, 5,020 (1889); Nussick v. to the solemn discretion of the Wigent, 56 N. W. 493. court. Richardson v. Penny, 50 Pac. 23 r. 581 FORCIBLE ENTRY AND DETENTION. § 818 commencement of the action, or proceeding to enforce the right to damages, and the costs, if any, of recovering the possession. For wilfully holding over real property by a person who entered upon the same, as guardian or trustee for an infant, or by right of an estate terminable with any life, or lives, after the termination of the trust or particular estate, without the consent of the party immediately entitled after such termination, the measure of damages is the value of the profits received during such holding over. For the failure of tenant to give up property held by him, when he has given notice of his intention to do so, the measure of damages is double the rent which he ought otherwise to pay. For wilfully holding over real property by a tenant after the end of his term, and after notice to quit has been duly given, and demand of possession made, the measure of damages is double the yearly value of the property, for the time with- holding, in addition to the compensation for the detriment occasioned thereby. For forcibly ejecting or excluding a person from possession of real property, the measure of damages is three times such a sum as would compensate for the detriment caused to him by the act complained of.^^ Sec. 818. Trial and judgment by justice. If the suit be not continued, place of trial changed, or either party demand a jury upon the return day of the sum- mons, the justice must try the cause; and, if, after hearing the evidence, he concludes that the complaint is not true, he is required to enter judgment against the plaintiff for the costs; if he find the complaint true, he is required to enter a 32 Snyder, 2,908, 2.909, 2,915, Oklahoma City v. Hill, 4 Okla. 521, 2,916 and 2,917; Wilson, 2,750, 50 Pac. 242; Wagener v. Lubenow, 2,751, 2,757, 2,758 and 2,759; 112 N. W. (S. D.) 247; Olson v. Dakota Code, 4,610 (1887), 4,609 Hustner, 6 S. D. 354, 61 N. W. 247; (1887), 4,608 (1887), 4,601 (1887) Baldwin v. Bohl, 122 N. W. (S. D.) and 4,602 (1887); •Chisholm v. 247. Weise, 5 Okla. 217, 47 Pac. 1,088; §§ 819, 820 MER wine's trial of title to land. 582 general judgment against the defendant and in favor of the plaintiff, for the restitution of the premises, and for costs of suit; if he find the complaint true in part, he is required to render judgment for the restitution of such part only, and the costs may be taxed as the justice deems just and equitable. ^^ Sec. 819. Trial and verdict by jury. If a jury be demanded by either party, the proceedings until the impaneling thereof, will be in all respects, as in other cases. The jury must be sworn, or affirmed, to well and truly try and determine whether the complaint of (naming the plaintiff) about to be laid before them, is true, according to the evidence. If the jury find the complaint true, they must render a general verdict of guilty against the defendant; if not true, then the general verdict is not guilty; if true in part, then a verdict setting forth the facts they find true. The justice must enter the verdict upon his docket, and render such judgment in the action as if the facts authorizing the finding of such verdict had been found to be true by himself.^* Sec. 820. Exceptions. Exceptions to the opinion of the justice ; in cases under this head, upon questions of law may be taken by either party whether tried by a jury or otherwise.^^ 33 Snyder, 6,437; Wilson, 5,094; 35 Snyder, 6,439; Wilson, 5,097; Kansas, 5,022 (1889); Nebraska, Kansas, 5,025 (1889); Nebraska, 1,970 (1907) ; Gallagher V. Connell, 1868 (1907); Osborn v. Shotwell, 36 N. W. 566; Osborn v. Shotwell, 50 N. W. 164. 50 N. W. 164. 34 Snyder, 6,438; Wilson, 5,095; Kansas, 5,023 (1889); Wilson v. Young, 19 N. W. 487. 583 FORCIBLE ENTRY AND DETENTION. §§821,822 Sec. 821. The issues on appeal to the county court. The party against whom a judgment is rendered in a forcible entry and detainer action is not entitled to a new trial by the same court as a matter of right; and on appeal to the county court, every portion of plaintiff's cause of action which was put in issue in the justice court, will remain in issue, although defendants do not file an answer, or new or amended pleadings.^^ Sec. 822. Execution — Form provided by statute. Where a judgment of restitution is entered by the justice, he must, at the request of the plaintiff, his agent or attorney, issue a writ of execution thereon, which shall be in the following form, as near as practicable : State of Oklahoma, County, ss. : The State of Oklahoma to any Constable in County: Whereas, in a certain action for the forcible entry and de- tention (or for the forcible detention, as the case may be) of the following described premises, to-wit: , lately tried before me, wherein was plaintiff, and was defendant, a judgment was rendered on the day of , A. D. 19 — ^ that the plaintiff have restitution of said premises; also that he recover costs in the sum of $ ; you, therefore, are hereby commanded to cause the defendant to be forthwith re- moved from said premises, and said plaintiff to have restitution of the same; also that you levy of the goods and chattels of said defendant to make the costs aforesaid, and all accruing costs, and of this writ, make legal service and due return. Witness my hand this day of , A. D. 19 — . A. B., Justice of the Peace.^'^ 36Geter v. Ulerich, 28 Okla. 10, 1,974 (1907); Lipp v. Hunt, 45 113 Pac. 713. X. W. 685. 37 Snyder, 6,440; Wilson, 5,098; Kansas, 5,026 (1889); Nebraska, 584 merwike's trial of title to land. §§ 823-825 Sec. 823. Stay of proceedings. The officer must, within ten days after receiving this writ, execute the same by restoring the plaintiff to the possession of the premises, and must levy and collect the costs and make the return as upon other executions. If the officer shall re- ceive a notice from the justice that the proceedings have been stayed by proceedings in error, he must immediately delay all further proceedings upon the execution; and if the prem- ises have been restored to the plaintiff, he must immediately place the defendant in possession thereof, and return the writ with his proceedings and costs taxed thereon.^^ Sec. 824. Form for notice to vacate. To : Gentlemen: — This is to notify you to vacate the following described real estate in County, State of Oklahoma, to-wit: (Here describe real estate to be vacated.) Your com- pliance with this notice within days after same has been served upon you will prevent legal measures being taken by me to get possession thereof. Very respectfully. Dated this day of , 19—. Sec. 825. Form for complaint generally. State of Oklahoma, County, ss. : . , Plaintiff, vs. , Defendant. No. Before , Justice of the Peace of , said County. 38 Snyder, 6,441; Wilson, 5,098; Wells, 24 Kan. 277; Penny v. Kansas, 5,027 (1889); Bnrdsal v. Richardson, 12 Okla. 256, 71 Pac. Shields, 79 Pac. 1,067; Wallace v. 227; Ibid, 9 Okla. 655, 60 Pac. 501. Hall, 22 Kan. 194; Templeton v. * 585 FORCIBLE ENTRY AND DETENTION. § 826 COMPLAINT IN FORCIBLE ENTRY AND DETAINER. Comes now , who, being first duly sworn, on oath, says that is the of, and entitled to the immediate pos- session of the following described premises, situated in • County, Oklahoma, to- wit : (Here describe premises.) Affiant further says that defendant has at all times since the day of , 19 — , and does now, unlawfully and forcibly detain the possession of said premises from said plaintiff. Wherefore, plaintiff prays restitution of the possession thereof, and judgment against said defendant for costs. Sworn to and subscribed before me this day of 19—. Justice of the Peace. Sec. 826. Form for complaint for peaceable entry and forcible, holding. State of Oklahoma, County, ss. : , Plaintiff, vs. , Defendant. No. Before , Justice of the Peace of Township, County, State of Oklahoma. Personally appeared before me, the undersigned, , who, being by me duly sworn, deposes and says: that on the (Jay of , 19 — , he was in the possession of the following described real estate, situated in County, State of Okla- homa, to-wit: (Here describe premises the possession of which is sought.) Affiant further says that on the day of , 19 — , said was notified in writing by said , as required by the statute, to vacate said premises; that on the day of , 19 — , and ever since, said defendant has, and still does, unlawfully and forcibly detain said premises from ; that said was then, and has ever since been, and now is, entitled to the possession of said premises. § 827 merwine's trial op title to land. 586 Wherefore, this afBant prays restitution of said premises, and judgment for the costs of this action. Subscribed and sworn to before me this day of 19—. Justice of the Peace. Sec. 827. Form for complaint against occupier of lands with- out color of title. -, Plaintiff, vs. , Defendant. No. Before , Justice of the Peace, in and for , County, State of Oklahoma. State of Oklahoma, County, ss. : Before me, the undersigned authority, a , in and for , County, State of Oklahoma, personally appeared , who, being by me first duly sworn, deposes and says: that on the day of , 19 — , he was in the actual possession of the lands and tenements situated in County, in the State of Oklahoma, to-wit: (Here describe premises pos- session of which is sought) ; that on the day of , 19 — ^ ^ without any color of title, settled and located upon and occupied the aforesaid real estate; that on the day of , 19 — , said notified said , by notice in writing, as required by statute, to vacate said real estate; that said did, on said day of , 19 — , and ever since has, and still does, unlawfully and forcibly detain and hold said premises from , and that said was then, and has ever since been, and still is, entitled to the possession of said real estate. Wherefore, affiant prays judgment for the possession of said real estate and for the costs of this action. 587 FORCIBLE ENTRY AND DETENTION. § 828 Subscribed in my presence and sworn to before me this day of , 19 — . , Justice of the Peace. Sec. 828. Another form for complaint. , Plaintiffs, vs. , Defendants. Before , Justice of the Peace in and for County, in the State of Oklahoma. No. . COMPLAINT IN FORCIBLE ENTRY AND DETENTION. Come now the said and , and, for their com- plaint herein against said and , defendants, allege : That on the day of , 19 — , they were entitled to the possession of the following described real estate, in County, State of Oklahoma, to-wit: (Here describe premises, possession of which is sought) ; that on said day of ^ 19 — , said and , defendants, were in the unlawful and forcible possession of said tenements; that on the day of , 19 — , said notified said , -, in writing, to quit and vacate said premises, as required by law; that said and , on said day of ^ 19 — ^ and ever since have, and still do, unlawfully and forcibly detain said premises from them, the said ; that said , , were, on the said day of , 19 — , and ever since have been, and still are, entitled to the possession of said lands and tenements. Wherefore, plaintiffs pray that they may have judgment for the restitution of said lands above herein described, and for such other and further relief as the nature of the case may require. "' Attorney for Plaintiffs. § 829 MERWINE 'S TRIAL OF TITLE TO LAND. 588 State of Oklahoma, County, ss. : , being first duly sworn, says that he is one of the plain- tiffs in the foregoing action ; that he has read the above and fore- going petition, and that the facts stated and allegations contained therein are true. . Subscribed in my presence and sworn to before me this day of , 19 — . , Justice of the Peace. Sec. 829. Form for summons and oflBcer's return of. State of Oklahoma, County, ss. : SUMMONS. To , Constable of Township, County, Okla- homa: You are commanded to notify to appear at my office in , County, Oklahoma, on the day of ^ 19 — ^ at o'clock, — m., to answer the action of • against for unlawful and forcible entry and de- tention of the following described real estate in County, to-wit: (Here describe real estate described in complaint), and then and there return this writ. Witness my hand at in said county and State this day of , 19—. Justice of the Peace. OFFICER/ S RETURN OF SUMMONS. I received this writ on the day of , 19 — , at o'clock, — m., and executed the same in my county of , by handincr to personally a true copy of the within summons with all the indorsements thereon, to on the day of , 19 — . Constable. 589 FORCIBLE ENTRY AND DETENTION. §§ 830, 831 Sec. 830. Form for affidavit for continuance. State of Oklahoma, County, ss. : Before , Justice of the Peace of , said County. , Plaintiif, vs. No. . , Defendant. , being first duly sworn, says that he is the in the above entitled cause; that said cannot, for want of material testimony, which he has been unable to procure, safely proceed to trial. Wherefore, he asks that said trial be adjourned to the day of , 19 — , at o'clock, — m. Subscribed and sworn to before me this day of 19—. Justice of the Peace. Sec. 831. Form for jury venire and officer's return of. State of Oklahoma, County, ss. : , Plaintiff, vs. No. , Defendant. JURY VENIRE. The State of Oklahoma to the Constalile of Township, Count]), Greeting: You are hereby commanded to summon , , , , and , if they be found in County, State of Oklahoma, to be and appear before , justice of the peace in said township and county, on the day of , 19 — , at the hour of o'clock, — m., to serve as jurors in said court, and have you then and there the within writ. Hereof fail not under penalty of the law. Witness my hand and official seal this day of , 19—. , Justice of the Peace. §§832,833 merwine's trial of title to land. 590 OFFICER'S RETURN OF HIS SERVICE OF SAID WRIT. I received this venire on the day of , 19 — , and executed the same in my county by delivering a true copy thereof to , , , , and , all on the day of , 19 — . Constable. Sec. 832. Form for verdict for plaintiflF. State of Oklahoma, County, ss. : Before , Justice of the Peace in and for Township, County, Oklahoma. -, Plaintiff, vs. , Defendant. No. VERDICT. We, the jury impaneled and sworn in the above entitled cause, on our oaths do find Foreman. Sec. 833. Form for verdict for defendant. State of Oklahoma, County, ss. : Before , Justice of the Peace in and for Township, County, Oklahoma. -, Plaintiff, vs. , Defendant. No. VERDICT. We, the jury impaneled and sworn in the above entitled cause, on our oaths do find -• Foreman. 591 FORCIBLE ENTRY AND DETENTION. §§ 834, 835 Sec. 834. Form for judgment on the verdict. State of Oklahoma, County, ss. : Before , Justice of the Peace of Township, said County and -, Plaintiff, vs. , Defendant. State. No. JUDGMENT ON THE VERDICT. The jury, in the foregoing action, having found the defendant guilty as charged in the complaint herein, it is by the court ordered that the plaintiff have immediate possession of the real estate described in said complaint, wdth his costs, herein taxed at $ . , Justice of the Peace. Sec. 835. Form for writ of restitution. State of Oklahoma, County, ss. : The State of Oldahoma to any Constable of said County: "Whereas, in a certain action for the forcible entry and de- tention (or for the forcible detention, as the case may be) of the following described premises, to-wit : , lately tried before me, wherein was plaintiff, and was defendant, a judgment was rendered on the day of ■ , A. D. 19 — , that the plaintiff have restitution of said premises; also that he recover costs in the sum of ; you, therefore, are hereby commanded to cause the defendant to be forthmth removed from said premises, and said plaintiff to have restitution of the same; also that you levy of the goods and chattels of said defendant to make the costs aforesaid, and all accruing costs, and of this writ make legal service and due return. Witness my hand this day of , A. D. 19 — . Justice of the Peace. CHAPTER XIV. THE LAW AND PROCEDURE BY WHICH REAL ESTATE IS SOLD BY A GUARDIAN. SECTION 836. The nature of the proceeding and the care required of counsel in conducting same. 837. Court proceedings, records, orders and judgments of county courts construed to have same eflfect as those in district courts. 838. The service of process in the county court. 839. Conflict of State and Federal courts as to guardian's con- trol of real estate. 840. Ward's real estate may be sold for the paj'ment of his debts. 841. Guardian may sell real estate for maintenance and support of ward. 842. Guardian may sell ward's real estate to maintain and edu- cate him. 843. Guardian may sell real estate for investment, when. 844. Application of the proceeds of such sale — Investments — How made. 845. The petition for the sale of real estate by guardian. 846. Tlie duties of the court as to hearing the petition — Time and place of hearing. 847. The notice to the parties, where and how posted — The mailing of the notices. 848. The hearing of proofs of serv- ice and publication and the examination of proofs by the court. 854. 855. SECTION 849. The hearing of the order — Guardian and witnesses may be examined. 850. The order as to costs in case of objection to the sale. 851. The order allowed — The court must specify reasons for the sale — Sale public or private. 852. The guardian must give bond before the sale. 853. The guardian to comply with the statutes created appli- cable to administrator's and executor's sales of real estate. Proceedings valid — EfTect of omission to name ward in deed. The statute of limitations as to order of sale. 856. The terms of sale — Security for purchase price. 857. The investment of the pro- ceeds of sale. 858. The procedure where the guard- ian leases his ward's lands for oil and gas mining pur- poses. 858a. Summary of the necessary steps to subject lands of a minor to sale. The procedure by which a guardian may sell real estate of his ward — The form for the petition. The order for hearing the peti- tion to sell ward's real estate. 861. Form for tne waiver of the statutory notice and consent to immediate hearing. 859. 860. 592 593 REAL ESTATE SOLD BY GUARDIAN. SECTION 862. Form for the proof of posting the notices. &63. The form for the order of sale of ward's real estate where parties waive the no- tice — Guardian appointed in one county and real estate situated in another. 864. Form for legal notice for post- ing. 865. Form for proof of posting legal notice. 866. Form for legal notice and the proof of publication of same in county where land is located. 867. Form for legal notice and proof of publication of same in county where guardian re- sides and was appointed. 868. Form for report of the sale by guardian. 869. Form for the order for the hearing of the guardian's report and return of sale of real estate. 870. Form for the notice of hearing return of the sale and proof of posting the same. 871. Form for offer of more than ten per cent, of the amount bid at guardian's sale of ward's real estate. 872. Form for order confirming sale of real estate to party bid- ding ten per cent, more than the bid at public auction. 873. Form for the deed from the guardian to the purchaser. 874. Procedure by which guardian is authorized to loan funds of ward — The petition there- for. 875. The form for order of loan — The appointment of ap- praisers. 876. The form for the oath of the appraisers. 877. The form for the report of the appraisers. 878. The form for opinion of attor- neys as to title. SECTION 879. The form for the mortgage to guardian. 880. The form for the report of guardian as to loan. 881. The form for the order ap- proving and confirming loan. 882. Set of forms for the appoint- ment of a guardian and for the sale of real estate by guardian — The form for selec- tion of guardian by a minor over years of age. 883. Form for the petition for the appointment of guardian. 884. Form for the oath to the peti- tion. 885. Form for the order appointing guardian. 886. Form for the letters of guard- ianship. 887. Form for the oath of guardian. 888. Form for the guardian's bond. 889. Form for the oath of sureties. 890. Form for the inventory and appraisement. 891. Form for the oath of guardian to inventory and appraise- ment, 892. Form for the order appointing appraisers. 893. Form for certificate of true copy. 894. Form for the oath of ap- praisers. 895. Form for the certificate of ap- praisers. 896. Form for the bill of appraisers. 897. Form for the oath of ap- praisers to said bill. 898. Form for petition to sell real estate by guardian. 899. Form for oath to petition. 900. Form for order for hearing petition to sell real estate by guardian. 901. Form for waiver of notice of hearing petition by next of kin and persons interested. 902. Form for affidavit of posting copies and mailing copies to next of kin. §836 merwine's trial of title to land. 594 SECTION 904. Form for the affidavit of publi- cation. 905. Form for the order appointing appraisers. 907. Form for the decree of sale of real estate by guardian. 908. Form for notice of sale of real estate. 909. Form for the affidavit of post- ing notice. 910. Form for the notice of sale of real estate by guardian. 911. Form for affidavit of posting notices. 912. Form for publication of notice of sale of real estate. 913. Form for the proof of legal notice. SECTION 914. Form for the legal notice of sale of real estate by guard- ian. 915. Form for the proof of publi- cation. 91G. Form for the additional bond of guardian. 917. Form for the oath of sureties. 918. Form for the return of sale of real estate. 919. Form for oath of guardian to return. 920. Form for order for hearing return of sale of real estate. 921. Form for the notice of hearing return of sale of real estate. 922. Form for affidavit of posting notices of hearing return. 923. Form for the order confirming sale of real estate by guard- ian. Sec. 836. The nature of the proceeding and the care required of counsel in conducting same. We come now to the proceeding for the sale of real estate hy a guardian, purely statutory, and of such a nature as to lead counsel who may be conducting the proceeding, to think it does not require any particular care and attention. This action to sell the real estate of his ward by a guardian, or of a decedent by an executor or administrator, to pay his debts, or to satisfy other purposes of the statute, ought to require great care, deliberation and attention at the hands of those whose duty it is to care for such estates. Care- lessness upon the part of the representatives of such estates, and upon the part of the counsel conducting the proceeding, and also by our courts in such actions, has been, and is now, the source of many defective land titles in this State, and is now and has been, the source of much vexatious and expensive litigation. Because the action is seldom contested, the petition is carelessly prepared, orders are asked for and given without investigation by the courts, parties are not properly served and brought into the case. The examiners 595 REAL ESTATE SOLD BY GUARDIAN. § 836 of real estate titles in this State, when scrutinizing title coming through an executor, administrator or guardian in the sale of real estate, knowing how careless counsel is apt to be in such case, should scrutinize the proceedings from the filing of the petition to the deed to the purchaser with the greatest care. Too much cannot be urged upon the bench and bar of this State to attend to such proceedings with the utmost care. The following upon this topic is from the pen of an emi- nent jurist and text-writer: "While it is manifestly the policy of the law to uphold judicial sales made without fraud, there is no need to deter purchasers by encouraging the apprehension that their sub- stantial rights and interests may be sacrificed to technical con- siderations — while courts will give every effect to insure the protection of innocent purchasers, in collateral proceedings, even in eases of gross error arising out of blunders or carelessness of probate courts or their officers — it is apparently of the gravest importance that every step taken in the subjecting of real estate to sale by an executor, or administrator, or a guardian, be as nearly as possible in literal compliance with the method pointed out by the statute upon which the pro- ceeding is based. Where particular forms are appointed for the execution of a power, however immaterial they may appear in themselves, these forms are conditions that cannot be dispensed with. It is pernicious error, fruitful of trouble and mischief, to suppose that any vague, unverified statement of circumstances is sufficient to authorize a sale of real estate, if the applicant and the judge know all about the matter; or that the good faith or honesty with which the application is made, are a sufficient safeguard against ruinous complica- tions and the litigation that may follow oversight or mistake. The anxiety of courts to vindicate the validity of judicial sales should not be relied upon as a pretext for the care- lessness of guardians, executors or administrators, or the supineness of probate courts, in the several steps necessary for the sale of real estate. Even if the sale should be good § 837 MERWINE 'S TRIAL OF TITLE TO LAND. 596 as against collateral attack — and it is distressingly uncertain as to what extent the trial and even appellate courts will go in this direction — yet, many acts of commission or omission, which will not be allowed to invalidate the transaction in a collateral investigation, may, in a direct proceeding, subject the administrator, executor or guardian to serious liability, and the estate to loss and delay, and all parties concerned to vexatious and ofttimes ruinous litigation. No part of the administrator, executor or guardian's duty claims more care- ful attention and demands more imperatively the advice and assistance of a competent professional man, than his rela- tions to, and duties concerning, the real estate of a decedent, and the real estate of minors, and incompetents."^ The practitioner should always bear in mind that, while he is conducting a proceeding to sell real estate for and on behalf of a guardian, executor or administrator, the ultimate object of the proceeding is to convey good title to the pur- chaser. Sec. 837. Court proceedings, records, orders and judgments of county courts construed to have same effect as those in district courts. The proceedings of the county courts of this State are con- strued in the same manner, and with like intendment, as the proceedings of courts of general jurisdiction, and to its records, orders, judgments and decrees, there are accorded like force, effect and legal presumption as to records, orders, judgments and decrees of district courts.- 1 Woerner on Administration, Sec. Ventrus v. Smith, 10 Pet. 161; 1,021, citing Alabama v. Price, 42 Knox v. Jenks, 7 Mass. 488; In re Ala. 39; Kelly's Estate, 1 Abb. Mahoner, 34 Hun, 501; Lynch v. New Cases, 102; Worthy v. John- Hinkey, 13 111. App. 139; Wright son, 8 Ga. 236; Finch v. Edmonson, v. Edwards, 10 Ore. 298; Long v. 9 Tex. 504; Frazier v. Stenrod, 7 Long, 142 N. Y. 545. la. 339; State v. Conover, 9 N. J. L. 2 Snyder, 5,137; Wilson, 1,171; 338; Gross v. Howard, 52 Me. 192; South Dakota, 26 (1903); Mattson Haywood v. HayAvood, 80 N. C. 42; v. Swanson, 5 S. D. 191, 58 N. W. Monahan v. Van Dyke, 27 111. 570; Phillips v. Phillips, 13 S. D. 154; Gilstrop v. Moore, 26 Miss. 231; 83 N. W. 94. 206; Vance v. Moroney, 4 Cal. 47; 597 BEAL ESTATE SOLD BY GUARDIAN. §§ 838, 839 In the sale of the land of minors upon the application of a guardian, it is competent for the probate court to determine from the evidence submitted whether due and legal notice has been given to the minor.* Sec. 838. The service of process in the county court. All process issued by the county court must be served in the same manner and by the persons and officers as provided for the service of process in the district court; and with the same fees.^ Sec. 839. Conflict of State and Federal courts as to guard- ian's control of real estate. There was a State law providing that a minor, if mar- ried, might sell and convey his real estate,* and there was and is now, a Federal law to the effect that the county court shall have control of the allotted lands of the freedman and Indian until he becomes of the age of twenty-one and eighteen years, respectively. The language of that act is, that "the term 'minor' or 'minors,' as used in this act, shall include all males under the age of twenty-one years and all females under the age of eighteen years." ^ The State statute authorizing a married minor to convey his real estate, even if not of age, does not apply to the lands of freedmen and Indians, which have been allotted to them by the Government. The lands of all other minors, not sub- ject to Federal control are reached by this State law. Hence, the allotted lands of the freedman and Indian from which the restrictions have been removed can be sold by proper procedure and orders of sale in the county courts of this State.« * Bradford v. Larkin, 57 Kan. s Section 2 of tlie Act of May 27, 90, 45 Pac. 69. 1908. 3 Snyder, 5,138; Wilson, 1,172; 6 Jefferson v. Winlder, 20 Okla. Dakota Code, 5,662 (1887). 653, 110 Pac. 755. 4 Snyder, 1,184; Act of March 12, 1897. §§840,841 MER wine's trial op title to land, 598 Again, the State law provides that the marriage of a minor terminates the guardianship, but this applies only to persons who do not have lands allotted them by the Government. For the marriage of a minor freedman or Indian, to whom lands have been allotted by the Government, does not, of itself, terminate the guardianship as to his allotment, nor abate the jurisdiction of the county court, and the guardian under such jurisdiction has authority to make a sale of such minor's allotted lands.'^ Sec. 840. Ward's real estate may be sold for the payment of his debts. Every guardian appointed under the provisions of this chapter, whether for a minor or any other person, must pay all just debts due from the ward out of his personal estate and income of his real estate, if sufficient; if not, then out of his real estate, upon obtaining an order for the sale thereof, and disposing of the same in the manner provided by law for the sale of real estate of decedents.* Sec. 841. Guardian may sell real estate for maintenance and support of his ward. Every guardian must manage the estate of his ward frugally and without waste, and apply the income and profits thereof, as far as may be necessary, for the com- fortable and suitable maintenance and support of the ward, and his family, if there be any; and if such income and profits be insufficient for that purpose, the guardian may sell the real estate, upon obtaining an order of the county court therefor, as provided, and must apply the proceeds of such sale, as far as may be necessary, for the maintenance and support of the ward and his family, if there be any.« 7 Kirkpatrick V. Burgess, 29 Okla. 9 Snyder, 5,491; Wilson, 1,833; 121, 11(5 Pac. 764. Dakota Code, 6.002 (1887); Cali- 8 Snyder, 5,489; Wilson, 1,831; fornia, 1,770 (Kerr), similar. California, 1,768 (Kerr), similar. 599 REAL ESTATE SOLD BY GUARDIAN. §§ 842-844 Sec. 842. Guardian may sell ward's real estate to maintain and educate ward. When the income of an estate under guardianship is insuffi- cient to maintain the ward and his family, or to maintain and educate the ward when a minor, his guardian may sell his real or personal estate for that purpose, upon obtaining an order therefor.^" Sec. 843. Guardian may sell real estate for investment, when. When it appears to the satisfaction of the court, upon the petition of the guardian, that for the benefit of his ward, his real estate, or some part thereof, should be sold, and the proceeds thereof put out at interest, or invested in some productive stock, or in the improvement or security of any other real estate of the ward, his guardian may sell the same for such purpose, on obtaining an offer therefor.^^ Sec. 844. Application of the proceeds of such sale — Invest- ments — How made. If the estate is sold for the purposes mentioned in the two paragraphs preceding, the guardian must apply the proceeds of such sale to such purposes, as far as necessary, and put out the residue, if any, on interest, or invest it in the best manner in his power, until the capital is wanted for the maintenance of the ward and his family, or the education of his children, or for the education of the ward when a minor, in which case the capital may be used for that purpose, as far as may be neces- sary, in like manner as if it had been personal estate of the ward. 10 Snyder, 5,498; Wilson, 1,840; 99, 64 Pac. 133; Smith v. Biscailiez, Dakota Code, 6,009 (1887); Cali- 21 Pac. 15. fornia, 1,777 (Kerr) , similar ; Fitch n Snyder, 5,499; Wilson, 1,841; V. Miller, 20 €al. 352; Estate of Dakota Code, 7,610 (1887). Livermore, 132 Cal. 99, 84 Am. St. §§845,846 MER wine's trial of title to land. 600 If the estate be sold for the purpose of putting out or investing the proceeds, the guardian must make the invest- ment according to his best judgment, or in pursuance of any order that may be made by the county court.^^ Sec. 845. The petition for the sale of real estate by guardian. To obtain an order for such sale, the guardian must pre- sent to the county court of the county in which he was appointed guardian, a verified petition therefor, setting forth the condition of the estate of his ward, and the facts and circumstances upon which the petition is founded, tending to show the necessity or expediency of a sale/^ This petition, as in other civil matters, in order to give the court power to make an order for the sale of the real estate, must contain the essential averments of the statute authorizing such sale.^^ Sec. 846. The duties of the court as to hearing the petition — Time and place of hearing. If it appear to the court or judge, from the petition, that it is necessary or would be beneficial to the ward that the real estate, or some part of it, should be sold, or that the real and personal estate should be sold, the court or judge must thereupon make an order directing the next of kin of the ward, and all persons interested in the estate, to appear before the court, at a time and place therein specified, not less than four nor more than eight weeks from the time of making such order, to show cause why an order should not be granted for the sale of such real estate. If it appear that it is necessary or would be beneficial to the ward to sell the personal estate, or some part of it, the court must order the sale to be made.^^ 12 Snyder, 5,500 and 5,501; Wil- is Snyder, 5,502; Wilson, 1,844; son, 1,842 and 1,843; Dakota Code, Dakota Code, 6,013 (1887); Cali- 6,011 and 0,012 (1887); California, fornia, 1,781 (Kerr), similar. 1,780 (Kerr), similar; Guardian- i^ Fitch v. Miller, 20 Cal. 352. ship of Cardwell, 48 Cal. 137. is Snyder, 5,503; Wilson, 1,845; Dakota Code, 6,014 (1887). 601 REAL ESTATE SOLD BY GUARDIAN. §§ 847-849' Sec. 847. The notice to the parties — ^Where and how posted — The mailing of the notices. The comity judge is required to cause copies of such order to be posted up in three public places in the county, one of which must be at the courthouse where said hearing is to be held, and personally served on or mailed to the next of kin of the ward, and all persons interested in the estate of said ward, residing in the county, and to be mailed to all persons who are not residents of the county, with postage prepaid, at least fourteen days before the hearing of the petition. If the postoffice of any such person is unknown, a copy of the order must be published for two successive weeks in some newspaper published in the county, and the hearing of said petition shall not be less than fourteen days from the date of the first publication of such notice. Provided, if written consent to making the order of sale is subscribed by all persons interested therein and the next of kin, said order of sale may be made at once, and without giving the notice pro- vided for in this act.^® Sec. 848. The hearing of proofs of service and publication and the examination of proofs by court. The county court, at the time and place appointed in the order, or at such other time to which the hearing is post- poned, upon proof of the service or publication of the order, must hear and examine the proofs and allegations of the petitioner and of the next of kin, and of all other persons interested in the estate who oppose the application.^^ Sec. 849. The hearing of the order— Guardian and witnesses may be examined. On the hearing the guardian may be examined on oath, and witnesses may be produced and examined by either party. Act approved March 17, 1910, it Snyder, 5,505; Wilson, 1,848; Sec. 10, Chap. 65, S. L. (Okla.) Dakota Code, 6,018 (1887). 1910. §§850-852 merwine's trial of title to land. 602 and process to compel their attendance and testimony may be issued by the county court or judge, in the same manner and with like effect as in cases provided for in the settlement of estates of decedents/* Sec. 850. The order as to costs in case of objection to the sale. If any person appears and objects to the granting of any order prayed for under the provisions of this chapter, and it appears to the court that either the petition or objection thereto is sustained, the court may, in granting or refusing the order, award costs to the party prevailing and enforce the payment thereof.^^ Sec. 851. The order allowed — The court must specify reasons for the sale — Sale public or private. If, after a full examination, it appears necessary, or for the benefit of the ward, that his real estate, or some part thereof, should be sold, the court may grant an order therefor, specifying therein the causes or reasons why the sale is neces- sary or beneficial, and may, if the same has been prayed for in the petition, order such sale to be made, either at public or private sale."" Sec. 852. The gnardian must give bond before the sale. Every guardian authorized to sell real estate, must, before the sale, give bond to the county judge, with sufficient surety to be approved by him, with condition to sell the same in the manner and to account for the proceeds of the sale as pro- vided for in this chapter and by the statutes of this State." 18 Snyder, 5,506; Wilson, 1,848; 21 Snyder, 5,509; Wilson, 1,851; Dakota Code, 6.018 (1887). Dakota Code, 6,020 (1887); Cali- isSnyder, 5,507; Wilann, 1,849; fornia, 1,788 (Kerr) , similar; Smith Dakota Code, 6,018 ( 1887). v. Biscailuz, 84 Cal. 344, 21 Pac. 15. 20 Snyder, 5,508; Wilson, 1,850; Dakota Code, 6,019 (1887). See Section . * 603 REAL. ESTATE SOLD BY GUARDIAN. §§ 853, 854 Sec. 853. The guardian to comply with the statutes created applicable to administrator's and executor's sales of real estate. All proceedings under petition of guardians for sales of property of their wards, giving notice and hearing of such petitions, granting and refusing an order of sale, directing the sale to be made at public or private sale, reselling the same property, return of sale and application for confirma- tion thereof, notice and hearing of such application, making orders, rejecting or confirming sales and reports of sales, ordering and making conveyances of the property sold, accounting and the settlement of accounts must be had and made as provided and required by the provisions of law concerning the estates of decedents unless otherwise specially pro"\dded in this chapter.-^ Sec. 854. The proceedings valid — Omission to name ward in deed. It has been held that a collateral attack upon a judicial proceeding in a probate court, under which a sale of land was made by a guardian more than fifteen years before, will not be favored. While a sale of land was made by a guardian for the actual value of the same, the sale approved, the money paid and expended for the support and education of the minors, and the purchaser takes possession thereunder, and holds the same for a long time, he acquired the full equitable title, and is entitled to a conveyance of the legal title; and the mere fact that a deed which contains a full recital of the preliminary proceedings, omits the names of one of the minors, will not invalidate the sale and in case the purchaser or his grantee is entitled to have estate, interest and pos- session of the land quieted, as against the claims of any of the minors.* 22 Snyder, 5,510; Wilson, 1,852; * Bradford v. Larkin, 57 Kan. Dakota Code, 6,021 (1887); Call- 90, 45 Pac. 69. fornia, 1,789 (Kerr), identical. §§855-858 merwine's trial, of title to land. 604 Sec. 855. The statute of limitation as to order of sale. No order of sale granted in pursuance of this cliapter, continues in force more than one year after granting the same, without a sale being had.-^ Sec. 856. The terms of sale — Security for purchase price. All sales of real estate of wards must be for cash, or part cash, and part deferred payments, not to exceed three years, bearing interest from date of sale, as, in the discretion of the county judge, is most beneficial to the ward. Guardians making sales must demand and receive from the purchaser, a bond and mortgage on the real estate sold, with such addi- tional security as the judge deems necessary and sufficient to secure the faithful payment of the deferred payments and the interest thereon."* Sec. 857. The investment of the proceeds of sale. The county court, on the application of the guardian, or any person interested in the estate of any ward, after such notice to persons interested therein as the judge shall direct, may authorize and require the guardian to invest the pro- ceeds of sales, and any other of his ward's money in his hands, in real estate, or in any other manner most to the interest of all concerned therein; and the county court may make such other orders and give such directions as are needful for the management, investment and disposition of the estate and effects as circumstances require.-^ Sec. 858. The procedure where the guardian leases his ward's lands for oil and gas mining purposes. Under the chapter as to the procedure and law as to oil and gas mining leases will be found a full set of forms by 23 Snyder, 5,511; Wilson, 1,853; 25 Snyder, 5,513; Wilson, 1.855; Dakota Code, 6.022 (1887). Dakota Code, 6,024 (1887); Cali- 24 Snyder, 5,512; Wilson, 1,854; fornia, 1,792 (Kerr), identical. Dakota Code, 6,023 (1887); Cali- fornia, 1,791 (Kerr), identical. 605 REAL, ESTATE SOLD BY GUABDIAN. § 858a which the guardian may lease his ward's lands for oil and gas mining purposes. Sec. 858a. Summary of the necessary steps to subject lands of a minor to sale. Mr. Bledsoe, in his valuable work, has given us the fol- lowing useful summary of the steps necessary in the sale of the land of a minor in this State: To avoid overlooking a compliance with any of the statu- tory provisions authorizing or regulating the sale of real estate of a minor by order of a county court, it is perhaps advisable to enumerate the various steps required to be taken in the order fixed in the statute. The following action should be taken and the following proceedings be had: 1. There should be filed a petition for an order of sale. 2. A hearing should be had, an order procured, directing the next of kin of the minor and all persons interested in the land to appear and show cause yvhy the order should not be granted as prayed for. 3. There should be service of the order to show cause as required by the statute. 4. Proof of service of the notice of application for the order to sell should be made by affidavit, filed on or before the day on which the hearing is to be had. 5. There should be a full and complete hearing on the petition for the order to sell. 6. An order of sale should be entered, complying with the statutory provisions. 7. A special bond should be filed and approved in such sum as may be ordered by the court. 8. Notice of the sale of real estate should be given as required by statute. 9. Proof of the giving of the notices as required by the statute to be filed with the return of the sale. § 858a MERWINE 'S TRIAL OF TITLE TO LAND. 606 10. The sale should be made at the time and place pre- scribed in the order and of which notice is given, and if there is a postponement of the sale, notice of such postpone- ment should be given as required by the statute. 11. A return should be made of the sale on or before the first day of the next term of the court, succeeding the day on which the sale is made. 12. Hearing should be had upon such return, and if such hearing is on the first day of the succeeding term, no notice is necessary. 13. If the hearing on the return be not had upon the first day of the next succeeding term, an order should be entered fixing the date of such hearing and requiring notice to be given thereof. 14. Notice should be given as required by the statute of the hearing on the return. 15. Proof of the service of the notice should be procured and filed prior to the day of the hearing. 16. An order of confirmation should be duly entered and the same should find in said order a compliance with all the statutory provisions authorizing the sale of the real estate of a minor, and regulating the proceedings thereon. 17. The order of confirmation should be recorded as re- quired by statute. 18. A deed should be executed by the guardian, conveying the interest of the minor to the purchaser at the sale. 19. If a private sale is desired, the following additional statutory provisions should be complied with : (a) The petition must pray an order authorizing a private sale. (&) The order must authorize a private sale. (c) There must be an appraisement of the real estate or- dered sold. (d) Notice must be given of the sale as required by statute. (e) There must be proof of service of the notice as re- quired by the statute, before the sale is presented for con- firmation. * 607 REAL, ESTATE SOLD BY GUARDIAN. § 859 (/) Confirmation cannot be had unless ninety per cent, of the value is realized.* Sec. 859. The procedure by which a guardian may sell real estate of his ward — The form for the petition. In the County Court op County, State of Oklahoma. In the Matter of the Guardianship of , a ]\Iinor. No. . PETITION TO SELL REAL ESTATE BY GUARDIAN. Comes now , as the ^ardian of , and shows to the court the condition of the estate of the above named ward, to-wit : The personal property of said ward consists of , of ap- proximate value of $ ; that the annual income therefrom is approximately $ . That said ward owns the following described real estate of the approximate value of $ , to-wit: (Here describe real es- tate) ; that the annual income therefrom is approximately $ ; that said real estate is incumbered to the amount of $ , with an annual interest charge of $ — ■ ; that the annual expense chargeable against the estate of said ward for maintenance and education is approximately $ ; that it is necessary, or to the best interest of the ward, that the herein- after described portion of said real estate be sold for the fol- lowing reasons, to-wit: (Here state them.) That the next of kin and all persons interested in the estate of said ward, together with their respective places of residence, are as follows: (Here set them out.) Wherefore, petitioner prays the court that upon hearing had hereon, he be authorized to sell all the interest of the minor in and to the (Here describe the real estate sought to be sold) of • Indian Land Laws, Sec. 190. The recent changes in legislation as herein noted should be observed. § 860 merwine's trial of title to land. 608 said real estate, at public or private sale, as shall be deemed most beneficial and for the best interest of said ward. State of Oklahoma, County, ss. : , petitioner above named, being duly sworn, says that he has read the foregoing petition and knows the contents thereof, and the same is true of his own knowledge and belief, except the matters therein stated to be on information and belief, and as to these matters he believes them to be true. Subscribed and sworn to before me this day of 19—. [Seal.] Notary Public. My commission expires . Sec. 860. The order for hearing the petition to sell ward's real estate. In the County Court op County, State op Oklahoma. In the Matter of the Estate 01 f , a I\Tinor. No. ORDER FOR HEARING PETITION TO SELL REAL ESTATE. Now, on this day of , 19— having filed herein his petition for the sale of the real estate described in said petition, for reasons in said petition stated. It is ordered that said petition be, and hereby is, set for hear- ing on the day of , A. D. 19—, at o'clock, — m., at which time the next of kin of the ward and all persons interested in the estate are required to appear before the court and show cause, if any they have, why an order should not be granted for the sale of so much of the real estate of said ■ as is necessary or beneficial for the reasons in said petition stated. It is further ordered that copies of this order be posted in three public places in this county, one of which shall be at the courthouse and personally served on or mailed with the postage 609 REAL ESTATE SOLD BY GUARDIAN. §§ 861, 862 prepaid to the next of kin of the ward and all persons interested in the estate of said ward, and that a copy of this order be published for two successive weeks in the of County, Oklahoma. , Judge of the County Court. Sec. 861. Form for the waiver of the statutory notice and consent to immediate hearing-. In the County Court of County, State of Oklahoma. In the Matter of the Estate of , a I\rinor. No. . We, the undersigned parties in interest in the above entitled estate, and the next of kin to the ward, hereby waive notice of hearing petition to sell the following real estate in said estate, to-wit: (Here describe real estate), and consent that said hearing be had without notice to us and that the said court make said order of sale forthwith. Witness our hands this day of , 19 — . Sec. 862. Form for proof of posting and mailing the notices. State of Oklahoma, County of Okmulgee, ss. : , of lawful age, being first duly sworn, upon his oath, says that on the day of , 19 — , he personally served true copies of the within notice upon the follo-\ving persons, to-wit : , , and , they being the next of kin and all persons interested in the estate of said ward, by mailing a copy thereof, with postage prepaid, addressed at their usual postofifice address, and by posting true copies of the same in three public places in the county, one at the courthouse where § 863 merwine's trial of title to land, 610 the hearing is to be held, one at and one at , all in County, Oklahoma. Subscribed and sworn to before me this day of 19—. Clerk of the County Court. Sec. 863. The form for the order of sale of ward's real estate where parties waive the notice — Guardian ap- pointed in one county and real estate situated in another. In the County Court of County, State of Oklahoma. In the ]\Iatter of the Guardianship of , a ]\Iinor. No. . DECREE FOR SALE OF REAL ESTATE BY GUARDIAN. Now, on this day of , 19 — , there coming on for hearing the petition of , as the guardian of , a minor, for an order authorizing the sale of certain real estate described in the petition, and said petitioner appearing in per- son and by his counsel, and it being proven to the satisfaction of the court upon the hearing thereof, that all persons interested in said real estate, and the next of kin of said , having, by an instrument in writing filed herein, joined in the prayer of said petition, and consented that the real estate described below be sold, and that the court proceed thereupon to hear and de- termine the prayer of said petition, and that said and , who signed said request, are the and , respectively, of said minor, and are the only next of kin and all persons interested in the estate of said minor, and said matter being submitted to the court, and upon due examination and consideration of said petition and after a full hearing upon the same, and upon the consideration of the proof offered upon said matter, the court finds that the sale of the real estate belonging to said ward mentioned in said petition and hereinafter de- scribed, is necessary for the purpose of (Here set it out), and 611 REAL ESTATE SOLD BY GUAEDIAN. § 864 for the further purpose of (Here insert it), and all for the best interest of said ward. It is Therefore adjudged and decreed by the court that the said , as guardian of the estate of said ward, be, and he is, hereb}^ authorized and directed to sell to the highest bidder, at public auction, the following described real estate of said ward, situated in , State of Oklahoma, to-wit: (Here de- scribe it), on the following terms, to-wit: Cash in hand upon the confirmation of said sale. It is further ordered that notice of the time and place of such sale be given by publication for successive in the , of County, Oklahoma, and in , of County, Oklahoma, and by posting notices as required by lav;. It is further ordered that before making such sale said guard- ian execute an additional bond to the county judge of said county of , State of Oklahoma, in the penal sum of $ , conditioned as required by law. [Seal.] Judge of the County Court. Sec. 864. Form for legal notice for posting-. In the Matter of the Estate of , a ]Minor. No. NOTICE OF SALE OF REAL ESTATE BY GUARDIAN. Notice is hereby given that in pursuance of an order of the county court of the county of , State of Oklahoma, made on the dsiY of , 19 — , the undersigned, guardian of the estate of , will sell at public auction to the highest bidder, subject to confirmation by said court, on the day of , A. D. 19 — , at o'clock, — m., at the front door of the courthouse in , County, Oklahoma, all the right, title and interest of said in and to the followinsr described real estate situated in County, State of Oklahoma, to-wit: (Here describe real estate.) §§ 865, 866 MER wine's trial of title to land. 612 Said real estate will be sold on the following terms and con- ditions, to-wit : Cash in hand on the confirmation of said sale. Dated this day of , 19—. Guardian. Sec. 865. Form for proof of posting legal notice. State of Oklahoma, County, ss. : , being duly sworn, says that on the day of , 19 — , he posted true copies of the within notice in three public places in County, Oklahoma, as follows: one at the courthouse door, one at , and one at , all in , Oklahoma. — • Subscribed and sworn to before me this day of , 19.— [Seal.] Clerk of County Court. Sec. 866. Form for legal notice and the proof of publication of same in county where land is located. LEGAL NOTICE. In the Matter of the Estate of , a Minor. No. . Notice is hereby given tha. xU pursuance of an order of the county court of the county of , State of Oklahoma, made on the day of , 19—, the undersigned, guardian of the estate of , will sell at public auction, to the highest bidder, subject to confirmation by said court, on the day of , A. D. 19 — , at o'clock, — m., at the courthouse door in , County, Oklahoma, all the right, title and interest of said in and to the following described real estate, situated in County, State of Oklahoma, to-wit: (Here describe it.) 613 REAL ESTATE SOLD BY GUARDIAN. § 867 Said real estate will be sold on the following terms and con- ditions, to-wit : Cash in hand on the confirmation of said sale. Dated the day of , 19—. Guardian. Attorneys. State of Oklahoma, County, ss. : , being first duly sworn, deposes and says he is the _^ of the ; that the said is a weekly news- paper of general circulation, printed and published in the said county of , State of Oklahoma, and has been issued and published continuously and uninterruptedly for fifty-two consecutive weeks next preceding the date of the first publica- tion of the notice hereto attached, and up to the present time, and that there was published in said newspaper the notice hereto attached and made a part thereof, and that the first publication thereof was on the day of , 19 — , and was published therein for consecutive weeks, the last publication coming on the day of , 19 — . Subscribed and sworn to before me this day of , 19—. , [Seal.] Notary Public. ]\[y commission expires . Sec. 867. Form for legal notice and proof of publication of same in county where the order is made. LEGAL NOTICE. In the Matter of the Estate of , a Minor. No. Notice is hereby given in pursuance of an order of the county court of the county of , State of Oklahoma, made on the day of , 19 — , the undersigned guardian of the § 868 merwine's trial of title to land. 614 estate of , will sell at public auction, to the highest bidder, subject to confirmation by said court, on the day of , A. D. 19 — , at o'clock, — m., at the front door of the courthouse in , County, Oklahoma, all the right, title and interest of said in and to the following described real estate situated in County, State of Okla- homa, to-wit: (Here describe it.) Said real estate will be sold on the following terms and con- ditions, to-wit : Cash in hand on the confirmation of said sale. Dated the day of , 19 — . Guardian. Attorneys. State of Oklahoma, County, ss. : , being duly sworn, deposes and says that he is the , of , a weekly newspaper printed and published in , in tlie said county, which newspaper has been a legal publication with a bona fide subscription list and general cir- culation in County for fifty-two consecutive weeks next preceding the date of the first publication of the notice hereto attached. That a notice, of which the attached is a true copy, was pub- lished once each week for consecutive weeks in said news- paper, the same being in the regular issues of the following dates: and , 19 — . Subscribed and sworn to before me by , the of , this day of , 19 — . [Seal.] Notary Public. ]\Iy commission expires . Sec. 868. Form for report of the sale by guardian. In the County Court of County, State of Oklahoma. In the IMatter of the Estate of , a Minor. No. . 615 RE.VL ESTATE SOLD BY GUARDIAN. § 868 RETURN OF SALE OF REAL ESTATE. Comes now , guardian of the estate of , a minor, and shows to the court that, pursuant to the decree of the court entered herein on the day of , 19 — , authorizing him, as such guardian, to sell all that part of the real estate belonging to said , a minor, hereinafter described. He caused public notice to be given as provided by law, and said order by publication for successive weeks in the , of County, Oklahoma, and in the , of County, Oklahoma, and by posting notices as required by law, that he would sell, at public auction, to the highest bidder, at the front door of the courthouse, in County, Oklahoma, on the day of , 19 — ; that on the day of , 19 — , he sold said real estate, to-wit: (Here specifically describe it) to , for the sum of $ , on the follow- ing terms, to-wit : Cash in hand on the confirmation of sale by this court ; that said was the highest bidder therefor, and said sum of $ was the highest and best sum bid, and that said sum of $ is not disproportionate to the value of said property. "Wherefore, said prays the court to enter its order setting said return for hearing, and that upon said hearing being had, he be directed to execute a proper conveyance thereof to said purchaser. Dated this day of , 19 — . State of Oklahoma, County, ss. : , being duly sworn on oath, says that he is the guard- ian above named; that he has read the above and foregoing return and knows the contents thereof, and that the statements therein contained are true. Subscribed and sworn to before me this day of 19—. [Seal.] Clerk of County Court. §§869,870 merwine's trial op title to land. 616 Sec. 869. Form for the order for the hearing of the guard- ian's report and return of sale of real estate. In the County Court of County, State of Oklahoma. In the Matter of the Estate of , a IMinor. No. . ORDER FOR HEARING RETURN OF SALE OF REAL ESTATE. Now, on this day of , 19 — , , as the guardian of the estate of , a minor, having made and filed herein a return of proceedings had under order of sale of real estate of said estate, made and entered herein on the day of , 19 — , and a hearing on said return being asked for in said return upon a day before the first day of the next term after the sale reported in said return. It is ordered that said return be, and hereby is, set for hearing on the day of , 19 — , at o'clock, — m., and that notice of the time and place of said hearing be given by notices posted in three public places in County, Okla- homa. , [Seal.] Judge of the County Court. Sec. 870. Form for the notice of hearing return of the sale and proof of posting the same. In the County Court of County, State of Oklahoma. In the Matter of the Estate of , a Minor. No. . NOTICE OF HEARING RETURN OF SALE OF REAL ESTATE. Notice is hereby given that , the duly appointed and qualified guardian of the estate of , a minor, has returned and presented for confirmation, and filed in said court his return of the sale of the following described real estate of said , a minor, to-wit: (Here describe real estate), for the sum of $ , and that , the day of , 19 — , at o'clock, in the noon of said day, at the county 617 REAL ESTATE SOLD BY GUARDIAN. § 871 courtroom in , in said county of , has been duly appointed by said court for hearing said return, at which time the next of kin and any person interested in said estate may appear and file his exceptions in writing to said return and contest the same, and are hereby referred to said return for further particulars. Tn Testimony Whereof, I have hereunto set my hand and affixed the seal of said court, this day of , 19 — . [Seal.] Judge of the County Court. State of Oklahoma, Okmulgee County, ss. : I, , of lawful age, being duly sworn, on oath, say: That on the day of , A. D. 19—, I posted correct and true copies of the foregoing notice in three of the most public places in said County, as follows, to-wit : One at the front door of the courthouse, one at , and one at ^ all in , County, State of Oklahoma. Subscribed and sworn to before me, this day of 19- [Seal.] Clerk of County Court. Sec. 871. Form for offer of more than ten per cent, of the amount bid at guardian's sale of ward's real estate. In the County Court of County, State of Oklahoma. In the ]\Iatter of the Estate of , a INIinor. No. . To , Judge of the County Court: I hereby offer the sum of $ for the following described real estate, to-wit: (Here describe real estate), in County, Oklahoma, it being the land of , a minor, now being sold by order of your court by the guardian, and the return of which is set for hearing on the day of , 19 — . Respectfully submitted. § 872 merwine's trial of title to land. 618 Sec. 872. The order confirming sale of real estate to party bidding ten per cent, more than the bid at public auction. County Court op County, State of Oklahoma. In the ]\Iatter of the Estate of , a Minor. No. . ORDER CONFIRMING SALE OF REAL ESTATE. Now, on this day of , 19 — , there coming on for hearing the return of sale made by , as the guardian of the estate of the said , a minor, and said , guardian, appearing in person and by his attorneys, , in support of the confirmation of the sale, and no person or persons appearing against the confirmation of the sale, and the court, having examined said return, and having heard and considered the evidence of witnesses offered in support of said return, and being fully advised in the premises, finds: That, in pursuance of said order of sale, said , guardian, on the day of , 19 — , sold the portion of the real estate of said estate, described as follows, to-wit: (Here describe it), situated in County, Oklahoma, at public sale to , upon the following terms, to-wit : For the sum of $ , payable as follows: Cash in hand upon confirmation of sale. That an offer of more than ten per cent, more in amount than that named in the return was made to the court in writing, by a responsible person, as follows: , who offered in writing the sum of $ , payable cash in hand upon confirmation of sale. That said sale was made after due notice as prescribed by said order of sale; that said purchaser, , was the highest bidder therefor, and said sum of $ the highest and best sum bid ; tliat said sale was legally made and fairly conducted ; that said sum of $ is not disproportionate to the value of the property sold, and that a sum exceeding such bid at least ten (10) per cent., exclusive of the expense of a new sale, cannot be obtained, and that the said guardian in all things proceeded 619 REAL ESTATE SOLD BY GUAKDL^N, § 873 and conducted and managed such sale as required by the statute in such case made and provided, and as by said order of sale required and directed. It is Therefore ordered, adjudged and decreed by the court that the said sale to be, and the same is, hereby con- firmed and approved and declared valid, and the said guardian is directed to execute to said purchaser, , proper and legal convevance of said real estate.* [Seal.] Comity Judge. Sec. 873. Form for the deed from the guardian to the pur- chaser. GUARDIAN'S DEED. This Indenture, made the day of , 19 — , at , State of Oklahoma, by and between , the duly appointed, qualified and acting guardian of , a minor, party of the first part, and , the party of the second part. WITNESSETH, That, Whereas, on the day of , 19 — , the county court within and for the county of , State of Oklahoma, made an order of sale, authorizing the said party of the first part to sell certain real estate of the said , a minor, situated in the county of , State of Oklahoma, described in said order of sale, . And, "Whereas, under and by virtue of said order of sale, and pursuant to legal notices given thereof, the said party of the first part, on the day of , A. D. 19 — , sold the hereinafter described real estate specified and described in said Older of sale, subject to confirmation by said court, for the sum of $ , to , he being the highest and best bidder, and that being the highest and best sum bid. And, Whereas, the said county court, upon the due and legal return of proceedings under the said order of sale, made by the said party of the first part, on the day of , A. D. 19 — , did, on the day of , 19 — , make an * Certified copy of the confirma- with the register of deeds of the tion should be filed and recorded county. § 873 MERWINE 'S TRIAL OF TITLE TO LAND. 620 order confirming said sale and directing conveyances to be exe- cuted to the said party of the second part, a certified copy of which order of confirmation was recorded in the office of the register of deeds of said County, within which the said land is situated, on the day of , A. D. 19 — , in book , on page , and which said order of con- firmation now on file and of record in said county court, and which said record thereof in said register of deed's office are hereby referred to and made a part of this indenture. Now, Therefore, the said , as the guardian of the said , as aforesaid, the party of the first part, pursuant to the order last aforesaid of the said county court, and for and in consideration of the sum of $ , to in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, has granted, bargained, sold and con- veyed, and by these presents does grant, bargain, sell and convey unto the said party of the second part, his heirs and assigns forever, all the right, title, interest and estate of the said in and to all the certain lots, pieces or parcels of land, situated, lying and being in said county of , State of Oklahoma, and bounded and particularly described as follows, to-wit: (Here specifically describe real estate conveyed), together with the tenements, hereditaments and appurtenances whatsoever, to the same belonging or in any wise appertaining. To Have and to Hold, all and singular, the above mentioned and described premises, unto the said party of the second part, his heirs and assigns forever. In Witness Whereof, the said party of the first part, guard- ian as aforesaid, has hereunto set his hand the day and year first above written. , Guardian. Signed and delivered in presence of : State of Oklahoma, County, ss. : Be it Eemembered that, on this day of , A. D. 19 before me, , a within and for said county 621 REAL ESTATE SOLD BY GUARDIAN. § 874 and State, personally appeared , as the guardian of , a minor, to me knowTi to be the identical person who executed the within and foregoing instrument, and acknowledged to me that he executed the same in the capacity therein stated as his free and voluntary act and deed for the uses and purposes therein set forth. In Witness "Whereof, I have hereunto set my hand and official seal, at said county, the day and year last above written. [Seal.] Notary Public. My commission expires . Sec. 874. Procedure by which guardian is authorized to loan funds of ward — The petition therefor. In the County Court of County, State of Oklahoma. In the Matter of the Estate of , a minor, , Guardian. No. . PETITION OF GUARDIAN TO LOAN WARD'S MONEY. Comes now , guardian of , a minor, and states to the court that has applied to him for a loan of $ , out of the funds of his said ward, for a term of years, with interest at the rate of per cent, per annum, payable annually, with the privilege of paying one or all of said loan at any interest paying period after years from the date of said loan ; said loan to be secured by a first mortgage on the following described real estate in the city of , in the county of , and State of Oklahoma, and more particularly described as follows, to-wit: (Here describe it.) Your petitioner believes that said real estate, together with the building to be located and built thereon, according to the plans and specifications herewith presented to the court, will be good security for said loan, and that it will be for the best interests of said ward that said loan be made. Wherefore, your petitioner prays that an order or record be made, authorizing him to make said loan under the direction and approval of this court, and that appraisers be appointed to §875 merwine's trial op title to land. 622 appraise said real estate, and for such other and further orders respecting the same as the court may deem just and proper. Guardian. Sec. 875. The form for order of loan — The appointment of appraisers. In the County Court op County, State of Oklahoma. In the Matter of the Estate of , a Minor. No. . ORDER FOR LOAN. This cause coming on this day for hearing, upon the petition of , guardian of the above named , asking leave to loan $ of his ward's money to one , upon the real estate described in said petition, and asking that appraisers be appointed to appraise said real estate with the improvements so to be erected thereon, and make a report of the same to this court, and the court, after hearing said petition, the evidence and argument of counsel, and being fully advised in the prem- ises, orders that the prayer of said petition be granted; that , , and , be appointed appraisers to appraise said real estate, together with the improvements so to be placed thereon; that said furnish a complete abstract of said real estate to date, and the same to be examined by the attor- neys for said guardian, and their opinion as to the condition of the title to the same to be filed herein. It is further ordered that if said appraisement shows that said real estate and said improvements are sufficient security for said loan and said title to said real estate is good, then said guardian is authorized to loan the sum of $ of his ward's money to the said , for years, with interest at the rate of per cent, per annum, payable annually, with the privilege of paying the or all of said loan at any interest paying 623 REAL ESTATE SOLD BY GUARDIAN. §§876,877 period after the year from the date thereof, and report the same to the court for its approval or rejection. Witness my hand and seal this day of , 19 — . [Seal.] Judge of the County Court. Sec. 876, The form for the oath of appraisers. In the County Court of County, State op Oklahoma. In the Matter of the Estate of , a Minor, , Guardian. No. . AFFIDAVIT OF APPRAISERS. State of Oklahoma, County, ss. : We, , and , being first duly sworn, on oath say that we will make a just and true appraisement, at its actual, true cash value, of the property of , offered as security for a loan out of the estate of , a minor, to the best of our knowledge and belief. So help us God. Subscribed and sworn to before me this day of 19—. [Seal.] Notary Puhlic in and for said County and State. My commission expires . Sec. 877. The form for the report of the appraisers. We, , and , appraisers appointed by the court herein on the day of , 19 — , to appraise the property of , offered as security for a loan out of the estate of , a minor, do appraise the following described real estate, to-wit: (Here describe it), together with a building to be erected thereon according to the plans and speci- fications submitted to us, at the cash sum of $ , Appraisers. §§ 878, 879 merwine's trial op title to land, 624 Sec. 878. The form for opinion of attorneys as to title. County Court of County, State of Oklahoma. In the Matter of the Estate of , a Minor, , Guardian. No. . OPINION OF ATTORNEY AS TO TITLE TO REAL ESTATE. To , Guardian: This is to certify that we have examined the abstract of title to the following described real estate in County, Okla- homa, to-wit: (Here describe it), furnished and prepared by , of , Oklahoma, and we are of the opinion that said abstract, at the date of the last continuation thereof, shows that has good fee simple title thereto, except . Attorneys. Sec. 879. The form for the mortgage to guardian. REAL ESTATE MORTGAGE. This Indenture, made and entered into this day of , 19 — , by and between and , his wife, of the town of , County, Oklahoma, parties of the first part, and , as the guardian of , a minor, party of the second part, WITNESSETH, that said parties of the first part, in consider- ation of the sum of $ , the receipt whereof is hereby ac- knowledged, do by these presents grant, bargain, sell and convey unto said party of the second part, his heirs and assigns, all the following described real estate, situated in the town of , ■ County, State of Oklahoma, to-wit: (Here describe it). together with all the improvements thereon. To Have and to Hold the same, together with all and singular the tenements, hereditaments and appurtenances thereunto be- longing, or in any wise appertaining forever. This conveyance is intended as a mortgage to secure the pay- ment of promissory note — of even date herewith, for $ , due on the day of , 19 — , made to , 625 REAL ESTATE SOLD BY GUARDIAN. § 879 as the guardian of the estate of , a minor, payable at , Oklahoma, with per cent, interest per annum, payable annually, and if interest be not paid when due, to become as principal and draw per cent, interest per annum, payable annually, and if principal or interest be not paid when due, to pay all reasonable costs of collection, includ- ing attorney's fees of and signed by . Said first parties hereby covenant that they are the owners in fee simple of said premises and that they are free and clear of all incumbrances; that they have good right and authority to convey and incumber the same, and that they will warrant and defend the same against all lawful claims of all persons whomsoever. Said parties agree to insure the buildings on said premises in a sum of not less than $ , for the benefit of the mortgagee, and maintain such insurance during the exist- ence of his mortgage. Said parties agree to pay all taxes and assessments lawfully assessed against said premises before de- linquent. Now, if said first parties shall pay, or cause to be paid, to said second party, his heirs, successors or assigns, said sum of money in the above described note mentioned, together with all interest thereon, according to the terms and tenor of said note, and shall make and maintain said insurance and pay such taxes and as- sessments, then these presents shall be wholly discharged and void, otherwise shall remain in full force and effect. If such insurance is not effected and maintained, or if any and all taxes and assessments which are, or may be, lawfully assessed against said premises, or any part thereof, are not paid before delin- quent, then said mortgagee may effect such insurance, or pay said taxes or assessments, and shall be allowed interest thereon at the rate of per cent, per annum until paid, and this mortgage shall stand as security for all such payments, and if said sum or sums of money, or any part thereof, is not paid when due, or if any such insurance is not effected and maintained, or taxes or assessments are not paid before delinquent, or if any interest be not paid when due, the holder of said note and this mortgage may elect to declare the whole sum or sums and in- § 880 merwine's trial of title to land. 626 terest thereon due and payable at once, and proceed to collect said debt, including attorney's fees and to foreclose this mort- gage, and shall become entitled to the possession of said premises. In Witness Whereof, the said parties of the first part have hereunto set their hands, the day and year first above written. State of Oklahoma, County, ss. : Before me, a notary'- public within and for said county and State, on this day of , 19 — ■, personally ap- peared and , his wife, to me known to be the identical persons who executed the within and foregoing instru- ment, and acknowledged to me that they executed the same as their free and voluntary act and deed for the uses and purposes therein set forth. Witness my hand and notarial seal this day of , 19-. , [Seal.] Notary Public. My commission expires . Sec. 880. The form for the report of guardian as to loan. County Court of County, State of Oklahoma. In the Matter of the Estate of , a Minor, , Guardian. No. REPORT OP GUARDIAN ON LOAN TO Comes now , as guardian of , a minor, and states to the court that said appraisers, as shown by their report filed herein, appraise said real estate with the improvements to be made thereon, in the sum of $ ; that, acting upon said ap- praisement and the order of the court heretofore herein made, he has made a loan of $ of his said ward's money to the said , for a period of years, with interest at the rate of per cent, per annum, payable annually from date of note and mortgage until paid ; that the said furnished an abstract of title to said real estate, and the same has been 627 REAL ESTATE SOLD BY GUARDIAN, § 881 examined by my attorneys and title thereto found to be good in the said , as will appear from said opinion in writing filed in this case : that with said opinion of said attorneys as to the title of said real estate, there is herewith submitted to this court said abstract of title for its inspection, together with the note and the mortgage securing said note, and that the said has paid the costs of this proceeding. Wherefore, this guardian prays this honorable court that said appraisement be approved and that this report of your guardian be approved and confirmed, and if the court deem it to be to the best interest of said ward, that said loan be author- ized and approved. , As Guardian of . Sec. 881. The form for the order approving and confirming loan. County Court of County, State of Oklahoma. In the Matter of the Estate of , a ]\Iinor, , Guardian. No. . ORDER APPROVING LOAN TO This cause came on for hearing upon the report of the guard- ian and of the appraisers herein, wherein guardian reports to the court the several things done by him in making a loan of $ of his ward's money to , in which he prays that his said report be approved and the loan confirmed, and the court, after hearing the report, the e^^dence and the argument of counsel, and after examining the opinion of title by attorneys, and inspecting the mortgage and note, and being fully advised in the premises, finds that said guardian has fully complied with the order of the court heretofore made, and his said report, the appraisement and proceedings in the premises are hereby ap- proved and confirmed. §§ 882, 883 merwine's trial of title to land. 628 It is Therefore ordered that said loan of $ , made by the said , as guardian of the estate of , a minor, to the said be, and the same is, hereby approved and con- firmed. "Witness my hand and seal of said court this day of , 19-. , Judge of the County Court, County, Oklahoma. [Seal.] Sec. 882. Set of forms for the appointment of a guardian and for sale of real estate by guardian — The form for selection of guardian by a minor over fourteen years of age, and for sale of real estate at pri- vate sale. State of Oklahoma, County, ss. : In the County Court. In the Matter of the Guardianship of , a ]\Iinor. No. . NOMINATION BY MINOR. Comes now , and respectfully states to the court that he is now years of age ; that has been acting as his guardian; that he has the right to nominate his own guard- ian now, and does nominate , and respectfully asks the court to make an order appointing him. Done in open court this day of , 19 — . Witness : Sec. 883. Form for the petition for the appointment of guardian. State of Oklahoma, County, ss. : In the County Court, In the Matter of the Guardianship of , a Minor. No. . 629 REAL ESTATE SOLD BY GUARDIAN, § 884 PETITION FOR APPOINTMENT OF GUARDIAN. Comes now and shows to the court that he is a resident of County, State of Oklahoma, and that is a minor over years of age, and that he has filed his nom- ination in form of petition herein ; that said has estate of the following general character and value in the county of , State of Oklahoma, to-wit: (Here describe same.) That the next of kin and persons having care of said are . That petitioner is . That it is necessary that a guardian be appointed for said for the following reasons : . That for whom letters of guardianship are asked to be issued, is a resident of County, having his postoffice ad- dress at , Oklahoma. Wherefore, petitioner prays that be appointed guard- ian of said , a minor. Petitioner. Sec. 884. Form for the oath to the petition. State of Oklahoma, County, ss. : I, the undersigned petitioner, being duly sworn, on oath say that I have read the foregoing petition, and know the contents thereof, and that the statements therein contained are true, as I verily believe. . Subscribed and sworn to before me this day of , 19—. , [Seal.] Clerk of the County Court. I, the undersigned minor, being over the age of years, and a resident of County, Oklahoma, hereby join in the above petition and request that the prayer of said petition be granted, and do here now nominate and choose said to act as my guardian. . Dated this , 19—. §§885,886 merwine's trial of title to land, 630 Sec. 885. Form for the order appointing guardian. State of Oklahoma, County, ss. : In the County Court. In the Matter of the Guardianship of , a Minor. No. -. Now, on this, the day of , 19 — , comes and files in this court his nomination in writing, showing that he is over years of age and requesting that be appointed as his guardian to supersede , who has been acting in such capacity, and the court, having examined said nomination and having taken testimony under oath, and being fully advised in the premises, approves the nomination of said by said , as his guardian, and is of the opinion that he should be appointed to supersede the former guardian. It is Therefore ordered that said be, and he is hereby, appointed guardian of the person and estate of the said , a minor, and that letters of guardianship issue to him upon his taking and subscribing the oath required by law r::^ c-r-cuting bond to said minor in the penal sum of $ , ■ ' .. sureties approved by the judge of said court. It is further ordered that the power and authority of the said , as guardian of said minor, is by said nomination and this approval ordered terminated, and said is or- dered within days to make and file in this court a final report of all his acts and doings as such guardian since his last report. , Judge of the County Court. Sec. 886. Form for the letters of guardianship. State of Oklahoma, County, ss. : In the County Court. In the Matter of the Guardianship of , a ]\Iinor. No. . is hereby appointed guardian of the person and estate of , a minor. 631 REAL ESTATE SOLD BY GUARDIAN. §§887,888 Witness , judge of the county court of County, State of Oklahoma, with the seal thereof affixed, the day of , A. D. 19—. [Seal.] Judge of the County Court. Sec. 887. Form for the oath of guardian. State of Oklahoma, County, ss. : I, , do solemnly swear that I will discharge all and sin- gular the duties of guardian of the person and estate of , a minor, according to law, and to the best of my ability. So help me God. . Subscribed and sworn to before me this day of , 19—. , [Seal.] Clerk of the County Court. Sec. 888. Form for the guardian's bond. State of Oklahoma, County, ss. : In the Comity Court. In the Matter of the Guardianship of , a ]\Iinor. No. . Know All JMen by These Presents, that we, , as principal, and and , as sureties, are held and firmly bound unto , a minor, in the penal sum of $ , lawful money of the United States, for the payment of which well and truly to be made, we bind ourselves, our heirs, execu- tors, administrators and assigns, jointly and severally, by these presents. The condition of the above obligation is such, that, whereas, by order of the county court of County, State of Okla- homa, made and entered on the day of , A. D. 19 — ^ the above named principal was appointed guardian of the person and estate of the above named , a minor, and letters of guardianship were directed to issue to said principal upon his taking and subscribing the oath required by law and §§889,890 merwine's trial op title to land. 632 executing a bond to said ward in the penal sum of $ , with sureties to be approved by the judge of said court. Now, Therefore, if the above bounden principal shall faith- fully execute the duties of such trust as such guardian, accord- ing to law, then this obligation shall be void, otherwise to remain in full force and effect. Witness the hands of said principal and said «' this day of , 19 — . , Sec. 889. Form for the oath of sureties. State of Oklahoma, County, ss. : The undersigned, sureties on the foregoing bond, being duly sworn, on oath each for himself, says : I am a resident house- holder and freeholder within the State of Oklahoma, and have property within said State worth over and above all my just debts and liabilities, exclusive of property exempt from execu- tion, the sum set out and stated below, that is to say: I, , am worth the sum cf $ . I, , am worth the sum of $ . Subscribed and sworn to Before me this day of 19—. [Seal.] Clerk of the County Court. I hereby approve the above bond this day of , 19-. , Judge of the County Court. Sec. 890. Form for the inventory and appraisement. In the Matter of the Estate and Guardianship of , a Minor. In the County Court. An inventory of the estate, real and personal, of said -, a minor, that has come to the possession or knowledge of the undersigned, guardian of said minor. 633 RE.M. ESTATE SOLD BY GUARDIAN. § 891 INVENTORY. NO. REAL ESTATE. APP. VALUE. (Here describe real estate.) Dollars. Cents. PERSONAL PROPERTY. NO. REAIi ESTATE. APP. VALUE. (Here describe same.) Dollars. Cents. BONDS, ]\IORTGAGES, NOTES AND ACCOUNTS. BY WHOM OWING. DATE. AM't. CREDITS. WHEN DUE. APP. VAL. Month, Day, Year. Month, Day, Year. (Here describe same.) Total appraised value of said estate, Dated this day of , 19—. Guardian. Sec. 891. Form for the oath of guardian to inventory and appraisement. State of Oklahoma, County, ss. : I, , guardian of the above named minor, being duly sworn, on oath state that the above inventory by me made and subscribed, is a full and correct inventory of all the property of said estate, both real and personal, that has come to my possession or knowledge. So help me God. Guardian. Subscribed and sworn to before me this day of A. D. 19—. , [Seai..] Judge of the County Court. §§ 892-894 merwine's trlvl of title to land. 634 Sec. 892. Form for the order appointing appraisers. In the County Court of County, State of Oklahoma. In the Matter of the Estate of , a Minor. No. . Now, on this day of , 19 — , it is hereby ordered that , and , of County, State of Oklahoma, be, and they are hereby, appointed appraisers of the estate of , a minor, \\dthin the county of , in said State, and are hereby directed to view and appraise said estate and make return of said appraisement as provided by law. Judge of the CounUj Court. Sec. 893. Form for certificate of true copy. State of Oklahoma, County, ss. : I, , of the county court in and for the county and State aforesaid, do hereby certify the above and foregoing to be a true copy of the original thereof as the same appears of record in my office. In Witness "Whereof, I have hereunto set my hand and affixed the seal of said court, this day of , 19 — . of the County Court. Sec. 894. Form for the oath of appraisers. State of Oklahoma, County, ss. : I do solemnly swear that I will truly, honestly and impar- tially appraise the property exhibited to me as belonging to the minor above named, according to the best of my knowledge and ability, and that I am disinterested in the estate of said minor. So help me God. , Appraisers. Subscribed and sworn to before me, this day of A. D. 19—. , [Seal.] Judge of the County Court. 635 REAL ESTATE SOLD BY GUARDIAN. §§ 895-897 Sec. 895. Form for the certificate of appraisers. We, the undersigned appraisers, do hereby certify that, after taking the foregoing oath by us subscribed, we appraised all the property described and mentioned in the above inventory, which has been exhibited to us, setting down opposite each item of said inventory, in figures, the value thereof in money, as by us de- termined. Witness our hands this day of , A. D. 19 — . Appraisers. Sec. 896. Form for the bill of appraisers. Estate of , a Minor. To , and , Appraisers, Dr. One day each, three days, at $ per day, each, $- Necessary disbursements as follows : $- Sec. 897. Form for the oath of appraisers to said bill. State of Oklahoma, County, ss. : , and , the appraisers within named, being duly sworn, each for himself, says that the foregoing bill of items is correct and just, and that the services have been duly rendered and expenses incurred as therein set forth. Appraisers. Subscribed and sworn to before me, this day of A. D. 19—. , [Seal.] Notary Public. My commission expires . § 898 merwine's trial of title to land. 636 Sec. 898. Form for petition to sell real estate by guardian. State of Oklahoma, County, ss. : In the County Court. In the Matter of the Guardianship of , a ]\Iinor. No. . PETITION TO SELL REAL ESTATE. Comes now , as the guardian of , a minor, and shows to the court the condition of the estate of the above named ward, to-wit: The personal property of said ward consists of (Here describe it), of the approximate value of $ ; that the annual income therefrom is approximately $ . That said ward owns the following described real estate of the approximate value of $ , to-wit: (Here describe real es- tate) — — ; that the annual income therefrom is approximately $ ; that said real estate is incumbered to the amount of $ , with an annual interest charge of $ ; that the annual expense chargeable against the estate of said ward for maintenance and education is ap- proximately $ ; that it is necessary that the hereinafter described portion of said real estate should be sold for the fol- lowing reasons, to-wit: . That the next of kin and persons interested in the estate of said ward, together with their respective places of residence, are as follows : . Wherefore, petitioner prays the court that, upon hearing had hereon, he be authorized to sell all the interest of said minor in (Here describe real estate to be sold) in County, Oklahoma. Also (Here describe real estate to be sold) in County, Oklahoma, at public or private sale as shall be deemed most beneficial and for the best interest of said ward. Petitioner. 637 REAL ESTATE SOLD BY GUARDIAN. §§ 899, 900 Sec. 899. Form for oath to petition. State of Oklahoma, County, ss. : , petitioner above named, being duly sworn, says that he has read the foregoing petition and knows the contents thereof, and the same is true of his own knowledge, except the matters therein stated to be on information and belief, and as to those matters be believes them to be true. Subscribed and sworn to before me, this day of 19—. [Seal.] Notary Public. My commission expires . Sec. 900. Form for order for hearing petition to sell real estate by guardian. State of Oklahoma, County, ss. : In the County Court. In the Matter of the Guardianship of , a Minor. No. . ORDER FOR HEARING PETITION TO SELL REAL ESTATE. Now, on this day of , 19 — , comes , as guardian of the estate of the above named ward, having filed herein his petition for the sale of the real estate of said ward for the reasons in said petition stated. It is ordered that said petition be, and hereby is, set for hearing on the day of , A. D. 19 — , at o'clock, — m., at which time the next of kin and all persons interested in the estate of said ward are required to appear and show cause, if any they have, why an order should not be granted for the sale of so much of the real estate of said ward as is necessary for the reasons in said petition stated. It is further ordered, that copies of this order be posted in three public places in this county, one of which shall be at the courthouse where the hearing is to be held, and personally §§ 901, 902 merwine's trial of title to land. 638 served on or mailed, with the postage prepaid, to the next of kin of the ward and all persons interested in the estate of said ward, and that a copy of this order be published for two suc- cessive weeks in the of , County, Okla- homa. , [Seal.] Judge of the County Court. Dated this day of , 19 — . Sec. 901. Form for waiver of notice of hearing petition by next of kin and parties interested. State of Oklahoma, County, ss. : In the County Court. In the Matter of the Guardianship of , a ]\rinor. No. . "We, the undersigned, next of kin and all persons interested in the estate of the above named ward, hereby waive notice of hearing petition to sell the following described real estate of said ward, to-wit: (Here describe same), and consent that said order of sale be made forthwith as prayed for, and without notice to us. Witness our hands this day of , 19 — . Sec. 902. Form for proof of posting and mailing the notices. State of Oklahoma, County of Okmulgee, ss. : , of lawful age, being first duly sworn, upon his oath says that on the day of , 19 — , he personally served true copies of the within notice upon the following per- sons, to-wit: , they being the next of kin and all persons interested in the estate of said ward, by mailing a copy thereof, with postage prepaid, at their usual postoffice address, and by posting true copies of the same in 639 REAL ESTATE SOLD BY GUARDIAN. § 904 three public places in the county, one at the courthouse where the hearing is to be held, one at , and one at , all in County, Oklahoma. Subscribed and sworn to before me this day of 19—. Clerk of the County Court. Sec. 904. Form for the affidavit of publication. State of Oklahoma, County, ss. : ^ of lawful age, being first duly sworn, deposeth and saith that he is , of the , a weekly newspaper, printed and published in , County and State of Oklahoma, and that an order for hearing petition, of which the attached is a true and correct copy, was printed and published in the regular and entire issues of said for two consecu- tive weeks, the first publication being made on the day of , A. D. 19—, and the last on the •- day of , A. D. 19—. And, further, affiant says that the said newspaper has been continuously and uninterruptedly published in said County during the period of fifty-two consecutive weeks prior to the first publication of the attached notice. Subscribed and sworn to before me, this day of , A. D. 19—. ' r Se vl 1 Notary Public. My commission expires • §905 merwine's trial of title to land. 640 Sec. 905. Form for appointment of appraisers and appraise- ment of land before sale at private sale. In the County Court of County, State of Oklahoma. In the Matter of the Estate of , a ]\Iinor. No. . ORDER APPOINTING APPRAISERS. Now, on this day of , 19—, it is hereby ordered that , and , of County, Oklahoma, be, and they are hereby, appointed appraisers to appraise the following described real estate belonging to the estate of , a minor, located in County, Oklahoma, and described as follows, to-wit: (Here describe the land to be appraised), and are hereby directed to view and appraise said real estate, and make return of said appraisement as provided by law. Judge of the County Court. OATH OF APPRAISERS. State of Oklahoma, County, ss. : I do solemnly swear that I will truly, honestly and impartially appraise the real estate mentioned and described in the order of court above mentioned, according to the best of my knowledge and ability. So help me God. Subscribed and sworn to before me, this day of 19- [Seal.] Clerk of the County Court. 641 REAL ESTATE SOLD BY GUARDIAN. § 905 APPRAISEMENT OF REAL ESTATE BEFORE SALE. In the Matter of the Estate No. . of , a Minor. In the County Court. We, the undersigned appraisers appointed to appraise the real estate of , a minor, mentioned and descri])ed herein, do most respectfully certify that, having first taken and subscribed the oath required by law, we do make the following appraise- ment of said lands at their cash value, that is to say: (Here describe the land) at (appraised value) , at . Respectfully submitted this day of , 19 — . Appraisers. Estate of , a minor. To , Appraisers, Dr. To compensation for services in appraising the above described real estate, as follows : days, at $ per day, each $ • Necessary expenses and disbursements as follows : $ . $ . State of Oklahoma, County, ss. : , and , the appraisers above named, being duly sworn, each for himself, says that the foregoing bill is cor- rect and just, and that the services have been duly rendered and expenses incurred as therein set forth. Subscribed and sworn to before me, this day of 19—. [Seal.] Clerk of the County Court. § 907 MERWINE 'S TRIAL OF TITLE TO LAND. 642 Sec. 907. Form for the decree of sale of real estate by guardian. State of Oklahoma, Coimty, ss. : In the County Court. In the Matter of the Guardianship of Scott, a ]\Iinor. No. . Now, on this day of , A. D. 19—, there coming on for hearing the petition of , as the guardian of , a minor, for an order authorizing the sale of the real estate described in said petition; and said petitioner, appearing in person and by his attorneys, , and no person or persons appearing in opposition to said petition, and it being proven to the satisfaction of the court that notice of this hearing has been given for the time and in the manner prescribed by law by publication of a copy of said order to hear for two weeks in the , a legal publication of , Oklahoma, the first of such publications appearing in the issue of , 19 — , and the last appearing in the issue of , 19 — ; and by posting true copies of said order in three of the most public places in said county and State, one of which was at the front door of the courthouse, where the hearing was held, in , Oklahoma, and by mailing copies to all the persons interested in the estate, and next of kin of said ward, no matter where located; and said matter being submitted to the court; and upon due examination and consideration of said petition, and after a full hearing upon the same, and upon due consideration of the proofs offered in said matter, the court finds that the sale of the real estate belonging to said ward mentioned in said petition and hereinafter described, is necessary for the purpose of (Here state reasons for said sale), and is fOr the best interest of said ward. It is Therefore adjudged and decreed by the court that the said , as guardian of the estate of said above named ward, be, and is hereby, authorized to sell in one parcel, or in separate parcels or subdivisions, as the said guardian shall judge most beneficial to said estate, at private sale to the highest bidder, the following described real estate, to-mt : *(Here describe same) 643 REAL ESTATE SOLD BY GUARDIAN. § 908 in Count}^ Oklahoma; and also (Here describe real es- tate) in County, Oklahoma, on the following terms, to-wit : Cash in hand, subject to confirmation by the county court. It is further ordered that notice of the time and place of such sale be given hy publication for two successive weeks in the , of , Oklahoma, and the , of , Oklahoma, and by posting notice as required by law. It is further ordered that, before making such sale, said guardian execute an additional bond to the county judge of said county of , State of Oklahoma, in the penal sum of $ , conditioned as required by law. [Seal.] Judge of the County Court. Sec. 908. Form for notice of sale of real estate. In the Matter of the Guardianship of , a ]\Iinor. Notice is hereby given, that in pursuance of an order of the county court of the county of , State of Oklahoma, made on the day of May, 19 — , the undersigned, guardian of the estate of , a minor, will sell at the county courtroom in , Oklahoma, to the highest bidder, subject to con- firmation by said court, on , the — day of , A. D. 19 — , at o'clock, — m. (or within six months thereafter), at private sale, all the right, title and interest of said , a minor, in and to the following described real estate, to-wit: , in County, Oklahoma ; also in County, Oklahoma. Said real estate will be sold on the following terms and con- ditions, to-wit: Cash in hand, subject to confirmation by the county court. Bids for the purchase thereof must be in writing and must be filed in the county court of County, Oklahoma, or mailed §§909,910 merwine's trial of title to land. 644 to , attorneys for the guardian, at , Oklahoma, or delivered to the guardian personally. Dated the day of , 19 — . Guardian. Attorneys for Guardian. Sec. 909. Form for the affidavit of posting notice. State of Oklahoma, County, ss. : , being duly sworn, says that on the day of , 19 — , he posted true copies of the within notice in three public places in County, as follows : one at the front door of the courthouse, , Oklahoma; one at , , Oklahoma, and one at , , Oklahoma. Subscribed and sworn to before me, this day of , A. D. 19—. , [Seal.] Clerk of the County Court. Sec. 910. Form for the notice of sale of real estate by- guardian. In the Matter of the Guardianship of , a Minor. Notice is hereby given in pursuance of an order of the county court of the county of , State of Oklahoma, made on the day of , 19 — , the undersigned guardian of the estate of , a minor, will sell at the county courtroom, in ■ , Oklahoma, to the highest bidder, subject to confirma- tion by said court, on , the day of , A. D. 19 — ^ at o'clock, — m. (or within six months there- after), at private sale, all the right, title and interest of said , a minor, in and to the following described real estate, to-wit: , in County, Okla- homa; also , in County, Oklahoma. 645 REAL ESTATE SOLD BY GUARDIAN. §§911,912 Said real estate will be sold on the following terms and con- ditions, to-wit: Cash in hand, subject to confirmation by the county court. Bids for the purchase thereof must be in writing and must be filed in the county court of County, Oklahoma, or be mailed to , attorneys for guardian, at , Oklahoma, or delivered to the guardian personally. Guardian. Attorneys for Guardian. Sec. 911. Form for affidavit of posting notices. State of Oklahoma, County, ss. : , being duly sworn, says that on the day of , 19 — , he posted true copies of the within notice in three public places in County, as follows : one at the front door of the courthouse, , Oklahoma ; one at , , Oklahoma, and one at , , Oklahoma. Subscribed and sworn to before me this day of A. D. 19—. [Seal.] Clerk of the County Court. Sec. 912. Form for publication of notice of sale of real estate. (First published in , , 19 — .) NOTICE 0¥ SALE OF REAL ESTATE BY GUARDIAN. In the JMatter of the Guardianship of , a INIinor. Notice is hereby given that, in pursuance of an order of the county court of the county of , State of Oklahoma, made on the day of , 19 — , the undersigned guardian of the estate of , a minor, will sell at the county courtroom in , Oklahoma, to the highest bidder, subject to con- firmation by said court, on , the • day of , § 913 MERWINE 'S TRIAL OF TITLE TO LAND. 646 A. D. 19 — , at o'clock, — m. (or within six months thereafter), at private sale, all the right, title and interest of said , a minor, in and to the following described real estate, to-wit: (Here describe real estate) in County, Oklahoma; also (Here describe real estate) in County, Oklahoma, Said real estate will be sold on the following terms and con- ditions, to-wit : Cash in hand, subject to confirmation by the county court. Bids for the purchase thereof must be in writing and must be filed in the county court of County, Oklahoma, or mailed to , attorneys for guardian, , Oklahoma, or de- livered to the guardian personally. Dated the day of , 19 — . Guardian. Attorneys for Guardian. Sec. 913. Form for the proof of legal notice. State of Oklahoma, County, ss. : , being duly sworn, deposes and says that he is the , of the , a weekly newspaper printed and pub- lished in , in said county, which newspaper has been a legal publication with a hona fide subscription list and general circulation in County for fifty-two consecutive weeks next preceding the date of the first publication of the notice hereto attached. That a notice, of which the attached is a true copy, was pub- lished once each week for three consecutive weeks in said news- paper, the same being in the regular issues of the following dates : , and , 19 — . Subscribed and sworn to before me by , the , of the , this day of , 19 — . [Seal.] * Notary Public. My commission expires . 647 REAL ESTATE SOLD BY GUARDIAN. §§914,915 Sec. 914. Form for the legal notice of sale of real estate by guardian. In the Matter of the Guardianship of , a Minor. NOTICE OF SALE OF REAL ESTATE. Notice is hereby given in pursuance of an order of the county court of the county of , State of Oklahoma, made on the day of , 19 — , the undersigned guardian of the estate of , a minor, will sell at the county courtroom in , Oklahoma, to the highest bidder, subject to confirma- tion by said court, on , the day of , A. D. 19 — , at o'clock, — m. (or within six months there- after), at private sale, all the right, title and interest of said , a minor, in and to the following described real estate, to- wit: (Here describe same), in County, Oklahoma; also (Here insert description), in County, Oklahoma. Said real estate will be sold on the following terms and con- ditions, to-wit: Cash in hand, subject to confirmation by the county court. Bids for the purchase thereof must be in writing and must be fi-led in the county court of County, Oklahoma, or mailed to , attorneys for guardian, at , Oklahoma, or delivered to the guardian personally. Dated the day of , 19—. Guardian. Attorneys for Guardian. First published , 19 — . Sec. 915. Form for the proof of publication. State of Oklahoma, County, ss. : , of lawful age, being duly sworn according to law, states that he is the , of , a weekly newspaper, printed and published at , county of , and State § 916 merwine's trial of title to land. 648 of Oklahoma, of general circulation in said county, which said newspaper has been published continuously for more than fifty- two consecutive issues next preceding the date of the first pub- lication of the notice hereto attached, and that the notice of sale of real estate, a copy of which is hereto attached, was duly printed and published in the regular issues of said for three consecutive weeks, the first insertion being on the day of , 19 — , and the last insertion being on the • day of , 19—. . Printer's fees, $ . •. Subscribed and sworn to before me, this day of , 19—. , [Seal.] Notary Public. My commission expires . Sec. 916. Form for the additional bond of guardian. State of Oklahoma, County, ss. : In the County Court. In the Matter of the Guardianship of , a ]\Iinor. No. . Know All ■Men by These Presents, that we, , as principal, and and , as sureties, are held and firmly bound unto the county judge of County, State of Oklahoma, in the penal sum of $ , lawful money of the United States, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors, administrators and assigns, jointly and severally, by these presents. The condition of the above obligation is such, that, whereas, on the day of , 19 — , an order was entered by the county court of County, State of Oklahoma, authorizing the above named principal, as guardian of the estate of , a minor, to sell certain real estate belonging to said estate, and providing therein, that said , guardian, should give an additional bond in the above named sum, before making such sale. 649 REAL ESTATE SOLD BY GUARDIAN. §§917,918 Now, Therefore, if the said , as such guardian, shall faithfully execute the duties of such trust according to law, then this obligation to be void, otherwise to remain in full force and effect. In Witness Whereof, we have hereunto subscribed our names this day of , 19 — . Sec. 917. Form for the oath of sureties. State of Oklahoma, County, ss. : The undersigned, sureties on the foregoing bond, being duly sworn, on oath each for himself, says : I am a resident house- holder and freeholder within the State of Oklahoma, and ha\e property within said State worth over and above all my just debts and liabilities, exclusive of property exempt from execu- tion, the sum set out and stated below, that is to say; I, , am worth the sum of $ . I, , am worth the sum of $ . Subscribed and sworn to before me, this day of 19—. [Seal.] Judge of the County Court. I hereby approve the above bond, this day of , 19-. , Judge of the County Court. Sec. 918. Form for the return of sale of real estate. State of Oklahoma, County, ss. : In the County Court. In the Matter of the Estate of , a Minor. No. . Comes now , as guardian of the estate of , a minor, and shows to the court that, pursuant to the decree of the court entered herein on the day of , 19 — , § 919 merwine's trial of title to land. 650 authorizing him, as such guardian, to sell the interests of said minor in the real estate belonging to said , a minor, here- inafter described. He caused public notice to be given as provided by law and said order by posting notices and by pub- lication, that he would sell said ward's interest in said land at private sale to the highest bidder, on , 19 — , or within six months thereafter, and that on the day of , 19 — , he sold said real estate, to-wit : Said ward's interest in , in County, Oklahoma, to , for the sum of $ , on the following terms, to-wit : Cash, subject to confirmation by the county court. That said was the highest bidder therefor, and said sum of $ the highest and best sum bid, and that said sum of $ is not disproportionate to the value of said property. "Wherefore, said , guardian, prays the court to enter its order setting said return for hearing, and that, upon said hearing being had, he be directed to execute a proper convey- ance thereof to said purchaser. Dated the day of , 19 — . Guardian. Sec. 919. Form for oath of guardian to return. State of Oklahoma, County, ss, : , being duly sworn, on oath says that he is the guardian above named, and that he has read the above and foregoing re- turn, and knows the contents thereof, and that the statements therein contained are true. Subscribed and sworn to before me, this day of 19—. [Seal.] Clerk of the County Court. 651 REx\L ESTATE SOLD BY GUARDIAN. §§920,921 Sec. 920. Form for order for hearing return of sale of real estate. State of Oklahoma, County, ss. : In the County Court. In the Matter of the Guardianship of , a Minor. No. . Now, on this day of , 19 — , , as the guard- ian of the estate of , a minor, having made and filed herein a return of proceedings had under order of sale of real estate of said estate, made and entered herein on the day of , 19 — , and a hearing on said return being asked for in said return upon a day before the first day of the next term after the sale reported in said return. It is ordered that said return be, and hereby is, set for hearing on the day of , 19 — , at o'clock, — m., and that notice of the time and place of said hearing be given by posting notices thereof in three of the most public places in said county, at least ten full days before the date of hearing. [Seal.] Judge of the County Court. Sec. 921. Form for the notice of hearing return of sale of real estate. State of Oklahoma, County, ss. : In the County Court. In the Matter of the Guardianship of , a jMinor. No. . Notice is hereby given that , the duly appointed and qualified guardian of the estate of , a minor, has returned and presented for confirmation, and filed in said court his return of the sale of the following described real estate of said minor, to-wit: Said ward's interest in , in County, Oklahoma, to , for the sum of $ , and that , the day of , 19—, at o'clock, in the ^noon of said day, at the county courtroom in §§922, L)23 merwine's trial of title to land. 652 — , in said county of , has been duly appointed by said court for hearing said return, at which time any person interested in said estate may appear and file his exceptions in writing to said return and contest the same, and are hereby referred to said return for further particulars. In Testimony Whereof, I have hereunto set my hand and affixed the seal of said court, this day of , 19 — , [Seal.] Judge of the County Court. Sec. 922. Form for aflfidavit of posting notices of hearing return. State of Oklahoma, County, ss. : I, , of lawful age, being duly sworn, on oath, say that on the day of , A. D. 19 — , T posted correct and true copies of the foregoing notice in three of the most public places in said County, as follows, to-wit : one at the front door of the courthouse, , Oklahoma, one at , , Oklahoma, and one at , , Oklahoma. Subscribed and sworn to before me, this day of 19—. [Seal.] Judge of the County Court. Sec. 923. Form for the order confirming sale of real estate by guardian. State of Oklahoma, County, ss. : In the Countj'' Court. In the Matter of the Guardianship of , a ]Minor. No. . Now, on this day of , 19—, there coming on for hearing the return of sale made by , as the guardian of the estate of , a minor, and said , guardian, appear- ing in person and by attorneys, , and it appearing that notice of this hearing has been given by posting notices thereof in three of the most public places in County, Oklahoma, 653 REzVL ESTATE SOLD BY GUARDIAN, § 923 on the day of , 19 — , and there being no tes- timony oifered in opposition to this confirmation, and the court, having examined said return and having heard and con- sidered the evidence of witnesses offered in support of said return of sale by the guardian herein, , and being fully advised in the premises, finds : That, in pursuance of said order of sale, said , guard- ian, on the day of , 19 — , sold the portion of the real estate of said estate, described as follows, to-wit : Said ward's interest in , in Okmulgee County, Oklahoma, at private sale, to , upon the follow- ing terms, to-wit : For the sum of $ , payable as follows: Cash in hand, subject to confirmation by the county court of County, Oklahoma. That said sale was made after due notice as prescribed by said order of sale ; that said purchaser was the highest bidder there- for, and said sum the highest and best sum bid; that said sale was legally made and fairly conducted; that said sum is not disproportionate to the value of the property sold, and that a sum exceeding such bid at least ten (10) per cent., exclusive of the cost of a new sale, cannot be obtained, and that the said , guardian, in all things proceeded and conducted and managed such sale as required by the statute in such cases made and provided, and as by said order of sale required and directed. It is Therefore ordered, adjudged and decreed by the court, that the said sale be, and the same is hereby, confirmed and approved and declared valid, and the said , guardian, is directed to execute to said purchaser proper and legal convey- ance of said real estate. , [Seal..] Judge of the County Court. CHAPTER XV. HOMESTEAD AND EXEMPTION LAWS. SECTION 924. Distinction between general homestead and homestead for Indian and freedman. 925. Homestead in forty acres for the Indian and freedman. 926. The homestead law a constitu- tional provision. 927. What property exempt from attacliment or execution. 92'8. Homestead shall consist of what — May be mortgaged. 929. Abandonment — Waiver — ^For- feiture. 930. Deed, mortgage or contract re- lating to homestead must be in writing, and both husband and wife must join. 931. When husband or wife may execute instrument without the other joining. 932. Husband or wife executing in- strument on homestead alone, can be avoided only by the party not joining. 933. Husband and wife must join in same instrument to con- vey homestead. 934. Property of decedent to be de- livered to family at once — The homestead. 935. Additional allotment to widow and children. 936. Selection of the homestead. 938. 939. 940. 041 942 SECTION 937. Homestead exempt from debt or liability. Property belonging to single person exempt, when. Homestead exemptions shall not apply, when. Personal property not exempt, when. Pension money exempt, when. Adult heir cannot partition homestead occupied by wife and family. 943. Procedure to sell homestead of insane husband or wife. 914. Petition in such case. 945. Notice to be served, and upon whom. 946. Order of court authorizing sale. 947. Form for petition for sale of homestead of insane husband or wife. 948. Form for order for hearing petition. 949. Form for notice to be served on nearest male relative in State. Form for proof of service of notice. Form for order authorizing sale of homestead of insane husband. Form for deea in such case. 950. 951. 952. Sec. 924. Distinction between general homestead and the homestead for the Indian and freedman. The term ''homestead," as applied to the exemptions of a debtor from levy and execution, is often erroneously used 654 655 HOMESTEAD AND EXEMPTION LAWS. § 925 in the sense of the forty acres of each quarter section of land allotted by the Federal Government to the Indian and freed- man as his homestead. The terms carry with each an entirely different meaning, which should not be disregarded. The subject, homestead, is provided for by constitutional provi- sion, and is regulated in this State, by statute. The object of the law, which prevents certain lands from being sold to satisfy debt, is not to protect the debtor, but it is to protect the family in its enjoyment of a home. As the statute relating to the subject of homesteads treats of exemptions, both as to real and personal property, and, as the law as to each is interwoven with the other, the law and procedure as to both, will be discussed in this chapter. Sec. 925. The homestead in forty acres for the Indian and freedman. It is provided by Congress that lands allotted to Indian and freedman shall not in any manner whatsoever, or at any time, be incumbered, taken or sold to secure or satisfy any debt, or obligation contracted or incurred prior to the date of the deed to the allotee therefor, and such lands shall not be alienable by the allotee or his heirs at any time before the expiration of five years from the ratification of this agree- ment, except with the approval of the secretary of the in- terior. Each citizen shall select from his allotment forty acres of land as a homestead, which shall be nontaxable and inalienable and free from any incumbrance whatsoever for twenty-one years, for which he shall have a separate deed, condi- tioned as above : Provided, that selections of homesteads for minors, prisoners, convicts, incompetents and aged and infirm persons, who cannot select for themselves, may be made in the manner herein provided for the selection of their allot- ments ; and if, for any reason, such selection be not made for any citizen, it shall be the duty of such commission to make selection for him. The homestead of such citizen shall remain, after the death of the allotee, for the use and support of children born to § 925 merwine's trial of title to land. 656 liim after the ratification of tliis agreement, but if he have no such issue then he may dispose of his homestead by will, free from limitation herein imposed, and if this be not done, the land shall descend to his heirs according to the law of descent and distribution of the Creek nation, free from such limitation/ While the freedman has been permitted to sell his entire allotment, including the homestead, yet, the forty acres here- tofore designated as his homestead is still generally called his homestead. In discussing this subject, ]\Ir. Bledsoe, in his valuable work, "Indian Land Laws," says: "Under the agreements made between the United States and each of the five civilized tribes, and under the laws of the United States applicable to the allotees of each of the tribes, a homestead is reserved out of each allotment, and is made inalienable for a long period of years. This may be termed a homestead by reservation. "This homestead right is wholly independent of occupancy. It may, and most frequently does, exist as to land never in fact occupied as a homestead. This homestead is wholly a creature of the law arising from the agreements between the LTnited States and the various tribes, and the laws enacted pursuant thereto. It is really not a homestead within the accepted meaning of that term. It is an arbitrary application of the term 'homestead' to a certain Dart of the allotment which the allotee is prohibited fron? alienating for a long period of time. "This homestead which, for the purpose of this discussion, will be termed the 'reserved homestead,' may become an actual homestead by occupancy under the homestead laws of Oklahoma. In such case it is protected not only by the agreements with the tribes and the laws of the United States, but also by the homestead laws of the State of Oklahoma. "When such is the case, in order to pass a perfect title, the 1 Creek agreement, Act of March 11, 1901 (31 Stat. L. 861). 657 HOMESTEAD AND EXEMPTION LAWS. § 926 restrictions upon alienation must have expired, or been re- moved, and both husband and wife must join in the convey- ance. If the homestead is such by reservation only, the husband or wife, either, whichever happens to be the owner, may convey without the other joining ; likewise that part of the allotment known as the surplus may become a homestead by occupancy under the Constitution and laws of the State, and, in such case, in order to pass a perfect title, both hus- band and wife must join in the conveyance." - Sec. 926. The homestead law a constitutional provision. The homestead of any family in this State, not within any city, town or village, shall consist of not more than one hundred and sixty acres of land, which may be in one or more parcels, to be selected by the owner. The homestead within any city, town or village, owned and occupied as a residence only, shall consist of not exceeding one acre of land, to be selected by the owner: Provided, that the same shall not exceed in value the sum of five thousand dollars, and in no event shall the homestead be reduced to less than one-quarter of an acre, without regard to value ; and pro- vided, further, that in case said homestead is used for both residence and business purposes, the homestead interests therein shall not exceed in value the sum of five thousand dollars : Provided, that nothing in the laws of the United States, or any treaties with the Indian tribes in the State shall deprive any Indian or other allotee of the benefit of the homestead and exemption laws of the State : And provided, further, that any temporary renting of the homestead shall not change the character of the same when no other home- stead has been acquired. The homestead of the family shall be, and is hereby pro- tected from forced sale, for the payment of debts, except for the purchase money therefor, or a part of such purchase 2 Indian Land Laws, by Bledsoe, Sec. 137, pp. 178-180. § 927 merwine's trial op title to land. 658 money, the taxes due thereon, or for work and material used in constructing improvements thereon ; nor shall the owner, if married, sell the homestead without the consent of his or her spouse, given in such manner as may be prescribed by law: Provided, nothing in this article shall prohibit any person from mortgaging his homestead, the spouse, if any, joining therein ; nor prevent the sale thereof on foreclosure to satisfy any mortgage. After the adoption of this Constitution, paragraph three of section four, and section five, of Chapter thirty-four, Stat- utes of Oklahoma, of eighteen hundred and ninety-three, shall be inoperative : Provided, that no property shall be exempt for any part of the purchase price while the same, or any part thereof, remains in the possession of the original vendee, or in possession of any purchaser from such vendee, with notice: And provided, further, nothing in this Constitution shall pre- vent or prohibit any person from mortgaging or encumbering his personal exemptions.^ Sec. 927. What property exempt from attachment or execu- tion. The following property shall be reserved to every family residing in the State, exempt from attachment or execution, and every other species of forced sale for the payment of debts, except as hereinafter provided: First, the homestead of the family, which shall consist of the home of the family, whether the title to the same shall be lodged in or owned by the husband or wife. Second, all the household and kitchen furniture.* Third, any lot or lots in a cemetery held for the purpose of sepulture. Fourth, all implements of husbandry used upon the homestead. Fifth, all tools, ap- paratus and books belonging to and used in any trade or profession. Sixth, the family library, and all family por- traits and pictures, and wearing apparel. Seventh, five milch 3 Sections 1, 2 and 3 of Art. 12 of the Constitution of the State of Oklahoma. * 659 HOMESTEAD AND EXEMPTION LAWS. § 928 COWS, and their calves under six months old. Eighth, one yoke of work oxen, with necessary yokes and chains. Ninth, two horses or two mules, and one wagon, cart or dray. Tenth, one carriage or buggy. Eleventh, one gun. Twelfth, ten hogs. Thirteenth, twenty head of sheep. Fourteenth, all saddles, bridles and harness necessary for the use of the family. Fifteenth, all provisions and forage on hand, or growing for home consumption, and for the use of exempt stock for one year. Sixteenth, all current wages and earn- ings for personal or professional services earned within the last ninety days.* The homestead is exempt to the family, and cannot be taken on attachment for a tort of the husband and father.^ Sec. 928. The homestead shall consist of what — May be mortgaged. The homestead of a family not in a town or city shall consist of not more than one hundred and sixty acres of land, which shall be in one tract or parcel with the improve- ments thereon. The homestead in a city, town or village, shall consist of a lot, or lots, not to exceed one acre with the improvements thereon: Provided, that the same shall be used for the purpose of a home for the family : Provided, also, that any temporary renting of the homestead shall not change the character of the same when no other homestead has been acquired : Provided, however, that nothing in this act shall prohibit any person from mortgaging his or her homestead. The exemption herein provided for must not be construed to apply to the following persons, namely: 1. To a corporation for profit. 2. To a nonresident. 4 Snyder, 3,346; Wilson, 2,985. s Cassady v. Morris, 19 Okla. 203, 91 Pac. 888. §§ 929, 930 merwine's trial of title to land. 660 3. To a debtor who is in the act of removing his family from the State ; or, 4. Who has absconded, taking with him his family." Sec. 929. Abandomnent — Waiver — Forfeiture. Where land has by occupancy of the family become invested with a character as a homestead, a constructive occupancy will be sufficient, and any temporary absence therefrom will not constitute an abandonment of it.' The abandon- ment of property used as a home, though returning to the use of it temporarily, shall be regarded as a waiver of the homestead right.* A business block, a part of which was occupied by the owner and his family, was held to consti- tute a homestead and be exempt from levy and execution.** The obligation of a family and the support thereof, is neces- sary to give one claiming the right to his property exempt as a homestead. It must have devolved upon him to support those whom the law requires him to care for.^° Where an insolvent purchases real estate and directs the legal title to be taken by a third person for his and his family's use, the homestead will not lose its character.^^ Sec. 930. Deed, mortg-age or contract relating to homestead must be in writing and both husband and wife must join. No deed, mortgage or other conveyance relating to real estate, or any interest therein, other than for a lease for a period not to exceed one year, shall be valid until reduced to writing and subscribed by the grantor; and no deed, e Snyder, 3.347; Wilson, 2.986. 9 DeFord x. Painter, 3 Okla. 80, 7 Ball V. Houston, 11 Okla. 233, 41 Pac. 96. 66 Pac. 358; Rockwood v. St. John's, lo Betts v. Mills, 8 Okla. 351, .■;8 10 Okla. 476, 62 Pac. 277. Pac. 957; but see Cordray v. Nel- 8 Belts V. Mills, 8 Okla. 351, 58 son, 21 Okla. 574, 95 Pac. 761. Pac. 957 ; Schultz v. Barrows, 8 n Hunter v. Griffith, 12 Okla. Okla. 297. 56 Pac. 1,053; Northwest 436, 72 Pac. 361. V. McCarroll (Okla.), 118 Pac. 352. 661 HOMESTEAD AND EXEMPTION LAWS. §§931,932 mortgage or contract relating to the homestead exempt by- law, except a lease for a period not to exceed one year, shall be valid unless in writing and subscribed by both husband and wife where both are living and not divorced, except to the extent hereinafter provided. ^- This rule of law does not apply where the husband executes a deed on the homestead to the wife.^^' Nor does it apply to the separate property of the wife which is used as a family residence." Sec. 931. When husband or wife may execute instrument without the other joining. Where the title to the homestead is in the husband, and the wife voluntarily abandons him for a period of one year, or from any cause, takes up her residence out of the State, he may convey, mortgage or make any contract relating thereto without being joined therein by her, and where the title to the homestead is in the wife, and the husband voluntarily abandons her, or from any cause takes up his residence out of the State for a period of one year, she may convey, mort- gage or make any contract relating thereto without being joined therein by him.^^ Sec. 932. Husband or wife, executing instrument on home- stead alone, can be avoided only by the party not joining. If the husband shall make any deed, mortgage or contract relating to the homestead without being joined therein by his wife, he shall be concluded thereby, and the same can only be avoided by the wife; and if the wife shall make any deed, mortgage or contract relating to the homestead 12 Snyder, 1,187; Wilson, 880. is Snyder, 1,189; Wilson, 882; see 13 Hall V. Powell, 8 Okla. 276, 57 Hubert v. Wagg, 117 Pac. (Okla.) Pac. 168. 209. 14 McGinnis v. Wood, 4 Okla. 499, 47 Pac. 492. § 933 merwine's trial of title to land. 662 without being joined therein by the husband, she shall be concluded thereby, and the same can only be avoided by the husband; and, in either case, the husband or wife entitled to avoid any such deed, mortgage or contract shall be con- cluded by a failure after due notice of any suit in a court of competent jurisdiction, to set forth his right, title or interest therein/*' Where a wife clearly understands what she is doing when she signs a mortgage on the homestead, she will not be released from the consequences of her act.'' Sec. 933. The husband and wife must join in the same instru- ment to convey homestead. As the statute provides that all instruments, other than leases for one year, affecting real estate occupied as to the homestead, are void unless the husband and wife join in the execution and acknowledgment of the instrument conveying the same, it was held in this State, in a case where the wife did not join in a mortgage executed by the husband on property which had been abandoned as a homestead by the husband, the wife not having signed the mortgage, that, as the wife did not join in the mortgage, it was void from the beginning.'^ It is seen by the foregoing that the husband or wife must consent to the other before the homestead can be conveyed. It is urged by some that the consent must be given in the same deed by which the one having the record title conveys. Indeed, the Legislature not having enacted how the consent is obtained, there is quite an array of decisions holding that it must be so made.'^ 16 Snyder, 1,190; Wilson, 883; see, is Hall v. Powell, 8 Okla. 276, also, Goldsborough v. Hewitt, 99 57 Pac. 168. Pac. (Okla.) 907; Love v. Cavett, 1 9 Hall v. Powell, 8 Okla. 276, 109 Pac. (Okla.) 553; Cordray v. 57 Pac. 168; Smith v. Pine, 7 Morgan, 21 Okla. 574, 95 Pac. 761. IT Bastin v. Shafer, 15 Okla. 607, 85 Pac. 349. » 663 HOMESTEAD AND EXEMPTION LAWS. §§934,935 Sec. 934. Property of decedent to be delivered to family at once; the homestead. Upon the death of either husband or wife, the survivor may continue to possess or occupy the whole homestead until it is otherwise disposed of according to law; and upon the death of the husband and wife, the children may continue to possess and occupy the whole homestead until the youngest child becomes of age.-*' This statutory provision does not entitle any single survivor of the family to the possession of the property and homestead unless such survivor is head of the family.-^ Sec. 935. Additional allotment to widow and children. In addition to the property mentioned in the preceding paragraph there shall also be allowed and set apart to the surviving wife or husband, or minor child or children of the decedent, all such personal property or money as is exempt by law from levy, sale on execution, or other final process from any court, to be with the homestead, possessed and used by them; and the executor or administrator, must make and return a separate and distinct inventory thereof, in the same manner as required for the property mentioned in the preceding paragraph, and no such property shall be liable for any prior debts or claims against the decedent, except where there are no assets thereunto available for the pay- ment of the necessary expenses for the last illness, funeral charges and expenses of administration.^^ Am. St. (Ala.) 44; Hodges v. 474; North v. Lamer, 84 Am. St. Winston, 36 Am. St. 241; Martin 635; Rogers v. Day, 15 Mich. 664, V. Harrington, 73 Vt. 193, 87 69 Am. St. 393; O'Brien v. Welty, Am. St. 704; Hart v. Church, 126 94 Tex. 148, 86 Am. St. 829. Cal. 471; 77 Am. St. 195, 58 Pac. 20 Snyder, 5,265; Wilson, 1,607. 910; Thompson V. New England, 110 21 Betts v. Mills, 8 Okla. 351, 58 Ala. 400, 55 Am. St. 29; Shields Pac. 957. V. Bush, 189 HI. 534, 82 Am. St. 22 Snyder, 5,266; Wilson, 1,608. §§ 936-939 merwine's trim, of title to land. 664 Sec. 936. Selection of the homestead. If no homestead has been selected, marked out, platted and recorded, as provided by the homestead law, the judge of the county court must cause the same to be done according to the provisions of said law.-^ Sec. 937. Homestead exempt from debt or liability. The homestead is not subject to the payment of any debt or liability contracted by or existing against the husband and wife, or either of them, previous to or at the time of the death of said husband or wife, except as provided in the law relating to homesteads.^* Sec. 938. Property belonging to single person exempt, v/hen. The following property shall be reserved to persons who are not heads of a family exempt from attachment, execu- tion and every other species of forced sale; except for liens given by the owners : 1. A lot, or lol,s, in a cemetery held for the purpose of sepulture. 2. All wearing apparel. 3. All tools, apparatus and books belonging to any trade or profession. 4. One horse, bridle and saddle, or one yoke of oxen. 5. Current wages for personal services.^^ Sec. 939. Homestead exemptions shall not apply, when. The exemption of the homestead provided for in this chap- ter, shall not apply where the debt is due : 1. For the purchase money of such homestead or a part of such purchase money. 2. For taxes due thereon.^^ 23 Snyder, 5.207; Wilson, 1.609. =5 Snyder, 3,348; Wilson, 2,987. 24 Snyder, 5,258; Wilson, 1,610. 26 Snyder,"3,349; Wilson, 2,988. 665 HOMESTEAD AND EXEMPTION LAWS. §§ 940-944 Sec. 940. Personal property not exempt, when. None of the personal property mentioned in this chapter shall be exempt from attachment or execution for any wages of any clerk, laborer or servant.-^ Sec. 941. Pension money exempt, when. There shall also be exempt from levy and sale upon execu- tion or attachment, to every resident of this State who became disabled in the service of the United States as a soldier, sailor or marine, all pension money hereafter re- ceived by such soldier, sailor or marine.^^ Sec. 942. Adult heir cannot partition homestead occupied by the wife and family. It has been held that when the homestead is occupied by the wife and family as a homestead, an adult heir cannot have the same partitioned.* Sec. 943. Procedure to sell the homestead of insane husband or wife. In case of a homestead, if either the husband or wife shall become hopelessly insane, upon application of the husband or wife not insane, to the district court of the county in which the homestead is situated, and upon due proof of such insanity, the court may make an order permitting the hus- band or wife not insane to sell and convey, or mortgage such homestead.-*^ Sec. 944. The petition in such case. The applicant under the provisions of this chapter, shall present and tile in the court, a verified petition setting forth the name and age of the insane husband or wife; a descrip- 27 Snyder, 3,350; Wilson. 2.089. OG Pac. 60S; Miller v. I-Iasf5man, 28 Snyder, 3,351; Wilson, 2,990. 103 Pac. 377. Fink V. Baker, 21 Okla. 402, 29 Snyder, 3,352; Wilson, 2,991. * tt;. §§ 945-947 merwine's trial of title to land. 666 tion of the premises; the county in which it is situated; and such facts in addition to tliat of the insanity of the husband or wife relating to the circumstances and necessities of the applicant, and his or her family, as he or she may rely upon in support of the petition.^^ Sec. 945. Notice to be served and upon whom. At least thirty days before the hearing of the petition, the applicant, or his or her attorney, shall serve a copy of such upon the nearest male relative of such insane husband or wife, residing in this State, and in case there be no such male relative known to the applicant, a copy of such petition shall be served on the county attorney of the county in which such homestead is situated ; and it is hereby made the duty of such county attorney upon being served with a copy of such petition, to appear in court, and see that such application is made in good faith and that the proceedings thereon are fairly conducted.^^ Sec. 946. Order of court authorizing sale. If the court shall make an order authorizing the sale of the homestead as herein above provided, the same is required to be entered upon the minutes of the court, and thereafter the sale, conveyance or mortgage made in pursuance of such order shall be as valid and effectual as if the property affected thereby was the absolute property in fee simple of the person making such sale, conveyance or mortgage.^- Sec. 947. Form for petition for sale of homestead of insane husband or wife. District Court, County, State op Oklahoma. , Plaintiff, vs. No. . • , Defendant. 30 Snyder, 3,3.53 ; Wilson, 2,992. 32 Snyder, 3,355 ; Wilson, 2,993. 31 Snyder, 3,354 ; Wilson, 2,992. 667 HOMESTEAD AND EXEMPTION LAWS. § 948 PETITION. Comes now the plaintiff and alleges that she is the wife of , and that defendant, , is her husband, who is years of age and is hopelessly insane ; that her said hus- band is seized of an estate in fee simple in and to the following described real estate in County, State of Oklahoma, to-wit: (Here describe it), which is the homestead of plaintiff and defendant ; and that plaintiff is unable to care for said land which is a farm under cultivation, and she has no means for the support of herself and children, all of whom are of tender years, and all of whom are the children of plaintiff and defendant. Wherefore, plaintiff prays that she may be authorized to sell said real estate, to-wit: (Here describe real estate again), either at public or private sale, either with or without appraisement, and make and execute deeds to the purchaser thereof, as the court may deem beneficial, and for such other and further orders as the court may deem wise and proper. Attorney for Plaintiff. State of Oklahoma, County, ss. : , being first duly sworn, says that she is the plaintiff in the above action, and that the facts stated and allegations contained in the above and foregoing petition are true. Sworn to before me and subscribed in my presence this day of , 19—. Notary Public, County, Oklahoma. My commission expires . Sec. 948. Form for order for hearing petition. In THE District Court op County, State of Oklahoma. , Plaintiff, vs. No. , Defendant. §§949,950 merwine's trial op title to land. 668 ORDER FOR HEARING PETITION TO SELL HOME- STEAD OF INSANE HUSBAND. Now, on this day of , 19—, comes , wife of , having filed her petition for the sale of her husband's real estate for reasons stated in her said petition : It is ordered that said petition be, and hereby is, set for hearing on the day of , 19—, at o'clock, — m., and thirty days' notice of this hearing be given to , residing at , Oklahoma, he being the nearest male relative of defendant living in the State of Oklahoma in County. ~ > Judge of said Court. Sec. 949. Form for notice to be served on nearest male relative in State. To , OkWioma: You are hereby notified that , as the wife of who is hopelessly insane, has filed her petition in the district court of County, State of Oklahoma, asking that she be permitted, by order of said court, to sell the following described real estate in the county of , State of Oklahoma, to-wit : (Here describe real estate), the same being their homestead. Said sale is asked for to provide funds for the support of plain- tiff in said action and their said family. Said petition is set for hearing in the courtroom of the district court of County, State of Oklahoma, at , at 'clock, — m., on the day of , 19—. Judge of said Court. Sec. 950. Form for proof of service of notice. State of Oklahoma, County, ss. : , being duly sworn, says that she is the plaintiff in the above action, and being first duly sworn, on the day of 669 HOMESTEAD AND EXEMPTION LAWS. § 9ol , 19 — , she handed to — , residing at , Okla- homa, a true copy of the notice hereto attached, marked "Ex- hibit A" and made a part hereof. Sworn to and subscribed in my presence on this, the day of , 19—. My commission expires . Xotary Public. Here attach copy of the notice to the affidavit. Sec. 951. Form for order authorizing sale of homestead of insane husband. In THE District Court of County, State of Oklahoma. , Plaintiff, vs. No. . ■ , Defendant. ORDER AUTHORIZING SALE OF HOMESTEAD OF INSANE HUSBAND. This cause this day coming on for hearing herein, and no one appearing to contest the same, the court, after hearing the evi- dence introduced and the argument of counsel, and being fully advised in the premises, finds: 1. That said is hopelessly insane and is confined in the hospital for the insane at , Oklahoma. 2. That the real estate described in the petition is the home- stead of plaintiff and defendant, and was occupied by them at the time of defendant's insanity, and is now occupied by the plaintiff and their said family. 3. That it is necessary and proper that the plaintiff sell the same and that she use the funds arising from such sale for the support of herself and her said family. It is Therefore ordered, adjudged and decreed that be, and she is hereby, authorized and directed to sell the real estate described in the petition, either at public or private sale, upon such terms and conditions as she may deem wise and § 952 merwine's trial, of title to land. G70 proper, and she is authorized further and directed to make, acknowledge and deliver deeds therefor to the purchaser for the fee simple title thereto. , Judge of said Court. Sec. 952. Form for deed in such case. Whereas, on the day of , 19 — , filed her petition in the district court of County, Oklahoma, against , alleging that said defendant was hopelessly in- sane, and asking the court that she be permitted to sell the real estate therein described ; and. Whereas, on the day of , 19—, plaintiff notified , the nearest male relative of defendant residing in the State of Oklahoma, of the time and place of hearing said appli- cation ; and, Whereas, on the day of , 19 — , said court heard the evidence in said cause, and ordered that said plaintiff be permitted to sell said real estate upon such terms and conditions as she might deem proper, either at public or private sale, and either with or without appraisement ; and, Whereas, on the day of , 19 — , said plaintiff received from a bid for said real estate at private sale, in the sum of $ , said sum being the best price plaintiff could obtain for said real estate, and the reasonable cash value thereof. Now, Therefore, in consideration of the premises, and said sum of $ , in hand paid, the receipt of which is hereby acknowledged, the said does hereby grant, bargain, sell and convey unto the following described real property and premises, situated in County, State of Oklahoma, to-w'it : (Here describe premises), together with all the improve- ments thereon and appurtenances thereunto belonging. To Have and to Hold said above described premises unto said , his heirs and assigns forever, free, clear and dis- charged of and from all former grants, titles, charges, judg- ments, taxes, assessments, mortgages and all other liens and incumbrances of whatsoever nature. 671 HOMESTEAD AND EXEMPTION LAWS. § 952 Signed and Delivered this day of , 19 — . State of Oklahoma, County, ss. : Before me, , a in and for said county and State, on this day of , 19 — , personally appeared , to me known to be the identical person who executed the within and foregoing instrument, and acknowledged to me that she executed the same as her free and voluntary act and deed for the uses and purposes therein set forth. In Testimony Whereof, I have hereunto affixed my hand and notarial seal the day and year above mentioned. [Seal.] Notary Public in and for County. My commission expires . CHAPTER XVI. LANDLORD AND TENANT. SECTION 953. Preliminary statement. 954. Tenant defined. 955. Tenant from year to year — Month to montli. 956. To hold from one period to another, when. 957. Notice to terminate tenancy. 958. Tenancy from year to year — How terminated. 959. Notice to terminate farm tenancy. 960. Rent not paid — Notice to quit — Ten days. 961. Rent not paid — Notice to quit — Five days. 962. Notice not necessary, when. 963. Notice — How served. 964. Tenant not to assign interest, when. 965. Landlord may re-enter, when. 966. Conveyance by landlord — Pay- ment of rent. 967. Attornment void, when. 968. Sublessees. 969. Alienees of lessors and lessees. 970. Rent from life grants — ^How recovered. 971. Arrears at death — May be re- covered. 972. Executors and administrators may recover rents. 973. Occupants liable. 974. Joint tenants. 97'5. Joint tenant may recover against his cotenant. 976. Estate in remainder or rever- sion. 977. Rent for farm land — Lien on crop. 978. Share of crop as rent — ^Les- sor's rights in. SECTION 979. Purchaser of crop liable for rent, when. 980. Landlord may attach, when. 981. Attachment to enforce lien on crop, how obtained. 982. Courts — Jurisdiction of. 983. Improvements — Taxes on. 984. Lease must be in writing. 985. When husband or wife may lease homestead. 986. Lease valid as against third persons only when recorded. 987. Notice — Classes — Actual — Constructive — Presumption of constructive notice. 988. I^ase allowed to record, when. 989. Lease received in evidence, when. 990. Requirement as to writing or printing of lease. 991. Tenant estopped from denying landlord's title. 992. Form for farm lease. 993. Form for lease of furnished house. 994. Form for lease of apartment house. 995. Form for lease of storeroom with chattel mortgage clause. 99'6. Form for assignment of lease indorsed on lease. 997. Form for ninety-nine year lease renewable forever. 998. Form of petition by landlord under lien on crop sold by tenant to purchaser with notice. 999. Form for petition replevying landlord's share of crop. 1000. Form for affidavit of replevin in such case. 672 673 LANDLORD AND TENANT. §§953,954 SECTION SECTION 1001. Form for replevin bond. 1006. Form for notice to quit after 1002. Form for writ of replevin. rent due. 1003. Form for affidavit in attach- 1007. Form for notice to quit ten- ment for rent on farm land. ancy on farm. 1004. Form for order of attachment 1008. Form for affidavit of service for rent on farm land. of notice to quit. 1005. Form for notice to tenant to quit premises. Sec. 953. Preliminary statement. There is but little procedure to be given here on this sub- ject. The practice questions growing out of the topics treated in this chapter are found elsewhere in this work. The most important are forcible entry and detainer, and ejectment. It is sufficient now to say, that the questions of the method of acquiring possession of real estate, and the defenses thereto, as to practice and substantive law, will be treated under the subjects last named. While a few forms are here given for the practitioner, to replevin and attach crops under landlord's lien for the payment of rent, yet, the reader is referred for general forms to the treatment of the subjects of replevin and attachment found in other text- books on this subject.^ At the concluding part of this chapter will be found forms suggesting the manner of the preparation of many kinds of leases which the practitioner is called upon to prepare, together with various forms for notice to vacate premises. Sec. 954. Tenant defined. Any person in possession of real property, with the assent of the owner, is presumed to be a tenant at will, unless the contrary is shown, except as herein otherwise provided.* iSee, also, Kinkead's Code Plead- Vol. 1, Sees. 672 to 713; Ibid, Vol. ing, Vol. 1, Sees. 255 to 268; Ibid, 3, Sees. 2,600 to 2,604. Vol. 2, Sees. 1078 to 1093; also * Snyder, 4,075; Wilson, 3,320. Bates' Pleading and Practice Forms, § 955 merwine's trial of title to land. 674 A person who goes into possession of a town lot or upon public lands, as a tenant of one who has improved the lot by erecting a building thereon, will not be heard to assert a claim adverse to his landlord, by reason of occupancy, set- tlement or improvement, until he shall have vacated the prem- ises and surrendered possession to his landlord.- Sec. 955. Tenancy from year to year — Month to month. When the premises are let for one or more years, and the tenant with the assent of the landlord, continues to occupy the premises after the expiration of the term, said tenant shall be deemed to be a tenant from year to year.^ When premises are let for one or more years, and the tenant with the assent of the landlord, continues to occupy the premises after the term, such tenant will be deemed to be a tenant at wall : Provided, that no lease or rental contract of premises shall be continued, unless the original contract w^as in writing, and all other lease contracts shall expire by limitation with the calendar year, without notice.* It has been held that a tenancy from month to month is created where the parties enter into a lease which provides that after a certain period, the lease shall be so considered, and the tenant continues to occupy under said lease.^ Again, it has been held that the general rule of law that when a tenant, with the consent of the landlord, express or implied, holds over his term, the law implies a continuation of the original tenancy upon the same terms and conditions, does not obtain in a case Avhere the rent reserved in the original lease for the most part consists of the performance by the tenant of labor upon the premises of such a nature 2 Hajrar v. Wikoff, 2 Okla. 580, 5 Pappe v. Trout, 3 Okla. 2G0, 39 Pac. 281. 41 Pac. 397; Intfen v. Foster, 56 sSnydor, 4,076; Wilson, 3,321; Pac. 1,125; Nelson v. Ware, 47 Pac. Kansas Statutes identical. 540; Ware v. Nelson, 45 Pac. 923; 4 Act of March 8, 1911. Bard v. Elston, 1 Pac. 565. 675 LANDLORD AND TENANT. §§ 956, 957 that, being once performed during the original term, becomes incapable of further performance by the tenant while holding over.^ Sec. 956. To hold from one period to another, when. "When rent is reserved, payable at intervals of three months or less, the tenant shall be deemed to hold from one period to another, equal to the intervals between the days of pay- ment, unless there is au express contract to the contrary.'^ Where a tenant goes into possession of real estate under a written lease, for one year, with the privilege of two years, executed by the landlord, and accepted and complied with by him, and remains in possession thereof four years, without any new agreement except as to the amount of rent payable, this will constitute a tenancy from year to year; and the nature of such tenancy is not changed by the fact that the annual rental was payable in equal monthly installments.* Sec. 957. Notice to terminate tenancy. Thirty days' notice in writing is necessary to be given by either party before he can terminate a tenancy at will, or from one period to another of three months or less; but where in any case, rent is reserved, payable at intervals of less than thirty days, the length of notice need not be greater than such interval between the days of payment.^ Where a tenant leases a dwelling house from his landlord, without any definite time being fixed for the expiration of the lease, and agrees to pay a specified sum every month, to be paid monthly, and the tenant continues in possession of the premises for over two years, with the consent of his landlord, but fails to pay any rent, although frequently re- 6 Martin v. Hamersky, 65 Pac. 7 Snyder, 4,077; Wilson, 3,322; i Ian.) 637, 12 Am. and Eng. Enc. Pappe v. Trout, 3 Okla. 260, 41 ISSq (1st ed.); Dilles v. Roberts, Pac. 397. 13 Serg. and R. 63; Ives v. Wil- s Jntfen v. Foster, 56 Pac. (Kan.) Hams, 50 Mich. 106, 15 N. W, 36. 1,125. 9 Snyder, 4,078; Wilson, 3,323; Kansas, 2,284, identical. §§958,959 merwine's trial of title to land. 676 quested so to do, and his landlord then finally decides that he wants possession of the premises, and gives the tenant formal notice to quit, it was held, that the action of unlawful detainer is not barred because of such possession by the tenant with the consent of the landlord for over two years/*' In construing this section of the statute, the Supreme Court of Kansas held that thirty days' notice in writing is necessary to be given by either party before he can terminate a tenancy at will, or from one period to another for three months or less; that the thirty days' notice prescribed by statute to be given by a tenant to terminate a tenancy at will, like almost every other species of notice required by law, may be waived by the landlord, and that where the landlord has actual notice that a tenant at will, who is to pay his rent monthly, is about to remove and vacate his premises without written notice, as prescribed by the statute, and the landlord brings an action against him for rent, and recovers for one month, being one rent period, after actual notice and for the full time of occupancy, such actual notice and conduct of the parties terminate the tenancy at will, and the landlord cannot recover any rent for the vacated premises, in another action, for the subsequent month or rent period." Sec. 958. Tenancy from year to year — How terminated. All tenancies from year to year may be determined by at least three months' notice, in writing, given to the tenant prior to the expiration of the year.^^ Sec. 959. Notice to terminate farm tenancy. In case of tenants occupying and cultivating farms, the notice must fix the termination of the tenancy to take place on the first day of January. ^^ loMoran v. Moran, 38 Pac. 12 Snyder. 4,070; Wilson, 3.324; (Kan.) 268. Kansas, 3,849, identical; Nelson v. 11 Betz V. Maxwell, 29 Pac. Ware, 47 Pac. 540. (Kan.) 147. is Snyder, 4,080; Wilson, 3,325. 677 LANDLORD AND TENANT. §§ 960-963 Sec. 960. Rent not paid — Notice to quit — Ten days. If a tenant for a period of three months or longer neglects or refuses to pay rent when due, ten days' notice in writing to quit shall determine the lease, unless such rent be paid before the expiration of said ten days." Sec. 961. Rent not paid — Notice to quit — Five days. If a tenant for a period of less than three months shall neglect or refuse to pay rent when due, five days' notice in writing to quit will determine the lease, unless such amount be paid before the expiration of said five days.^^ Sec. 962. Notice not necessary, when. When the time for the termination of the tenancy is specified in the contract, or where a tenant at will commits waste, or in the case of a tenant by sufferance, or in any case Vi^here the relation of landlord and tenant does not exist, no notice to quit is necessary.^*' This statute regulates the method of terminating a tenancy from year to year, and in order to terminate such a tenancy, the tenant is not required to give notice to the landlord of his intention to sever the relation, and to quit the premises.^^ Sec. 963. Notice — How served. Notice, as required in the preceding paragraph, may be served on the tenant, or if he cannot be found, by delivering the same to some person over twelve years of age, residing on the premises, having first made known to such person the contents thereof.^^ "Snyder, 4,081; Wilson, 3,320; i7 Nelson v. Ware, 47 Pac. (Kan.) Kansas, 3,851, identical. 540. 15 Snyder, 4.0S2; Wilson, 3,327. is Snyder, 4,084; Wilson, 3,329. 16 Snyder, 4,083; Wilson, 3,328; Kansas 3,853, identical. §§ 964-967 mebwine's trial of title to land. 678 Sec. 964. Tenant not to assign interest, when. No tenant for a term not exceeding two years, or at will, or by sufferance, is permitted to assign or transfer his term or interest, or any part thereof, to another, without the written assent of the landlord, or person holding nnder him/^ The courts of last resort in Kansas, under this statute, de- cided that a tenant for the term of one year, could not assign or transfer to another, any interest under his lease, without the assent of his landlord.^*' Sec. 965. Landlord may re-enter, when. If any tenant violates the provisions of the preceding par- agraph as to the assignment of his lease, the landlord, or person holding under him, after giving ten days' notice to quit possession, will have a right to re-enter the premises, and take possession thereof, and dispossess the tenant, subtenant or undertenant.^^ Sec. 966. Conveyance by landlord — Pa3mient of rent. The conveyance of real estate, or of any interest therein, by the landlord, is valid without the attornment of the tenant, but the payment of rent by the tenant to the grantor at any time before notice of sale, given to said tenant, will be good against the grantee.-^ Sec. 967. Attornment of tenant void, when. The attornment of a tenant to a stranger is void, and will not affect the possession of his landlord, unless it be made with the consent of the landlord, or pursuant to a judgment at law, or order or decree of a court. -^ The word "attornment" is synonymous with the word "consent." In this connection the statute means that a "Snyder, 4,085; Wilson, 3,333; 21 Snyder, 4,086; Wilson, 3,331. Kansas, 3,855, identical. 22 Snyder, 4.087; Wilson, 3,332. 20Gano v. Prindle, 50 Pac. 23 Snyder, 4,088; Wilson, 3,333. (Kan.) 110. 679 LANDLORD AND TENANT, §§ 968-973 tenant cannot convey his interest in the land to a stranger without the consent of his landlord. Sec. 968. Sublessees. Sublessees have the same remedy upon the original cov- enant against the principal landlord, as they might have had against their immediate lessor.^* Sec. 969. Alienees of lessor and lessees. Alienees of lessors and lessees of land have the same legal remedies in relation to such lands as their principal.-^ Sec. 970. Rents from life-grants, how recovered. Eents from land granted for life, or lives, may be recov- ered as other rents.^® Sec. 971. Arrears at death — May be recovered. A person entitled to rents dependent upon the life of an- other, may recover arrears unpaid at the death of that other.^^ Sec. 972. Executors and administrators may recover rents. Executors and administrators are given the same remedy to recover rents, and are subject to the same liabilities to pay them, as their testators and intestates.'^ Sec. 973. Occupants liable. The occupant, without special contract of any lands, is liable for the rent to any person entitled thereto. ^^ The action of the landlord in such case is for the us3 and occupation. '° 2* Snyder, 4,089; Wilson, 3,334. 29 Snyder, 4,094; Wilson, 3,339; 25 Snyder, 4,090; Wilson, 3,325; Kansas, 3,864, identical. Kansas, 3,860, identical. so Milliken v. Lockwood, 103 Pac. 26 Snyder, 4,091; Wilson, 3,336. 124; Taylor's Landlord and Tenant, 27 Snyder, 4,092; Wilson, 3,337. Sec. 373; Benton v. Beakey, 81 Pac. 28 Snyder, 4,093; Wilson, 3,338. (Kan.) 196; Martin v. Allen, 74 Pac. (Kan.) 249. §§ 974-977 merwine's trial of title to LuVnd. 680 Sec. 974. Joint tenants. If a joint tenant, or tenant in common, or tenant in co- parcenary, have, by consent, management of the estate, and make repairs and improvements with the knowledge and without objection of his cotenant and coparcener, such co- tenant or coparcener will be required to contribute ratably thereto.^^ Sec. 975. Joint tenant may recover against his cotenant. A joint tenant, or tenant in common, or tenant in co- parcenary, may maintain an action against his cotenant, or coparcener, or their personal representatives, for receiving more than his just proportion of the rents and profits.^- Sec. 976. Estate in remainder or reversion. A person seized of an estate in remainder or reversion may maintain an action for waste or trespass, and for in- jury to the inheritance, notwithstanding an intervening estate for life or years.^^ Sec. 977. Rent for farm land — Lien on crop. Any rent due for farming land is by the statute made a lien on the crop growing or made on the premises. Such lien may be enforced by action and attachment therein, as pro- vided by law.^* 31 Snyder, 4,095 ; Wilson, 3,340. a quantity of wheat as crop rent, 32 Snyder, 4,096; Wilson, 3,341. the plaintiflf, the owner of the land, 33 Snyder, 4,007; Wilson, 3,342; alleged and testified that it was Kansas, 3,867, identical. agreed that with the land he was 34 Snyder, 4,098 ; Wilson, 3,343 ; to furnish defendant wheat for seed, Kansas, 3,808, identical ; First, etc , and to receive as rental, one-half of V. Rogers, 103 Pac. (Okla.) 582. the crop. Defendant met the issue In tliis latter case it was held tendered by a general denial, and that under the Arkansas law, one offered testimony to the effect that who raises a crop upon the land of under the agreem.ent he was to fur- another for a part of the crop, is nish the seed and give the plaintiff not a tenant, but is a cropper or a rental of one-half of the crop, laborer. In an action to recover and that he purchased the wheat 681 LANDLORD AND TENANT. §§ 978, 979 The landlord's lien will reach to the crop grown by a sub- lessee of the original tenant.^^ The following terms of the lease will not divest the land- lord of his lien: "to be paid at the time and from the pro- ceeds of the first sale of broom corn that may be raised by lessee," and the lien of the landlord in such case will take priority over a chattel mortgage, given to secure advance- ments to pay for the harvesting of the crop.^^ And when the crop is still on the leased premises, and the tenant sells, the lien prevails and attaches to every part of the crop. No writing is required to create a lien, nor need it be recorded, and the lien exists independent of the writ of attachment.^'' Sec. 978. Share of crop as rent — Lessor's rights in. When any such rent is payable in a share or certain pro- portion of the crop, the lessor will be deemed the owner of such share or proportion, and may, if the tenant refuse to deliver him such share or proportion, enter upon the land and take possession of the same, or obtain possession by action of replevin.^^ Sec. 979. Purchaser of crop liable for rent, when. A person entitled to rent may recover from the purchaser of the crop, or any part thereof, with notice of the lien, the value of the crop purchased, to the extent of rent due and damages.^" from plaintiflF that was sown on tlie Vac. 102; Houghton v. Bauer, 70 land. As the only substantial con- la. 314, 30 X. W. 577. troversy between the parties was se Salina. etc., v. Burr, 52 Pac. who furnished the seed, it was error (Kan.) 704; Scully v. Porter, 57 to instruct the jury that the burden Kan. 322, 46 Pac. 313, 2 Kent's of proof was upon the defendant to Com. 635. show that he purchased from plain- 37 Scully v. Porter, 46 Pac. 313; tiff the wheat which was sown. Knowles v. Sells, 21 Pac. (Kan.) Boyles v. Bradley, 101 Pac. (Kan.) 102. 477. 38 Snyder, 4,009 ; Wilson, 3,344. 35 Berry v. Berry, 55 Pac. 348- 39 Snyder, 4,100; Wilson, 3,345; INewfert v. Ames, 26 Kan. 516; Kansas, 3,870, identical. Knowles v. Sells, 41 Kan. 171, 21 § 980 merwine's triai^ of title to land. 682 When an action is brought under this statute for the unpaid rent, the burden of proof to show that the purchaser bought the crop with notice of the lien, lies upon the plaintiff, and actual notice of the lien is not necessary,*'" it being held that, if the purchaser has knowledge of the facts which would naturally excite inquiry, and which would reasonably lead to the knowledge of the lien, it is his duty to inquire, and testimony sufficient to require inquiry is testimony of notice.* Sec. 980. Landlord may attach, when. "When any person who shall be liable to pay rent (whether the same be due or not, if it be due within one year there- after, and whether the same be payable in money or other things), intends to remove, or is removing, or has, within thirty days, removed his property, or his crops, or any part thereof, from the leased premises, the person to whom the rent is owing may commence an action in the court having jurisdiction ; and upon making affidavit stating the amount of rent for which such person is liable, and one or more of the above facts, and executing an undertaking as in other cases, an attachment will be required to issue in the same manner and with the like effect as is provided by law in other actions.^^ In an action under this statute the practitioner should see to it that the affidavit comes within the provisions of the act, and the proof in such case will not justify levy on crop grown on other lands.^- In a very recent decision, construing this section of the stat- ute under consideration, it was said by the court that the per- sons against whom the statute authorizes attachment proceedings to be brought are not limited by the language of the statute to those who are liable for rents on farm lands, but applies to any person who shall be liable to pay rent, and who is removing Sheriff County. 711 LANDLORD AND TENANT. §§ 1005-1007 Sec. 1005. Form for notice to tenant to quit premises. To ; You will take notice that I hereby require you to quit, sur- render and deliver up to me the possession of the following de- scribed real estate, in County, State of Oklahoma, to-wit : (Here describe premises.) Said premises are held by you as tenant, and you are required to remove therefrom on or before the day of , 19 — , next, pursuant to the provisions of the statute relating to the rights and duties of landlord and tenant. . Sec. 1006. Form for notice to quit after rent due. To ; This is to inform you that you are .justly indebted to me in the sum of $ , for rent of the following described real estate, in County, State of Oklahoma, to-wit: (Here de- scribe premises), from the day of , 19 — , which you are required to pay on or before the expiration of five days from the day of service of this notice, or you will be required to surrender up possession of the same to me; in default of which I shall proceed under the statute to recover possession thereof. Dated this day of , 19 — . Sec. 1007. Form for notice to vacate tenancy on farm. To ; You will take notice that I desire to terminate the tenancy now held by you on the farm owned by me in County, Oklahoma, to-wit: (Here describe premises), on the first day of January, 19 — , next, and I require you to quit and deliver up to me said premises on or before that date. Dated this day of , 19 — . § 1008 merwine's trial of title to land. 712 Sec. 1008. Form for affidavit of service of notice to quit. State of Oklahoma, County, ss. : I do solemnly swear that I served a correct copy of the fore- going notice on the within named , by delivering the same to him in person on the day of , 19 — , Fur- ther afJBant saith not. Subscribed and sworn to before me this day of 19—.* * To the foregoing affidavit should be attached a true copy of the notice served upon tenant. CHAPTER XVII. THE LAW AND PROCEDURE BY WHICH REAL ESTATE IS SOLD BY FORECLOSURE OF MECHANIC'S LIEN. SECTION 1009. The origin and nature of the law. 1010. The right to assert the lien may be waived, how. 1011. Laborer's and materialman's lien on real estate — ^Home- stead — The statute. 1012. The lien attaches to leasehold interests, when. 1013. A contract with husband for material may bind the real estate of wife, when. 1014. The time when lien attaches. 1015. The title necessary to support a lien. 1016. Tlie lien statement^ — How made and where filed. 1017. Subcontractor's lien state- ment — Time when same is filed — Notice to the owner. 1018. Materialman and laborer fur- nisliing material and labor to fraudulent grantee pro- tected, when. 1019. A mechanic's lien is assign- able. 1020. Procedure — iMay be enforced by civil action — Amendment. 1021. Procedure — All lien claimants to be made parties. 1022. The action to foreclose a mechanic's lien and the pro- cedure incidental to the action. 1023. Actions to enforce liens con- solidated, when. 713 SECTION 1024. Judgment in the action — Sales without prejudice to the rights of others. 1025. Laborer may include attorney fee in his claim for lien. 1026. Owner may file petition mak- ing the lien claimants parties and ask for an adjudication. 1027. Proceeds of sale to pro rate, when. 1028. Bond of contractor — Action on bond by any party in- terested. 1029. Bond of contractor for public building. 1030. Where such bond to be filed. 1031. Lien for one who has per- formed labor for a railway company. 1032. Limitation for actions to fore- close the lien provided for in preceding paragraph. 1033. Judgment and collection of lien. 1034. Tlie notice to be given. 1035. Manner of obtaining lien upon leasehold for machinery, ma- terial and labor furnished for developing oil and gas wells. 1036. Subcontractor may obtain lien in same manner as con- tractor. 1037. The manner of enforcing such lien. § 1009 merwine's trial op title to land. 714 SECTION SECTION 1038. Procedure in the foreclosure 1044. Form for proof of publication. of mechanics' lien — The form 1045. Form for the decree of court for petition foreclosing sub- foreclosing the lien, contractor's lien. 1046. Form for execution in such 1039. Procedure by which a me- case. chanic's lien is foreclosed — 1047. Form for appraisement of real The petition for foreclosure estate. of lien setting forth a single 1048. Form for publication of cause of action upon a ma- sheriff's sale of real estate, terialman's lien. 1049. Form for proof of publication. 1040. Form for answer admitting 1050. Form for sheriff's return of the allegations of the peti- his proceedings under the tion and consenting to the writ, the same being at- prayer thereof. tached to the back of the 1041. Form for notice for service execution above. by publication for nonresi- 1051. Form for order of court ap- dent defendant. proving sherii}''s sale. 1042. Form for the affidavit for 1052. Form for sheriff's deed to service by publication. purchaser. 1043. Form for service by publica- tion. Sec. 1009. The origin and nature of the law. The law by which the mechanic or laborer can claim a lien on real estate for the value of labor or material for the im- provement thereof, did not exist at common law. It is purely a creature of the statute.^ It is founded in justice and arises from the principle that the owner of real estate, having se- cured the labor and material improving his property, should allow a lien to attach thereto for the payment thereof. Its object was, and is, to obviate the injustice and wrong practiced on laborers and materialmen by contractors in defrauding them of their just demands after they have per- formed labor or furnished material. It interferes with the honest intention of no man, and merely secures rights that could have been made available by activity and vigilance in the prosecution of remedies that existed before the law.^' The lien is not obtained by legal proceedings, but is a lien voluntarily conferred by the owner when he hires a mechanic or orders material.-^ iMcCune v. Snyder, 8 0. D. 316. 3 In re Beck, 11 0. F. D. 449. 2 Railway v. Cronin, 1 W. L. B. (Ohio), 315. 715 REAL ESTATE SOLD BY MECHANIC'S LIEN. §§ 1010, 1011 Sec. 1010. The right to assert the lien may be waived, how. The right to place a mechanic's lien on real estate of an- other for labor and material furnished for the improvement thereof, like any other simple right, may be waived. It has been held that it may be waived by acts and agreement, although he has made no express promise, he will waive the right,* by agreement, express or complied, that the lien will not be asserted ; ^ and by accepting a note in payment of a mechanic's claim for material furnished and work done.** But by statute the taking of a note does not waive the lien.* Sec. 1011. Laborer and materialman's lien on real estate — Homestead — The statute. Any person who shall, under oral or written contract with the owner of any tract or piece of land, perform labor or furnish material for the erection, alteration or repair of any building, improvement, or structure thereon ; or who shall furnish material or perform labor in putting up any fix- tures, machinery in or attachment to, any such building, structure or improvements; or who shall plant any trees, vines, plants or hedge in or upon such land; or who shall build, alter, repair or furnish labor or material for building, altering or repairing any fence or footwalk in or upon said land, or any sidewalk in any street abutting such land, shall have a lien upon the whole of said tract or piece of land, the buildings and appurtenances, but if a homestead the lien shall be good on not to exceed five acres in a square form on which the building material, fixtures or machinery are located, in the manner herein provided, for the amount due him for such labor, materials, fixtures or machinery. If the title to the land is not in the person with whom any such contract was made, but is leased and unimproved, the lien shall be allowed on the buildings and improvements on such land separately from the real estate. Such liens shall be 4 West V. Klotz, 37 O. S. 420. 0. S. 332; Bernsdorf v. Hardway, 5 Iron V. Murray, 38 0. S. 323. 7 €. C. 378. 6 Brooks V. Finney, 39 0. S. 57; * Snyder, 6,152; Wilson, 4,818. but see Standard v. Sowden, 55 § 1011 merwine's trlvl op title to land. 716 preferred to all other liens or incumbrances which may attach to or upon such land, buildings or improvements or either of them, subsequent to the commencement of such building, the furnishing or putting up of such fixtures or machinery, the planting of such trees, vines, plants or hedges, the building of such fence, footwalk or sidewalk, or the making of any such repairs or improvements.^ One who performs labor in drilling an oil or gas well on lands in which the owner of the well has no interest, beyond that acquired by the ordinary oil and gas lease, authorizing an entry upon the lands to explore for oil and gas, cannot obtain a mechanic's lien for such labor which will attach to the lease, or to personal property belonging to the lessee and left on the land.^ But the statute now authorizes such lien. And one, who, under a contract with the owner of land, furnishes a windmill and other material, and erects the same thereon, is entitled to a lien on said land for said im- provement, by complying with the provisions of the me- chanic's lien law.^ 7 Snyder, 6,151; act approved Choctaw nation, for material used March 13, 1905; Kansas, 5,117 in its construction, though the fee (1901), identical. The homestead is in the land and cannot be sold, mentioned in the statute must be Arnold v. Campbell, G4 S. W. 532, actually occupied. An intention to 3 Ind. Ter. 550. Under the provi- do so in the future will not be suffi- sions of Sec. 630, Code of Civil cient. Ball v. Houston, 11 Okla. Procedure, in relation to mechanics' 233, 66 Pac. 359. Tiie husband of liens, where tliere are prior liens a wife who owns real estate, buying on the land, the mechanics and the material, will give the right to materialmen are entitled to priority charge the real estate with the lien. on a new structure erected entirely Limerick v. Ketcham, 17 Okla. 532, by them and from their material i87 Pac. 605. It was held under independent of the land itself. Sec. 4,402 (Mansfield's Digest, McCrie v. Hecker, 51 Pac. Rep. 966, Arkansas), providing that material- 7 Kan. App. 39. men shall have a lien on the build- « Eastern v. McEvoy, 75 Kan. 515, ing and lands of the owner on 89 Pac. 1,048; Philips v. Spring- which it is situated, that a lien field, 76 Kan. 783, 92 Pac. 1,119. will lie and may be enforced on a building, and the interest of the 9 Phelps v. Baker, 30 Pac. 477. owner thereof in the lands, in the 717 REAL ESTATE SOLD BY MECHANIC'S LIEN. §§ 1012-1014 The erection or construction of a lightning rod or rods on any building will not be considered such an improvement, fixture or attachment, as to come under the provisions of the act providing for the creation of mechanics' liens.^" Sec. 1012. The lien attaches to leasehold interests, when. The term ''owner," as used in the statute, has been held to extend to the interest anyone may have in a leasehold interest subject to the paramount right of the holder of the fee.^^ But this subject as to oil and gas well improve- ments, is now regulated by statute/^ Sec. 1013. A contract with husband for material may bind the real estate of wife, when. A husband, buying material and using the same for a structure on lands, the title to which is in the wife, will give a lien on the lands for the payment of such material/^ Sec. 1014. The time when lien attaches. In controversies between one asserting a lien for material or labor furnished, and other lienholders as to priority of date when the lien attaches to real estate, is the time the work was begun on the foundation, notwithstanding the foundation was made by the owner, or under his direction, and not under a contract." 10 Snyder, 6,162; Wilson, 4,828. 12 Snyder, 6,670; act approved 11 Block V. Pearson, 19 Okla. 422, March 15, 1905. 91 Pac. 714; Jarrell v. Block, 19 i3 Limerick v. Ketcham, 14 Okla. Okla. 467, 92 Pac. 1G7; Seitz v. 538, 87 Pac. 605 ; Bethel v. Chicago, U. P., etc., 16 Kan. 133; Hatha- 39 Kan. 230, 17 Pac. 813. But to way V. Davis, 32 Kan. 693, 5 Pac. obtain a lien on the homestead both 29; Chicago v. Osborne, 40 Kan. mnst contract for the material or 168, 19 Pac. 656; Meyer v. Brown, labor. Rowley v. Varnum, 15 Okla. 46 Kan. 543, 26 Pac. 1,019; Chicago 612, 84 Pac. 487. V. Fretz, 51 Kan. 134, 32 Pac. 908; i4 National v. Hutchinson, 6 Kan. Mulvane v. Chicago, 56 Kan. 615, App. 673, 50 Pac. 100; Mortgage v. 44 Pac. 613; Cr.utcher v. Block, 19 Weyerhaeuser, 29 Pac. 153; Ins. v. Okla. 246, 91 Pac. 895. Ronde, 26 N. J. Eq. 389; Penrock §§ 1015, 1016 merwine's trial of title to land, 718 Sec. 1015. The title necessary to support a lien. Complete title is not always necessary when the contract for material was made. An equitable title will be sufficient to support the lien/^ Sec. 1016. The lien statement — How made and where filed. Any person claiming a lien as set forth in this chapter, foregoing paragraph, is required to file in the office of the clerk of the district court in the county in which the land is situated, a statement setting forth the amount claimed and the items thereof, as nearly as practicable, the name of the owner, the name of the contractor, the name of the claimant and a description of the property subject to the lien, verified by affidavit : Provided, that if any promissory note bearing a lawful rate of interest be taken for any such labor or ma- terial, it wall not be necessary to file an itemized statement of the labor or material furnished, but, in lieu thereof, it will be sufficient to file a copy of such note, with a sworn statement that said note, or any part thereof, was given for such labor or material used in the construction of such build- ing or improvement; and if the whole of said note be given for such labor or material the lien shall be for the whole of the principal and interest of such note ; but if a part of said note only be given for such labor or material then the lien will be for a corresponding amount only, with interest at the rate specified in said note. Said statement must be filed within four months after the date on which material was last fur- nished or labor last performed under the contract as afore- said ; and if the claim be for the planting of trees, vines, plants V. Hoover, 5 Ralle, 291; Brook v. contractor treat the building as Lester, 36 Md. 67; :\Iitchell v. Pen- completed, it will be deemed corn- field, 8 Kan. 186. The abandonment pleted for the purpose of attaching of work on a building by the con- a lien thereon. Rice v. Brown, 2 sent or fault of the owner will be Kan. App. 1, 42 Pac. 392. deemed a completion of the building is Jarvis v. Sulton, 46 Kan. 166, for the purpose of filing a lien. 26 Pac. 406; Getto v. Friend, 46 Shaw V. Stewart, 43 Kan. 572, 23 Kan. 67, 26 Pac. 473. Pac. 616. Where the owner and 719 REAL ESTATE SOLD BY MECHANIC 's LIEN. § 1017 or hedge, such statement must be filed within four months from such planting. Immediately upon the receipt of such state- ment the clerk of the district court is required to enter a record of the same in a book kept for that purpose to be called the Mechanics' Lien Docket, which docket must be ruled off in separate columns with headings as follows: ''When filed," "Name of 0^^^ler," "Name of Claimant," "Amount claimed," "Description of property," and "Re- marks," and the clerk must make the proper entry in each column.^* Sec. 1017. Subcontractor's lien — Statement — Time when same is filed — Notice to the owner. Any person who furnishes any such material or performs such labor under a subcontract with the contractor, or as an artisan or day laborer in the employ of such contractor, may obtain a lien upon such lands or improvements, or both, from the same time, and in the same manner, and to the same extent as the original contractor, for the amount due him for such material and labor ; and any artizan or day laborer in the employ of and any such person, who furnishes material to such subcontractor, may obtain a lien upon said lands or improvements or both, for the same time, and in the same manner and to the same extent as the subcontractor for the amount due him for such material and labor, by filing with the clerk of the district court of the county in which the land is situated, within sixty days after the date upon which ma- le Snyder. 6,152: Wilson, 4.818; 54 Kan. 641, 39 Pac. 177; Conroy Kansas, 5,118 (1901), identical. As v. Perry, 26 Kan. 472. As to what to when a materialman becomes a is an insufficient statement, see subcontractor, see Ryndak v. Sea- Xewman v. Brown, 27 Kan. 117; well, 13 Okla. 737, 76 Pac. 170. As Hentig v. Sperry, 38 Kan. 459, 17 to what statements are sufficient to Pac. 42. As to what is a reason- establish lien, see Blanshard v. able time in which subcontractor Schwartz, 7 Okla. 23, 54 Pac. 304; may file statement, see Deatherage North V. Hegner, 42 Pac. 388; v. Henderson, 43 Kan. 684, 23 Pac. Bethel v. Bethel, 39 Kan. 230, 17 1.052; Pierce v. Osborne, 40 Kan. Pac. 813; School v. Howell, 44 Kan. 168, 19 Pac. 656, 285, 24 Pac. 365; Martin v. Burns, § 1017 MERWINE'S TRIiVL OF TITLE TO LAND. 720 terial was last furnished or labor last performed under said subcontract, a statement verified by affidavit, setting forth the amount due from the contractor to the claimant and the items thereof as nearly as practicable, the name of the owner, the name of the contractor, the name of the claimant and a description of the property upon which the lien is claimed; and by serving notice in writing of the filing of such lien upon the owner of the lands or improvements, or both: Provided, that if with due diligence the owner cannot be found in the county where the land is situated, the claim- ant after filing an affidavit setting forth such facts, may serve a copy of said statement upon the occupant of the lands, or the occupant of the improvements, as the case may be. Or, if the same be unoccupied, may post said copy in a conspicuous place on said land or any building thereon. Im- mediately upon the filing of said statement the clerk of the district court is required to enter a record of the same in the docket provided for in Section 6152, Snyder, in the manner therein specified; that the owner of any land affected by such lien will not thereby become liable to any claimant for any greater amount than he contracted to pay to the original contractor. The risk of all payments made to the original contractor will be upon such owner until the expiration of the sixty days herein specified, and no owner will be liable for any action by such contractor until the expiration of the said sixty days, and such owner may pay such subcontractor the amount due him from such contractor, for such labor and material, and the amount so paid be held and deemed a pay- ment of said amount to the original contractor.^^ 17 Snyder, 6,153; act approved 277. For insufficient statement for March 15, 1905; Kansas, 5,119 lien, see Long v. Adams, 71 Kan. (1901), identical. It is not neces- 309, 80 Pac. 593; Western v. sary to allege and prove knowledge Hynan, 71 Kan. 43, 80 Pac. 16; of the owner. Ferguson v. Brown, Nixon v. Cydon, 56 Kan. 298, 43 14 Okla. 148, 77 Pac. 184. The Pac. 236. As to the date when the time runs from the date of the fur- time begins to run within which nishing of the last item. Board v. lien may be filed, see P. T. Walton Gelino, 9 Kan. App. 555, 58 Pac. etc., 29 Okla. 237, 1,116 Pac. 798. 721 REAL ESTATE SOLD BY MECHANIC'S LIEN, §§ 1018-1020 Sec. 1018. Materialman and laborer furnishing material and labor to fraudulent grantee protected, when. An owner of real estate who was induced by fraud to con- vey the title to another, a contract contemplating the con- struction of buildings thereon, cannot, in an action brought by him to set aside the conveyance and discharge the prop- erty from all liens, defeat the claims of persons who, in good faith, and relying on the apparent title of the fraudulent purchaser, have furnished materials and performed labor in the construction of buildings contemplated, and have complied with the statutory requirements in establishing their liens/^ Sec. 1019. A mechanic's lien is assignable. All claims for liens and rights of action to recover therefor under the statute creating mechanics' liens, are assignable so as to vest in the assignee all the rights and remedies herein given, subject to all defenses thereto that might be made if such assignment had not been made. Where a statement has been filed and recorded as herein provided, such assignment may be made by an entry on the same page of the Mechanics' Lien Docket containing the record of the lien, signed by the claimant or his lawful representative and attested by the clerk, or such assignment may be made by a separate instru- ment in writing.^^ Sec. 1020. Procedure— May be enforced by civil action- Amendment. Any lien provided for by this chapter may be enforced by civil action in the district court of the county in which the land is situated, but such action must be brought within one year from the time of the filing of said lien with the clerk of said court: Provided, that where a promissory note is given, such action may be brought at any time within one year from the maturity of said note. The practice, pleading 18 West V. Badger, 56 Kan. 298, is Snyder, 6,154; Wilson, 4,820; 43 Pac. 239. Kansas, 5,120 (1901), identical. § 1021 MERWINE S TRIAL, OF TITLE TO LAND. 722 and proceedings in said action must conform to the rules prescribed by the code of civil procedure as far as the same may be applicable ; and in case of an action brought, any lien statement may be amended by leave of court in further- ance of justice as pleadings may be in any matter, except as to the amount claimed."*^ Sec. 1021. Procedure — All lien claimants to be made parties. In such actions all persons whose liens are filed as pro- vided in this chapter, and other incumbrancers, must be made parties, and the issues must be made and a trial had as in other cases. Where such action is brought by a sub- contractor, or other person not the original contractor, such original contractor must be made a party defendant, and 20 Snyder, 6,155; Wilson, 4,821; Albert! v. Mooer, 20 Okla. 78, 93 Pac. 543; El Reno v. Jennison, 50 Pac. 144; Blanshard v. Schwartz, 7 Okla. 23, 54 Pac. 304; Atkinson V. Woodmansee, 68 Kan. 71, 74 Pac. 640. In an action to partition real estate where the parties claiming mechanics' liens are made parties defendant, and file an answer and cross-petition showing the com- mencement of an action which had been dismissed without prejudice, that within a year from such dis- missal the present action had been commenced and cross petition filed, held, that by virtue of the provi- sions of Sec. 23 of the Civil Code, the action of defendants claiming a lien was not barred by the one-year limitation prescribed by the me- chanics' lien law [paragraph 4747 (1889)], although n,ore than one year had elapsed since the com- pletion of the building. Hobbs v. Spencer, 49 Kan. 569, 31 Pac. 702; Seaton v. Hixon, 35 Kan. 603, 12 Pac. 22. When an action is regu- larly brought against the owner of the premises within one year from tlie time of filing a materialman's lien to foreclose such lien, the con- tractor may be made a party thereto, upon the application of either party, after the expiration of one year. An action so commenced is not barred by the statute of limitation, because the contractor is not made a party thereto before the expiration of a year from the time of filing the lien statement. Western v. Heiman, 05 Kan. 5, 68 Pac. 1,080. In an action to enforce a mechanic's lien service of sum- mons upon the owner within the period prescribed by statute for the commencement of such action, does not preserve the lien as against other incumbrancers who are not made parties to such an action within the period of limitation. Wood V. Dill, 3 Kan. App. 484, 43 Pac. 822, 723 REAL ESTATE SOLD BY MECHANIC'S LIEN. §1021 must, at his own expense, defend against the claim of every subcontractor or other persons claiming liens under the pro- visions of this chapter. If he fails to make such defense, the owner may make the same at the expense of such contractor; and until all such claims, costs and expenses are finally adjudicated, and defeated or satisfied, the owner will be entitled to retain from the contractor the amount thereof and such costs and expenses as he may be required to pay : Provided, that if the sheriff of the county in which said action is pending makes return that he is unable to find such original contractor, the court may proceed to adjudicate the liens on the land and render judgment, and to enforce the same with costs,^^ 21 Snyder, 6,156; Kansas, 2,122 ( 1909 ) , identical. Under paragraph 4,738 (Mechanics' Liens), General Statute, 1889, a subcontractor or other person who brings an action against the owner of a building for materials used in its construction must make the original contractor a party, and if the subcontractor or other person fails to do so, and the contractor has notice or knowl- edge of the pendency of the action and fails to defend the maker against such demand, the owner may defend at the cost and expense of the contractor. If the contractor is not shown to have notice or knowledge of the pendency of the action, the owner hos a cause of action against the subcontractor or other person, for damages by reason of the wrongful institution of the action, because of the failure to make the contractor a party. When the contractor assigns all the money due on a building contract to a lumber man who had furnished material, and who had primarily brouglit suit without making the contractor a party, the owner can plead such cause of action as a counterclaim. Tracy v. Kerr, 47 Kan. 656, 28 Pac. 707. Where a cross-petition sets up a mechanic's lien, and prays for foreclosure of the same and a sale of the premise9 therein described, and an answer is filed, containing, among other things, a general denial, and upon the trial the court permits the answer to be amended so as to allege the abandonment of work on the building in place of its comple- tion, the answer on file will be regarded as putting in issue the amendment to the cross-petition, and, therefore, when the court and parties proceed with the trial, as if the alleged abandonment was one of the issues of the case, the failure of the court to permit the filing of a new denial is not erroneous or prejudicial. Great v. Chicago, 47 Kan. 672, 28 Pac. 714. § 1022 merwine's trial of title to land. 724 Sec. 1022. The action to foreclose a mechanic's lien and the procedure incidental to the action. Ordinarily the action is brought for a personal judgment and for a foreclosure of the lien to satisfy the debt. In such an action service of summons must be personal, for a per- sonal judgment cannot be acquired on constructive service, even though the court has jurisdiction over the property.^^ The usual form for such petition is in one cause of action to declare on the account for material or labor furnished, or on the note given therefor in the ordinary way, and in the second cause of action, on the lien given to secure the same. The cause of action setting forth the lien, may, by apt and accurate language, adopt the allegations of the cause of action declaring on the account or contract, or note. But the reference to the adoption mvist be clear and definite, and not leave any doubt as to its meaning. The petition should allege all the statutory requirements necessary to establish the lien. Where service is constructive, or in case no personal judgment is sought, the petition need contain only one cause of action. In such case the prayer is that the court should find the amount due plaintiff and that the lien may be foreclosed and the real estate therein described, sold, to satisfy the amount so found due. For a full discussion of the procedure as to parties, ref- erence is had to the first chapter of this work. There will be found the law and procedure connected with the issuance and service of summons in the action, how the defendants may voluntarily enter their appearance to the action, how service of summons may be had on residents of the county and nonresidents of the county who are residents of the State, how service of summons is made on nonresidents of the State by publication and by copy of the petition, how infants are served with summons and defended by guardians ad litem appointed by the court, and the conduct of such defense; how insane persons are defended, and how all the 22 Brown v. Ins, Co., 6 C. C. (Ohio), 62. 725 REAL ESTATE SOLD BY MECHANIC 's LIEN, § § 1023-1025 steps must be taken in order to give the court power to liear and determine the rights of the parties to the action. Sec. 1023. Actions to enforce liens consolidated, when. If several actions brought to enforce the liens herein pro- vided for are pending at the time, the court may order them to be consolidated, and in any action brought to enforce a lien under this act, if the building or other improvement is still in the course of construction, the court, on application of any party engaged in furnishing labor or material for such building or improvement, may stay the trial thereof for a reasonable time to permit the filing of a lien statement by said party under the provisions of this act.-^ Sec. 1024. Judgment in the action — Sales without prejudice to the rights of others. In all cases where judgment may be rendered in favor of any person or persons to enforce a lien under the provisions of this chapter, the real estate or other property is required to be sold as in other cases of sales of real estate, such sales to be without prejudice to the rights of any prior incumbrancer, owner or other person not a party to the action.-* The service of summons upon the owner of real estate in an action by one mechanic lienholder will not operate to save other lienholders of the same character from this limitation of the statute.^^ Sec. 1025. Laborer may include attorney fee in his claim for lien. If any action brought by an artisan or day laborer to enforce any lien under the provisions of this chapter, where 23 Snyder, 6,157; Wilson, 4,S23. mortgage?. Z7eW, that it was proper Two mechanics' liens were filed on to consolidate tliem for the purpose an entire tract, and other mechanics' of trial. Van Lear v. Kansas, 56 liens and mortirages were executed Ean. 545, 43 Pac. 1,134. on specific subdivisions of the same 2* Snyder, 6,158; Wilson, 4,824; tract, and several actions were com- Kansas, 5.124 (1901), identical, menced in the district court to fore- =5 Wood v. Gill, 3 Kan. App. 484, close the mechanics' liens and the 43 Pac. 822. §§ 1026-1028 mebwine's trial of title to land. 726 judgment be rendered for the plaintiff, the plaintiff will be entitled to recover a reasonable attorney's fee to be fixed by the court, which must be taxed as costs in the action.-'^ This law has been held unconstitutional.^^ Sec. 1026. Owner may file petition making the lien claimants parties and ask for an adjudication. If any lien or liens be filed under the provisions of this chapter, and no actions to foreclose any such liens are com- menced, the owner of the land may file his petition in the district court of the county in which such land is situated, making such lien claimants defendants therein, and pray for an adjudication of such lien or liens so claimed, and if any such lien claimant fail to establish his lien, the court may tax against said claimant the whole, or such portion of the costs of such action as may be just : Provided, that if no action to foreclose or adjudicate any lien filed under the provisions of this act, be instituted within one year from the filing of such lien, the clerk of the district court is required to enter under the head of "Remarks," in the Mechanics' Lien Docket, hereinbefore named, that such lien is cancelled by limitation of law.-^ Sec. 1027. Proceeds of sale to pro rate, when. If the proceeds of the sale be insufficient to pay all the claimants, then the court shall order them to be paid in pro- portion to the amount due each.^^ Sec. 1028. Bond of contractor — Action on bond by any party- interested. The contractor or owner mentioned in the statute (Snyder, 6151; Act approved March 15, 1905), may execute a bond 26 Snyder, 6,159; Wilson, 1,825; 28 Snyder, 6,160; Wilson, 4,820. Kansas, 5,125 (1901>, identical. 29 Snyder, 6,161; Wilson, 4,827. 27 Chicago V. Mashore, 21 Okla. 275, 96 Pac. 630; Atchison v. Wood- men, 68 Kan. 71, 74 Pac. 640. , 727 REAL ESTATE SOLD BY MECHANIC'S LIEN. §§ 1029-1030 to the State of Oklahoma for the use of all the persons in whose favor liens might accrue by virtue of the statute, conditioned for the payment of all claims v^^hich might be the basis of liens, which bond is required to be in a sum not less than the contract price, and with good and sufficient sureties, whose qualifications shall be verified in accordance with the section of the statute of the code of civil procedure (Snyder, 6259; Wilson, 4919), such surety as shall be ap- proved by the clerk of the district court in the county in which the property is situated, and may file such bond in the office of said clerk ; and when such bond is so approved and filed, no lien can attach under the provisions of this chapter, and if when such bond is filed and liens have already been filed, said liens shall be discharged.^° Suits may be brought on said bond by any person interested. Sec. 1029. Bond of contractor for public building. Wlienever any public officer shall, under the laws of the State, enter into a contract in any sum exceeding one hundred dollars with any person or persons, for the purpose of making any public improvements, or constructing any public building, or making repairs on the same, said officer must take from the party contracted with, a bond with good and sufficient sureties to the State of Oklahoma, in a sum not less than the sum total in the contract, conditioned that such contractor or contractors shall pay all indebtedness in- curred for labor or material furnished in the construction of such public building or in making such public improve- ments.^^ Sec. 1030. Where such bond to be filed. Such bond shall be filed in the office of the clerk of the district court in the county where such public improve- ment is to be made, or such public building to be erected. And any person to whom there is due any sum of money 30 Snyder, 6,163; Wilson, 4,829. 3i Snyder, 6164; Wilson, 4,834. §§ 1031-1033 merwine's trial op title to land, 728 for labor or material furnished, as stated in the preceding paragraph, or his assigns, may bring an action on said bond for the recovery of said indebtedness : Provided, that no action can be brought on said bond after six months from the completion of such public improvements or public buildings.^^ Sec. 1031. Lien for one who has performed labor for a rail- way company. Every mechanic, builder, artisan, workman, laborer or other person, who performs any work or labor upon, or who furnishes any materials, machinery, fixtures or other thing towards the equipment, or to facilitate the operation of any railroad, is given a lien therefor on the roadbed, buildings, equipments, income, franchises or other appurtenances of said railroad, superior and paramount, whether prior in time or not, to that of all persons interested in said railroad as managers, lessees, mortgagees, trustees and beneficiaries under trusts, or owners.^^ Sec. 1032. Limitation for actions to foreclose the lien pro- vided for in preceding paragraph. The lien mentioned in the preceding paragraph will not be effectual unless suit be brought on the claim within one year after it accrued.^* Sec. 1033. Judgment and collection of lien. The said lien shall be mentioned in the judgment rendered for the claimant in an ordinary suit for the claim, and may be enforced by ordinary levy and sale under final or other process at law or equity.^^ 32 Snyder, 6,165; Wilson, 4,831. of the Kansas statute, Sees. 4,747 The report of the majority of the and 4,748 (1891). code commissioners was that the 33 Snyder, 6,166. two foregoing sections of the statute 34 Snyder, 6,167. do not appear in the enrolled bill, 35 Snyder, 6,168. which are in corresponding sections » 729 REAL ESTATE SOLD BY MECHANIC'S LIEN. §§1034,1035 Sec. 1034. The notice to be given. Provided, that a notice of ten days be given to the railroad of the existence of the claim or the intended lien which is contemplated in section 3964 shall have been given.^* Sec. 1035. Manner of obtaining lien upon leasehold for ma- chinery, material and labor furnished for developing oil and gas wells. Any person, or corporation, or copartnership, who, under a contract, express or implied, with the owner of any lease- hold for oil and gas purposes, or the owner of any gas pipe line or oil pipe line, or with the trustee of agent of such owner, performs labor or furnishes material, machinery and oil well supplies used in the digging, drilling, torpedoing, completing, operating or repairing of any oil or gas well, or furnishes any oil well supplies or performs any labor in con- structing or putting together any of the machinery used in drilling, torpedoing, operating, completing or repairing of any gas well, will be given a lien on the whole of said leasehold or oil pipe line, or lease for oil and gas purpose, the buildings, and appurtenances, and upon the materials and supplies so furnished, and upon said oil and gas wells for which they were furnished, and upon all other oil wells, fixtures and ap- pliances used in operating for oil and gas purposes upon the leasehold, for which such material and supplies were fur- nished or labor performed. Such lien will be preferred to all other liens or incumbrances which may attach to or upon said leasehold for gas or oil purposes, and upon any oil pipe line or gas pipe line, or such oil and gas wells, and the material and machinery so furnished and the leasehold for oil and gas purposes, and the fixtures and appliances thereon, subsequent to the commencement of, or furnishing or putting up of any such machinery or supplies.^^ 36 Snyder, 6,169. 37 Snyder, 6,170; act approved March 15, 1905. §§ 1036, 1037 merwine's trial of title to land. 730 Sec. 1036. Subcontractor may obtain lien in same manner as contractor. Any person, corporation or copartnership, who furnishes such machinery, or supplies to a subcontractor, or under a contractor, or any person who performs such labor under a subcontract with a contractor, or as an artisan or day laborer in the employ of such contractor, performs any such labor, may obtain a lien upon said leasehold for gas and oil purposes, or any gas pipe line or any oil pipe line from the same tank and in the same manner and to the same extent as the original contractor for the amount due him for such labor as provided in the preceding paragraph of this chapter,^^ Sec. 1037. The manner of enforcing such lien. The liens herein created are enforced in the same manner, and notices of same are to be given in the same manner, and the materialman's statement, or the lien of the laborer herein mentioned, must be filed in the same manner as provided for in this chapter, and all actions brought for the purpose of enforcing any such liens must be governed by this chapter.^^ In the chapter herein on sale of real estate under an execu- tion, there will be found a full statement of the sale of real estate by an order of sale, and also under a writ, venditioni exponas, and also a statement of the law as to the appraise- ment of the real estate and as to the procedure from the time of the order of sale to the delivery of the deed to the purchaser. 38 Snyder, 6,171 ; act approved 39 Snyder, 6,671 ; act approved March 15, 1905. March 15, 1905. 731 REAL ESTATE SOLD BY MECHANIC'S LIEN. § 1038 Sec. 1038. Procedure in the foreclosure of mechanic's lien — The form for petition foreclosing subcontractor's lien. District Court, County, State of Oklahoma. , Plaintiff, vs. No. . , , and , Copartners, Doing Business under the Firm Name of , and and , Defendants. PETITION. Comes now the plaintiff above named, and, for his cause of action against the defendants, alleges and states: 1. First Cause of Action. — That on or about the day of , 19 — , the defendant, , as owner, and the de- fendants, , , and , copartners, doing business under the name of , as contractors, entered into a certain written contract and agreement for the erection and construction of certain improvements on the following described real property, to-wit: (Here specifically describe same) ; that the plaintiff is unable to attach a copy of said contract to this petition for the reason that the original and all copies thereof are in the possession of the defendants and they have failed and refused to deliver to this plaintiff a copy of said contract ; that on or about the day of , 19—, the plaintiff, as sub- contractor, entered into an oral contract with the defendants, , , and , copartners, doing business under the name of , for certain lumber and other building material to be used in the erection and construction of said buildings on the above described premises, at the agreed price and reasonable value of $ ; that all of said lumber and other building material was furnished at the instance and request § 1038 merwine's trial of title to land. 732 of the defendants, , , and , copart- ners, doing business under the name of , and was used in the erection and construction of said buildings, in accordance with the terms of said contract, between the day of , 19 — , and the day of , 19 — ; that there- upon the defendants, , , and , copartners, doing business under the name of , became indebted to the plaintiff in the sum of $ ; that certain credits were allowed, aggregating the sum of $ , leaving a balance due and unpaid in the sum of $ , and, though frequent demand has been made on the defendants, , , and , copartners, doing business under the name of , and the said , for the payment thereof; that a true and correct itemized and verified statement of said account is hereto attached, made a part hereof and marked "Exliibit A," to which reference is hereafter made; that on the day of , 19 — , and within the time allowed by law for the making and filing of the same, the plaintiff, for the purpose of securing the payment of the balance due him on said subcontract for lumber and other building material furnished and used as aforesaid in the construction and erection of said buildings, filed in the office of the clerk of the district court of County, State of Oklahoma, a materialman's lien state- ment, duly verified by affidavit by his agent and manager, , all as provided by law ; that a true and correct copy of said lien statement, together with the exhibits attached as a part thereof, is hereto attached, marked "Exhibit A," and made a part hereof ; that on the day of , 19 — , plaintiff notified the defendant, , as provided by law, of the filing of said lien statement, by serving upon it, through its proper agents and officers, a written notice, a true and correct copy of which is hereto attached, marked "Exhibit B," and made a part hereof. 2. Second Cause of Action. — That the allegations and state- ments contained in the first paragraph of his first cause of action, plaintiff says are hereby made a part of the second cause of action, as fully and completely as if tl>ey were specifically 733 REAL ESTATE SOLD BY MECHANIC'S LIEN. § 1038 realleged and set out herein ; that on or about the day of , 19 — , the defendant, , entered into a subcontract Avith , , and , copartners, doing busi- ness under the name of , as contractors, to perform certain labor and furnish certain material in the construction and erec- tion of said buildings, and according to the terms and specifica- tions of the original contract ; that the plaintiff is unable to attach a copy of said contract hereto, for the reason that the original and all copies thereof are in the possession of said defendants, and they have failed and refused to deliver to this plaintiff a copy of said contract; that on or about the day of , 19 — , the plaintiff entered into an oral contract with the defendant, , as subcontractor, whereby the plain- tiff agreed to furnish to the defendant, certain lumber and other building material, to be used in the erection and con- struction of said buildings on the above described premises, at the agreed price and reasonable value of $ ; that all of such lumber and other building material was furnished at the instance and request of said defendant, , and was used in the erection and construction of said buildings in accordance with the terms of said contract, between the day of , 19 — , and the day of , 19 — ; that thereupon the defendant, , became indebted to the plaintiff in the sum of $ ; that certain credits were allowed, aggregating $ , leaving a balance due and unpaid in the sum of $ , though frequent demand has been made on the defend- ants, and , for the payment thereof; that a true, correct, itemized and verified statement of said account is hereto attached, and made a part hereof, marked "Exhibit C," to which reference is hereinafter made ; that on or about the day of , 19 — , and within the time allowed by law for the making and filing of the same, the plaintiff, for the purpose of securing the payment of the balance due him on said subcontract for lumber and other building material furnished and used as aforesaid in the erection and construction of said buildings, filed in the office of the clerk of the district court of County, State of Oklahoma, a materialman 's lien statement, duly § 1038 merwine's trial of title to land. 734 verified by the affidavit of his agent and manager, , all as provided by law; that a true and correct copy of said lien statement, together with the exhibits attached as a part thereof, is hereto attached, marked "Exliibit D," and made a part hereof ; that on the day of , 19 — , plaintiff notified the defendant, , as provided by law, of the filing of said lien statement, by serving upon it, through its proper agents and officers, a written notice, a true and correct copy of which is hereto attached, marked "Exhibit E," and made a part hereof. That plaintiff alleges further and as a part of each of the foregoing causes of action, that the defendant, , was, and at all times since has been, the legal owner of the following described property and premises, situated in County, State of Oklahoma, to-wit : (Here describe real estate.) Wherefore, plaintiff prays that he have and recover judg- ment against the defendants, , , and , copartners, doing business under the name of , and each of them, in the sum of $ , with interest thereon from the day of , 19 — , at the rate of per cent, per annum ; that he recover judgment against in the sum of $ , with interest thereon from the day of , 19 — , at the rate of per cent, per annum ; that a decree of said court be entered, declaring and establishing the liens of the plaintiff upon the real estate hereinabove described, together with all the improvements thereon ; that said liens be foreclosed and an order entered directing the sale of said real estate, with the improvements thereon, subject to appraisement at public auction, as in cases of sales upon execution, according to law; that the rights and equities of all parties to this action be de- termined by the court; that said plaintiff's liens against said real estate be declared prior and superior to any interest or title claimed by the defendants, or either of them; that the proceeds of the sale of said real estate be applied, first, to the payment of all costs in said action. Second, to the payment of plaintiff's judgments. Third, the residue, if any, to be paid to the clerk of said court to await the further order of the court. 735 REAL ESTATE SOLD BY MECHANIC'S LIEN. § 1039 Plaintiff further prays for all costs of this action laid out and expended, and for such other and further relief as may be just and equitable. ^ Attorneys for Plaintiff. (Here attach exhibits mentioned and designated.) But it is to be observed that these are attached as a matter of convenience. If objection is made they will be stricken from the petition, except the exhibits setting out a note or an account. Sec. 1039. Procedure by which a mechanic's lien is fore- closed — The petition for foreclosure of lien, setting forth a sing-le cause of action upon a materialman's lien. District Court, County, State of Oklahoma. , Plaintiff, vs. No. and , Defendants. PETITION. Comes now the plaintiff above named, and, for his cause of action against the defendants, alleges and states: That the defendants were, on and prior to the day of , 19 — , and at all times since have been the o-wTiers of the following described real property and premises, situated in County, Oklahoma, to-wit : (Here describe real estate.) That on or about the day of , 19 — , this plaintiff entered into an oral contract with the defendants, whereby he agreed to furnish to said defendants certain lumber and material to be used in the erection and construction of a certain building on the premises above described, and at the agreed price and of the reasonable value of $ ; that all of said lumber and material so contracted were furnished and used in the erection and construction of said building, between the day of , 19—, and the day of , 19 — ; that certain payments were made on said indebtedness, §1039 merwine's trial of title to land. 736 aggregating the sum of $ , leaving a balance due plaintiff from said defendants in the sum of $ , no part of which has been paid, though frequent demand has been made on defend- ants for the payment thereof; that a true and correct and item- ized and verified statement of said account is hereto attached, made a part hereof, marked "Exhibit B," to which reference is hereinafter made. That on the day of , 19 — , and within the time allowed by law for the making and filing of the same, this plain- tiff, for the purpose of securing the payment of the balance due him on said account for lumber and material furnished and used as aforesaid in the erection and construction of said building, filed in the office of the clerk of the district court of County, Oklahoma, a mechanic's lien statement, duly verified by affidavit, all as provided by law ; that a true and correct copy of said lien statement, together with the exhibits attached as part thereof, is hereto attached, as a part hereof and marked "Exhibit A." That on or about the day of , 19—, and for the purpose of securing the payment of the amount due on said contract for lumber and material furnished and used in the erection and construction of said building, as aforesaid, this plaintiff filed in the office of the clerk of the district court of County, Oklahoma, an amended mechanic's lien state- ment, duly verified by the affidavit of , as agent, all as provided by law ; that a true and correct copy of said amended lieu statement, together with the exhibits attached as a part thereof, is hereto attached, marked "Exhibit C," and made a part hereof. Wherefore, plaintiff prays that he may have judgment against the defendants, and , and each of them, in the sum of $ , with interest thereon from the day of , 19 — ; that a decree of this court be had, declaring and establishing the lien of plaintiff on the real estate herein- above described ; that he may have foreclosure of said lien, and an order for sale of said real property and premises, and all improvements thereon, subject to appraisement, at public venue as in eases of sales upon execution, according to law, and for all 737 REAL ESTATE SOLD BY MECHANIC'S LIEN. § 1040 costs in this action expended, and such further and general relief as the plaintiff may be entitled to in the premises. Attorneys for Plamiiff. (Here attach exhibits above mentioned and designated.) (The form for summons and the sheriff's return thereof are the same as in other actions. See sees. and , herein, for form.) Sec. 1040. Form for answer admitting the allegations of the petition and consenting to the prayer thereof. District Court, County, State of Oklahoma. , Flaintiff, vs. No. . and , Defendants. ANSWER OF Comes now the defendant, , and for his answer to plaintiff's petition filed herein, states that he admits each and all the allegations in said petition contained, and hereby con- sents that judgment be rendered in accordance with the prayer of said petition. State of Oklahoma, County, ss. : , of lawful age, being first duly sworn, states that he is one of the defendants in the above entitled cause ; that the alle- gations and statements contained in the above and foregoing answer are true, and that he consents to the rendition of judg- ment in said cause. . Subscribed and sworn to before me this day of , 19—. , My commission expires . Notary Public. § 1041 merwine's trial of title to land. 738 Sec. 1041. Form for notice for service by publication for nonresident defendant. District Court, County, State op Oklahoma. , Plaintiff, vs. No. and , Defendants. NOTICE FOR SERVICE BY PUBLICATION. The defendant, , will take notice that he has been sued in the above entitled court by the above named plaintiff for the sum of $ , which plaintiff alleges to be due and payable under and by virtue of the terms of an oral contract between the plaintiff and the defendants, and , whereby said plaintiff agreed to furnish to said defendants certain lumber and material to be used in the erection and construction of a certain frame business building on the real estate described as follows, to-wit: (Plere describe the same), which material and lumber, it is alleged, were furnished in accordance with the terms of said contract, and the balance due this plaintiff is the amount hereinabove set out; that in such action it is alleged and shown that said plaintiff has duly filed and perfected accord- ing to law, his mechanic's lien on said property, to secure the payment of the balance due on said contract, and that said mechanic's lien is not a valid and subsisting lien on said prop- erty, and which said property above described is the property of the said defendants. Said defendant is hereby notified to answer herein before the day of , 19 — , or judgment will be taken against him for the sum of $ , with interest thereon from the day of , 19—, at the rate of per cent., and for all costs of this action. Also that a decree will be entered declaring and establishing the lien of plaintiff on said real estate hereinbefore described, and for the foreclosure of said lien, and for an order of sale of said real property and premises, and the 739 REAL ESTATE SOLD BY MECHANIC 's LIEN. § 1042 improvements thereon, aecording to law, for the satisfaction of said judgment. — — , [Seal.] Clerk of the District Court, County. Attorneys for Plaintiff. Sec. 1042. Form for the affidavit for service by publication. District Court, County, State of Oklahoma. -, Plaintiff, vs. No. and , Defendants. AFFIDAVIT FOR SERVICE BY PUBLICATION. , of lawful age, being first duly sworn, states that he is the agent for the plaintiff, ; that said plaintiff is now absent from the county of , and the statements and alle- gations hereinafter made are within the personal knowledge of this affiant; that on the day of , 19 — , said plain- tiff filed in the office of the clerk of the district court of County, Oklahoma, his petition against the defendants, and , for the recovery of the sum of $ , being the balance due plaintiff from the defendants for lumber and ma- terial furnished said defendants to be used in the erection and construction of a certain frame business building on the follow- ing described real estate, to-wit: (Here describe the same) ; and also sought to foreclose a mechanic's lien in his favor on said property for the payment of said sum of $ , stating that the defendants were on and prior to the day of , 19 — , and at all times since have been the owners of the above described property. In said petition it was alleged that on the day of , 19 — , plaintiff entered into an oral contract with the defendants, whereby he agreed to furnish to said defendants certain lumber and material to be used in the erection and con- struction of a certain two-story frame business building on the premises above described, at the agreed price, and of the reason- able value of $ ; that all of said lumber and material so § 1042 merwine's trial of title to land. 740 contracted was furnished and used in the erection and construc- tion of said building between tlie said day of , 19 — , and the day of , 19 — ; that certain payments were made upon said indebtedness, aggregating the sum of $ ; leaving a balance due said plaintiff from said defend- ants in the sum of $ , no part of vrhieh has been paid ; that a true and correct itemized and verified statement of said ac- count was attached and made a part of said petition, marked ''Exhibit B." In said petition it was alleged that on the day of , 19 — , and within the time allowed by law for the making and filing of the same, the plaintiff, , for the purpose of securing the balance due him on said contract for lumber and material furnished and used as aforesaid in the erection and construction of said building, filed in the office of the clerk of the district court of County, Oklahoma, a mechanic's lien statement, duly verified bj^ affidavit, all as provided by law; that a true and correct copy of said lien statement, together with the exhibits attached as a part thereof, was attached to said petition, marked "Exhibit A," and made a part thereof. In said petition it was alleged that on or about the day of , 19 — , and for the purpose of securing the pay- ment of the amount due on said contract for lumber and ma- terial furnished and used in the erection and construction of said building, as aforesaid, said plaintiff, , filed in the office of the clerk of the district court of County, Okla- homa, an amended mechanic's lien statement, duly verified by the affidavit of , his agent, all as provided by law; a true and correct copy of said amended lien statement, together with the exhibits thereto attached as a part thereof, was at- tached to said petition, marked "Exhibit B" and made a part thereof. That in said petition plaintiff prayed for judgment against the defendants, and , and each of them, in the sum of $ , with interest thereon, from the day of > 19 — , at the rate of per cent, per annum; for a 741 REAL ESTATE SOLD BY MECHANIC'S LIEN. § 1042 decree of the district court of County, Oklahoma, de- claring and establishing the lien of the plaintiff on said real property, and for a foreclosure of -"aid lien, and for an order for the sale of the same, and all improvements thereon, subject to appraisement, at public venue as in cases of sale upon execu- tion, according to law, and for all costs in said action expended, and for such other and general relief as the plaintiff might be entitled to in the premises, and said action is one for the re- covery of money and for the sale of the real property above described under a mechanic's lien. Affiant further states that on the day of , 19 — , the above named plaintiff caused summons to be issued out of the office of the clerk of the district court of County, Oklahoma, for the defendants, and , directed to the slieriff of said county of for execution. That said sheriff made due diligence to obtain service on said , but made return to the effect that said was not found in said county; that, in addition to causing said summons to be issued as aforesaid, plaintiff, his agents and attorneys, have made diligent inquiry at the last known place of residence of said defendant, and various other places in this State, but have been unable to locate said defendant, and are informed that he resides somewhere in the State of . Affiant further states that said was, at the time of the filing of said petition, and at all times since has been, and now is, a nonresident of the State of Oklahoma, and absent there- from, and that plaintiff is now, and at all times since the filing of said petition has been, unable to obtain service of summons on the said defendant in the State of Oklahoma. Affiant further states that plaintiff now desires to obtain serv- ice on said defendant by publication. Subscribed and sworn to before me this day of 19—. [Seal.] Notary Public. My commission expires . § 1043 MERWINE 'S TRIAL OF TITLE TO LAND. 742 Sec. 1043. Form for service by publication. District Court, County, State of Oklahoma. , Plaintiff, vs. No. . and , Defendants. NOTICE AND SERVICE BY PUBLICATION. The above will take notice that he has been sued in the above entitled court by the above named plaintiff for the sum of $ , which plaintiff alleges to be due and payable under and by virtue of the terms of an oral contract between the plaintiff, , and the defendants, and , whereby said plaintiff agreed to furnish to said defendants certain lumber and material to be used in the erection and con- struction of a certain frame business building on the following described real estate, to-wit: (Here specifically describe real es- tate), which lumber and material, it is alleged, was furnished as provided in said contract, and the balance due this plaintiff is the amount hereinabove stated. That in said action he has duly filed and perfected his mechanic's lien on said property to secure the payment of the balance due on said contract, and that said mechanic's lien is now a valid and subsisting lien on said property In said petition it was alleged that the real property therein described is the property of the said defendants. Said defendant, , is hereby notified to answer herein before the day of , 19—, or judgment will be taken against him for the sum of $ , with interest thereon from the day of , 19—, at the rate of per cent. per annum, and for all costs of this action ; also a decree will be entered, declaring and establishing the lien of the plaintiff on said real estate hereinbefore described, also for a foreclosure of said lien and for an order of sale of the real estate and prem- 743 REAL ESTATE SOLD BY MECHANIC'S LIEN. §§1044,1045 ises, and all improvements thereon, according to law, for the satisfaction of said judgment. Clerk of the District Court of County, Oklaliotna. [Seal.] Attorneys for Plaintiff. Sec. 1044. Form for proof of publication. State of Oklahoma, County, ss. : , being duly sworn, deposes and says that he is the of , a weekly newspaper printed and published in the town of , County, Oklahoma, which newspaper has been legally published, with a hona fide subscription list, and of general circulation in said county for fifty-two consecutive weeks next preceding the date of the first publication of the notice hereto attached; that the notice, of which the attached is a true copy, was published once each week for consecu- tive weeks in said newspaper, the same being the regular issues of the following dates : and , 19 — . Subscribed and sworn to before me this day of 19—. [Seal.] Notary Public. My commission expires . Sec. 1045. Form for the decree of court foreclosing the lien. District Court, County, State of Oklahoma. , Plaintiff, vs. No. . and , Defendants. DECREE FORECLOSING LIEN. This cause coming on to be heard on this day of , 19 — , the same being one of the regular judicial days of § 1045 merwine's trial of title to land. 744 l\^(, J 19 — Term of this court, and the plaintiff appearing by his attorneys, , and the defendant, , appearing, and having filed his ansAvcr admitting each and all of the alle- gations contained in the petition of this plaintiff, and consenting that judgm^ent be rendered in accordance with the prayer of said petition, and it appearing to the court that defendant, , has been duly notified more than forty-one days prior to this date of the pendency of this action, as required by law, by publication of notice thereof for consecutive weeks in , a newspaper, printed and of general circulation in County, which said service is regular in all respects, and is hereby approved by this court, and said defendant, , having been three times called in open court to appear, answ^er, demur or plead to the petition of the plaintiff herein, came not, but made default, and the court, having ordered that said defendant is in default, and having ordered that the alle- gations contained in plaintiff's petition be taken as confessed, and the court, having heard the evidence and the testimony of M'itnesses examined in open court, and being fully advised in the premises, in consideration thereof, finds that all the allega- tions in plaintiff's petition are true as therein set forth; that the defendants, and , were on and prior to the day of , 19 — , and at all times since have been, the owners of the following described real estate situated in County, Oklahoma, to-wit: (Here describe the same), and that on or about the day of , 19 — , this plaintiff entered into a contract with said defendants to furnish to them certain lumber and material to be used in the erection and con- struction of a certain frame building on the premises described above, at the agreed price and of the reasonable value of $ , and that all such lumber and material so contracted was furnished and used in the erection and construction of said building between the day of , 19 — , and the day of , 19 — ; that certain payments were made on said indebtedness, aggregating the sum of $ , leaving a balance due this plaintiff from said defendants in the sum of $ , no part of which has ever been paid; that on the day of 745 REAL ESTATE SOLD BY MECHANIC'S LIEN. § 1045 , 19 — , and within the time allowed by law for the making and filing of the same, this plaintiff filed in the office of the clerk of the district court of County, Oklahoma, a mechanic's lien statement, duly verified by affidavit, all as pro- vided by law; that on the day of , 19 — , this plaintiff filed in the office of the clerk of the district court of County, Oklahoma, an amended lien statement, duly verified by the affidavit of his agent, all as required by law. And it further appearing to the court that there is due this plaintiff from defendants the sum of $ , with interest thereon from the day of , 19—, at the rate of per cent, per annum, and that the plaintiff', , has filed a lien on the property of said defendants above described, it is hereby ordered, adjudged and decreed that the plaintiff have judgment against the defendants in the sum of $ , and interest thereon at the rate of per cent, per annum from the day of , 19 — , and the costs in this action expended; that the plaintiff's lien is a valid and subsisting lien on the property of the defendants, to-wit: (Here specifically describe real estate) ; that the same be foreclosed and an order of sale be issued to the sheriff of County, Oklahoma, commanding him to appraise, advertise and sell as upon execu- tion and according to law, said real estate at public sale accord- ing to law% and apply the proceeds derived from said sale, first, in payment of the costs of said sale and of this action. Second, in payment to said plaintiff in the sum of $ , and interest thereon ?t the rate of per cent, per annum, from the day of , 19 — , and that the residue, if any, be paid to the said defendants. If the amount derived from such sale is insufficient to satisfy the judgment and costs, let execution issue against the defend- ants, and , for the remainder unpaid. It is further ordered and adjudged by this court that from and after the sale of said real estate above described under and by virtue of this decree that said defendants, and , and all persons claiming under them, since the commencement of this action, be, and they are forever barred and foreclosed § 1046 merwine's trial op title to land. 746 from any right, title or interest in and to said real estate, or any part thereof. , Judge of said Court. Sec. 1046. Form for execution in such case. State of Oklahoma, County, ss. : Plaintiff, vs. and , Defendants. In the District Court. No. . State of Oklahoma to the Sheriff of County, Greeting: Whereas, , on the day of , 19 — , ob- tained a judgment in the district court of County, State of Oklahoma, against and , for the sum of $ , together with interest at the rate of per cent, per annum from the day of , 19 — , and the sum of $ accrued costs and clerk's costs accruing in the sum of $ , and there remains unpaid the sum of $ , with interest on the same from the day of , 19 — , at the rate afore- said, and said cost and accruing costs ; and. Whereas, by the judgment of said court, the following de- scribed property was charged with the payment of said judg- ment, to-wit: (Here specifically describe said real estate.) Now, Therefore, you are hereby commanded to cause said property above described to be advertised and sold according to law, and make return of this order of sale showing the manner in which you have executed the same within sixty days from the date hereof. In Witness Whereof, I have hereunto set my hand and afBxed the seal of said court at , in said county, this day of , 19—. [Seal.] Clerk of the District Court. 747 REAL ESTATE SOLD BY MECHANIC'S LIEN. § 1047 Sec. 1047. Form for appraisement of real estate. District Court, County, State op Oklahoma. , Plaintiff, vs. No. . and ,. Defendants. I, , sheriff of said county of , Oklahoma, do hereby call an inquest of , and , three dis- interested householders who are resident within said county of , to impartially estimate and appraise upon actual view the following described real estate, situated in said county of , to-wit : (Here describe said real estate.) They will first take and subscribe the following oath, then proceed forthwith to make and return to me under their hands an estimate of the real value of said property. Witness my hand this day of , A. D. 19 — . Sheriff. OATH OF APPRAISERS. State of Oklahoma, County, ss. : We do solemnly swear that we are disinterested householders resident wdthin said county of , and that we will impar- tially appraise, upon actual view, the real estate above described, and forthwith return to the sheriff of said county of , under our hands, an estimate of the real value of said property. So help us God. , Subscribed and sworn to before me this day of 19—. Sheriff. We, the undersigned, in pursuance to the foregoing appoint- ment and oath to estimate and appraise the real property afore- said, do hereby report to said sheriff that we have performed the § 1048 merwine's trial of title to land. 748 duties assigned us, after going upon and making strict examina- tion of said property, we do, upon actual view of said property, estimate and appraise the real value of the same as follows : (Here specifically describe real estate and give the value thereof. ) In Witness Whereof, we have hereunto set our hands this dav of , A. D. 19—. Appraisers. Sec. 1048. Form for publication of sheriff's sale of real estate. NOTICE OF SHERIFF'S SALE OF LAND. Notice is hereby given that, in pursuance of an order of sale issued out of the district court of County, Oklahoma, on the day of , 19 — , in an action wherein was plaintiff, and and were defendants, directed to me, the undersigned sheriff of County, commanding me to levy upon, appraise and sell the following described real estate, to-wit: (Here describe it), to satisfy a judgment and decree of foreclosure of mechanic's lien in favor of said plain- tiff and against said defendants, obtained and made in said court on the day of , 19 — , for the sura of $ , with interest thereon at the rate of per cent, per annum from the day of , 19 — , and costs in the sum of $ , and $ accruing costs, I will, on the day of , 19 — , at the hour of o'clock, in the afternoon of said day, at the front door of the courthouse in the city of , in County, and State of Oklahoma, offer for sale and sell to the highest bidder for cash, the said property above described, or so much thereof as will satisfy said judgment, with interest and costs. Witness my hand this day of , 19—. Sheriff of County. 749 REAL ESTATE SOLD BY MECHANIC'S LIEN. §§ 1049, 1050 Sec. 1049. Form for proof of publication. State of Oklahoma, County, ss. : , being duly sworn, deposes and says that he is of , a daily newspaper printed and published in the city of , County, Oklahoma, which newspaper has been legally published with a l)ona fide subscription list and in general circulation for fifty-two consecutive weeks next pre- ceding the date of the first publication of the notice of which the attached is a true copy, was published once each week for consecutive weeks in said newspaper, the same being in the regular issues of the following dates : , , and , 19—. Subscribed and sworn to before me by , the of , this day of , 19 — , [Seal.] Notary Public. ]\Iy commission expires . Sec. 1050. Form for sheriff's return of his proceedings under the writ, the same being attached to the back of the execution above. SHERIFF'S RETURN. Received the within writ on the ■ day of , 19 — , at o'clock, — m., and, in obedience to the commands of said wTit, I summoned , and , three dis- interested householders, residents of this county, on the day of , 19 — , and administered to them an oath, impar- tially to appraise the lands and tenements described in this writ upon actual view, and afterward, on the day of , 19 — , said appraisers returned to me under their hands and oath, that they did upon actual view, estimate and impar- tially appraise the real value of said property at $ . I forthwith deposited in the office of the clerk of the district court of this county a certified copy of said appraisement on the day of , 19 — . I thereupon caused public notice § 1051 merwine's trial of title to land. 750 of the time and place of sale of said lands and tenements to be given, by advertising the same for more than days before the day of sale in , a newspaper of general circu- lation in this county, the first of said publications being made on the day of , 19 — , and once each week there- after for four consecutive weeks until the day of sale. And, in pursuance of said notice, at the time and place mentioned therein, I did, on the day of , 19 — , at the hour of o'clock, — m., at the north door of the courthouse of this county, offer said lands and tenements at public sale, and then and there came , who bid for said property the sum of $ , said amount being more than of the appraised value thereof, and he, being the highest and best bidder therefor, I then and there struck off and sold said lands and tenements to the said , for the sum of $ . Dated this day of , 19 — . Sheriff of County, Sec. 1051. Form for order of court approving sheriff's sale. District Court, County, State of Oklahoma. , Plaintiff, vs. No. . and , Defendants. ORDER APPROVING SHERIFF'S SALE. Now, on this day of , 19 — , comes , by his attorneys, , and moves the court to confirm the sale of real estate made by the sheriff of County, on the day of , 19 — , under an order of sale issued out of the office of the clerk of the district court of County, dated the day of , 19 — , said sale being of the following described property, to-wit: (Here specifically describe it), to , for the sum of $ , and the court, having examined the proceedings of said sheriff under said order of sale, and being satisfied that the same have been performed in all respects in conformity to law and the former orders of this court, it is 751 REAL ESTATE SOLD BY MECHANIC'S LIEN. § 1052 hereby ordered, adjudged and decreed that said sale and said proceedings in the same, are hereby approved and confirmed. It is further ordered that , sheriff of said County, make and execute to the said purchaser at said sale, a good and sufficient deed for the real estate so sold, and the clerk of this court is hereby directed to enter an order upon the journal of this court, showing that the court is satisfied of the legality of said sale. The said sheriff, , is hereby directed to pay the proceeds of said sale, after deducting all costs and expenses thereof, to the plaintiff, . Judge of said Court. Sec. 1052. Form for sheriff's deed to purchaser. This Indenture, made this day of , 19 — , be- tween , as sheriff of County, in the State of Okla- homa, party of the first part, and , of the county of , State of Oklahoma, party of the second part, Witness- eth, That, "Whereas, by virtue of an order of sale issued out of and under the seal of the district court of judicial dis- trict of the State of Oklahoma, in and for County, at- tested the day of , 19 — , upon a judgment for the sura of $ , with interest at per cent, per annum from the day of , 19 — , and $ costs recov- ered in said cause on the day of , 19 — , in case number , duly docketed in said court, said judgment being in favor of and against and , said writ being in words and figures as follows, to-wit : State of Oklahoma, County, ss. : In the District Court. -, Plaintiff, vs. No. and , Defendants. The State of OMahoma to the Sheriff of County, Greet- ing : Whereas, , on the day of , 19 — , obtained a judgment in the district court of County, State of §1052 merwine's trial of title to land. 752 Oklahoma, against and , for the sum of $ , together with interest thereon at per cent, per annum, from the day of , 19 — , an'd the sum of $ , costs and accruing costs; and, Whereas, by judgment of said court, the following described property was charged with the payment of said judgment, to- wit: (Here describe it.) Now, Therefore, you are hereby commanded to cause said property above described to be advertised and sold according to law, and make return of this order of sale showing the manner in which you have executed the same within sixty days from the date hereof. In Witness Whereof, I have hereunto set my hand and affixed the seal of said court at , in said county, this day of , 19 — . [Seal.] Clerk of said Court. And, Whereas, , sheriff aforesaid, having caused the premises described in said order of sale to be appraised and a copy of said appraisement to be filed in the office of the clerk of the district court of County, and having advertised the date and place of sale in the , a newspaper printed and of general circulation in said county, for a period of • days prior to the date of said sale, and otherwise complied with said order and the provisions of the statutes of this State, did, on the day of , 19 — , at the door of the courthouse in said county, at o'clock, — m., of said day, offer for sale at public auction, the premises herein described, and there- upon, having bid for said premises the sum of $ , and said sum being the highest and best bid therefor, and the same being more than of the appraised value thereof, the said premises were then and there sold to him ; and. Whereas, the court, at its 19 — Term, having exam- ined the proceedings aforesaid, under the terms of said order of sale, and being satisfied that said sale has been held in all respects in pursuance to said judgment and order of sale, and in accordance with the provisions of the statute regulating such 753 REAL ESTATE SOLD BY MECHANIC'S LIEN. § 1052 sale, did order that said sale be confirmed, and that said sheriff of said county should convey said premises to the said by a good and sufficient deed. Now, Therefore, T, , as sheriff of County, aforesaid, party of the first part, by virtue of said writ and order, and in pursuance of the statute in such cases made and pro\'ided, and for and in consideration of the sum of $ , to me in hand paid, by , party of the second part, the receipt whereof is hereby acknowledged, does grant, bargain, sell and convey unto said party of the second part, his heirs and assigns forever, the following described real estate, to-wit: (Here describe it), together with all the privileges and appur- tenances thereunto belonging. To Have and to Hold said premises, with the appurtenances unto the said party of the second part, his heirs and assigns forever, as fully and completely as he, the said sheriff, afore- said, by virtue of said judgment and order of sale and confirma- tion, and the statutes of said State may or ought to grant, bargain, sell and convey the same. In Witness "Whereof, the party of the first part has hereunto set his hand the day and year first above written. Sheriff of County, State of OklaJioma. State of Oklahoma, County, ss. : Before me, , a notary public in and for said county and State, on this day of , 19 — , personally appeared , to me known to be the identical person Avho executed the within and foregoing instrument, and acknowledged to me that he executed the same in his capacity therein stated, and as his free and voluntary act and deed for the uses and purposes therein set forth. -^ — , [Seal.] Notary Public. My commission expires . CHAPTER XVIII. THE LAW AND PROCEDURE BY WHICH A MORTGAGE ON REAL ESTATE IS FORECLOSED. SECTION 1053. The venue of the action to foreclose a mortgage. 10'54. The procedure incidental to the action to foreclose a mortgage on real estate. 1055. Procedure — Necessary parties to the action. 1056. The rights of purchaser of real estate during fore- closure of the mortgage. 1057. The law and procedure in foreclosing a mortgage when one, not a party to the action, assumes it and agrees to pay it. 1058. The indorsement on the sum- mons in the action to fore- close a mortgage. 1059. The affidavit for service by publication. 1060. Personal judgment in fore- closure — May order payment of costs and attorney fees — Duty of sheriff when tracts lie in different counties — Pledge of real estate can be foreclosed only by order of court. 1061. Procedure after sale in fore- closure of mortgage. 1062. Who may mortgage real estate. 1063. No witnesses necessary to exe- cution of real estate mort- gage. 1064. Essential requisites for the validity of a mortgage. 1065. When husband or wife may mortgage homestead. SECTION 1066. When husband or wife con- cluded by mortgage of home- stead. 1067. Who estopped from denying validity of mortgage. 1068. Husband or wife may mort- gage real estate not the homestead, when. 1069. Mortgage not acknowledged or recorded valid as to the parties thereto — Must be acknowledged and recorded to be valid as to other parties. 1070. Mortgages, how acknowledged. 1071. Recording mortgage notice to whom. 1072. All papers explanatory of grant or mortgage to be re- corded. 1073. Defeasance clause must be recorded. 1074. Deed deemed mortgage, when. 1075. Parol evidence admissible to show nature of transaction. 1076. Separate instrument with de- feasance to be deemed parts of each other. 1077. Innocent purchaser protected. 1078. Such instrument deemed an assignment. 1079. Benefits of mortgage accrue to mortgagee. 1080. Mortgage follows property, when. 1081. No mortgage received for rec- ord until acknowledged, 754 755 PROCEDURE TO FORECLOSE MORTGAGE. § § 1053, 1054 SECTION 1082. Duty of register of deeds when mortgage is presented for record. 1083. Mistake of register of deeds does not lose priority for the instrument. 1084. Mortgage void for want of consideration, when. 1085. Assignment of non-negotiable note secured by mortgage, effective of. 1086. Statutory form for mortgage. 1087. Another statutorj' form for mortgage. 1088. What is a good and valid mortgage — Waiver of ap- praisement. 1089. The manner of the discharge of a mortgage. 1090. Discharge noted by recording officer, when. 1091. Certificate of discharge re- corded, how. 1092. Mortgagee to make certificate of discharge, when. 1093. Note and mortgage construed together. 1094. Form for petition for fore- closure of mortgage where third party assumes the mortgage and agrees to pay it. 1095. Form for petition for fore- closure of a mortgage where successive grantees have as- sumed and agreed to pay it. SECTION 1096. Form for petition seeking to reform a mortgage and fore- close the same, marshaling the liens. 1097. Form for petition in an action to declare a deed a mortgage and foreclosing the same. 1098. The procedure by which a mortgage is foreclosed — -Tlie form for the petition in foreclosing a building and loan mortgage. 1099. Application for the appoint- ment of a receiver. 1100. Tlie order appointing receiver. 1101. Affidavit for service by publi- cation. 1102. Notice by publication. 1103. The proof of service by publi- cation. 1104. Decree of foreclosure. 1105. The order of sale directed from the clerk to the sheriff. 1106. The legal notice of the sale by the sheriff under the decree of foreclosure. 1107. The proof of publication of notice of sale. 1108. Confirmation of sale. 1109. Sheriff's return of his pro- ceedings under the writ. 1110. Sheriff's deed to tlie pur- chaser. Sec. 1053. The venue of the action to foreclose a mortgage. The statute provides that the action for foreclosure of a mortgage must be brought in the county where the land is located.^ Sec. 1054. The procedure incidental to the action to fore- close a mortgage on real estate. Ordinarily the action is brought for a personal judgment, and for the foreclosure of the mortgage to satisfy the debt. 1 Snyder, 6,580. § 1054 merwine's trial of title to land. 756 In such an action service of summons must be personal ; for a personal judgment cannot be secured by constructive service, even though the court had jurisdiction over the property.- The usual form for such petition is, in one cause of action, to declare on the note in the ordinary way, and in the second cause of action, on the mortgage given to secure the same. The cause of action setting forth the mortgage may, by apt and accurate language, adopt the al- legations of the cause of action declaring on the note, but ref- erence to the adoption must be clear and definite, not leaving any doubt as to its meaning.^ The petition should allege the execution and delivery of the mortgage to secure the payment of the note, and contain a description of the real estate and the conditions contained in the defeasance clause of the mortgage, the default making the mortgage absolute, the date of the filing of the mort- gage in the office of register of deeds, and the date of the recording thereof, and the volume and page of the record thereof, and also a prayer for personal judgment and for foreclosure of the mortgage. Where the service is constructive, in ease no personal judgment is sought, the petition need contain only one cause of action. In such case the prayer is that the court may find the amount due plaintiff, that the mortgage be foreclosed and the real estate therein described sold to satisfy the amount so found due. Everyone claiming an adverse interest in the real estate should be made a party, with allegations in respect thereof, as in the foreclosure of other liens. For a full discussion of the procedure as to parties, ref- erence is had to the first chapter of this book. There will be found the law and procedure connected with the issuance and service of summons in the action, how defendants may voluntarily enter their appearance, how service of summons is made on residents of the county and nonresident of the 2 Giddings v. Barney, 31 O, S. 3 i Kinkead's Code Pleading, (Ohio), 804. Sec. GG. 757 PROCEDURE TO FORECLOSE MORTGAGE. §§ 1055, 1056 county who are residents of the State, how service is had on nonresidents of the State by publication, and by copy of the petition, how infants are served with summous and are defended by guardian ad litem, appointed by the court, and the conduct of such defense, how insane persons are defended by trustees appointed by the court, and how all the steps must be taken to give the court power to hear and determine the rights of the parties to the action. In the chapter herein on sale of real estate under an execu- tion, there will be found a full statement of the sale of real estate by an order of sale and under the writ venditioni exponas, and also the law as to appraisement and also all of the procedure from the time of the order of sale to the delivery of the deed to the purchaser. Sec. 1055. Procedure — Necessary parties to the action. In a suit to foreclose a mortgage the heir of an intestate is not a necessary party and is concluded by a decree of sale against the administrator.* One having a lien on the real estate sought to be foreclosed and is not made a party, may be made a party, or may, by cross-petition, ask to have his lien foreclosed.^ Sec. 1056. The rights of purchaser of real estate during fore- closure of the mortgage. In cases of real estate covered by mortgage, during its foreclosure the action may continue in the name of the orig- inal party, or the court may allow the person to whom the transfer is made to be substituted in the action.® 4 McClung V. Cullison, 15 Okla. is not necessarily a party. Jones 402, 82 Pac. 494. v. Lapham, 15 Kan. 540. sBlanshard v. Schwartz, 7 Okla. 6 Gilett v. Romig, 17 Okla. 324, 23, 54 Pac. 303. When the mort- 87 Pa. 325. gagox has conveyed his interest he § 1057 merwine's trial of title to land. 758 Sec. 1057. The law and procedure in foreclosure of a mort- gage when one, not a party to the action, assumes it and agrees to pay it. The law is that one who, in the deed conveying the real estate to him, assumes a real estate mortgage, and agrees to pay it, becomes the principal debtor and his grantor be- comes surety, and the rule is that where successive grantees assume the mortgage debt, the last grantee assuming the debt is the principal debtor, and each successive grantee is a surety. It is a rule of law that where the purchaser of real estate takes it encumbered wath a mortgage, and an abatement is made in the consideration on account of the mortgage, the law will imply a promise on the part of the purchaser to pay the mortgage debt.^ The agreement may be enforced by the last purchaser against each previous one, whatever agreement he may have to and with the latter. The law will imply an agreement.^ And the agreement, though made orally, can be enforced.^ Where the action is against several grantees who have assumed the mortgage and agreed to pay it, there is but one cause of action, and all of them may be set forth in one petition without being separately stated and numbered.^" It has been held further that a deed which in terms pro- vides that the grantee is to assume a certain incumbrance on the premises, makes a contract in writing by said grantee to pay the incumbrance, upon which contract the holder of the incumbrance may proceed directly against the grantee to recover.^^ 7 Thompson v. Thompson, 4 0. S. 1,047; Thompson v. Chessman, 48 (Ohio), 333. Pac. 477; Stanton v. Kendrick, 45 8 Emmet v. Brophy, 42 0. S. 82. N. E. 19. 9 Society v. Haines, 47 0. S. 424. lo Pomeroy's Code Eemedirs, Sec. As to agreements to assume mort- 459; 1 Kinkead's Code Pleading, gages, see Brewer v. Maurer, 38 0. S. Sec. 584. 543; Poe V. Dixon, 06 0. S. 124; n Schumaker v. Sibert, 18 Kan. Barker v. Camp, 71 Am. St. Rep. 104. 186; Ordway v. Downer, 51 Pac. 759 PROCEDURE TO FORECLOSE MORTGAGE. §§ 1058, 1059 Sec. 1058. The indorsement on the summons in the action to foreclose a mortgage. The statute of this State which provides that the summons shall be "directed to the sheriff of the county and command him to notify the defendant or defendants, named therein, that he or they have been sued, and must answer the petition filed by the plaintiff, giving his name, at a time stated therein, or the petition will be taken as true and judgment rendered accordingly ; and where the action is on contract for the recovery of money only, there shall be indorsed on the writ the amount, to be furnished in the praecipe, for which, with interest, judgment will be taken, if the defendant fail to answer. If the defendant fail to appear, judgment shall not be rendered for a larger amount and the costs," — does not require the summons in a foreclosure suit, where personal service has been had, to advise the defendant of the nature of the action against him, and the kind of judgment that will be rendered, nor is it necessary, the action not being for the recovery of money only, to indorse on the writ the amount for which, with interest, judgment will be taken if the defendant fail to answer.^- Sec. 1059. The affidavit for service by publication. In an action to foreclose a mortgage on real estate, service may be made upon a defendant not residing within the State, by publication, but this does not waive the statutory affidavit to be filed in the action, showing the defendant to be served, a nonresident of the State. This filing of the affidavit is jurisdictional, and, unless it be filed in accordance with the terms of the statute, all subsequent proceedings of the court relative thereto are void.^' And this fatal defect cannot be cured by amendment.^* 12 Horton v. Haines, 23 Okla. 878, i* Hammerslough v. Hackett, 30 102 Pac. 121. Kan. 51, 1 Pac. 41. 13 Shields v. Miller, 9 Kan. 390. § 1060 merwine'3 trial of title to land. 760 Sec. 1060. Personal judgment in foreclosure — May order payment of costs and attorney fees in the action — Duty of sheriff when tracts lie in dif- ferent counties — No pledge of real estate can be foreclosed except by order of court. In an action to enforce a mortgage, a deed of trust, or other lien or charge, a personal judgment or judgments shall be rendered for the amount or amounts due, as well to the plaintiff as to other parties to the action having liens on the mortgaged premises by mortgage or otherwise, with interest thereon, and for sale of the property charged and the appli- cation of the proceeds, or such application may be reserved for the further order of the court, and the court is required to tax the costs, attorney's fees and expenses which may accrue in the action, and apportion the same among the parties according to their respective interests, to be col- lected on the order of sale or sales issued thereon, and when the same mortgage embraces separate tracts of land situated in two or more counties, the sheriff of each county must make sale of the lands situated in the county of which he is sheriff. No real estate will be permitted to be sold for the payment of any money or the performance of any contract, or agreement in writing, in security for which it may have been pledged or assigned, except in pursuance of a judgment of a court of competent jurisdiction ordering such sale.^^ 15 Snyder, 5,921; Wilson, 4,588; until after foreclosure. Gillett v. Kansas, 4,848 (1901) , identical. As Romig, 17 Okla. 314, 87 Pac. 325. to sales of mortgaged parcels of Finding not a judgment. Blumm real estate disconnected, see Miller v. Kramer, 14 Okla. 366, 79 Pac. V. Trudgeon, 16 Okla. 337, 86 Pac. 1,134. Rights of junior m'ortmagee, 523. Fraud as a defense to a fore- see Horr v. Herrington, 22 Okla. closure suit may be shown at any 590, 98 Pac. 443. Such personal time. Alton v. Staten, 19 Okla. 252, judgment lien on all lands in 91 Pac. 892; Balduff v. Groswold, county. Lisle v. Cheney, 13 Pac. 9 Okla. 438, 60 Pac. 223. In this 815. state no title passes by mortgage 761 PROCEDURE TO FORECLOSE MORTGAGE. §§ 1061-1064 Sec. 1061. Procedure after sale in foreclosure of mortgage. After a decree in foreclosure the execution for the sale must conform to the order of the court ; ^" and the sale cannot be confirmed before the purchase price is paid to the sheriff. ^^ The order of the court in setting aside the confirmation of a sale in a foreclosure sale, was correctly made, where the order of sale was issued by the clerk of the court, and the sale was made within six months from the date of the judg- ment without appraisement.^^ Sec. 1062. Who may mortgage real estate. Male persons of the age of twenty-one years, female per- sons of the age of eighteen years, being otherwise qualified thereto, and corporations to the extent and in the manner authorized by law, owning real estate in the State of Okla- homa, may mortgage any interest therein. Provided, any persons of whatsoever age, who have been legally married, and who are otherwise qualified, may dispose of and make contracts relative to real estate acquired after marriage.^" Sec. 1063. No witnesses necessary to execution of real estate mortgage. No subscribing witness is necessary to the validity of any mortgage affecting or relating to real estate.-" Sec. 1064. Essential requisites for the validity of a mortgage. No mortgage relating to real estate will be valid until reduced to writing and subscribed by the mortgagors ; and no mortgage, relating to the homestead exempt by law will 16 Price V. Citizens, 23 Okla. 723, is Hancock v. Yoiiree, 25 Okla. 102 Pac. 800. 460, 106 Pac. S41. 17 Price V. Citizens, 23 Okla. 723, is Snyder, 1,184; act approved 102 Pac. 800. March 5, 1905. 20 Snyder, 1,185; Wilson, 878. §§1065,1066 merwine's trial op title to land. 762 be valid unless in writing and subscribed by both husband and wife, where both are living and not divorced, except to the extent hereinafter provided.-^ In an action to foreclose a mortgage not signed by the wife on the homestead, the husband having left it not in- tending to return, and the wife having intended to return, and the land in the meantime having been rented for a year, it was held that the mortgage at its inception was void." A mortgage was jointly executed by husband and wife on the homestead securing the note of the husband alone, the mort- gage, however, recited the note to be the debt of the wife, held, that the court has power to correct such mortgage and decree foreclosure on the homestead.^^ Sec. 1065. When husband or wife may mortgage homestead. Where the title to the homestead is in the husband and the wife voluntarily abandons him for a period of one year, or from any cause takes up her residence out of the State, he may mortgage it without being joined therein by her; and where the title to the homestead is in the wife, and the husband voluntarily abandons her, or from any cause takes up his residence out of the State for a period of one year, she may mortgage said homestead without being joined therein by him.-* Sec. 1066. When husband or wife concluded by mortgage of homestead. If the husband make any mortgage relating to the home- stead without being joined therein by his wife, he will be concluded thereby, and the same can only be avoided by the wife ; and if the wife make any mortgage relating to the homestead without being joined therein by the husband, she will be concluded thereby, and the same can only be avoided by the husband; and in either case the husband or wife entitled to avoid any such mortgage will be concluded by a 21 Snyder, 1,187; Wilson, 880. 23 Bastin v. Schafer, 15 01:1a. 607, 22 Hall V. Powell, 8 Okla. 276, 85 Pac. 349. 57 Pac. 168. 24 Snyder^. 1,189; Wilson, 882. 763 PROCEDURE TO FORECLOSE MORTGAGE. §§ 1067-1069 failure after due notice of suit in any court of competent jurisdiction, to set forth his or her right, title or interest therein.-^ Sec. 1067. Who estopped from denying validity of mortgage. Any person or corporation having knowingly received and accepted the benefits or any part thereof of any mortgage relating to real estate, shall be concluded thereby and estopped to deny the validity of said mortgage, or the power or author- ity to make and execute the same, except on the ground of fraud ; but this paragraph will not apply to minors or persons of unsound mind who pay or tender back the amount of such benefit received by themselves.^'^ Sec. 1068. Husband or wife may mortgage real estate not the homestead, when. The husband or wife may mortgage any real estate other than the homestead belonging to him or her, as the case may be, without being joined by the other in said mortgage.-'^ Sec. 1069. Mortgage not acknowledged or recorded valid as to the parties thereto — Must be acknowledged and recorded to be valid as to other parties. Except as hereinafter provided herein no acknowledgment or recording are necessary to the validity of any mortgage on real estate as between the parties thereto; but no mortgage relating to real estate will be valid as against third persons unless acknowledged and recorded as herein provided, except actual notice to such third persons shall be equivalent to due acknowledgment and recording.-^ 25 Snyder, 1,190; Wilson, 883. the execution thereof to be 28 Snyder, 1,191; \A'ilson, 884. free and voluntary act and deed for 27 Snyder, 1,193; Wilson, 8S6. the purposes therein named." Held, 28 Snyaer, 1,195; Wilson, 888; that the omission of the word Hess V. Trigg, 8 Okla. 286, 51 Pac. "their" does not make the acknowl- 159. An acknowledgment to a edgment void. Garton v. Hudson, mortgage sued on provided that 8 Okla. 631, 58 Pac. 946. "each for themselves acknowledged § § 1070-1 074 MERWINE 'S TRIAL OF TITLE TO LAND. 764 Sec. 1070. Mortgages, how acknowledged. Mortgages of real property are acknowledged or proved, cer- tified and recorded in like manner and with like effect as grants thereof.-^ Sec. 1071. Recording mortgage notice to whom. The record of a mortgage, duly made, operates as notice to all subsequent purchasers and incumbrancers.^" Sec. 1072. All papers explanatory of grant or mortgage to be recorded. Every grant of real property, or of any estate therein, vrhich appears by any other writing to be intended as a mortgage within the meaning of this chapter, must be re- corded as a mortgage; and if said grant and other writing explanatory of its true character are not recorded together at the same time and place, the grantee can derive no benefit from said record.^^ Sec. 1073. Defeasance clause must be recorded. When a grant of real property purports to be an absolute conveyance, but is intended to be defeasible on the perform- ance of certain conditions, said grant is not defeated or affected as against any person other than the grantee or his heirs or devisees or persons having actual notice, unless an instrument of defeasance duly executed and acknowledged, is recorded in the office of the register of deeds of the county where the property is situated.^^ Sec. 1074. Deed deemed mortgage, when. Every instrument purporting to be an absolute or quali- fied conveyance of real estate, or any interest therein, but intended to be defeasible or as security for the payment of 29 Snyder, 4,411; Wilson, 3,567; 3i Snyder, 4.413; Wilson, 3,569; Dakota Code, 4,368 (1887). Dakota Code, 4.371 (1887). 30 Snyder, 4,412; Wilson, 3,568; 32 Snyder, 4,414; Wilson, 3,569; Dakota Code, 4,368 (1887). Dakota Code, 4,371 (1887). 765 PROCEDURE TO FORECLOSE MORTGAGE. § 1075 money, will be deemed a mortgage and must be recorded and foreclosed as such.^' The instrument, no matter what form, when given as security for debt, will be deemed a mortgage and must be foreclosed as such.^* Sec. 1075. Parol evidence admissible to show nature of transaction. The agreement by which a deed absolute on its face is intended as security for debt, may be proved by verbal or other testimony."^ As to the principles of law in such cases, it has been well said: "It is well established that a deed absolute on its face can be shown by parol or other extrinsic evidence to have been intended as a mortgage, and that the relation of mortgagor and mortgagee being thus established all the rights and obligations incident to that relation attach to the parties. The fact once established, either by the terms or the other evidence that the grant was intended as a mortgage, the rights of the parties are to be measured by the rules of law applicable to mortgagors and mortgagees, and the convey- ance remains but a mortgage until the equity of redemption is foreclosed; and the mortgagee cannot have ejectment against the mortgagor or those claiming under him, until after foreclosure. It is not material that the conveyance should be made by the debtor or by him in whom the 33 Snyder, 1,196; Wilson, 889; the estate nnconditionally in the Balduff V. Griswold, 9 Okla. 438, 60 grantee without foreclosure or other Pac. 223; Wagg V. Herbert, 19 Okla. conveyance. Seawell v. Hendricks, 520, 92 Pac. 250; Yingling v. Red- 4 Okla. 435, 46 Pac. 557. wine, 12 Okla. 64, 69 Pac. 810; 33 Balduff v. Griswold, 9 Okla. Weisham v. Hocker, 7 Okla. 250, 54 438, 60 Pac. 223; Stith v. Peckham, Pac. 464. 4 Okla. 254, 46 Pac. 664; Weisham 34 Yingling v. Redwine, 12 Okla. v. Hocker, 7 Okla. 250, 54 Pac. 464; 64, 69 Pac. 810. But may be sur- Wagg v. Herbert, 19 Okla. 520, 92 rendered and canceled so as to vest Pac. 250. §§ 1076,1077 merwine's triai. of title to land. 766 equity of redemption will exist. It is sufficient if the debtor and he who claims to occupy the position of mortgagor with the right of redemption has an interest, legal or equitable, in the premises, and the grantee of legal title has acquired such title by the act and assent of the debtor, and as security for his debt. ' ' ^^ Sec. 1076. Separate instrument with defeasance to be deemed parts of each other. Every instrument explanatory of any deed or other writing purporting to be a conveyance, but intended to be defeasible or as security for the payment of money, will be deemed a part thereof, and the same is required to be filed and recorded therewith; and unless such instruments are so filed and recorded together they and each of them will have no other effect than an unrecorded mortgage, and the recording of the principal instrument will secure no rights to the holder thereof.^^ Sec. 1077. Innocent purchasers protected. Any person purchasing or taking any security against real estate in good faith and without notice from one holding under an instrument purporting to be a conveyance, but in- tended as security for the payment of money, and which instrument has been duly recorded without any other instru- ment explanatory thereof, will be protected to the extent of the purchase price paid or actual outlay occasioned, with lawful interest, against all persons except those in actual possession at the time of such purchase or outlay.^* 38Balduflr V. Griswold, 9 Okla. Kan. 55, 1 Pac. 825; Moore v. 438, 60 Pac. 223; Cann v. Cann, 52 Wade, 8 Kan. 380. N. W. 251; Hassam v. Barrell, 115 37 gnyder, 1,197; Wilson, 890. Mass. 256; Franum v. Gross, 42 38 Snyder, 1,198; Wilson, 891. Cal. 169; Overstreet v. Baxter, 30 767 PROCEDURE TO FORECLOSE MORTGAGE. §§ 1078-1081 Sec. 1078. Such instrument deemed an assignment. Any conveyance other than as above provided, by one holding under an instrument purporting to be a conveyance, but intended as security, will be deemed and treated as an assignment and transfer of the mortgage rights of an in- debtedness due the maker thereof.* Sec. 1079. Benefits of mortgage accrue to mortgagee. All rights of a mortgagor or grantor in and to the prem- ises described in the instrument and existing at the time or subsequently accruing, will be deemed to accrue to the benefit of the mortgagee or grantee, and be covered by his mortgage or conveyed by his deed, as the case may be.^^ Sec. 1080. Mortgage follows property, when. When real property, subject to a mortgage, passes by suc- cession or will, the successor or devisee must satisfy the mortgage out of his own property without resorting to the executor or administrator of the mortgagor, unless there is an express direction in the will of the mortgagor that the mortgage must be otherwise paid.'*" Sec. 1081. No mortgage received for record until acknowl- edged. No mortgage affecting real estate will be received for record or recorded unless executed and acknowledged in sub- stantial compliance with the provisions of this act; and the recording of any such instrument not so executed and acknowledged will not be effective for any purpose.'*^ A duly recorded mortgage constitutes notice though acknowledged hefore the cashier of a bank of which the mortgagor is president.*^ •Snyder, 1,199: Wilson, 892. *i Snyder, 1,208; Wilson, 901. 39 Snyder, 1,200; Wilson, 893. 42 Key v. Ewing, 87 Pac. 297. 40 Snyder, 4,410; Wilson, 3,566; Dakota Code, 4,367 (1887). §§ 1082-1084 merwine's trial op title to land. 768 No mortgage will be received for record or recorded unless plainly written or printed, or partly written and partly printed in the English language.^^ Sec. 1082. Duty of register of deeds when mortgage is pre- sented for record. The register of deeds is required, whenever an instrument is presented to him for record, to immediately note on the instrument the year, the month, day, hour and minute of receiving the same, and the date of the record of such in- strument will be from the date of the filing; he is required to then enter the same upon the receiving book, making all the entries in the appropriate columns as provided by statute, and as soon thereafter as practicable, record said instrument in the proper record, enter it upon the proper indexes, and over his signature and seal note the book and page on wliich said instrument is recorded.** Sec. 1083. Mistake of register of deeds does not lose priority for the instrument. Under the terms of the statute in the preceding paragraph, defining the duties of the recording officer, whenever an instrument is presented for record, any mistake or neglect of his in recording the instrument does not affect the mort- gagee; for if the law w^ere otherwise the mortgagee would be required to exercise supervisory control over such officer.*^ Sec. 1084. Mortgage void for want of consideration, when. Every conveyance of real estate or any interest therein, and every mortgage or other instrument in any way affecting the same, made without a fair and valuable consideration, o*i* made in bad faith, or for the purpose of hindering, delaying 43 Snyder, 1,210; Wilson, 903. 45 Covington v. Fisher, 22 Okla. 44 Snyder, 1,740; Wilson, 1,284. 207, 97 Pac. 615; Poplin v. Wendell, 27 Kan. 138; Castrelero x. United States, 2 Black, 17-97, 3G0. 769 PROCEDURE TO FORECLOSE MORTGAGE. §§1085,1086 or defrauding creditors, will be void as against all persons to whom the maker is at the time indebted or under any legal liability.*'^ Sec. 1085. Assignment of non-negotiable note secured by mortgage, effective of. Where the makers of a non-negotiable note have neither actual nor constructive notice of the assignment of the note and coupons, or the mortgage securing the same, proof or the payment of the note and coupons to the payee in accordance with the terms and tenor of the note and mortgage, is a com- plete defense to an action upon the same.*^ Sec. 1086. Statutory form for mortgage. A mortgage upon real estate may be substantially in the following form, to-wit : Know All Men by These Presents, that and of County, in the of , part— of the first part, have mortgaged and hereby mortgage to , of County, of , part — of the second part, the follow- ing described real estate and premises, situated in County, State of Oklahoma, to-wit: , with all improve- ments thereon and appurtenances thereunto belonging, and warrant the title to the same. This mortgage is given to secure the principal sum of $ with interest thereon at the rate of per cent, per annum, payable annually from according to the terms of certain promissory note — described as follows, to-wit : Dated this day of , 19—. 46 Snyder, 1,213; Wilson, 906; v. Higgins, 15 Okla. 588, 82 Pac. Alton V. Staten, 19 Okla. 252, 91 649. Pac. 892. 48 Snyder, 1,224; Wilson, 916. 47 Randall v. Glendenning, 19 Okla. 475, 92 Pac. 160; Dickerson §§1087-1089 merwine's trial of title to land. 770 Sec. 1087. Another statutory form for mortgage. A mortgage of real property may be made in substantially the following form : This mortgage, made the day of , in the year , by , mortgagor, to of , mortgagee, "WITNESSETH ; That the mortgagor mortgages to the mortgagee (Here de- scribe the property) as security for the payment to him of • dollars, on or before the day of , in the year , with interest thereon (or as security for the pay- ment of an obligation, describing it, etc.).*'' Sec. 1088. What is a good and valid mortgage — Waiver of appraisement. Every instrument substantially the same as above in Sec- tion 1086 will be deemed a good and valid mortgage, with all contracts and covenants essential to protect the rights of the holder thereof; but any other lawful contract embodied therein will be binding upon the parties thereto; and when the words, "Waive appraisement," are written or printed therein, the premises mortgaged must be sold without appraisement, in case of foreclosure and sale thereunder, and in such case no order for such sale will be allowed to issue until six months after the date of judgment.^** Sec. 1089. The manner of the discharge of a mortgage. A recorded mortgage may be discharged by entry in the margin of the record thereof, signed by the mortgagee or his personal representative or assignee, acknowledging the satis- faction of the mortgage, in the presence of the register, who must certify the acknowledgment in form substantially as 49 Snyder, 4,409; Wilson, 3,565; bo Snyder, 1,225; Wilson, 917. Dakota Code, 4,366 (1887). 771 PBOCEDURE TO FORECLOSE MORTGAGE. §§ 1090-1092 follows : ' ' Signed and acknowledged before me this day of , in the year . A. B., Register." ^^ Sec. 1090. Discharge noted by recording oflacer, when. A recorded mortgage, if not discharged as provided in the preceding paragraph, must be discharged upon the record by the officer having custody thereof, on the presentation to him of a certificate signed by the mortgagee, his personal representatives or assigns, acknowledged or proved and cer- tified as is required for transfers, stating that the mortgage has been paid or otherwise satisfied and discharged.^^ Sec. 1091. Certificate of discharge recorded, how. A certificate of discharge of a mortgage and proof of the acknowledgment thereof, must be recorded at length, and a reference made in the record to the book and page where the mortgage is recorded, and in the minute of the discharge made upon the record of the mortgage, to the book and page where the discharge is recorded.^^ Sec. 1092. Mortgagee to make certificate of discharge, when. When any mortgage has been satisfied, the mortgagee or his assignee must, immediately on demand of the mortgagor, execute and deliver to him a certificate of the discharge thereof, and must at the expense of the mortgagor acknowl- edge the execution thereof so as to entitle it to be recorded, or he must enter satisfaction or cause satisfaction of such mortgage to be entered of record ; and any mortgagee or assignee of such mortgagee who refuse to execute and deliver 51 Snyder, 4,405; Wilson, 3,561; 52 Snyder, 4,406; Wilson, 3,562; Dakota Code, 4,362 (1887); Cali- Dakota Code, 4,363 (1887). fornia, 2,938 ; Kerr's Code, iden- 53 Snyder, 4,407 ; Wilson, 3,653. tical; Beal v. Stevens, 72 Cal. 451, 14 Pac. 186. § 1093 merwine's trial of title to land. 772 to the mortgagor a certificate of discharge and to acknowledge the execution thereof, or to enter satisfaction or cause satis- faction to be entered of the mortgage as provided in this chapter, is liable to the mortgagor or 'his grantee or heirs, for all damages which he or they may sustain by reason of such refusal, and wall also forfeit to him or them the sum of one hundred dollars.^* Sec. 1093. Note and the mortgage construed together. Where there are a series of notes, secured by one mort- gage, and the notes contain no provision as to a foreclosure in case default is made either in the payment of any one note or the interest thereof, and the mortgage contains a stipula- tion that if there is a default in the payment of the interest, or of any note when due, the stipulation in the mortgage will control. The same rule holds where the mortgage contains a stipulation that in default of the payment of interest, any one of a series of notes, when due, the nonpayment of taxes or assessments or in case of insurance. Indeed, it has been held that a note and mortgage se- curing the same, when executed contemporaneously, are to be construed as constituting one contract, and the stipulations of the mortgage with reference to the maturity of the debt, because of a failure to pay interest, when due, will be given effect so as to cause the same to become due and payable before the time expressed on its face.^^ 54 Snyder, 4,408; Wilson, 3,564; ss Eveans v. Baker, 5 Kan. App. Dakota Code, 4,365 (1887). The 68, 47 Pac. 314; Stanclift v. Nor- statute is to be strictly complied ton, 11 Kan. 218; Elwood v. Wool- with. Peckham v. Van Bergin, 10 cot, 32 Kan. 526, 4 Pac. 1,056; (N. D. 43, 84 N. W. 566. See, under Association v, Moore, 4 Neb. 686, 59 the statute, Jones v. Fidelity, 7 N. W. 115. S. D. 122, 63 N. W. 553; Mader v. Piano, 17 S. D. 553, 97 N. W. 843. 773 PROCEDURE TO FORECLOSE MORTGAGE. § 1094 Sec. 1094. Form for petition for foreclosure of mortgage where third party assumes the mortgage and agrees to pay it. District Court op County, State of Oklahoma. , Plaintiff, No. . and , Defendants. vs. PETITION. 1. First Cause of Action. — Plaintiff says that is indebted to him in the sum of $ , with interest at the rate of per cent, per annum, payable annually from the day of , 19 — , on a certain promissory note, of which the following is a copy: (Here give true copy); that on or about the day of , 19 — , one , as assignee of and , in consideration of the sum of $ , conveyed to said the following de- scribed real estate situated in the county of , State of Oklahoma, to-wit: (Here describe real estate); that said conveyance was, among other things, made subject to a mort- gage of $ , given by one , dated , 19 — , which was assumed by the grantee therein, and the amount of $ , being the amount due said from the pro- ceeds of a sale thereof, and said agreement to assume and pay said mortgage was made as part of said consideration for the purchase price of said real estate; that no payments have been made on said note so assumed, and there is now due and pay- able to plaintiff from defendant, , on the assumption of said indebtedness, the sum of $ , witli interest thereon at per cent, per annum, from the day of , 19 — , which plaintiff claims and for which he asks judgment. 2. Second Cause op Action. — For a second cause of action herein plaintiff says that on or about the day of , 19 — , one and , for a valuable consideration, sold and conveyed by deed in fee simple, to and , the § 1094 merwine's trial of title to land. 774 following real estate, situated in County, State of Okla- homa, to-wit: (Here describe it); that on the day of , 19 — , one , who was then the owner of the afore- said real estate, in order to secure the payment of a certain promissory note given for the purchase price of said real estate, dated the day of , 19 — , for the sum of $ , bearing interest at the rate of per cent, per annum, due and payable in years after the date thereof, executed, acknowledged and delivered to plaintiff his certain mortgage deed, and thereby conveyed to plaintiff certain parcels of real estate, of which the real estate above described forms a part; that said mortgage had a condition therein contained that, if said note should not be paid when due as aforesaid, said mort- gage deed should become absolute. Said note has not been paid and said mortgage deed has become absolute. Said mortgage was left with the register of deeds of County, Oklahoma, for recording on the day of , 19 — , at o'clock, — m., of said day was by said register of deeds duly recorded in the records of his office in Book , page . Plaintiff further states that at the time of the conveyance of said premises by said , on the day of , 19 — , to the said and , the said and • agreed in said deed to assume, and they did assume, the pay- ment of said $ in said mortgage deed, and that said assumption of the part of the said and was made as a part of the purchase price of said premises; that on the day of , 19—, said and , by deed, conveyed said premises, with other real estate, to , and in said deed the said agreed to assume, and did assume, as part of the consideration of said sale and conveyance, the sum of $ of the mortgage debt on said real estate, as above set out, together with interest thereon at the rate of per cent, from the day of , 19— ; that said mort- gage is valid and subsisting and is a lien on said real estate above described for said sum of $ , with interest on said sura at the rate of per cent, from the day of 775 PROCEDURE TO FORECLOSE MORTGAGE. § 1095 , 19 — , and said defendant, , has failed to pay the same. Wherefore, plaintiff prays judgment for $ , with in- terest at per cent, from the day of , 19 — ; that said mortgage be foreclosed and said real estate sold to satisfy the judgment so to be obtained, and for such other and further relief as equity and the nature of the case may require. Attorney for Plaintiff. Sec. 1095. Form for petition for foreclosure of a mortgage where successive grantees have assumed aad agreed to pay it. District Court of County, State of Oklahoma. , Plaintiff, vs. No. and as Administrators of the Estate of , Deceased, Defendants. PETITION. Now comes , the plaintiff herein, and, for her petition herein, says : 1. For her first cause of action herein, plaintiff says that on the day of , 19 — , the defendants, and , executed and delivered to one their joint and several promissory note, of which note the following is a copy with all the credits and indorsements thereon, to-wt: (Here copy note); said note is indorsed as follows: Pay or order, without recourse on me, $ , and credit it as follows : (Here give the credits) ; said note is secured by a mortgage on the real estate last described in the cause of action herein. § 1095 merwine's trial of title to land. 776 At the time of the execution and delivery of said note, said and were the owners of said real estate, and on the day of , 19 — , by deed of general warranty, sold and conveyed said real estate to the above , who thereupon, by agreement in writing set forth in said deed, agreed by and with said and , their heirs and assigns, as a part of the consideration thereof, to assume, and he did assume, the payment of the principal and all the interest on said note, from the day of 19 — , together with all other charges which were a lien on said premises. Said deed is re- corded in Book , at page , in the office of the register of deeds. On the - — ■ — — day of , 19 — , said died intes- tate, and said and were, on the day of , 19 — , by the county court of County, State of Oklahoma, duly appointed administrators of his said estate, and said administrators thereupon duly qualified and entered upon their duties as such administrators. On the day of , 19 — , said and , his wife, by deed of general warranty, sold and conveyed said real estate last described in said cause of action herein, to the defendants herein, and , who thereupon, by agree- ment in writing set forth in said deed, agreed to and with said , his heirs and assigns, as part of the consideration thereof, to assume, and they did assume, the payment of the principal of said note, with all interest thereon, from the day of , 19 — , together with all the other charges against said real estate. Said deed was duly recorded in Book , at page , in the office of the register of deeds of said county. On the day of , 19 — , the said and , his wife, and the said and , his wife, by deed of general warranty, sold and conveyed said real estate last described in cause of action herein, to the defendant, , who thereupon, by agreement in writing set forth in said deed, agreed to and with the said and , their heirs and assigns, as part of the consideration^ thereof, to assume, 777 PROCEDURE TO FORECLOSE MORTGAGE. § 1095 and he did assume, the payment of the principal and interest on said note, from and after the day of , 19 — , together with all charges against said real estate. Said deed was duly recorded in Book , at page , of the rec- ords in the office of the register of deeds of said county. On the day of , 19 — , by deed of general war- ranty, and sold and conveyed the real estate last described in cause of action herein to the defendant, , who thereupon, by agreement in writing, set forth in said deed, agreed by and with said and , their heirs and assigns, as part of the consideration thereof, to as- sume, and he did assume, the payment of the principal and all interest on said note, together with all the other charges against the same. Said deed was recorded in the office of the register of deeds of said county in Book , at page . Said is the present owner of said real estate last herein described. Plaintiff is the legal owner and holder of said note and there is due her from the defendant, , as principal, and the said and , as administrators of the estate of , deceased, , , , and , as sureties thereon, the sum of $ , with interest on said sum from the day of , 19 — , at the rate of per cent, per annum. 2. For a second cause of action herein, plaintiff says that at the time of the execution and delivery of the note described in the first cause of action, and to secure the payment of the same, the defendants, and , executed and delivered to said their certain mortgage deed, thereby conveying to him, his heirs and assigns forever, the following described real estate, situated in the county of , State of Oklahoma, to-wit: (Here describe the same.) Said mortgage deed contained a condition that if said and should pay or cause to be paid to said , his heirs and assigns, the note described in the first cause of action herein, when the same should become due, \nth interest on the same, then said mortgage should become void, otherwdse to be and remain in full force and virtue in law forever. § 1096 merwine's trial op title to land. 778 By reason of the nonpayment of said promissory note and interest due thereon, said mortgage has become absolute. On the day of , 19 — , said mortgage was deliv- ered to the register of deeds of said county of , State of Oklahoma, for record, and was duly recorded by him on the day of , 19 — , at o'clock, — m., in Book , at page , of the records in his office. On the day of , 19 — , said mortgage was for value received duly assigned by said to the plaintiff, by assignment in writing, which assignment was by the register of deeds of said county duly entered on the records of said county according to law. Wherefore, plaintiff prays that said defendant, be required to set forth his said claim on said premises, or be forever barred from asserting the same ; that she may have judg- ment against said , , , , , and , for said sum of $ , with interest thereon from the day of , 19 — , at the rate of per cent, per annum ; that said mortgage deed be foreclosed, and the premises therein described sold as upon execution, and that the proceeds of such sale be applied upon said mortgage debt, and for such other and further relief as equity and the nature of the case may require. —— , Attorney for Plaintiff. Sec. 1096. Form for petition seeking to reform a mortga;ge and foreclose the same, marshaling the liens. District Court of County, State of Oklahoma. , Plaintiff, vs. No. and , Defendants. PETITION. 1. First Cause of Action. — Plaintiff says there is due from said on a promissory note of said , the sum of ■$ , with interest thereon from the day of , 19 — , of which promissory note the following is a copy, with all the credits and indorsements thereon, to-wit: (Here set forth 779 PROCEDURE TO FORECLOSE MORTGAGE. § 1096 copy of note with all credits and indorsements thereon.) Said note is indorsed and credited as follows: (Here write the same as they appear on the note.) 2. Second Cause of Action. — Plaintiff says he adopts each of the allegations of the said first cause of action as though specifically alleged in this cause of action ; that, to secure the payment of the said promissory note, dated the day of , 19 — , and made by said payable to the order of said , plaintiff, as follows, to-wit : (Here state the time when said note became due and all its terms.) To secure the payment of said promissory note hereinbefore mentioned according to the tenor and effect thereof, the said , together with his said wife, the defendant, , duly executed, acknowledged and delivered to the plaintiff the said , joining with her said husband in the granting part, their certain mortgage deed bearing date of the day of , 19 — , and thereby intending to convey to the plaintiff, in fee simple, free from all rights in and to the same, the follow- ing described lands, tenements and hereditaments, situated in the county of , and State of Oklahoma, to-wit: (Here describe real estate.) But, by the mutual mistake and inadver- tence of all the parties thereto, said mortgage described and conveyed the following described real estate, to-wit: (Here de- scribe it.) Said mortgage was delivered to the register of deeds of said ■ County, Oklahoma, for record, according to law, on the day of , 19 — , at o'clock, — m., and was duly recorded in Book , page , of the records of his said office. Said mortgage deed has a condition therein written that in case the said should pay or cause to be paid said prom- issory note, together with interest thereon, when and as it should become due, then said deed should be void, otherwise to be and remain in full force. Said note is past due and unpaid and said mortgage has become absolute. The said , defendant herein, claims to have some claim upon or interest in said above described premises, as does the § 1097 merwine's trial of title to land. 780 said defendant, , but their liens and claims, if any, are inferior and subordinate to the mortgage of the plaintiff herein. "Wherefore, plaintiff asks judgment against said defendant, , for the sum of $ , with interest on said sum from the day of , 19 — ; also that said mortgage may be reformed and corrected by proper decree of this court so as to conform to the real intention of said parties; that when said mortgage is so corrected and reformed, that the same may be foreclosed and said premises sold as upon execution, to satisfy said mortgage indebtedness from said , and the judgment by the plaintiff so to be obtained ; that the said and be required, by appropriate pleading in this action, to set forth the nature and amount of their respective claims and liens, if any they have, on said real estate, and that the respective liens and claims of the plaintiff and said defendants be marshaled and determined, and ordered to be paid by the court out of the proceeds cf the sale of said real estate in the order of their respective priorities, and for such other and further relief as equity and the nature of the case may require.* Attorney for Plaintiff. Sec. 1097. Form for petition in an action to declare a deed a mortgage, and foreclosing the same. District Court of County, State of Oklahoma. , Plaintiff, vs. No. , Defendant. PETITION. Comes now the plaintiff, and, for his cause of action against the defendant herein, allpges and states : * Adapted from Yaple's Code Practice. 781 PROCEDURE TO FORECLOSE MORTGAGE. § 1097 1. That on the day of , 19— the defendant -, was the owner of the following described real estate iu the county of , State of Oklahoma, to-wit : (Here describe it.) 2. That on said day said defendant, being greatly embar- rassed in his affairs, and desirous of borrowing the sum of $ ^ applied to plaintiff for that purpose and obtained a loan from him, the said plaintiff, for the sum of $ , due and payable • months after date, with interest at per cent, per annum; that to secure said loan, the defendant executed a deed to said plaintiff for the above described real estate, said deed being absolute in form, but intended by both the parties thereto to stand as security for said loan, and was made for that purpose. 3. That on the day of , 19—, plaintiff entered into possession of said real estate under said deed, and has applied all the rents and profits thereof to his own use, said rents and profits amounting to the sum of $ . 4. That the time has expired in which the said defendant was to pay and satisfy said sum of money so borrowed as aforesaid, and that, by reason of said default, said sum has become due and said mortgage has become absolute. 5. That on the day of , 19—, said deed was left for record with the register of deeds of said county, and was by him duly recorded in Book , page , of the records of his said ofSce. Wherefore, plaintiff prays that an accounting may be taken of the amount due from said defendant to plaintiff after deduct- ing the rents and profits aforesaid ; that said deed be declared a mortgage ; that the same be foreclosed and said real estate sold as upon execution, to satisfy the same, and for such other and further relief as equity and the nature of the case may require. — ■ J Attorney for Plaintiff. § 1098 merwine's trial of title to land. 782 Sec. 1098. The procedure by which a mortgage is foreclosed — The form for the petition in foreclosing a building and loan mortgage. District Court of County, State of Oklahoma. The Association, Plaintiff, vs. No. and , Defendants. PETITION. Comes now The Association, a corporation duly organ- ized and existing under the laws of the State of Oklahoma, plaintiff herein, and for its first cause of action against the defendants, , and , alleges and states: 1 . That heretofore, to-wit : on the day of •, 19 — , at , Oklahoma, the said defendant, , a single person, for a good and valuable consideration, made, executed and delivered to said plaintiff his certain promissory note in writing of that date as follows, to-wit : Said note being for the principal sum of $ , due and payable to plaintiff in monthly installments of $ each, on the day of each and every month, $ of said sum being due on shares of the capital stock of said corporation, series , and $ of said sum being the interest on said principal sum of $ ; that by reason thereof, the said defendant, , be- came liable and bound to pay to the said plaintiff the amount of said promissory note in installments of $ on the day of each and every month after the day of , 19 — , as above set forth according to the face and tenor of said note, a copy of which, with all the indorsements thereon, is hereto attached, marked "Exhibit A" and made a part of this petition. 2. That under and according to the terms and face of said note, said defendant, , promised and agreed that if said note should be placed in the hands of an attorney for collection, he would pay the sum of $ attorney's fee, and all other costs of collection ; that said note has been placed in the hands of 783 PROCEDURE TO FORECLOSE MORTGAGE. § 1098 , an attorney at law, of Oklahoma, for collection, whereby said defendant, , became liable and bound to pay said sura of $ , as attorney's fee, and all other costs of collection. 2. Second Cause of Action. — That at the time and place and as part and parcel of the same contract and transaction, and for the purpose of securing the payment of said promissory note, upon the terms and in the installments as hereinabove set forth, said defendant, , executed and delivered to said plaintiff his certain mortgage in writing, thereby selling and conveying unto said plaintiff. The Association, all the following described real estate in County, in the State of Okla- homa, to-wit: (Here describe real estate), with all the improve- ments thereon and appurtenances thereunto belonging, and did warrant the title to the same, and waive appraisement thereof, which said mortgage was duly signed by the defendant and acknowledged by him and is duly recorded in Book of the mortgage records on page thereof, in the office of the register of deeds of County, Oklahoma, a true and correct copy of which mortgage, with all covenants therein con- tained, is hereto attached, marked "Exhibit B," and is hereby made a part of this petition. By the terms of said mortgage and the conditions thereof, as fully set forth therein, it is provided specifically that said de- fendant, , shall pay the installments as set out in para- graph one of this petition on or before the day of each and every month; that said defendant, , within days after the same become due and payable, pay all taxes and assessments which will be levied on said land, or existing or assessed on said land created or represented by said mortgage, and it is further provided therein that if said defendant make default in the payment of said taxes and assessments, the plain- tiff may pay said taxes and assessments, and that the sum so paid shall be a further lien on said described premises under said mortgage, and should default be made in the aforesaid monthly sums or installments, or any fine, or any part of said taxes, when the same are due and payable, as provided in said § 1098 merwine's trial of title to land, 784 note and mortgage, and the by-laws of said association, and should the same or any part thereof remain unpaid for a period of months, the first aforesaid principal sum of $ , with all arrearages and all penalties and taxes shall become due and payable immediately thereafter. Said mortgage further provides that said defendant shall pay plaintiff the sum of $ , as a reasonable attorney fee in addition to other legal costs and expenses of collection, if pro- ceedings are taken in equity to foreclose said mortgage in case of default in any of its covenants, which sum shall be an addi- tional lien on said premises. Plaintiff further alleges that the conditions of said note and of said mortgage have been broken in this, to-wit : That on the day of , 19 — , there became due and payable to plaintiff, according to the contract and mortgage aforesaid, one of the monthly installments of $ ; that said sum has re- mained unpaid for more than months thereafter, towit: up to the date hereof, and that no part of same has been paid, although payment thereof has been demanded of the defendant; that on the day of , 19 — , and on the day of each and every month thereafter, up to the date of the filing of this petition, other monthly installments of the sum of $ • did became due and payable to this plaintiff, and have so remained due and unpaid to the date hereof ; that there was paid on said note and mortgage installments on the principal and interest, up to and including the amount due and payable on the day of , 19 — , an amount in the aggregate of the sum of $ ; that no payment, or part payment, has been made on said note or mortgage, or any installment thereof, by said defendant, becoming due and payable, since the date last above mentioned, though payment thereof has often been de- manded, and that said installments, together with fines and penalties, remain wholly unpaid. That, by reason of the terms and in accordance with the conditions of said note and mortgage, all of said indebtedness, including the balance due on said principal sum of .$ , vnth all arrearages thereon, and all 785 PROCEDURE TO FORECIX)SE MORTGAGE. § 1098 fines and penalties became due and payable to this plaintiff upon the happening of said default, amounting in all to the sum of $ , together with an attorney fee of $ , and the costs of this action. Plaintiff further alleges that in said mortgage it is especially covenanted and agreed by said that, upon the filing of the petition in foreclosure, the holder of said mortgage shall be entitled to the possession of said premises, and that a receiver may forthwith, or at any time thereafter, be appointed for the same, to collect and apply the rents and profits, less reasonable expenses of the receivership, to the payment of said indebted- ness, and the said defendant, , expressly consents, by said covenants in said mortgage, to the appointment of said receiver. Plaintiff further alleges that, by reason of said default of the said defendant, , in the payment of said principal and the installments as they matured, according to the tenor of said note and mortgage, the conditions of said mortgage and note have been broken and the whole of the indebtedness thereby secured has matured and is now due and payable, together with interest, fines and penalties, as well as an attorney fee of $ , becoming due and payable upon the filing of this petition in foreclosure, as stipulated in said mortgage ; that said premises are incumbered by other mortgages and liens, and are scant security for the payment of said note and mortgage, and by reason thereof, said plaintiff is entitled to the foreclosure of said mortgage on said premises, and to have the same sold without appraisement, to satisfy all said indebtedness, penalties, fines, costs and attorney fee ; that a receiver should be appointed forthwith by this honorable court to take charge of said real estate, to preserve the same from waste, to pay the taxes thereon and collect the rents and issues thereof, and do and perform such other functions usual for a receiver in such cases. Plaintiff further alleges that and , his wife, have, or claim to have, some interest in and to the above de- scribed real estate, or some part thereof, the exact nature of which is unknown to this plaintiff, but plaintiff alleges that said § 1098 merwine's trial of title to land. 786 right, title or interest of the said and , his wife, if any there be, is inferior and junior to the claim of this plain- tiff, and plaintiff prays that said last named defendants be re- quired to answer herein, setting up such interest as they may have in and to said real estate, or be forever barred. Wherefore, the premises considered, the plaintiff prays judg- ment on its first cause of action against said principal defendant, , for the balance unpaid on said principal sum of $ mentioned and set up in said note and mortgage, for interest and installment claims due thereon, together with all fines, penalties, in the aggregate sum of $ , with interest thereon, at the rate of per cent, per annum, from the day of , 19 — , and for said sum of $ , attorney's fee, and all costs of this action, and for further judgment foreclosing the lien of said plaintiff on said property located in County, State of Oklahoma, to-wit : (Here specifically describe real es- tate), with all the improvements thereon, and appurtenances thereunto belonging, and forever barring defendant, , and , his wife, each and both of them, from any lien, estate, right, claim or title thereto, and that a receiver be appointed forthwith to take charge of said premises, to preserve the same and collect and apply the rents and issues thereof as above set forth ; that said mortgaged premises be ordered to be sold, with- out appraisement, to satisfy said judgment, attorney's fee and costs, and that said judgment bear interest at the rate of • per cent, per annum, and for such other and further special relief as may be just and equitable.* Attorney for Plaintiff. State of Oklahoma, County, ss. : , of lawful age, being first duly sworn, says that he is duly authorized agent of The Association, a cor- poration, plaintiff in the above and foregoing action; that he * Here attacli copy of note and actions for money only. See Section mortgage sued on. The praecipe and , herein, for forms. summons are the same as in other 787 PROCEDURE TO FORECLOSE MORTGAGE. § 1099 has read the above and foregoing petition and knows the con- tents thereof, and that tha statements therein contained are true. Subscribed and sworn to before me this day of 19—. [Seal.] Notary Public. My commission expires . Sec. 1099. Application for the appointment of a receiver. District Court of County, State of Oklahoma. The Association, Plaintiff, vs. No. . , and , Defendants. APPLICATION FOR RECEIVER. Comes now the plaintiff, , and represents to the court, in addition to the verified allegations of its petition, that the property sought to be foreclosed herein, includes a building at , Oklahoma ; that no care is being bestowed on said prop- erty; that the same is being held uncared for and is deteriorat- ing in value; that the same is incumbered by divers mortgages and other liens; that said property is scant security for the same ; that said property is being wasted, and is in danger of greater waste and wall be seriously damaged; that said , as said mortgagor, consented that a receiver might be appointed herein in case of foreclosure of his mortgage. "Wherefore, this applicant prays the court for an order ap- pointing a receiver to take charge of the property described in the petition herein, to-wit: (Here specifically describe it), and to collect the rents, issues and profits thereon ; to pay the neces- sary taxes and make the necessary repairs, and to perform all the usual functions of a receiver; to make report of his acts and doings to this court, and to disburse the money by him collected in accordance with the further orders of this court. Attorney for Plaintiff. § 1100 mebwine's trial op title to land. 788 Sec. 1100. The order appointing receiver. District Court of County, State op Oklahoma. The Association, Plaintiff, vs. No. . , and , Defendants. ORDER APPOINTING RECEIVER. Now, on this day of , 19 — , this cause came on for hearing upon the application of the plaintiff for the appoint- ment of a receiver herein, and the court, having read the verified petition filed herein, and having heard the evidence adduced in support of said application, and being fully advised in the prem- ises, finds that the defendant, , is neglecting the property for which a receiver is sought; that no care is being bestowed on the same ; that the same is uncared for and deteriorating in value ; that the same is incumbered by mortgages and other liens ; that said property is scant security for the same ; that the prop- erty is being wasted and is in danger of greater waste and will be seriously damaged, unless conserved, and the premises con- sidered, it is therefore ordered that be, and he is hereby appointed receiver to take charge of said property described in the petition herein, to-wit: (Here describe it): to collect the rents, issues and profits thereof, to pay the necessary taxes and make the necessary repairs, and perform all the usual functions of a receiver ; to make report of his acts and doings to this court, and to disburse the money by him collected in accordance with the further orders of this court, and to give bond with surety to be approved by the clerk of the district court of County, in the sum of $ . Judge of said Court. 789 PROCEDURE TO FORECLOSE MORTGAGE. § 1101 Sec. 1101. Afladavit for service by publication. District Court of County, State of Oklahoma. The Association, Plaintiff, vs. No. . , and , Defendants. AFFIDAVIT TO OBTAIN SERVICE BY PUBLICATION. State of Oklahoma, Coiintj^ ss. : , being first duly sworn, says that he is attorney of record for the plaintiff in the above action; that on the day of , 19 — , the plaintiff filed in the district court of County, State of Oklahoma, a petition in the above en- titled cause against the defendants, , and showing that said plaintiff is the o\^Tier and holder of a certain promissory note, executed to said plaintiff by the defendant, , in the sum of $ , said note being secured by a mortgage en the folloAving described real estate of said defend- ant, , to- wit: (Here describe real estate); that the con- ditions of said note and mortgage have been broken and the amounts secured thereby are now due and payable to said plaintiff; that and , have, or claim to have, some right, title or interest in and to said real estate, and that this action is brought for the purpose of foreclosing said mortgage upon the real estate described above. Affiant further says summons was issued for and , and the same was returned not found; that said and are nonresidents of the State of Oklahoma, and that service of summons cannot be made upon them, or either of them within the State of Oklahoma; that diligent inquiry has been made by said plaintiff and his said attorney, at the last known place of residence of said and , but no trace of said defendants in the State of Oklahoma can be found; that the last known residence of said and was in the city of , in the State of ; that said plaintiff wishes to obtain service on said §§1102,1103 merwine's trial op title to land. 790 defendants, and , by publication, and further affiant saith not. • Subscribed and sworn to before me this day of , 19—. , [Seal.] Notary Public. My commission expires . Sec. 1102. Notice by publication. District Court of • County, State of Oklahoma. The Association, Plaintiff, vs. No. . , and , Defendants. NOTICE BY PUBLICATION. The defendants, and , will take notice that they have been sued in the above named court in an action to fore- close a certain mortgage, owned and held by the plaintiff, on the following described real estate, belonging to the defendant, , to-wit: (Here describe it), in which said described prem- ises, the said and appear to have or claim some right, title or interest, and said defendants, and , must answer said petition of plaintiff filed herein before the day of , 19 — , or said petition will be taken as true and judgment for said plaintiff, foreclosing the lien of plaintiff's said mortgage on said described premises will be rendered accordingly. — — ^ [Seal.] Clerk of said Court. Attorney for Plaintiff. Sec. 1103. The proof of service by publication. State of Oklahoma, County, ss. : -, of lawful age, being first duly sworn, says that he is tlif" of the , a weekly newspaper published and printed in the city of , County, Oklahoma, and of general circulation in said county and State; that said 791 PROCEDURE TO FORECLOSE MORTGAGE. § 1104 has been published for more than fifty-two consecutive weeks next prior to the dates on which the copy herein referred to was published, and the notice of which a true copy is hereto attached, was published in the regular and entire edition of said , and not a supplement thereof, for weeks, the first pub- lication being on the day of , 19 — , and the last on the day of , 19 — . Subscribed and sworn to before me this day of 19—. [Seal.] Notary Public. My commission expires . Sec. 1104. Decree of foreclosure. District Court of County, State of Oklahoma. The Association, Plaintiff, vs. No. . . , and , Defendants. DECREE OF FORECLOSURE OF MORTGAGE. Now, on this day of , 19 — , the same being one of the judicial days of the regular , 19 — Term of this court, this cause comes on for trial in its regular order, and the plaintiff appearing in person and by its attorney, the defend- ants, , and , having been three times called in open court to except, demur, answer or plead to the petition of the plaintiff herein, came not, but each of them makes default ; and it appearing to the court that said defendant, , had been duly notified more than days prior to this date of the pendency of this action by service of summons as required by law, and that the defendants, and , and each of them, have been duly notified of the pendency of this action, as is required by law, by publication of notice thereof, for consecutive weeks in the , a newspaper printed and pub- lished in the city of , in said County, State of Oklahoma, and the court having read the pleadings and having heard the evidence adduced in support of plaintiff's § 1104 merwine's trial of title to land. 792 petition, and being fully advised in the premises, finds that all the material allegations contained in plaintiff's petition are true ; that there is due from said defendant, , to plain- tiff, the sum of $ on the note and mortgage sued on in this action, the sum of $ being the balance due on the prin- cipal sum of $ mentioned and set up in said note and mortgage, and the sum of $ being the interest due thereon, and the sum of $ for fines and penalties, as provided in the by-laws of said association ; that said note and mortgage pro- vides that there shall be added the sum of $ , as costs for attorney's fee in the event of bringing suit thereon; that both said note and mortgage expressly waive appraisement. And the court further finds that the plaintiff has a lien on the lands and tenements described by virtue of the mortgage in said petition set out, to secure the payment of said indebtedness, interest, fines, penalties, attorney fee and costs, said property being described as follows: (Here specifically describe it.) It is Therefore considered, ordered and adjudged by the court, that said plaintiff have and recover of said defendant, , the sum of , being the aggregate of the amounts so as aforesaid found due to said plaintiff and the costs, taxed at $ , including the sum of $ , attorney fee, and that said judgment bear interest at the rate of per cent, per annum. It is further ordered and adjudged by the court that in case said defendant, , fails for six months from the date of the rendition of this judgment to pay plaintiff said sum of $ , together with interest thereon, and costs of this suit, including said $ , attorney fee, an order of sale issue to the sheriff of County, State of Oklahoma, commanding him to advertise, according to law, and sell, without appraise- ment, the lands and tenements in said petition described, to-wit: (Here describe it), with all the improvements thereon, and the appurtenances thereunto belonging, and apply the proceeds arising from said sale as follows : Fir.^t. In payment of the costs of said sale and of this action, including $ , attorney fee. 793 PROCEDURE TO FORECIX)SE MORTGAGE. § 1105 Seconc?. In payment to said plaintiff of said sum of $ , the amount so as aforesaid found due said plaintiff, together with interest thereon. Third. That the residue, if any there be, he pay over to the clerk of the district court of said county, to be disposed of according- to the further orders of this court. If the amount to be derived from said sale be insufiScient to satisfy the judgment, together wdth costs, let execution issue against said defendant, , for the remainder unpaid. And it is further ordered and adjudged by the court that from and after the sale of said lands, under and by virtue of this judgment and decree, the said defendant, , and the defendants, and , and all persons claiming under them, or any of them, since the commencement of this action, be, and they are, forever barred and foreclosed of, to and from any lien upon, right, title, interest, estate or equity of, in and to said lands and tenements, or any part thereof. It is further ordered and adjudged that upon the sale of said real estate, and the confirmation thereof by the court, the sheriff of said county of place the purchaser at said sale in peaceable possession of said premises ; that a writ of restitution issue to that end out of this court. Judge of said Court. Sec. 1105. The order of sale directed from the clerk to the sheriff. District Court of County, State of Oklahoma. The Association, Plaintiff, vs. No. . , and , Defendants. ORDER OF SALE OF REAL ESTATE. State of Oklahoma, County, ss. : Sheriff of County, Oklahoma, Greeting: Whereas, on the day of , 19—, the same being one of the regular days of the , 19— Term of this court, § 1105 merwine's trial of title to land. 794 in an action then pending in said court, wherein The Association Avas plaintiff, and , and were defendants, the said plaintiff recovered a judgment against said defendant, , in the sum of $ , debt, with interest thereon, from the date of said judgment at the rate of per cent, per annum, until paid, and for an attorney fee of $ , and for costs of this action, taxed at $ ; and, Whereas, on said day, by said court, it was further consid- ered and ordered in said cause, that in case said defendant, , failed for six months from said day of , 19 — , to pay to the plaintiff said sum of $ , Avith interest thereon, said $ , attorney fee, and the costs of said action, an order of sale issue to the sheriff of County, State of Oklahoma, commanding him to advertise and sell according to law, without appraisement, the following described lands and tenements, to-wit : (Here specifically describe the same), with all the improvements thereon and appurtenances thereunto be- longing; and. Whereas, the order and judgment of said court in said cause require that the proceeds arising from said sale should be ap- plied as follows, to-wit : First. In payment of the costs of said sale and of this action, including said $ , attorney fee, Second. In payment to said plaintiff of the sum of $ , judgment, with interest thereon. Third. That the recidue, if any there be, he pay over to the clerk of this court, to await the further order of this court. Now, Therefore, these are to command you that you proceed according to law to advertise and sell, without appraisement, the lands and tenements hereinbefore described, and apply the proceeds arising from said sale as directed by said judgment as aforesaid. You wall make due return of this order of sale with your proceedings indorsed thereon, showing the manner in which you have executed the same within sixty days from the date hereof. 795 PROCEDURE TO FORECLOSE MORTGAGE. § 1106 In Witness Whereof, I have hereunto set my hand and affixed the seal of said court this day of , 19 — . [Seal.] Clerk of the District Court. Sec. 1106. The legal notice of the sale by the sheriff under the decree of foreclosure. State of Oklahoma, County, ss. : Notice is hereby given that, in pursuance of an order of sale issued out of the district court of County, Oklahoma, on the day of , 19 — , in an action wherein The Association, a corporation, was plaintiff, and , and , were defendants, directed to me, the under- signed sheriff of County, Oklahoma, commanding me to levy upon and sell, without appraisement, the following de- scribed premises, to-wit: (Here specifically describe real estate), together with all the improvements thereon and the appur- tenances thereunto belonging, to satisfy said judgment and costs, and apply the proceeds arising from said sale as follows, to-wit : First. In payment of the costs of said action and the sale herein, including attorney fee in the sum of $ . Second. In payment of the judgment of said plaintiff. The Association, in the sum of $ , with interest thereon at the rate of per cent, from the date of the rendition of said judgment. Third. That the residue, if any there be, be paid over to the clerk of said district court of County, to await the fur- ther order of the court. I will, on the day of , 19 — , at o'clock, — m., of said day, at the front door of the courthouse in the city of , in the county of , offer for sale and sell to the highest bidder for cash said real estate above described, or so §§1107,1108 merwine's trial of title to land. 796 much thereof as will satisfy said judgment, interest, attorney fee and costs. Witness my hand this day of , 19 — . Sheriff. Attorney for Plaintiff. Sec. 1107. The proof of publication of notice of sale. State of Oklahoma, County, ss. : , of lawful age, being first duly sworn, says that he is the of the , a weekly newspaper, published and printed in the city of , in County, Oklahoma, and of general circulation in said county and State ; that said has been published for more than fifty-two consecutive weeks next prior to the dates on which the notice herein referred to was published, and the notice of which a true copy is hereto attached, was published in the regular and entire edition of said , and not a supplement thereof, for weeks, the first publication being on the day of , 19 — , and the last of said publications being on the day of , 19—. . Subscribed and sworn to before me this day of , 19—. . [Seal.] Notary Public. 'My commission expires . Sec. 1108. Confirmation of sale. District Court of County, State op Oklahoma. The Association, Plaintiff, vs. No. . , and , Defendants. ORDER OF COURT ACCEPTING RECEIVER'S REPORT, DISCHARGING SAID RECEIVER, AND ORDER CON- FIRIMING SHERIFF'S SALE OF REAL ESTATE. Now, on this day of , 19 — , the receiver hereto- fore appointed by the court herein, having made his report, and 797 PROCEDURE TO FORECLOSE MORTGAGE. § 1109 the same having been accepted by the court, and the court finding that the same is correct and proper, and that said re- ceiver has, in all things, performed all and singular the duties required of him by order of the court herein, said receiver herein is discharged, and his bondsmen released. And this cause coming on further to be heard on the said day of , 19 — , the same being one of the regular judicial days of the , 19 — Term of this court, comes the plaintiff. The Association, by its attorney, , and moves the court to confirm the sale of real estate made by the sheriff of County, State of Oklahoma, on the day of , 19 — , under an order of sale issued out of the office of the clerk of this court, on the day of , 19 — , said sale being of the following described real estate, to-wit: (Here specifically describe it), with all the improvements thereon and the appur- tenances thereunto belonging, to satisfy the judgment of said plaintiff, The Association. And the court having examined the proceedings of said sheriff under said order of sale, finds that the same have been per- formed in all respects in conformity to law, and no exceptions having been filed nor objections made, it is ordered and ad- judged by the court that said proceedings be, and the same are, hereby approved and confirmed. And it is further ordered that the sheriff of said county of make and execute to said purchaser at said sale a good and sufficient deed for said real estate so sold. Judge of said Court. Sec. 1109. Sheriff's return of his proceedings under the writ. State of Oklahoma, County, ss. : Received this writ and order on the day of , 19 — , and, according to the commands thereof, I did levy the same upon the within described lands directed to be sold, with- out appraisement, to-wit: (Here specifically describe the same), with all the improvements thereon and the appurtenances there- § 1110 merwine's trial of title to land. 798 unto belonging ; and did cause public notice of the time and place of the sale of said lands and tenements to be given for more than days before the date of said sale, by advertisement in the , a newspaper printed and of general circulation in said county, that I would, on the day of , 19 — , offer said lands and tenements for sale at the front door of the courthouse in said county and State at o'clock, — m., of said day, and thereupon, at the time and place therein stated, I sold said lands and tenements to , for $ ^ cash in hand, he being the highest and best bidder therefor. Sheriff. I certify the above to be the times and manner of executing the foregoing writ and order. Witness my hand this day of , 19 — . Sheriff of County, Oklahoma. Sec. 1110. Sheriff's deed to the purchaser. This Indenture, made this day of , 19 — , be- tween , as sheriff of County, in the State of Okla- homa, party of the first part, and , of the county of , State of Oklahoma, party of the second part, Wit- nesseth : That, Whereas, by virtue of an order of sale issued out of the office and under the seal of the district court of the judicial district of the State of Oklahoma, in and for County, attested the day of , 19 — , upon a judg- ment for the sum of $ , with interest thereon at the rate of per cent, per annum, from the day of , 19 — , and $ , attorney's fee and costs recovered in said cause on the day of , 19 — , in case number , duly docketed in said court, said judgment being in favor of • , and against , and said judgment being in words 799 PROCEDURE TO FORECLOSE MORTGAGE. § 1110 and figures as follows, to-wit: (Here copy order of sale as found in the proceedings herein) ; and, Whereas, , sheriff aforesaid, having advertised the time and place of said sale in the , a newspaper, printed and of general circulation in said county, for a period of days prior to the date of said sale, and otherwise complied with said order and the provisions of the statutes of this State, did, on the day of , 19 — , at the front door of the courthouse in said county, at o'clock, — m., of said day, offer for sale at public auction, the premises herein described, and thereupon, , having bid for said premises the sum of $ , said sum being the highest and best bid therefor, the said premises were then and there sold to said ; and, "Whereas, the court at its , 19 — Term, having examined the proceedings aforesaid, under the terms of said order of sale, ami being satisfied that said sale has been held in all respects in pursuance to said judgment and order of sale and in accord- ance with the provisions of the statute regulating such sales, did order that said sale be confirmed, and that said sheriff of said county should convey said premises to said , by good and sufficient deed. Now, Therefore, , as sheriff of County, afore- said, party of the first part, by virtue of said writ and order, and in pursuance of the statutes in such case made and pro- vided, and for and in consideration of the sum of $ , to me in hand paid, by , party of the second part, the re- ceipt whereof is hereby acknowledged, does grant, bargain, sell and convey unto said party of the second part, its successors and assigns forever, the following described real estate, to-wit: (Here describe it), together with all the privileges and appurtenances thereunto belonging. To Have and to Hold said premises with the appurtenances, to said party of the second part, its successors and assigns, as fully and completely as he, the said sheriff, aforesaid, by virtue of said judgment and order of sale, and confirmation and the § 1110 merwine's trial of title to land. 800 statutes of said State may or ought to grant, bargain, sell and convey the same. In Witness Whereof, the party of the first part has here- unto set his hand the day and year first above written. Sheriff of County, State of Oklahoma. State of Oklahoma, County, ss. : Before me, , a notary public in and for said county and State, on this day of , 19 — , personally ap- peared , to me known to be the identical person who executed the within and foregoing instrument, and acknowl- edged to me that he executed the same in his capacity therein stated, and as his free and voluntary act and deed for the uses and purposes therein set forth. [Seal,] Notary Public. My commission expires . CHAPTER XIX. REAL ACTIONS— STATUTORY. 1. Ejectment, 2. Occupying Ci-.aimant's Law. 3. Quiet Title. 4. Partition. a. In District Court, b. In County Court. 5. Evidence in Real Actions. 1. EJECTMENT— THE MODERN ACTION TO RECOVER POSSESSION OF REAL ESTATE. SECTION 1111. The nature of the old action of ejectment. 1112. Instances where ejectment a proper action. 1113. Plaintiff may recover where shown to be entitled to only a part of the land in contro- versy. 1114. Ejectment for breach of con- dition in deed. 1115. Ejectment will not lie to recover under oil and gas mining lease where lands undeveloped. 1116. Plaintiff must recover on the strength of his own title. 1117. Possessory title will prevail, when. 1118. The action may be equitable as well as legal. 1119. The action to determine ad- verse interests in real estate — The action by one not in possession. 1120. Ejectments — Rents and profits and partition in one action. SECTION 1121. A joint tenant out of posses- sion may not have partition without joining a cause of action for possession. 1122. Actions against executors or administrators. 1123. Limitations of actions to re- cover real estate sold by an executor or administrator. 1124. Actions by or against exec- utors for the recovery of real estate. 1125. Duties of executor or admin- istrator as to taking posses- sion of real estate. 1126. The allegations of the petition in ejectment. 1127. The allegation of the answer in ejectment — ^Possession ad- mitted, when. 1128. The allegations of the answer of a cotenant. 1129. Recovery of rents and profits by cotenant. 1130. The general denial and what may be proved thereunder. 801 §1111 MERWINE S TRIAL OF TITLE TO LAND. 802 SECTION 113L Possession in ejectment may be awarded the defendant who pleads by cross-petition. 1132. Judgment on disclaimer of defendant. 1133. Neither party may contest prior deed, when. 1134. Where title is derived under special law such special law must be alleged and proved. 1135. When the words of an instru- ment operate as a covenant or mere words of descrip- tion. 1136. Action by an occupant of a town lot before legal title has passed from the govern- ment. 1137. When the defendant may not deny that his grantor had title. 1138. The statute of limitations in actions concerning real estate. 1139. Legal disability as to real property. 1140. New action may be brought after reversal, when. 1141. A right barred by limitation may neither be made a cause of action or a defense. 1142. Proof necessary to show ad- verse possession in eject- ment. 1143. The burden of proof. 1144. Verdict where right of action changes pending suit. SECTION 1145. One trial only in ejectment. 1146. llestitution by sheriff — ^Crops belong to what party. 1147. Judgment in ejectment final and prevents reassertion of title — Res ad judicata. 1148. Costs for plaintiff on recov- ery in ejectment. 1149. Effect of conveyances in viola- tion of statute against champerty. 1150. Procedure in ejectment where trial by jury is waived and the cause submitted to the court sitting as a jury — The form for the petition. 1151. Form for answer. 1152. Motion for a new trial. 1153. Form for the judgment of the court and the order over- ruling motion for new trial. 1154. Form for the petition when damages are asked. 1155. The answer containing a gen- eral denial. 1156. The verdict of the jury. 1157. Instruction to the jury. 1158. Motion for new trial. 1159. Judgment sustaining motion for new trial. 1160. Form for judgment for plain- tiff on the verdict. 1161. Form for judgment on verdict for defendant. 1162. TJie writ of possession or habere facias possessionem. Sec. 1111. The nature of the old action of ejectment. Much of the law of ejectment in this State has become obsolete on account of statutory regulations, and, conse- quently, is of no great use to the practitioner, except that some knowledge of the same is necessary to a complete understanding of some of the terms used in the present law. We here give a concise statement of the nature of the old 803 REAL ACTIONS. — STATUTORY. § 1111 procedure to get possession of real estate. It is from the pen of an able jurist, and is as follows : "The old English real action was so intricate that eject- ment, an action by which a dispossessed tenant recovered his possession for the term of his lease against the ejector, was made to subserve its purpose. But the actual making of a lease, putting the lessee in possession by the lessor and the occupant ejecting him by retaining possession, proved to be too formal and troublesome. During the Protectorate, Lord Chief Justice Rolle, by fictions of law, obviated these diffi- culties. It was assumed that the claimant of the land in dispute had made a lease of the premises to a fictitious lessor, generally named John Doe — the term being for such a number of years as not to expire during the litigation — and put the lessor, John Doe in possession, when another fictitious personage named commonly Richard Roe and called the casual ejector, entered upon the premises and ousted John Doe from the possession, to recover which, for such term, from Richard Roe, John Doe, on the demise of the claimant, brought the action. The lands were not specifically described as required by our code. A stream of water could not be declared for, but was described as land covered by water. Notice of the action was served on the person found in possession of the land ; and, if a tenant, he could notify his landlord and either could defend as tenant in possession. But as the plaintiff never proved the lease to John Doe, the entry and ouster by Richard Roe, the tenant in possession, to be let in to defend, was obliged to enter into the 'consent rule,' by which he admitted such fictitious lease, entry and ouster, which left for trial only the question, who was enti- tled to the possession. The legal title, as contradistinguished from the equity title, drew to itself the legal right to pos- session, and hence, the legal title, and the legal title only, could be tried in such action. The plaintiff, as now, had to recover upon the strength of his own title, not on the weakness of the title of the defendant. Outstanding legal § 1112 MERWINE'S trial op title to LiSJ^D. 804 title ill a third person was a good defense. After recovery of possession by judgment in ejectment, the real- or nominal plaintiff could sue the real defendant in trespass to recover mesne profits, and for waste, which were, by our statute of limitations, recoverable for four years prior to the bringing of the action." ^ Sec. 1112. Instances where ejectment a proper action. The possession of real estate may be obtained by one who recovers a judgment for breach of promise, and purchases the real estate of the judgment debtor, who, pending the proceedings, fraudulently conveyed the same for the purpose of defeating the collection of the judgment ; ^ by an heir who claims under a will probated before a partition of real estate, making the heirs, who had conveyed their interest to another, defendants ; ^ by a reversioner, where the life tenant forfeits the same for nonpayment of taxes ; * by a surviving hus- band, where it appears that a deceased wife at the time of her death, owned real estate in her own right and no state of facts existing, barring the husband's right of curtesy therein, and the land being in the possession of another ; ^ by a grantor who has conveyed real estate to a grantee upon condition that a grist mill and saw mill shall be erected and maintained on the premises, the grantee failing to per- form and remaining in possession ; *' by a mortgagee against a mortgagor in possession, the mortgage having become due by condition broken ; ''^ by a grantee from a grantor, the deed having been delivered and the grantor is in pos- session, refusing to admit the grantee into possession ; ^ by a vendor from a vendee in possession before convey- ance, the vendee being clearly in default ; '^ by a lawful 1 2 Yaple's Code Trac. & Prece- b Hall v. Hall, 32 0. S. 184. dents, 749. e Sperry v. Pond, 5 Ohio, 388. 2 McVeigh v. Ritenour, 40 0. S. 7 Bradfield v. Hale, 67 0. S. 317. 107. 8 Jones v. Timmons, 21 0. S. 896. 3 Woodbridge v. Banning, 14 0. S. » Coggshall v. Marine Bank, 63 328. O. S. 88. ■* McMillan v. Robbing, 5 Ohio, 28. 805 REAL ACTIONS. — STATUTORY. § 1112 trustee against persons in possession claiming to be trus- tees ; ^^ by a mortgagee apon a mortgage, the real considera- tion for which being an agreement not to prosecute the son of the defendant for theft; ^^ by a landlord to recover posses- sion of leased premises, upon a forfeiture of the lease for nonpayment of rent ; ^- and by the owner of land against one in possession under defective tax title/^ The action cannot be maintained by the owner of land, who, by his consent, agreed to give a railroad company a perpetual right of way through the same, for the sum paid to him, with a provision in the contract that the company should fence the same, and having failed to construct it ; ^* by a wife against a third person, claiming adverse possession, the husband having a freehold in the lands, with present right of exclusive enjoyment, and which has been lost by adverse possession, the wife's reversion being postponed until the termination of coverture ; ^^ and by a mortgagee, who claims under a past due and defectively executed mortgage, the certificate of acknowledgment not showing by whom the in- strument was acknowledged/" A person who holds possession of real estate, under a claim of ownership, is entitled to recover the same as against one who has no right or title to the same.^^ It has been held that a person holding the duplicate final receipt of the receiver of the United States Land Office for 10 Harper v. Crawford, 13 Ohio, to his heirs, subject to a lease to 13. R, who, after remaining in posses- 11 Doe V. Roll, 7 Ohio, 71; Wil- sion for over eleven years, aban- liams V. Englebright, 73 0. S. 383. doncd it to the heirs. Afterwards 12 Adams v. Parnell, 1 1 C. C. R executed a warranty deed to P, 567. who recorded the deed, and remained 13 Wallace v. Dayton, Dayton, 416. in possession for over a year, wlien i-t Hornbeck v. Cincinnati, 20 O. tS. she abandoned the premises, and the 81. heirs took peaceable possession. 15 Thompson v. Green, 4 0. S. Held, that P could not recover pos- 217. session of the land from the heirs IS Smith V. Hunt, 13 Ohio, 2G0. and their tenant. Pankau v. Larze- iTHentig v. Pipher, 58 Kan. 788, lere, 52 Pac. (Kan. App.) 906. 51 Pac. 229. L died, leaving land § 1112 merwine's trial op title to land. 806 land taken under the provisions of the homestead laws of the United States, can maintain an action in the nature of eject- ment for the possession of the land described in such final reeeipt.^^ The interest given by statute to a wife in the real estate of her deceased husband is not an inheritance, and she may maintain ejectment therefor against one in possession whose title thereto was acquired by a fraudulent conspiracy entered into with the husband during his lifetime to defraud the wife of such interest, notwithstanding the heirs of the hus- band could not recover the real estate. It was further held in the case from which the foregoing proposition was taken that where a husband and his son have entered into a con- spiracy to defraud the wife of her interest in the real estate of her husband in Kansas, and in furtherance of such con- spiracy the husband executes a promissory note without con- sideration to a fictitious person, upon wliich they cause a judgment to ])e rendered, the land sold thereunder, and the title thereto passed to the son, the wife may maintain eject- ment to recover her interest in such land against the son at any time Avithin the statutory period of limitations after the death of her husband.^® Again, where a purchaser moves upon the land purchased, places a dwelling house thereon, makes other permanent im- provements, and continues to live thereon, one who furnished the purchase money and holds a deed, absolute in form given to secure the same, cannot maintain ejectment against the purchaser.-" A deed which conyeys a portion of a quarter section of land by exact metes and bounds, and then contains the pro- viso : "Provided, however, that a strip of land sixty feet wide on the east and a strip of land eighty feet wide on the south, and a strip of land one hundred feet wide on the isMcChmjrv. Penny, 12 Okl. 303, 20 Abrams v. Abrams, 74 Kan. 70 Pac. 404. 888, 88 Pac. 70. 19 McKelvey v. McKelvey, 75 Kan. 325, 89 Pac. 663. 807 REAL ACTIONS. — STATUTORY. §§ 1113, 1114 west of said tract of land is hereby reserved tor street pur- poses M'hen said quarter sectioi-! of land shall be platted," creates a reservation in said strips, and the fee passes by the deed to the grantee. A recorded plat of lands within the city showing lots, blocks, streets and alleys, when filed by the owner of the land embraced in the plat, constitutes such dedication to public uses of the streets shown on such plat as will prevent the holder of the fee from maintaining an action for possession against an adverse claimant to a portion of the street,^^ Sec. 1113. Plaintiff may recover where shown to be entitled to only a part of the land in controversy. Where one brings an action to recover a body of land, and the facts show that he is entitled to recover a portion, but not all for which he sued, he may recover that portion which the pleadings and facts show him entitled, as the law does not favor a number of suits to accomplish a purpose when the courts may determine the rights involved without preju- dice."^ Sec. 1114. Ejectment for breach of condition in deed. A deed of general warranty in the usual form, conveying lands for the expressed consideration of the sum of one dollar and other good and valuable considerations, and a written contract executed at the same time, by which the grantee, in consideration of the deed, agrees to do certain acts, and provides that, in case of failure to perform such contract, the deed shall become void, and the lands con- veyed revert to the grantor, both instruments being ac- knowledged and recorded at the same time, are to be treated as one, and construed together. In a case where the facts were as just stated, the question arose whether the plaintiff might maintain ejectment to re- 21 Edwards v. Brusha, 18 Okl. 234, 22 Edwards v. Bruslia, 18 Okl. 234, 90 Pac. 727. 90 Pac. 727. § 1115 merwine's trial of title to land. 808 cover the land. It was said by the court in the action, that, by the common law, advantage of a breach of a condition subsequent, working a forfeiture of an estate, could only be taken by formal entry, on the principle that it required as solemn an act to defeat as to create an estate. But in this state there is no such thing as livery of seizin, in the common law sense. Estates are created by written instruments. De- livery of possession of lands is, of course, a circumstance of some weight in determining questions of title. Under our statute, a party having either a legal or equitable title may maintain an action for the recovery of real property. No formal entry is necessary here as a condition precedent to the bringing of an action of ejectment. Recent authorities are to effect that an ordinary action of ejectment answers all purposes of a common law entry. The condition on which the grant was made being lawful, and one which the parties had a right to agree upon, must be enforced on the demand of the plaintiffs.-'^ Sec. 1115. Ejectment will not lie to recover under oil and g-as lease where lands undeveloped. Oil and gas, while in the earth, unlike solid minerals, are not the subject of ownership distinct from the soil, and the grant of the oil and gas, therefore, is a grant, not of the oil that is in the ground, but of such a part as the grantee may find, and passing nothing that can be the subject of an ejectment or other real action.-* 23 Ritchie V. Kansas, 55 Kan. 36, Wis. 301, 21 N. W. 254; Horner v. 39 Pac. 718; Clarke v. Town, 81 Mo. Railway Co., 38 Wis. 165; Wilson v. 503; Jefferyv. Graham, 61 Tex. 481; Wilson, 86 Ind. 472; Railway v. Richter V. Richter, 111 Ind. 456; 12 Coleman, 91 Ind. 557; O'Brien v. N. E. 360; Heywood v. Ass'n, 11 Wetherell, 14 Kan. 616. Pac. (Cal.) 246; Railway v. Hood, 24 Kalochny v. Galbreath, 26 66 Ind. 580; Pepin v. Prindle, 61 Okla. 772, 110 Pac. 902. 809 REAL ACTIONS. — STATUTORY. § 1116 Sec. 1116. Plaintiff must recover on the strength of his own title. The plaintiff, in his action to recover possession of real estate, must recover on the strength of his own title, or right to the property; he cannot rely upon the weakness or invalidity of the defendant's right or title.-^ Upon this subject it has been said that the plaintiff in ejectment is not required to have the legal title, or all the title, or title paramount to the title of all others in order to enable him to recover. All that is necessary in order to enable him to recover is that he shall have some kind of estate in the property in controversy, legal or equitable, and that his title to the property shall be paramount to that of the defendant.^*^ A defendant in an ejectment action cannot plead an out- standing superior title in a third person to defeat the re- covery of the plaintiff.-' It has been held in an action by ejectment when the plain- tiff's testimony shows the defendant in possession of the 25 Hearst v. Sawyer, 2 Okla. 470, ejectment must recover, if he re- 37 Pac. 817; Myers v. Mathias, 2 covers at all, on the strength of his Ind. Ter. 3, 46 S. W. 178; Mitchel own title. In this State the plain- V. Lines, 36 Kan. 378; O'Brien v. tiff is not required to have all the Bugsbee, 46 Kan. 1; Simpson v. title, or title paramount to the title Boring, 16 Kan. 248; State v. of all others, in order to enable him Stringfellow, 2 Kan. 259 ; Omaha v. to recover. All that is necessary Rieter, 66 N. W. 650; Chicago v. in order to enable him to recover Schalkaf, 74 N. W. (Xeb.) 826; is that he shall have some kind of Comstock V. Kerwin, 77 X. W. estate in the property in controversy, (Xeb.) 387; Buck v. Gage, 43 X. W. legal or equitable; and that his (Xeb.) 110; Abbot v. Coats, 86 title to the property shall be para- X. W. (Xeb.) 1058. mount to that of the defendant. 26 Atchison v. Eockwood, 25 Kan. X'ote to Stout v. Hyatt, 13 Kan. 210; Simpson v. Boring, 16 Kan. 176; citing Atchison v. Eockwood, 248; Stout v. Hyatt, 13 Kan. 232; 25 Kan. 302; Atchison v. Pracht, O'Brien v. Wetherall, 14 Kan. 622. 30 Kan. 71, 1 Pac. 319. 27 Thomas v. Eauer, 62 Kan. 568, 64 Pac. 80. The plaintiff in § 1117 merwine's trial op title to land. 810 disputed land under a claim of ownership, the plaintiff must then recover on the superiority of his title, and, if he relies on a record title, he must show a regular chain of title from the Government or some grantor in possession, or from the common source from which each of the litigants claim."^ Under an identical statute of the State of Nebraska, the Supreme Court of that State decided that a devisee may- prosecute ejectment for the lands devised to him during the pendency of probate proceedings.-'^ Where a plaintiff in an action of ejectment establishes an interest or title to land paramount of that of the defendant, the latter cannot avail himself of an outstanding title in a third party, although it may be superior to that of the plaintiff.^" Sec. 1117. Possessory title will prevail, when. Possession of real estate, with a claim of ownership, is not only evidence of title, but is title itself in a low degree, and will descend to heirs; prior possession with such a claim will, even in ejectment, prevail over a subsequent possession acquired by mere entry without any lawful right.^^ 28 Runcle v. Welty, 111 N. W. M that M cannot show, for the 463. purpose of defeating O's title, that 29 Beer v. Plant, 96 N. W. (Xeb.) F's title was, in fact, defective at 348. the time of her death, or that, in 30 McBride v. Steinweden, 72 Kan. fact, there was a paramount out- 508, 83 Pac. 822. standing title in a third person. 31 Mooney v. Olsen, 21 Kan. 496. Mooney v. Olsen, 21 Kan. 496. In Where F, who was in possession of ejectment, proof of possession under land under color of title claiming claim of title for over fifteen years to be the owner, died, and her rights is sufficient to sustain a finding of in the land descended to the heir, title as against a party under no 0, and M subsequently took posses- disability, and claiming title only sion of the land without any lawful by virtue of a recent and insufficient right, and claimed to own the same, tax deed. Hollenback v. Ess, 3il held, that between O and ^I, m an Kan. 871, 1 Pac. 275; Utley v. action in which is required to Fee, 33 Kan. 690, 7 Pac. 555. show ownership in herself as against 811 REAL ACTIONS. — STATUTORY. §§ 1118-1120 Sec. 1118. The action may be equitable as well as legal. Although the facts in an action for the recovery of real property under the civil code, are not usually, and need not necessarily, be set out in the pleadings in detail, nor with any degree of particularity, still every party under such pleadings may prove whatever would strengthen his own title, or defeat his own title, in the same manner and to the same extent that he could do, if the facts were set out with all the minuteness and substantial fullness of detail, with which they are in equitable actions. ^- Sec. 1119. The action to determine adverse interests in real estate — The action by one not in possession. It is provided by statute that an action may be brought by anyone in possession by himself or tenant, of real prop- erty, against any person who claims an estate or interest therein adverse to him for the purpose of determining such adverse estate or interest, and such action may be joined with an action to recover possession of such real property by any person not in possession.^^ Sec. 1120. Ejectment — Rents and profits and partition in one action. The Supreme Court of Kansas, early in its history, set forth the following propositions of law on this subject : "The following causes of action may be united in the same action, to-wit : A cause of aror of the court in permitting defendants to offer tes- timony over the objection of plaintiff. 2. That the verdict and decision of the court herein, is not sustained by sufficient evidence. 3. That the verdict and decision of the court herein is con- trary to laAv. 4. Error of law occurring at the trial and excepted to by plaintiff. 5. For other errors of law apparent upon the face of the record and excepted to by plaintiff. Attorneys for Plaintiff. Sec. 1153. Form for the judgment of the court and the order overruling motion for new trial. District Court op County, State op Oklahoma. , Plaintiff, vs. No. . and , Defendants. JUDGMENT AND ORDER OF COURT. On this day of , 19—, the same being a day of the regular , 19 — Term of this court, the above entitled cause came on for hearing, both parties appearing in person, § 1154 merwine's trial of title to land. 832 and by their respective attorneys, upon the petition of the plaintiff, and the answer of defendants, and the evidence offered before the court, both parties waiving a jury, and the court, after hearing the evidence and being fully advised in the prem- ises, finds the issues of fact and law arising thereon, against the plaintiff and in favor of the defendants, and that the de- fendants are the owners and in possession of the following described real estate, to-wit : (Here describe same), the same being the land in controversy in this case, and further finds that the plaintiff has no right, title or interest in or to said lands. It is Therefore ordered, considered and adjudged by the court that the defendants are the owners of the lands herein- before described, and that plaintiff has no right, title or interest in the same; that plaintiff take nothing by this suit; that de- fendants have and recover of and from the plaintiff all their costs in and about this suit laid out and expended, for which execution may issue. Whereupon, the plaintiff filed her motion for a new trial, which, coming on for hearing, was, by the court, overruled, to which ruling of the court plaintiff excepts, and prays an appeal to the Supreme Court of the State of Oklahoma, which is granted, and for cause shown, plaintiff is given days in which to prepare and serve a case made; defendants are given clays thereafter in which to suggest amendments, case made is to be settled on days' written notice by either party. . ^ Judge of the District Court of said County. Sec. 1154. Form for the petition when damages are asked. District Court of County, State of Oklahoma. ■ — , Plaintiff, vs. No. , Defendant. 833 REAL, ACTIONS. — STATUTORY. § 1154 PETITION. Comes now the plaintiff, and, for his cause of action herein, alleges and states : 1. First Cause of Action. — That he has the legal estate in and is entitled to the possession of the following described real estate, to-wit : (Here specifically describe same), and that said defendant unlawfully keeps plaintiff out of possession of said real estate, and has so unlawfully kept him out of said posses- sion continuously since the day of , 19 — , and that said defendant is in the unlawful possession of said real estate, and is unlawfully withholding the possession thereof from plain- tiff, and denies plaintiff's right and title to the possession of the same. 2. Second Cause of Action. — That the plaintiff herein hereby refers to his first cause of action herein, and hereby makes the allegations thereof a part of this, his second cause of action, as fully as if the same were herein set out in full, and plaintiff alleges that said defendant has so unlawfully kept plaintiff out of possession of said premises for the past year, and collected and used for his own benefit during said time, the rents and profits arising from said real estate, amounting to the sum of Wherefore, the premises considered, plaintiff prays judgment for the possession of said real estate, and for $ damages for rents and profits thereof, and for all costs of this action and for all proper relief. , Attorneys for Plaintiff. State of Oklahoma, County, ss. : , being by me first duly sworn, says that he is the plain- tiff' in the above action, and that the facts stated and allegations contained in the foregoing petition are true. Sworn to before me and subscribed in my presence this day of , 19 — . My commission expires . Notary Puhlic. §§1155,1156 merwine's trial of title to land. 834 Sec. 1155. The answer containing a general denial. District Court of County, State of Oklahoma. -, Plaintiff, vs. , Defendant. No. ANSWER. For answer to the petition of the plaintiff herein, the defend- ant denies that he withholds possession of said premises in the petition described from the plaintiff, or any part thereof. Wherefore, he asks for judgment against the plaintiff; that he go hence without day, and that he recover his costs herein. Attorneys for Defendant. Sec. 1156. The verdict of the jury. District Court of County, State of Oklahoma. , Plaintiff, vs. No. , Defendant. Now, on this day of , 19—, come the parties herein in person and by their attorneys, and both sides having announced ready for trial, a jury is called to try this cause, and come as follows : , , , , , > , , , , and , who, hav- ing been duly impaneled and sworn to try this cause, and having heard all the evidence introduced by the plaintiff and defendant, received the instructions of the court, and heard the argument of counsel, now retire to their jury room in charge of a sworn bailiff, to consider their verdict. And afterward, said jury return into open court the following verdict: District Court, County, State of Oklahoma. . , Plaintiff f vs. No. . , Defendant. 835 REAL ACTIONS. — STATUTORY. § 1157 VERDICT. "We, the jury in tlie above entitled action, duly impaneled and sworn, upon our oaths, find the issues in favor of the plaintiff, and that he is entitled to $ damages. Foreman. Sec. 1157. Instructions to the jury. District Court, County, State of Oklahoma. , Plaintiff, vs. No. ■ , Defendant. CHARGE OF THE COURT. Gentlemen of the Jury: The plaintiff brings suit to recover possession of the following described real estate, to-wit: (Here specifically describe same), and damages for the detention thereof. (Here state the issues raised by the pleadings and the evidence.) You are the sole judges of the facts proven, and of the credi- bility of the witnesses, and the court instructs you as to the law of the case as follows: The burden rests upon the plaintiff to prove to your satisfac- tion, by a preponderance of the evidence, that he bought the land of , as alleged in his petition herein, and on the terms as stated therein. And by the preponderance of the evi- dence is meant the greater weight of the evidence, and not, necessarily, the greater number of witnesses who testified on one side or the other. (Here give further instructions applicable to the case in hand.) Nine of your number concurring, may return a verdict for either plaintiff or defendant. If nine, or less than twelve agree, these nine must sign the verdict. If your verdict is unanimous, have the same signed by your foreman, and return with it into court. , Judge of said Court. §§1158,1159 merwine's trial of title to land. 836 Sec. 1153. Motion for new trial. District Court, County, State of Oklahoma. , Plaintiff, vs. No. . -, Defendant. MOTION FOK NEW TRIAL. Comes DOW the defendant and moves the court to vacate and set aside the verdict and judgment herein and grant a new trial for the following causes, which affect materially the substantial rights of the defendant : 1. Said verdict and judgment are not sustained by sufficient evidence. 2. Said verdict is contrary to law. 3. Errors of law occurring at the trial and excepted to by defendant. 4. Error of the court in giving the following instructions: (Here state same.) 5. Error of the court in refusing to give the following writ- ten instructions at the request of the defendant: (Here give same.) , Attorney for Defendant. Sec. 1159. Judgment sustaining motion for new trial. District Court, County, State of Oklahoma. , Plaintiff, vs. No. , Defendant. JUDGMENT SUSTAINING MOTION FOR NEW TRIAL. This cause coming on for hearing this day of , 19 — , upon the motion for new trial heretofore filed herein by 837 REAL. ACTIONS. — STATUTORY. § 1160 the defendant, plaintiff appearing by his attorneys, , and the defendant, by his attorney, , the same being heard, and the court being fully advised in the premises, upon due con- sideration thereof, the court finds said motion to be well taken, and sustains the same and grants a new trial. Judge of said District Court. Sec. 1160. Form for judgment for plaintiff on the verdict. District Court, County, State of OkllIHOMa. , Plaintiff, vs. , Defendant. No. JUDGMENT. This day came the parties by their attorneys, and also came a jury, to-wit : , , — , , , and , who, being impaneled, sworn and charged to speak the truth upon the issues joined between the parties, upon their oaths do say that tiie said is guilty of unlawfully keeping said out of possession of said real estate, described as follows, to-wit: (Here specifically describe same), and they assess the damage of the said plaintiff, by reason thereof, in the sum of $ , the value of the rents and profits thereof during said withholding of the possession thereof. It is Therefore considered that the said plaintiff recover judgment against said defendant for the possession of said real estate found by said verdict to be so wrongfully in the posses- sion of said defendant, and also the sum of $ , his said damages, by the jurors fixed and assessed, together with his costs herein expended, taxed at $ . ~" ) Judge of said Court. §§ 1161, 1162 merwine's trial of title to land. 838 Sec. 1161. Form for judgment on verdict for defendant. District Court, County, State op Oklahoma. , Plaintiff, vs. No. , Defendant. JUDOI\rENT FOR DEFENDANT. This day came the parties by their attorneys, and thereupon came a jury, to-wit: , , , ^ ' J , , , , and , who, being impaneled and sworn as a jury, to speak the truth upon the issues joined between the parties upon their oaths, do say that the said is not guilty, in manner and form, as said plaintiff in his petition has complained against him. Tt is Therefore considered that said defendant go hence without day and recover of said plaintiff his costs herein ex- pended, taxed at $ . Judge of said Court. Sec. 1162. The writ of possession or habere facias posses- sionem. State of Oklahoma, County, ss. : To the Sheriff of said County, Greeting: Where.^s, , on the day of , 19— in our district court within and for County, by a judgment of said court, recovered against , a judgment for the pos- session of the following described real estate, to-wit: (Here specifically describe same), together with $ damages and $ costs. Therefore, we command you, that, without delay, you cause the said to have possession of said real estate, with the appurtenances, from the said , or any person who has come m under him pending this suit, and in what manner you shall have executed this, our command, in 'this behalf, make 839 REAL ACTIONS. — STATUTORY. § 1162 appear to our said district court, on or before the day of , 19-. We also command you that of the goods and chattels, and for want thereof, then, of the lands and tenements of the said , in your bailiwick, you cause to be made the sum of $ damages, and $ costs of suit, with interest thereon, from the day of , 19 — , which the said , on the day and year first aforesaid, by the judgment of the same court, recovered against the said , whereof the said is also convicted, as appears to us, of record, and have you said moneys before our said district court aforesaid, on the day of , 19 — , to render, etc. And have you then and there this writ. "Witness , clerk of our said district court, at , this day of , 19 — . Clerk of said District Court. By , Deputy. §1163 merwine's trial of title to land. 840 2. THE OCCUPYING CLAIMANT'S LAW. SECTION 1163. Preliminary statement. 1164. In what cases the occupying claimant may not be evicted until improvements are paid for. xl65. Occupant must have "color of title" — ^Definition of term. 1166. Instances where occupant not allowed for improvements. 1167. Improvements for which the occupant may be paid. 1168. The right to set off rents against the value of im- provements. !*169. Tax title which will support tlie claim for improvements. 1170. Construction of the occupying claimant statutes. 1171. Occupying claimant's law — ■ Specific findings of the court — Three disinterested freeholders, appraisement — • Jury impaneled, when. SECTION 1172. Judgment for value of improve- ments — Execution thereon. 1173. Value between rents and im- provements before writ of ouster issue — Appeal. 1174. Writ of possession, when — Issued in favor of successful claimant. 1175. Lands sold by executor, ad- ministrator or guardian — • Sheriff or commissioner — Recorded — Plaintiff not en- titled to possession, when. 1175a. Special instance where im- provement allowed under void tax deed. 1175b. Improvements — Indian lands. Sec. 1163. Preliminary statement. It is a rule of law that any permanent improvement, at- tached to real estate so as to become a part and parcel of it, is a fixture, and is a part of the real estate and becomes the property of the person who has title to the real estate to which it is attached. At common law it was the rule that in ejectment the plaintiff, on recovery, would not be liable to the party in possession for the permanent improvements placed on the real estate. In order to do justice to those who have gone into possession of real estate under color of title, and have made valuable and lasting improvements thereon, in good faith, the Legislature has enacted laws giving the party in possession the right to recover the value of the improvements in case he is evicted by someone hold- ing a paramount title to the real estate. These statutes are known and designated as the occupying claimant's laws. 841 REAL ACTIONS. — STATUTORY. § 1164 Sec. 1164. In what cases the occupying claimant may not be evicted until improvements are paid for. In all cases any occupjdng claimant being in quiet pos- session of any lands or tenements, for which such person can show a plain and connected title in law or equity, derived from the records of some public office, or being in quiet possession of, and holding the same by deed, devise, descent, contract, bond, or agreement from and under any person claiming title as aforesaid, derived from the records of some public office, or by deed, duly authenticated and recorded; or being in quiet possession of, and holding the same under sale on execution, or order of sale, against any person claim- ing title as aforesaid, derived from the records of some public office, or by deed, duly authenticated and recorded; or being in possession of and holding any land under any sale for taxes authorized by the laws of this State, or the laws of the State of Oklahoma, or any person or persons who have made a J)07ia fide settlement and improvements which he, she or they still occupy upon any of the Indian lands lying in this State, or any lands held in trust for the benefit of any Indian tribe at the date of such settlement, or which may have heretofore been Indian lands, and which were vacant and unoccupied at the date of such settlement, and where the records of the county show no title or claim of any person or persons, to said lands, at the time of such settlement ; or any person in quiet possession of any land claiming title thereto, and holding the same under a sale and conveyance made by executors, administrators or guard- ians, or by any other person or persons in pursuance of any order of court or decree in chancery where lands are or have been directed to be sold and the purchasers thereof have obtained title to and possession of the same without any fraud or collusion on his, her or their part, shall not be evicted or thrown out of possession by any person or persons who shall set up and prove an adverse and better title to said lands until said occupying claimant, his, her or their heirs, shall be paid the full value of all lasting and valuable im- § 1165 merwine's trial of title to land. 842 provements made on such lands by such occupying claimant, or by the person or persons under whom he, she or they may hold the same previous to receiving actual notice by the commencement of suit on such adverse claim by which evic- tion may be effected/ Sec. 1165. Occupant must have "color of title" — Definition of term. The name of this subject indicates that only those persons who occupy real estate under the notion that they are the owners and have the title can claim for any permanent and lasting improvements placed thereon. The right to claim for improvements under what is known as the Occupying Claim- ant's Law, does not go to one who places the improvements on land with the certain knowledge that his interest in the land shall eventually be extinguished ; as, where one has a short time lease on land, and makes valuable and lasting improvements, at the time knowing that his leasehold interest will soon terminate. The Supreme Court of our State has so held.- The court, in the case just cited, held that further, who calls to his aid the terms of this statute must be one who claims the land upon which are lasting and valuable improve- ments by ''color of title;" and the court, in defining what "color of title" is, adopts the language of the decisions in other States. It says that an "instrument by color of title, is one having a grantor and grantee, and containing a description of the lands intended to be conveyed, and apt words for their conveyance" gives color of title. The in- strument in such cases usually purports to be a conveyance of title, and because it does not, for some reason have that effect, it passes only color, or the semblance, of title. It makes no difference whether the instrument fails to pass an absolute title because the grantor had none to convey, or 1 Snyder, 6,128; Wilson, 4,794; 2 Woodruff v. Wallace, 3 Okla. Kansas, 5,088 (1801), identical. 355, 41 Paes 357. 843 REAL ACTIONS. — STATUTORY. §1165 had no authority in law or in fact to convey one, or whether such want of authority appears on the face of the instru- ment, or aliunde. The instrument fails to pass an absolute title for the reason that the grantor was not possessed of some one or more of these requisites, and therefore gives the semblance or color only of what its effect would be, were they not wanting.' 3 Woodruff V. Wallace, 3 Okla. 55, 41 Pac. 363. In Wright v. Mathew- son, 18 Howard, 56, the Supreme Court of the United States said on this subject: "The courts have concurred, it is believed, without an exception, in defining color of title to be that which in appear- ance is title, but which in reality is no title. It is useless to quote further upon this subject, as all the cases and textbooks seem to coin- cide upon the question that no person having a deed or instrument from a grantor can claim color of title, except he has what purports upon its face, to be an instrument conveying title. It is claimed in said motion that Province entered upon the land in good faith, under a contract with one Crawford, who Province believed was in the lawful possession of the premises, and under such contract made valuable improvements of a permanent and lasting character thereon. In the same paragraph, Province states the character of Crawford's riijht in the land, and shows that Crawford had no claim of any kind in the same. This showing is insufficient upon which to base the right of an occu- pying claimant. In order to suc- cessfully assert such a right, under our statute, the person so claiming must show a 'plain and connected title in law or equity, derived from the record of some public office, or being in quiet possession of and holding the same by deed, devise, descent, contract, bond, or agree- ment from and under any person claiming title as aforesaid, derived from the records of some public office.' No showing of this kind is attempted, and as -against Lovi, defendant Province was a mere tres- passer, without right of any kind in the possession of the premises. Province v. Lovi, 4 Okla. 672, 47 Pac. 476; Krause v. Means, 12 Kan. 335; Jay v. Granby, 15 Kan. 173; C. B., etc., Co. v. Hardenbrook, 21 Kan. 440; Stevens v. Ballou, 25 Kan. 618. One who is in equitable possession of land, and holding the same by bond from and under any person claiming title by a deed duly authenticated and recorded, is entitled, under the second clause of Sec. 601 of the Code of 1868, to the benefits of the Occupying Claim- ant's Law. Where there is duly recorded a regular succession of conveyances, which appear upon their face in proper form and valid, from the original vendee of the government, but no title is actually passed by reason of personal dis- ability to convey in some grantor, the party in equitable possession and claiming by said chain of title, is entitled under the last clause cf said Sec. 601, to the benefits of the act." Krause v. Means, 12 Kan. 2G5; North v. Moore, 8 Kan. 103. , § 1166 mebwine's trial of title to Lu\nd. 844 Sec. 1166. Instances where occupant not allowed for im- provements. It has been held that a quitclaim deed from a mere tres- passer, although duly recorded, does not make a "plain and connected title in law or equity" which entitled a party to relief under the first clause of the Occupying Claimant Law of Kansas.* An Indian owner of land, under the treaty and stipula- tions which provided that land shall be exempt from levy, taxation or sale, and shall be alienable in fee or leased, or otherwise disposed of, only to the United States, or to per- sons then being members of the Pottawatomie tribe, and by an Indian subject, with the permission of the President, under such regulations as the secretary of the interior shall direct, cannot be C(>rri])ell(^d to pay for improvements on thu premises under the Occupying Claimant Act.^ The purchaser of real property bound by a judgment lien of which he had knowledge at the time of the purchase, is not entitled to the benefit of the Occupying Claimant Act against a purchaser at a judicial sale in proceedings to en- force the lien.® An agent who rented land for a nonresident, made a con- tract for its sale without authority from the owner. The purchaser went into possession under the contract and made * Jay V. Granby, 15 Kan. 172. balance, received from the proper 5 Maynes v. Veale, et al., 20 Kan. officers, a patent for the land. B 374. "June 20, 1871, N purchased thereupon brought an action of from the State of Kansas a tract ejectment, and obtained judgment of school land, made two annual for the possession of the land, payments, and then defaulted. Sub- Held, that N was not entitled to the sequently, the land was assessed for benefit of the Occupying Claimant taxes and sold therefor to the Law." Newland v. Baker, 26 Kan. county. Thereafter, B paid to the 341; see, also, on this subject, county treasurer the full amount State v. Emmert, 19 Kan. 546; of the delinquent taxes, took an Ewing v. Baldwin, 24 Kan. 82; assignment of the sale certificate Reynolds v. Reynolds, 30 Kan. 97. from the county, and then paid the 6 Rounsaville v. Hazen, 39 Kan. balance due to the State school 610, 18 Pac. 689. fund, and upon payment of this » 845 REAL ACTIONS. — STATUTORY. §§ 1167, 1168 improvements without the knowledge or consent of the principal. The owner repudiated the contract of sale. In this instance the owner was not chargeable with the value of the improvements made by said purchaser. '^ Sec. 1167. Improvements for which the occupant may be paid. Under the Occupying Claimant Law, the party in possession is entitled to pay for all lasting and valuable improvements, and such improvements would include a sidewalk extending along the side of the property where the sidewalk was neces- sary to the property, or ordered or directed by law, or by the ordinance of a city.^ In other instances, it has been held that the erection of a house, is placing on real estate a valuable and lasting im- provement ; in another instance, the replacing of old buildings with new and better ones constitutes a lasting and valuable improvement. In another case, the placing of an additional floor in a building; in another, the digging of a well; in another, the erection of fences; in another, the clearing of unimproved lands ; in another, the planting of fruit trees.® Sec. 1168. The right to set off rents against the value of im- provements. The Supreme Court of the State of Kansas, in a very interesting decision, construing the law as it existed in that State, stated that the Occupying Claimant Law, as it then existed, was passed by the Legislature in 1868, except that sections 601 and 608 of said law were amended in 1873. Said sections 601 and 608 had the force and effect to so modify the other sections of the Occupying Claimant Law that the occupying claimant who had made lasting and valuable im- 7 ToplifT V. Shadwell, 68 Kan. s Pacqueth v. Pickness, 19 Wis. 317, 74 Pac. 1,120. 219; Petit v. Flint, 78 N. W. sllentig V. Reddin, 38 Kan. 496, (Mich.) 554; Parker v. Western, 48 16 Pac. 821. N. J. Eq. 94; €osgrove v. Merz, 37 Atl. 704 (R. I. 1897). §1169 merwine's trial of title to land. 846 provements on the land, and who is entitled to the benefit of the Occupying Claimant Law will never forfeit his right to the improvements, or else to compensation therefor, and no writ of eviction could ever be issued against him, to dis- possess him until he had been paid the assessed amount of his improvements; but said sections 601 and 608 do not so modify or change the Occupying Claimant Law as to take away the right of the successful claimant, who has been adjudged to be the owner of the land to elect to take the value of the land instead of the laud itself; and under the Occupying Claimant Law as it now exists, it is the duty of the court to permit such successful claimant and owner to elect to take the value of the land instead of the land itself, if the owner so chooses, and to fix some reasonable time within which the occupying claimant shall pay to the owner the value of the land as assessed by jury/" Sec. 1169. Tax title which will support the claim for im- provements. The title, by which the successful claimant succeeds against the occupying claimant, in all cases of lands sold for taxes, by virtue of any of the laws of this State, shall be considered an adverse and better title, under the provisions of this article, whether it be the title under which the taxes were due, and for which said land was sold, or any other title or claim whatever; and the occupying claimant holding pos- session of land sold for taxes, as aforesaid, having the deed of a collector of taxes or county clerk for such sale for taxes, or a certificate of sale of said land from a collector of taxes or a county treasurer, or shall claim under the 10 Stevens v. Ballou, 27 Kan. 63. it was worth $12.00 per month. In Deitzler v. Wilhite, 55 Kan. 200, Held, that the plaintiff has no 40 Pac. 272, the defendant took right, either under the Occupyin.^ possession under a void tax deed of Claimant's Act, or the principles of a vacant lot and erected a valuable equity, to rent for the improve- house thereon. The lot without ments erected by the defendant improvements had but a trifling accruing prior to the service of sum- rental value. With improvements mona in the action. 847 REAL ACTIONS. — STATUTORY. §§ 1170, 1171 person or persons who hold such deed or certificate, or any- other title or claim whatever, shall be considered as having sufficient title to said land to demand the value of improve- ments under the provisions of this article.^^ Sec. 1170. Construction of the occupying claimant statutes. The Supreme Court of Kansas adopts a broad and liberal construction of this statute, holding that the act rests on the broadest equity, and should receive a liberal construc- tion.^^ The adjustment of the rights of occupying claimants is a matter of equitable cognizance; and courts may, in addition to the relief provided by statute and as supplementary thereto, make such orders in such cases as shall be equitable and just in matters not specifically provided for by the statute.^^ Sec. 1171. Occupying claimant's law— Specific findings of the court — Three disinterested freeholders, ap- praisement — Jury impaneled, when. The court rendering judgment in any case provided for by this article against an occupying claimant, shall, at the request of such occupying claimant, for the benefit of the 11 Snyder, 6,129; Wilson, 4,793; He may not go on land in possession Kansas', 5,089 (1901), identical. of another and make improvements X'nder the Kansas statute, a pur- and receive compensation therefor, chaser at a tax sale, whose title in but must first acquire full and an ejectment action is adjudged de- actual possession. Condadt v. Myers fective, is entitled to a recovery of (Kan.), 2 Pac. 858; see, also, Steb- all taxes paid by him and interest bins v. Guthrie, 4 Kan. 302; Bemis thereon, Avhether paid within three v. Becker, 1 Kan. 248; Mercer v. years before the commencement of Justice, 63 Kan. 225, 65 Pac. 219; the action or not. A party is not Hill v. Allison (Kan.), 100 Pac. 651. entitled to the benefit of the Occu- 12 Stebbins v. Guthrie, 4 Kan. pying Claimant Act, or to a 302; Bemis v. Becker, 1 Kan. 248. recovery for the value of the im- i3 Mercer v. Justice, 63 Kan. 225, provements made by him, unless at 65 Pac. 219. the time of such improvements he has the full and actual possession. § 1171 merwine's trial of title to land. 848 provisions of this article, cause an entry to be made upon the journal of such refjuest, and shall at once set a day for the trial of the right of such occupying claimant to com- pensation for all lasting, valuable and permanent improve- ments made by such occupying claimant, or those under whom he claims upon the premises prior to the issuing of summons in the cause, and at such trial each party shall pro- duce his evidence relating to such improvements, and the court shall make specific findings of fact on all matters re- lating to the right of such occupying claimant to compensa- tion for such improvements, and shall find specifically whether such improvements were made in good faith and under color of title, and whether the occupying claimant is entitled to the benefit of this article, which findings shall be entered of length upon the journal, and if the court shall find that the occupying claimant is entitled to compensation for such improvements, it shall at once appoint three dis- interested freeholders of the county who shall have the qualifications of jurors in the cause, to assess the actual value of the improvements on the date of the assessment, of which appointment and the date of assessment all parties to the action shall have five days' actual notice; also the rental value of the premises from the date of the summons to the date of the appraisement; also the actual value of the land without the improvements; which assessments shall be made upon actual view of the premises, and said appraisers shall reduce their appraisement to writing and return the same to the court or clerk thereof forthwith; and upon such report the court shall render judgment in accordance there- with : Provided, that if either party shall at any time before the return and filing of the report of the appraisers, demand a trial by jury, the court shall at once discharge the ap- praisers and impanel a jury to find the facts and make the assessment of value which the appraisers were to make, which trial shall be had in open court and upon proofs to be ad- duced by the parties, and the trial shall be conducted in all respects as other jury trials, and the court may, ia its dis- 849 REAL ACTIONS. — STATUTORY. §§1172,1173 cretion, send the jury to take an actual view of the prem- ises, and the said jurj- shall return their findings of value into court, and the court shall then enter judgment in ac- cordance with such findings: Provided, that if either party deem himself aggrieved by such assessment of values or findings of the court, he may, upon motion and proper show- ing, obtain a new trial as in other cases under the code of civil procedure of this State.^* Sec. 1172. Judgment for value of improvements— Execution thereof. If the jurors shall report a sum in favor of the plaintiff or plaintiffs in said action, for the recovery of real property on the assessment and valuation of the valuable and lasting improvements, and the assessment of damages for waste, and the net annual value of the rents and profits, the court shall render a judgment therefor without pleadings, and issue execution thereon as in other cases; or if no excess be reported in favor of said plaintiff or plaintiffs, then, and in either case, the said plaintiff or plaintiffs shall be thereby barred from having or maintaining any action for mesne profits.^^ Sec. 1173. Value between rents and improvements before writ of ouster issue — Appeal. If the appraisers or jury appointed or impaneled as herein- before provided under the provisions of this act, shall find the value of the improvement is greater than the value of the rents and damages and waste, then the court shall enter "Snyder, 6,130; Wilson, 4,796. disturbed on ex parie affidavits. For questions of practice under the Xorth v. IMoore, 8 Kan. 143. The Occupying Claimant's Law of the rule of estoppel. Bradley v. Rogers, State " of Kansas, see Bauder v. 33 Kan. 120. Waivers of errors in Bryan, 20 Kan. 369. As to notice the action. Price v. Allen, 39 Kan. in writing to adverse party, see 476, 18 Pac. 609. Lemert v. Barnes, 18 Kan. 9, as to i= Snyder, 6,131; Wilson, 4,504; the allegations of the pleadings. Kansas, 4,708 (1889). The finding of the jury will not be § 1174 merwine's trial of title to land. 850 judgment that the successful claimant pay to the clerk of the court for the use of the occupying claimant the full amount of the excess of the value of the improvements over the value of the rents, damages and waste before the writ of ouster shall issue : Provided, if either party shall deem him- self aggrieved by the judgment and shall desire to contest either or both the findings of the court or the appraisement of the appraisers, or the jury herein provided for, by appeals or otherwise, to a higher court, and the successful claimant shall execute an undertaking to the occupying claimant in double the amount of the excess in value as found by the appraisers or the jury, with good and sufiRcient surety to be approved by the clerk of the court, conditioned that he will pay such excess with interest from the date of the judgment, if the judgment be affirmed by the appellate court, then the writ of ouster shall, at the request of the successful claimant, issue at once/® Sec. 1174. Writ of possession, when — Issued in favor of suc- cessful claimant. If the successful claimant, his heirs, or the guardians of said heirs, they being minors, shall elect to receive the value without improvements so as aforesaid assessed, to be paid by the occupying claimant within such reasonable time as the court may allow, and shall tender a general warranty deed of the land in question, conveying such adverse or better title within said time allowed by the court for the payment of the money in this section mentioned, and the occupying claimant shall refuse or neglect to pay said money to the successful claimant, his heirs or their guardians, within the time limited as aforesaid, then a writ of possession shall be issued in favor of said successful claimant, his heirs or their guardians.^^ 18 Snyder, 6,132; Wilson, 4,798. Price v. Allen, 39 Kan. 476, 18 17 Snyder, G,133; Wilson, 4,799; Pac. 609; Stevens v. Ballou, 27 Kansas, 5,097 (1901), identical; Kan. 595. 851 REAL ACTIONS. — STATUTORY. §§ 1175, 1175a Sec. 1175. Lands sold by executor, administrator or guard- ian — Sheriff or commissioner — Recorded — Plain- tiff not entitled to possession, when. Whenever any land, sold by an executor, administrator, guardian, sheriff or commissioner of court, is afterwards re- covered in the proper action by any person originally liable, or in whose hands the land would be liable to pay the de- mand or judgment for which, or for whose benefit the land was sold, or anyone claiming under such person, the plain- tiff shall not be entitled to the possession of the land until he has refunded the purchase money with interest, deducting therefrom the value of the use, rents and profits, and injury done by waste and cultivation, to be assessed under the pro- visions of this chapter/^ Sec. 1175a. Special instance where improvement allowed under void tax title. M., after the execution to him of a void tax deed, in good faith went into the possession of the lots conveyed and erected thereon improvements to the value of about one thousand dollars. After taking possession of the lots, he borrowed from S. on his promissory note secured by mort- gage on said premises, which money he expended in placing improvements on said lots. Afterward, and after the execu- tion and recordation of said mortgage, M. removed from said premises and leased the same to H., who went into possession as the tenant of M. Afterward ]\I. executed a warranty deed 18 Snyder, 6,134; Wilson, 4,800; shall be issued until the assessment Kansas, 5,100 (1900), identical. of, and the value of the improve- The Act of May 6, 1873, amendatory ment is paid. In substance, it only to Sees. 601 and 608, of Art. 25, requires that the value of the Chap. 80, Gen. St., for the relief of improvements shall be paid as a occupying claimants, is constitu- condition precedent to the entry tional and valid so far as providing into possession by the owner, and that no writ or process for the does not give the occupying claim- eviction of a claimant, entitled ant the option to keep the land, thereunder to the valuation of his Clay pool v. King, 21 Kan. 434. lasting and valuable improvements, § 1175b merwine's trial of title to land. 852 to said lots to 11., who was and still is in possession. Upon a suit to foreclose the said mortgage, S., upon equitable grounds, was entitled to the benefit of the occupying claim- ant's act.^° Where, in a suit commenced on the twenty-third day of March, nineteen hundred and four, to cancel the deed to a homestead executed by plaintiff to defendant on the eighteenth day of February, eighteen ninety-seven, defendant died in possession, pending the submission and before the decision in this court, and where the mandate sent down was recalled, and, as again sent doAvn, ordered, among other things, the deed set aside and plaintiff put into possession, but left open the question of the rights of occupying claimants; held, that defendant, if living, or his heirs, if dead, in quiet possession of the land from the date of said deed, should be permitted to come in and assert their rights under the statute.* Sec. 1175b. Improvements — Indian lands. Any person being a noncitizen in possession of lands, hold- ing the possession thereof under a lease, or improvement contract with either of said nations or tribes, or any citizen thereof, executed prior to the first day of January, eighteen 19 Standifer v. Morris, 25 Okla. rations upon it in good faith and 802, 108 Pac. 413. The court in under an honest belief of owner- this action quoted with approval ship, and the real owner is for any the following: "The adjustment of reason compelled to come into a the rights of occupying claimants court of equity for relief, that court, is a matter of equitable cognizance, applying the familiar maxim that and courts may, in addition to the he who seeks equity must do equity, relief provided by statute, and as will compel him to pay for those supplementary thereto, make such improvements, as far as they are orders as are equitable and just in permanently beneficial to the estate matters not specifically provided for and enhance its value. Story on by statute. Mercer v. Justice, 63 Equity Jurisprudence, Sec. 779; Kan. 225, 65 Pac. 219; Cleland v. Pomeroy on Equity Jurisprudence, C. Clark, 123 Mich. 179, 81 N. W. Sec. 1,241 (2d ed.)." 1,086, 81 Am. St. Rep. 161. It is * Snyder Stat., 6,128 and 6,130. a well-settled principle of equity, Hewitt v, Goldenborough, 29 Okla. moreover, that when a bona fide 667. possessor of property makes melio- 853 REAL ACTIONS. — STATUTORY. § 1175b hundred and ninety-eight, may, as to lands not exceeding in amount one hundred and sixty acres, in defense of any action for the possession of said lands show that he is and has been in the peaceable possession thereof, and that he has while in such possession made valuable and lasting improve- ments thereon, and that he has not enjoyed the possession thereof a sufficient length of time to compensate him for such improvements. Thereupon the court or jury trying such cause shall determine the fair and reasonable value of such improvements and the fair and reasonable rental value of said lands for the time the same shall have been occupied by such person, and if the improvements exceed in value the amount of rents with which such person should be charged the court, in its judgment, shall specify such time as wdll, in the opinion of the court, compensate such person for the balance due, and award him possession for such time unless the amount be paid by claimant within such reason- able time as the court shall specify. If the finding be that the amount of rents exceed the value of the improvements, judgment shall be rendered against the defendant for such sum, for which execution may issue.-" 20 Act June 28, 1898; 30 Stat. L. 495, §1176 MEBWINE'S trial of title to LuVND, 854 3. THE PROCEDURE BY WHICH TITLE TO REAL ESTATE IS QUIETED. SECTION 1176. The statutory action to quiet title. 1177. The equitable action to quiet title. 1178. The nature of the action. 1179. Sufficiency of the allegations of the petition to quiet title. 1180. Answers and cross-petitions in the action. 1181. A person having no interest in real estate cannot main- tain the action to quiet title thereto. 1182. Awarding costs when dis- claimer is filed by a defend- ant. 1183. The nature and effect of a decree quieting title. 1184. Injunction against defendants may be demanded, when. 1185. The ordinary form for the petition to quiet title. 1186. Form for the petition to quiet title to land devised to de- scend to brothers, etc., in case of death without heirs. SECTION 1187. Form for the petition in an action to quiet title and to enjoin judicial sale. 1188. Form for the answer in action to quiet title of adverse pos- session for more than years. 1189. Form for the judgment and decree of the court in the action to quiet title. 1190. Procedure by which title to real estate is quieted — The form for the petition. Form for praecipe for sum- mons. Form for the summons. Form for waiver of summons and entry of appearance. 1194. Form for motion for appoint- ment of guardian ad litem for minor defendants. 1195. Order appointing guardian ad litem for minor defendants. 1196. The answer of the guardian ad litem. 1197. The decree of the court quiet- ing title. 1191. 1102 1193 Sec. 1176. The statutory action to quiet title. It is provided by statute that an action may be brought by any person in possession, by himself or tenant, of real estate, against any person who claims an estate or any interest therein adverse to him, for the purpose of determin- ing such adverse estate or interest, and said action may be joined with an action to recover possession of such real property by any person not in possession.^ This statute has done away with much of the law concern- ing the procedure in the action to quiet title. Heretofore the lAct of January 25, Wll; S. L. 1910-1911, page 26. S55 REAL ACTIONS. — STATUTORY. § 1177 action to quiet title could only be brought by one in pos- session, unless the land should be wild and unoccupied by anyone. However, in some jurisdictions the courts have held that anyone claiming an equitable estate in the real estate could have his action to quiet the title though out of pos- session of the same.- ^ Sec. 1177. The equitable action to quiet title. Before the enactment of this statute providing for the present action to quiet title, the action was begun by a bill in chancery, and was entertained exclusively within the jurisdiction of the chancery courts.^ An action quia timet may be brought in equity and this has always been the rule of law in the code States.* The Supreme Court of the State of Kansas has, in a well considered case, very plainly set forth the principles involved in the equitable action to quiet title. It has said that in an action to remove a cloud on the title, when the petition set out all the facts similar to a bill in equity and independent of the statutory regulations, it is not necessary to allege that the plaintiff was in possession of the premises.^ The statute in regard to the quieting of titles did not take away any of the previously existing equitable remedies. The case under consideration comes with a well understood rule of equity jurisprudence, and is independent of statutory regulations. The relief in such cases is of a kind given under the old practice only in courts of equity, and in cases outside the limits of the statute; and the facts must be fully stated, substantially as in a bill in equity under the former chancery practice.^ 2 Taylor v. Springs, 11 Okln. 710, 5 Grove v. Jennings, 46 Kan. 3G6, 69 Pac. 64; Womble v. Pike, 17 26 Pac. 73S. Okla. 122, 87 Pac. 427. ® Grove v. Jennings, 46 Kan. 366, 3 2 Yaple's Code Prac. and Prec, 26 Pac. 730; Douglass v. Nii7Aim. ggp 773 16 Kan. 515; Pettit v. Shepherd, ^ 4r)uhme V. Mahner. 18 C. C. 707; 5 Paige, 501; Field v. Holbrook, 6 Darlington v. Compton, 20 C. C. Duer, 597 ; Jones v. Smith, 22 Mich. 242. 360. § 1178 MER wine's trial op title to land. 856 Under this rule of equity practice a person who holds the legal title to land, though not in possession, may, inde- pendently of the statute, maintain a suit in equity to remove a cloud on his title, and in such suit the court may decree the reformation or cancellation of records, and the execu- tion of deeds or releases." Under the laws in force in the Indian Territory at the time of the erection of the State, where one holding an equitable title only to land comes into a court of equity, to impeach or cancel or compel a conveyance of the legal title, or the cancellation of an inferior equitable title, the jurisdiction of the court in no wise depends upon the questions of pos- session.^ Sec. 1178. The nature of the action. The purpose of the action was to suppress litigation and prevent multiplicity of suits. The action should be granted in every case in which a claim or lien on real estate seems to be asserted or exists to the end that the land should be freed from every lurking and unsubstantiated claim, for even the suspicion of such claim, no matter how ill-founded, affects the value when on sale. The essential elements of the old action qiiia timet — ne in juste — was the apprehension of some injury at the hands of the defendant, some loss to be occasioned to the plaintiff by the defendant's act or omission in case of delay. The bill must be to suppress litigation. 7 Hager v. Shindler, 29 Cal. 47 ; « Wheatland v. Dowden, 26 Okla. Thompson v. Lynch, 29 Cal. 18"; 441, 10 Pac. 899; Branch v. Kennedy v. Northrup, 15 111. 148; Mitchell, 24 Ark. 431; Lawrence v. Eedmond v. Packenham, 66 111. 434; Zimpleman, 37 Ark. 643; Byers v. Booth V. Wiley, 102 111. 84; Tabor Danley, 27 Ark. 77; Miiler v. V. Cook, 15 :Mich. 322; Ormsby v. Xieman, 27 Ark. 233;' Chaplin v. Barr, 22 Mich. 80; King v. Car- Holmes, 27 Ark. 414; Sale v. penter, 37 Mich. 363; Low v. McLean, 29 Ark. 612;' Crane v. Staples, 2 Nev. 209-. Almony v. Eandolph, 30 Ark. 579; Bryan v! Hicks, 3 Head, 39; Pier v. City, Winburn, 43 Ark. 28. 38 Wis. 470; Biince v. Gallagher, 5 Blatchf. 481: Bowdish v. Metz- ger, 71 Kan. 753, 81 Pac. 484. 857 REAL ACTIONS. — STATUTORY. § 1178 In the action to quiet title under the statute there must be claim of present right by the defendants capable of being enforced by action or by their own act, and which, if en- forced, would interfere with the plaintiff's enjoyment of the property.® The adverse claim need not relate to or affect the right of present possession. A party in possession claiming a fee may bring the action against a party who asserts title in remainder, who insists that the party in possession has only a life estate.* It would seem that the statute is intended to embrace every description of claim w^iereby the plaintiff' might be deprived of the property or its title clouded, or its value depreciated. The plaintiff has the right to be quieted in his title whenever any claim is made to real estate of which he is in posses- sion, the effect of which claim might be litigation or loss by him of the property." The action may be maintained to require the setting up and the cancellation of instruments which are voidable, or instru- ments which are in reality void and yet apparently valid.^'^ But the statutory action to quiet title can never be used for the sole purpose of getting information from the courts as to plaintiff's rights, t for it has always been the policy of courts not to allow the bringing of an action when no relief is sought beyond the advice of the courts as to the rights of parties.^- It is sufficient that the claim of defendant casts a cloud upon the title. No matter how slight it is, the court will enter a decree of removal. ^^ In an action to quiet title, if plaintiff shows peaceable pos- session under a conveyance, even though defective, and the 9 Collins r. Collins. 19 0. S. 471. f Wabash, etc., v. Toledo, etc., 7 * Rhea v. Dick. 34 0. S. 420. X. P. 198. 10 Rhea V. Dick, 34 0. S. 424; 12 Collins v. Collins. 19 0. S. 468; Bogert V. City, 27 N. J. Eq. 568; Cory v. Fleming, 29 0. S. 147; Douglass V. Scott, 5 Ohio, 195 ; Railway v. Commissioners, 30 0. S. Joyce V. :^.IcAvoy, 31 Cal. 274. 120; Rothgeb v. Monk, 35 0. S. 503. 11 Duhme v. Mahner, 18 C. C. 708. i3 Lowemiller v. Fouser, 52 O. S. 123. § 1178 MER wine's trial of title to land, 858 defendant shows no title or right, the plaintiff is entitled to have his title quieted as against said defendant and those claiming under him." The action will lie to correct a mis- take in the execution of a conveyance ; ^^ to correct a deed destroyed by parties under a misapprehension that the de- struction of the instrument reconveyed title ; ^^ to correct an invalid mechanic's lien ; ^^ to determine claim of city as to ownership of part of a street ; ^^ to clear a cloud on title caused by defective highway proceedings ; ^^ to remove un- founded claim of certain rights under a forfeited gas lease ; -° to remove cloud against title caused by an invalid mort- gage ; ^^ to satisfy loss on real estate, sought to be held under foreclosure of mortgage ; " to clear title to real estate by adverse possession ; ^^ to remove a cloud upon title occasioned by terms in a will.-* Where the title of a party to real estate is evidenced by quitclaim deed, and the adverse claimant claims under a sheriff's deed upon a judgment and execution against a debtor, who it is not shown ever had title, either in law or equity, the title conveyed by quitclaim deed will be held to be paramount; and where a defendant in an action to quiet title, filed an answer setting up paramount title in himself, and trial was had, and the question of title fully gone into, submitted to the court, and judgment obtained upon the issue of title alone upon the evidence submitted adversely, and found to be wholly without merit, he is estopped from afterwards denying the right of the plaintiff to maintain 14 Bettor V. Holland, 57 0. S. 505. 21 Bayard v. Ramsey, 2 C. C, 15 Clements v. Noble, 40 0. S. 41. N.S., 492. 16 Spangler V. Dukes, 39 0. S. 642. 22 Winemiller v. Laughlin, 51 17 Baldwin v. Detzel, 1 Iddings O. S. 421. F. R. D. 138. 2.-! Buchanan v. Roy, 2 0. S. 252; 18 Miller v. Cincinnati, 5 C. C. Thomas v. White, 2 0. S. 540; ^^3- Douglass V. Scott, 5 Ohio, 194. 19 Lowemilkr v. Fouser, 52 0. S. 24 Darlington v. Compton, 20 C. C. 123- 242; Rhea v. Dick, 34 0. S. 420. soDettor v. Holland, 57 0. S. 505. 859 RE.VL ACTIONS. — STATUTORY. § 1178 the action, for the reason that plaintiff was not in possession of the real estate in question.-^ That eminent jurist, Judge Pomeroy, in his most excellent work on Equity Jurisprudence, in discussing the nature of the adverse claim against the title to real estate, which will invoke the jurisdiction of the court to cancel it, as a cloud upon such title, says: In general, it may be ^aid that the action may be brought against any person claiming an adverse interest, of whatever kind.-^ The words "claim an estate or interest," which are the usual words of the statute, are used in a broad sense, and are not technical in their meaning.^'^ Though the defendant's claim is worthless and void upon\ its face, yet if it is hostile to the plaintiff and clouds his' title so as to depreciate the market value in the estimation of business men, the action can be maintained.^^ It is also immaterial whether or not the defendant claims under the same or different and independent sources of title from the plaintiff.-^ Neither is it material whether or not the defendant has actually asserted such claim before the commencement of the action, as it is one of the essential features of the action wherein it differs from the original equitable suit to quiet title, that the plaintiff need not wait until proceedings are brought against him.^** 25 Mosier v. Momsen, 13 Okla. 41, immaterial that the adverse claim 74 Pac. 905. is invalid upon its face. Kittle v. 26Landnegan v. Peppin, 94 Cal. Bellagardie, 86 Cal. 556, 25 Pac. 465, 29 Pac. 771; Fry v. Summers, 555; Palmer v, Yorks, 77 Minn. 20, 4 Ida. 424, 39 Pac. 1,118; Clark 79 N. W, 587; Moores v. Claska-' V. Darlington, 7 S. Dak. 148, 58 mas, 40 Ore. 536, 67 Pac. 662; Am. St. Pvep. 835, G3 X. W. 771. Kinsman v. Spokane, 20 Wash. 118, 27 Goldberg v. Taylor, 2 Utah, 72 Am. St. Eep. 24, 54 Pac. 934. 486. 29 Walton v. Perkins, 33 Minn. 28 Campbell v. Disney, 93 Ky. 41, 357, 23 X. W. 527. 18 S. W. 1,027; Bogert v. City, 27 so Buhver v. Standard, 83 Cal. N. J. Eq. 568; Murphy v. Sears, 589, 23 Pac. 1,102; Curtis v. Sutler, 11 Ore. 127, 4 Pac. 471. It is 15 Cal. 289. § 1179 merwine's trial of title to l.\.nd. 860 Sec. 1179. Sufficiency of the allegations of the petition to quiet title. A petition which alleges that the plaintiff claims the title in fee simple to the lands in controversy, describing them, and is in the actual possession thereof, that the defendants claim an estate therein adverse to the plaintiff, the nature of which is set out in general language, and then prays that the defendants and each of them may he required to set forth the nature of their respective claims to said premises, that this court decree that plaintiff's claim and title to said premises is valid and perfect, that the defendants and each of them have no right to any claim thereto, and that they and each and every one of them have no estate or interest in said premises, or any part thereof, and that they and each of them be perpetually barred and enjoined from asserting any claim to said premises adverse to that of the plaintiff, and for such other relief as may be equitable and proper and for costs, will be held sufficient under Section 6121, Snyder's Statutes, Section 4787, Wilson's Statutes, when such petition is attacked by demurrer on the ground that it fails to state facts sufficient to constitute a cause of action.^^ In commenting upon what the petition should contain, the court of another State, whose code of civil procedure is ; similar to that of this State, has said that the plaintiff must state the facts constituting his cause of action in ordinary \ and concise language. It must allege a primary right pos- I sessed by plaintiff and a corresponding duty devolving upon I the defendant, a delict or wrong done by the defendant : which consists of a breach of such primary right and duty, j and a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant springing from this delict, and { finally, the remedy or relief itself. A petition must state the facts which are the occasion of the primary right and duty and facts which constitute the defendant's wrongful act or 31 Lawrence v. Estes, 29 Okla. 328, den, 24 Kan. 662; \Yomble v. Pike, 116 Pac. 780; Cartwrighi v. McFad- 17 Okla. 122^ 87 Pac. 427. 861 REAL ACTIONS. — STATUTORY. §§ 1180-1182 omission. The ownership and possession of the lands ar$ the facts which entitle the plaintiff to hold his title and \ possession in peace, and make it the duty of the defendant not to cast a cloud upon his title, or to interfere with his possession. Asserting a claim or title adverse to the plain- tiff'Ts a delict or wrong on the part of the defendant.^^ The adverse claim of the defendant should be averred. The general language of the petition is that the defendant claims some interest, or pretended interest or title in the premises described adverse to plaintiff, and that the same will be forever barred unless set forth in the action by an appropriate pleading.^^ Sec. 1180. Answers and cross-petitions in the action. Defendants having valid claims should assert them by answers, or by answers and cross-petitions, as in actions in other cases.^* Sec. 1181. A person having no interest in real estate cannot maintain the action to quiet title thereto. A person who has no interest in the title to real estate cannot maintain an action to remove a cloud upon the title thereto.^^ Sec. 1182. Awarding costs when disclaimer is filed by a de- fendant. Under the statute which provides that where defendants disclaim any title or interest in the land or other property, the subject-matter of the action, they shall recover their costs, unless for special reasons the court decides otherwise. (Snyder, 6113; Wilson, 4779.) It has been held that where a defendant in an action to quiet title to real estate, desires 32 Lamb v. Boyd, 4 C. C. 501. 3. -> Lewis v. Clements, 21 Okla. 33Winemiller v. Laughlin, 51 167, 95 Pac. 796. This was an O. S. 421. action concerning land of a citizen 34Watterson v. Ury, 5 C. C. 347. of the Creek nation. §§ 1183-1185 merwine's trial <" title to land. 862 to be discharged without costs, he must file an absolute and unqualified disclaimer to any title or interest in the land which is the subject-matter of the action.^'' Sec. 1183. The nature and effect of a decree quieting- title. The decree quieting title, like every other judgment or decree of court, is not subject to collateral attack. It can be impeached only by an action brought for that purpose. The action is not merely to confirm possession ; it goes much further; it determines all matters in dispute between the parties in the action as to the title. The action when suc- cessfully prosecuted sweeps away all the liens and claims of the defendant, and the judgment of the court is con- clusive as to all the questions within the issue and which might have been litigated." Sec. 1184. Injunction against defendants may be demanded, when. If the plaintiff, in his action to quiet title, has made out a case entitling him to relief against the claims of the defend- ants in the action, he may obtain a perpetual restraining order against the alleged claims of the defendants, provided he has asked in his prayer for relief, an injunction.^^ Sec. 1185. The ordinary form for the petition to quiet title. District Court, County, State of Oklahoma. — , Plaintiff, ^'s. No. . , Defendant. PETITION. Plaintiff says that he is now and for a long time has been and is entitled to be in the possession of certain real property, situ- 36 Moore V. Wallace, 16 Okla. 114, 38 Bartholomew v. Lutheran. 35 82 Pac. 825. 0. S. 567; Marsh v. Reed, 10 0. S. 37Desnoyers v. Dennison, 19 C. C. 47; Pittsburgh v. Railway, 20 C. C. 320. 561. 863 REAL ACTIONS. — STATUTORY. § 1186 ated, lying and being in the county of , State of Okla- homa, and more particularly described as follows, to-wit: (Here describe same) ; that the said plaintiff claims title in fee to said premises ; that the defendant aforesaid claims an estate or in- terest therein adverse to the said plaintiff; that the claim of said defendant is without any right whatever, and that said defendant has not any estate, right, title or interest whatsoever in said land or premises, or any part thereof. Wherefore, plaintiff prays that said defendant be required by appropriate pleading to set forth in this action his alleged claim or interest in said real estate, or be forever barred from asserting the same; that plaintiff's title to said real estate may be forever quieted, and that he may have such other and further relief as the nature of the case may require. Attorney for Plaintiff. Sec. 1186. Form for the petition to quiet title to land de- vised to descend to brothers, etc., in case of death without heirs. District Court, County, State of Oklahoma. , Plaintiff, vs. No. . and , Defendants. PETITION. Plaintiff is the owner in fee simple and holds possession of the following described lands situated in County, Okla- homa, to-wit: (Here specifically describe same), and that the title to said land was derived from his father, , deceased. Plaintiff further alleges that said , deceased, died, leav- ing a last will and testament, which was on the day of , 19 — , duly probated in the county court of County, Oklahoma, and that Item of said will provided as follows : ''I will and bequeath to my daughter , one-half of the farm I now live on, etc. * * * in the event of the death § 1187 merwine's trial of title to land. 864 of S. M., she leaving no legal heirs, then and in that ease, the property above willed is to descend to her brothers and sisters." That the defendants, , and , include all those who now would take under said Item of said will in the contingency provided for by its last clause. Said defendants claim an interest in said premises adverse to plaintiff's right, under and by virtue of said Item of said last will and testament of , deceased, a copy of which is above set forth ; but said plaintiff denies that said defendants, or either of them, have any valid interest therein, yet the claim of de- fendants thereto creates and is a cloud on plaintiff's title to said real estate. Wherefore, plaintiff prays that said defendants, and each of them, be required to come into this ease by appropriate plead- ings, and set forth the nature and kind of their said interests in and to said real estate, or be forever barred from asserting the same; that plaintiff's title to said real estate may be forever quieted and that plaintiff may have such other and further relief as the nature of the case may require. Attorney for Plaintiff. Sec. 1187. Form for the petition in an action to quiet title and to enjoin judicial sale. District Court, County, State of Oklahoma. , Plaintiff, vs. No. . , Defendant. PETITION. Plaintiff says that on the day of , 19 — , the plaintiff was and from thence hitherto, and still is, the owner of the following described real estate, to-wit: (Here describe same) ; that plaintiff purchased said premises on the date afore- said from one for the sum of $ , which sum was duly paid prior to the day of ,.19—, but the legal 865 REAL ACTIONS. — STATUTORY, § 1188 title to said premises has remained in said ; that on the day of , 19 — , one recovered a judgment for the Slim of $ in the district court of County, Oklahoma, against said , and on or about the day of , 19 — , execution was issued on said judgment at the instance of the plaintiff therein and placed in the hands of , sheriff of County, Oklahoma, who, on the day of , 19 — , levied the same upon said real estate as the property of said , and has advertised said real estate for sale on the day of , 19 — , under said execution; that said judgment is not now, nor at any time has been a lien upon said real estate, or any part thereof, as said , since the recovery of said judgment has had no interest therein, what- ever, and the sale of said real estate under said execution will cast a cloud on plaintiff's title to the same. Wherefore, plaintiff prays for an order restraining the sale of said real estate under said execution, and that on the final hearing of said cause, said injunction may be made perpetual, and the defendant be forever enjoined from enforcing said judgment against said real estate; that the title to the same be quieted and confirmed in the plaintiff, and for such other relief as is just and equitable. Attorney for Plaintiff. Sec. 1188. Form for the answer in action to quiet title of adverse possession for more than years. District Court, County, State of Oklahoma. , Plaintiff, No. . vs. , Defendant ANSWER. Comes now the defendant, and, for answer to the petition herein, alleges that on or about the day of , 19 — , defendant purchased said real estate in said petition described. § 1189 merwine's trial op title to land. 866 for a valuable consideration, from said , and that under and hy virtue of said purchase, defendant took immediate pos- session of the whole of said premises, and from that time to the commencement of said suit, and for more than years from the taking of said possession, he has been in the uninter- rupted, actual, open, notorious, exclusive and adverse possession of the whole of said premises under a claim of ownership to the same by virtue of said purchase, and said defendant still con- tinues in the possession thereof, and was so in possession of the same at the time of the taking of the deed to the same from the said . Defendant further alleges that before plaintiff parted with any valuable consideration therefor, the plaintiff had knowledge and notice of defendant's claim to the equities in said premises; that at the time said defendant purchased said premises from said , said had the legal title thereto, and was the owner thereof and had the right to sell the same to said defend- ant ; that said , however, neglected to make a deed of conveyance to said defendant, and continued to hold the title in trust thereto for said defendant. "Wherefore, defendant, having duly answered said petition, prays that said petition may be dismissed and that this defend- ant may go hence with his costs and for all proper relief.* Attorney for Defendant. Sec. 1189. Form for the judgment and decree of the court in the action to quiet title. District Court of County, State op Oklahoma. , Plaintiff, vs. No. . — , Defendant. * Each of the foregoing forms 1,106 and 1,107 in Vol. 2 thereof, adapted from Whittaker's Code and form No. 594 in Vol. 1 thereof. Forms, being forms numbered 1,103, 867 REAL ACTIONS. — STATUTORY § 1190 DECREE OF COURT. This day came the said parties by their respective attorneys, said cause having been regularly placed on the trial docket of this court at its regular term, and said cause came on to be heard by the court upon the pleadings and evidence adduced by the parties respectively, and was argued by counsel ; on due con- sideration thereof, and being fully advised in the premises, the court finds that the plaintiff is entitled to relief as prayed for in his petition. It is Therefore considered, ordered and adjudged by the court that the plaintiff in his said title and possession of said premises be, and he is, hereby quieted as against the said claims of said defendant of said estate and interest in the real property described in the petition adverse to him, and that also plaintiff recover against said defendant his costs in this behalf expended, taxed at $ . , Judge of said Court. Sec. 1190. Procedure by which title to real estate is quieted — The form for petition. In the District Court of County, State op Oklahoma. and , Plaintiffs, vs. No. . , as Administratrix of the Estate of , Deceased, and.as Guardian of the Minor Heirs of said Decedent, and , , , and , jMinor Children of said , Deceased, Defendants. PETITION. The above named plaintiffs complain of the above named de- fendants, and allege : That the party defendant, , is, and was at all the times hereinafter mentioned, since the death of the said , the § 1190 merwine's trial of title to land, 868 duly appointed, qualified and acting administratrix of the estate of , deceased, and she is, and was at all tlie times herein- after mentioned, suhseqnent to tlie date of the death of said decedent, the natural and legal guardian of the party defend- ants, , , , .and , That the above named plaintiffs are the owners in fee simple and in possession of the following described real estate located in the county of , and State of Okhihoma, to-wit: (Here describe it), together with the improvements thereon and the appurtenances. Defendants claim an interest therein adverse to plaintiffs' right in this, to-wit : On the day of , 19—, plaintiffs jointly made, executed and delivered to , then the husband of the said , and the father of said minor defendants above named, their certain contract in writing, whereby they promised, for the consideration hereinafter mentioned, to convey to the said the above described premises, by deed of general war- ranty, upon payment of said consideration as hereinafter stipu- lated. That said contract was, on the day of , 19—, recorded in the office of the register of deeds of County, Oklahoma, in Book , at page . That on the date last aforementioned and in consideration of the contract last aforementioned, the said made, executed and delivered to the said plaintiff, , his certain installment note, in writing, dated on that day, whereby he promised to pay to the said the sum of $ , payable in installments as follows: (Here set out installments and when due), with in- terest on each of said installments from the date of said note until paid, at the rate of per cent, per annum. And in said note it was agreed that if default should be made in the payment of any one of the installments, then the whole amount, and each and every installment unpaid, should, at the election of the legal holder of said note, become then due and payable. That on the date last aforementioned, , 19—, and in consideration of the contract last aforementioned, the said , m addition to the note last aforementioned, also then 869 ■ REAL ACTIONS. — STATUTORY. § 1190 made, executed and delivered to the said plaintiff, , his certain promissory note in writing dated on that day, whereby he promised to pay to the order of said the principal sum of $ due on the day of , 19 — , with interest thereon at the rate of per cent, per annum from date of said note. And the contract, made as aforesaid by the said plaintiffs, for an agreement relative to the conveyance of said real estate, dated on the said day of , 19 — , recorded as aforesaid, and delivered by plaintiffs to the said , contained the obligation only, that if the above named bounden and would convey said premises by deed of general warranty, and clear of all incumbrances unto the said , upon pay- ment of said consideration at the time above stipulated, then said contract to be void, otherwise to be and remain in full force and effect, the said contract being a bond for a deed from plain- tiffs to the said , the terms of which might be avoided by plaintiffs upon the nonpayment of any of the installments falling due upon said installment note at the maturity tnereof, or upon the nonpayment of the principal amount due upon either of the principal promissory notes aforementioned at the maturity thereof. That the said died intestate on or about the day of , 19 — , in the said county of , and State of Oklahoma, leaving the said , his widow, and the said , , , and , his minor sons and daughters, the only heirs at law of said decedent, and said defendants are now the only heirs at law of said decedent. On the day of , 19 — , on the aforesaid note for $ , an installment thereon in the sum of $ became due and was not then paid, where])y all the other unpaid in- stallments on said note became due and payable at the election of the plaintiffs, and thereupon plaintiffs made due presentation of last said note to the said administratrix and legal representa- tives of said decedent, for payment of all installments due thereon, and gave notice of their election to claim as due all installments unpaid thereon, and of such legal representatives § 1190 MERiVlKE'S TRIAL OF TITI-E TO LAND. 870 made due demand for such payment, which payment was re- fused, and thereupon plaintiffs gave notice to such legal repre- sentatives of decedent that they elected to avoid the conveyance of the real estate described in the aforesaid contract under date of , 19—, and thereupon the said contract which was re- corded in the office of the register of deeds of County, Oklahoma, on the day of , 19 — , as aforesaid, became null and void, and w'as, as aforesaid, avoided, and the same now has no force or effect as a legal contract. On or about the day of , 19 — , plaintiffs and defendants accounted together concerning the mutual dealings before this time had between them relative to said recorded contract for conveyance and said promissory notes, whereby a mutual settlement was then had and made between the parties plaintiff' and defendant, respectively; and on such settlement it was found that all payments which had been made on said promissory notes prior to the day of , 19 — , amounted to a sum nearly equal to the value of the rents, income and profits which defendants and the estate of said decedent had received from said real estate since the day of , 19—; and it was then and there, at the time last aforesaid, mutually agreed by and between the plaintiff and defendants that the payments made as aforesaid on said notes should be set off against the said rents, income and profits, and that there should be no further liability from or to the said parties plain- tiff or defendant, respectively, on said accounts ; and thereupon the said , for herself and said estate and her said wards, made, executed and delivered their certain deed, in writing, thereby conveying all the right, title, interest and equity of the said , her heirs and assigns, in and to the said real prop- erty above described, as well as the right, title, interest and equity of said minor children therein, to the said plaintiffs herein, and said deed was duly recorded in the office of the register of deeds of County, Oklahoma, on the day of , 19—; and thereupon the said plaintiffs surrendered to said de- fendants and to said estate the aforesaid promissory notes ; and in equity there is now no liability between the said plaintiffs 871 REAL ACTIONS. — STATUTORY. § 1191 and defendants and the said estate, on account of any of the aforesaid contracts and notes, except in this, to-wit : The deed last aforesaid executed and delivered by the said to said plaintiffs, conveys, in la^v, only the right, title, interest and equity of the said , in and to said real estate above described, and, the premises considered, said minor chil- dren of said decedent, , have an apparent claim and in- terest in and to said real estate, but no actual and real interest therein, whereby plaintiffs' title in and to said real estate becomes clouded. Wherefore, plaintiffs pray that said claim of defendants, and each of them, may be adjudged null and void, and plaintiffs' title quieted against the same, and for such other relief as is proper. , Attorney for Plaintiffs. State of Oklahoma, County, ss. : , being first duly sworn, on his oath, says : I am a party plaintiff in the above entitled actior. : I have read the within and foregoing petition, and I know that the declarations set forth are true. . Subscribed and sworn to before me this day of , 19—. , [Seal.] Notary Public. jMy commission expires . Sec. 1191. Form for praecipe for summons. PRAECIPE FOR SUMMONS. In the District Court of County, State of Oklahoma. and , Plaintiffs, vs. , as Administratrix of the Estate of , Deceased, and as Guardian of the Minor Heirs of said Decedent, and , , , and ■ , ]\Iinor Children of said , No. Deceased, Defendants. § 1192 MER wine's trial of title to land. 872 To the ClerJc of said Court: Issue summons in the above entitled cause, pnd direct the same to the sheriff of County, State of Oklahoma, to or for the defendants, , as administratrix of the estate of , deceased, and as guardian of the minor defendants above named, , , , and . Also issue summons for each of minor defendants last above named. Amount claimed, $ , and interest from the day of , 19 — , at per cent, per annum, . Action brought for to quiet title to (Here describe real es- tate), in County, Oklahoma. Make summons returnable day of , 19 — . Defendants required to answer on or before the day of , A. D. 19—. Dated this day of , 19 — . Attorney for Plaintiffs. Sec. 1192. Form for the summons. SUIMMONS— UNITED STATES OF AMERICA. State of Oklahoma, County, ss. : In the District Court within and for County, State of Oklahoma, Ju- dicial District, at the Courthouse in The State of Oklalioma to the Sheriff of County in said State, Greeting: You are hereby commanded to notify the defendant, , as administratrix of the estate of , deceased, and as guard- ian of the minor heirs of said decedent, and , , , and , minor children of said deceased, that they have been sued by the plaintiffs, and , in the district coart, sitting in and for said county of , and that, 873 REAL ACTIONS. — STATUTORY, § 1193 unless they answer by the day of , 19—, the peti- tion of the said plaintiffs, and , against said defendants, filed in the clerk's office of said court, such petition will be taken as true and judgment rendered accordingly. You will make due return of this summons on the day of , 19—. Witness my hand and seal of said court affixed at my office in , County, State of Oklahoma, this day of A. D. 19- [SeaIj.] Clerk of the District Court. By , Deputy. State of Oklahoma, County, ss. : Received this writ , 19—, and, as commanded therein, 1 summoned the following persons of the defendants within named at the times following, to-wit : , as administratrix, , 19 — . ■ , , 19-. , , , and , ,19—. The said , being the guardian of the above named minors, by delivering to each of said defendants, personally, in said county, a true and certified copy of the within summons, with all the indorsements thereon. ~ > Sheriff. Sec. 1193. Form for waiver of summons and entry of ap- pearance. In the District Court op County, State of Oklahoma. and , Plaintiffs, vs. , as Administratrix of the Estate of , Deceased, and as Guardian of the Minor Heirs of said Decedent, and . and 5 ' ' ■ , ]\Iinor Children of said , No. Deceased, Defendants. § 1193 merwine's trial of title to land. 874 APPEARANCE AND WAIVER OF SUMMONS. Comes now eaeli of the above named defendants in the above entitled action, each of whom here])y waives the issuance and service of summons in said action, and hereby voluntarily enter their appearance therein, the said appearing for herself as widow and heir at law of the said decedent, , also as administratrix of the estate of said decedent, and as the guard- ian of , a minor, years of age; , a minor, years of age; , a minor, years of age; , a minor, years of age, and , a minor, years of age, and the said minor defendants above named who are over the age of twelve years hereby appear for themselves, respectively, waiving the issuance and service of summons as aforesaid. . State of Oklahoma, County, ss. : Before me, , a notary public in and for said county and State, on this day of , 19 — , personally appeared , and , to me known to be the identical per- sons who executed the within and foregoing instrument, and acknowledged to me that they executed the same as their free and voluntary act and deed for the uses and purposes therein set forth. Witness my hand and official seal the day above written. [Seal.] Notary Public. My commission expires . 875 REAL ACTIONS. — STATUTORY. §§1194,1195 Sec. 1194. Form for motion for appointment of guardian ad litem tor minor defendants. In the District Court of County, State of Oklahoma. and , Plaintiffs, vs. No. . , Administratrix, et al., Defendants. MOTION FOR GUARDIAN AD LITEM. Come now the plaintiffs, who ask the court to appoint a guard- ian ad litem for minor heirs named in the petition in the above entitled action. ^ Attorney for Plaintiffs. Sec. 1195. Order appointing guardian ad litem for minor defendants. In the District Court of County, State of Oklahoma. and , Plaintiffs, vs. No. , as Administratrix of the Estate of , Deceased, and as Guardian of the Minor Heirs of said Decedent, and , , , and . , Minor Children of said , Deceased, Defendants. ORDER APPOINTING GUARDIAN AD LITEM, This cause came on to be heard upon the motion of plaintiffs herein for the appointment of a guardian ad litem to appear herein for said infant defendants, and tlie same was presented to the court and argued by counsel, and, upon due consideration, § 1196 merwine's trial of title to land. 87G said motion is sustained, and it is ordered that be, and he is, hereby appointed guardian ad litem for said infant de- fendants, and is required to answer for them and protect their rights. J Judge of said Court. Sec. 1196. The answer of the guardian ad litem. In the District Court op County, State of Oklahoma. and , Plaintiffs, V.9-. No. . , as Administratrix of the Estate of , Deceased, and as Guardian of the Minor Heirs of said Decedent, and , , , and , Minor Children of said , Deceased, Defendants. ANSWER OF GUARDIAN AD LITEM. Come now the above named minors, by , guardian ad litem, and, for their answer, say they deny all the material allegations of the plaintiffs' petition. Wherefore, they ask to go hence with their costs. By Guardian Ad Litem. 877 HEAL ACTIONS. STATUTORY. § 1197 Sec. 1197. The decree of the court quieting title. In the District Court op County, State op Oklahoma. and , Plaintiffs, vs. , as Administratrix of the Estate of , Deceased, and as Guardian of the Minor Heirs of said Decedent, and , , , and , Minor Children of said , No. Deceased, Defendants. DECREE QUIETING TITLE. This cause came on for hearing on this, the day of ^ 19 — ^ the same being one of the regular days of the 19 — Term of said court, upon the pleadings and the evidence, it having been made to appear to the court, and the court finding that the above named defendants, and each of them, have been duly and personally served with summons and notice of the pendency of this cause, and that the defendant, , as administratrix of the estate of , deceased, and as guardian of the minor children of said decedent, , is in default for answer and demurrer herein, and that said minor children, the other defendants herein, have filed their answer herein, by their guardian ad litem, ; and the said guard- ian ad litem now appearing, and the cause now coming on to be heard by the plaintiffs and said guardian ad litem's voluntary appearance herein for the purpose of this trial, the said trial now proceeds on the pleadings and the evidence ; and the court, being fully advised in the premises, further finds that all the allegations set forth in the plaintiffs' petition are true. It is Therefore considered, ordered and adjudged by the court that, at the time of the bringing of this action, the said § 1197 merwine's trial of title to land. 878 plaintiffs were in possession of the real property described in the petition, to-wit : (Here describe real estate), together with all the iinprovoments thereon and the appurtenances, and that said plaintiffs had a legal estate therein and were entitled to the immediate possession of the same. That neither of the said defendants, nor any of them, have any estate in any part of tlie last aforesaid real property, and the plaintiffs ought to have their title and possession (juieted as against each and every one of said defendants. It is Therefore further ordered, adjudged and decreed, that the title and possession of said and in and to, all and singular, the real estate and premises as above de- scribed, and as described in the petition herein, be, and the same hereby are quieted as against the above named defendants herein, and as against each and every one of said defendants, and against all persons claiming under said def(>ndants, or any of them, adversely to said plaintiffs, and said defendants, and each of them, are hereby forever enjoined from setting up any claim to said premises, or any part thereof, adverse to the title and possession of said plaintiffs, their heirs or assigns, thereto. It is further considered, ordered and decreed by the court that the certain bond for a deed which was made, executed and delivered by the said and , on the day of , 19 — , to , and which said bond was, on the day of , 19 — , recorded in the office of the register of deeds of County, Oklahoma, in Record , at page , be, and the same is, hereby annulled, avoided and held to be of no force or effect ; and it is further ordered that be, and he is hereby, allowed a fee for his services as guardian ad litem for the minor defendants herein in the sum of $ , to be taxed as part of the costs in this case. It is further considered, ordered and adjudged by the court that the costs of this action be taxed to the plaintiffs herein. Judge of said Court. 879 REAL ACTIONS. — STATUTORY. 4. PARTITION. (a) District Court. SECTION 1198. Nature of the proceeding — Equitable and statutory. 1199. One tenant cannot effect par- tition by deed, conveying his interest by metes and bounds. 1200. Will may be construed — Course of descent and legal- ity of bequest determined by partition. 1201. Partition creates no new titles. 1202. Construction of partition by mutual releases. 1203. Remainderman or reversioner cannot have partition — ^The exception to this rule. 1204. Heirs may not have partition of homestead occupied by wife and family. 1205. The real estate must be de- scribed in the petition to partition. 1206. The power of a general guard- ian in partition cases. 1207. Allegation as to unknown owners — Creditors as par- ties. 1208. The allegations of the answer. 1209. The allegations of the peti- tion where the executor or administrator has charge of the estate. 1210. The causes of action that may be joined with partition. 1211. Sale in partition where real estat« is encumbered by lien. 1212. Pleirs not divested by fore- closure proceedings, when. 1213. Trustees under a will may partition, when. 1214. The order of partition. 1215. The commissioners in parti- tion. 1216. The fees of commissioners. SECTION 1217. The duty of commissioners as to allotment of special tracts of land. 1218. The oath of the commissioners. 1219. The report of the commis- sioners in partition. 1220. The report may be set aside, when. 1221. Judgment upon the report of the commissioners. 1222. Party may elect to take at appraisement, when. 1223. The property to be sold, when. 1224. The sheriff's return and deed. 1225. Apportionment of attorneys' fees and taxing costs. 1226. The powers of the court in partition. 1227. The doctrine of lis pendens as applied to partition suits. 1228. Form for petition by guardian for partition. 1229. Form for petition for equi- table partition when ad- vancements have been made. 1230. Form for petition where an account for rents and profits is asked. 1231. The proceeding by which real estate is partitioned by the court — The ordinary form for partition. 1232. Form for answer of defend- ant disclaiming any interest in the real estate. 1233. Form for answer in partition. 1234. Form for decree for partition. 1235. The writ of partition directed to the sheriff by the clerk. 1236. The oath of the commissioners. 1237. The commissioners' report of their proceedings. 1238. The sheriff's return of his proceedings. § 1198 MER wine's trial of title to Lu\ND. 880 SECTION SECTION 1239. Confirmation of commission- 1245. Entry confirming report of ers' report. appraisement and ordering 1240. The sherifl's deed. sale of real estate. 1241. Commissioners' report when 124G. The order of sale from the the property cannot be clerk to the sherifT. divided and must be sold. 1247. Legal notice of sale. 1242. Sherifl's return. 1248. Proof of publication. 1243. Election by one of the par- 1249. Sheriff's return. ties to take real estate at 1250. Confirmation of sale, order the appraisement. for distribution and deed. 1244. Entry confirming sale, order of deed and distribution of funds. Sec. 1198. Nature of the proceeding — Equitable and statu- tory. The procedure by which the share of one of the several owners of real estate in common is set off to him in severalty by the courts, may be either a proceeding in chancery, or it may be a statutory proceeding. While the distinction be- tween the proceedings in chancery and the proceeding under the statute is well defined, yet the distinction is not a matter of much importance to the practitioner. Especially is this so since both are worked out by the same court. But cases have arisen in the practice in partition proceedings where it was necessary for the courts and those conducting the proceedings to know the distinction. In cases where the title is in question and equitable rights are involved, it is the chancery side of the court that is appealed to for the partition. The partition statutes have in no wise abridged the equitable powers of the chancellor in partition pro- ceedings. At law, in partition, the sheriff could only pward an actual division of the land. Inequality in the ownership of the lands could not be adjusted, especially in cases where compensation was necessary to do exact justice to the co-owners. Later, when a parent had given lands or money to a child as a portion of his estate, equitable interference became necessary to do exact justice to all of his children in the final distribution of his real estate. In such cases, courts of equity award owelty by partition. As in almost 881 REAL ACTIONS. — STATUTORY. § 1198 every ease of the origin of an equitable remedy, equitable partition grew out of the demands of justice.^ The power of the chancellor is far-reaching in equitable partition. It has been well said by an eminent jurist that equity courts have long exercised the power to decide finally upon the rights of adverse claimants to real estate where the nature of the controversy properly called for the inter- ference of a chancellor. A bill to establish and enforce a trust gave him jurisdic- tion to hear and determine its existence and extent, and to enforce it, in a proper case, by compelling a conveyance by the defendant as trustee, notwithstanding his answer denying the entire title of the plaintiff. In this class of cases, as well as in a number of others, the fact that a decision of a judge, without a jury, might divest one in possession of real estate, does not affect the jurisdiction. The principle controlling is well known. Where a party cannot have adequate and com- plete remedy at law, he may apply in equity; and the chan- cellor, in such case, taking jurisdiction, retains it so far as may be necessary to furnish relief adequate and complete, A careful consideration of the position and relations of tenants in common of realty will satisfy the mind that when a cotenant has gone into possession and refuses to recognize the title of the owners of the other undivided shares, an ordinary suit at law will not furnish to them adequate and complete relief. In the proceeding for partition the court could not exercise chancery or equitable powers and was limited to the mode and extent provided by statute. There would seem to be good reason for holding that those statu- tory powers could only be exercised on behalf of parties whose title at law was disputed. But a civil action seeking equitable partition, together with an account of rents and profits, properly invokes the chancery powers of the courts.^ 1 Linton v. Lavcock, 33 0. S. 2 Hogg v. Bierman, 41 0. S. 81; 128; McMasters v. Smith, 5 Perry v. Richardson, 27 0. S. 110. W. L. M. (Ohio), 28; Perry v. Richardson, 27 0. S. 110. §§ 1199-1201 merwine's trial of title to land. 882 Sec. 1199. One tenant cannot effect partition by deed, con- veying his interest by metes and bounds. One tenant cannot accomplish a partition by selling and conveying his interest to another by metes and bounds. Such purchaser, instead of taking an interest by metes and bounds, will take the undivided interest of the grantor. The pur- chaser will hold the interest purchased as a tenant in common with the original owners.^ Sec. 1200. Will may be construed — Course of descent and legality of bequest determined in partition. It sometimes happens that by the terms of a will an estate in real estate is devised in such a manner that only a construction of the terms of the will can enable a division to be made of it, or the course of descent under the terms of the will can decide how partition can be made ; and even in some cases, the validity of a provision of the will can be determined in a partition case.* In such suit the rule that the intention of the testator must govern, applies to all partition proceedings in which the construction of a will is involved, but, where the intention re- mains in doubt, resort must be had to settled rules of con- struction for aid in the solution of the difficulty.^ Sec. 1201. Partition creates no new titles. "Where tenants in common partition ancestral property by deeds, reciting as consideration for the same the full value of the land, such consideration may be shown by parol to be the actual amicable partition ; and the property in an amicable partition of this kind, so coming to one of the heirs as a tenant in common of ancestral lands, will still be re- sDennison v. Foster, 9 Ohio, 130; 590; Curran v. Taylor, 19 Ohio, 56; Lessee v. Sayre, 2 Ohio, 110; Lessee Helmig v. Meyer, 8 N. P. 31; Staple- V. Emerich, 6 Ohio, 391. ton v. Ellison, 21 0. S. 527. 4 Perry v. Richardson, 27 0. S. s Linton v. Laycock, 33 0. S. 110; Patton v. Patton, 39 0. S. 128. 883 REAL ACTIONS. — STATUTORY. § 1202 garded as ancestral property, and will pass as such under the statute of descent and distribution." But where the partition is made by the court, and the real estate is sold by the sheriff, the ancestral quality of the estate is broken. And a party electing to take the property at its appraisement, takes his own share as ancestral prop- erty and the shares of the others by purchase.'^ As the courts of this State are not concerned with the question of ancestral property, as in the cases just cited, the question here is brought up only for the purpose of showing that partition does not create any new titles ; for the pro- ceeding operates upon the possession ; dissolves the unity before existing and enables each of the owners to know, possess and enjoy his own share of the common estate in severalty. This construction preserves all the analogies of the law, and is fully sustained by the adjudged cases. It is well settled that such a proceeding does not decide title or create any new title. It merely dissolves the tenancy in common and leaves the title as it was, except to locate such rights as the parties may have, respectively, in distinct parts of the premises, and to extinguish it in all others.^ Sec. 1202. Construction of partition by mutual releases. When partition is made by mutual releases they should be made and construed together in the light of the circum- stances attending their execution, and it is competent to show their only purpose was to accomplish the partition, and no other consideration passed between the parties, though a pecuniary consideration be expressed in the deed.^ 6 Carter v. Day, 29 0. S. 96. Wend. 367; Clapp v. Bromagham, 7 Freeman v. Allen, 17 0. S. 527. 9 Cow. 561; Culver v. Culver, 2 sTabler v. Wiseman, 2 0. S. Root, 278; Youngs v. Heffner, 36 208; Goundie v. Northampton, 7 O. S. 237. Barr, 278; MeClure v. McClure, 2 s Carter v. Day, 59 0. S. 96; Harris, 137; Bonner v. Proprietors, White v. Brocow, 14 0. S. 339; 7 Mass. 475; Wills v. Price, 9 Mass. Dawson v. Lawrence, 13 Ohio, 544. 508; Brownell v. Brownell, 19 § 1203 MER wine's trial of title to land. 884 Where land is purchased with an undivided fund in which the parent has a life estate and the children a remainder, and a conveyance is made to the former, the title will be held in trust for the latter, subject to the life estate; and upon the termination of the life estate they will hold the equitable title as tenants in common in the proportion of their respective shares in the fund, and such tenants in common are entitled to partition/" Sec. 1203. Remainderman or reversioner cannot have parti- tion — The exception to this rule. The result of the adjudged cases, as well as the purpose of the partition statute, and the object of the whole pro- ceeding seem to be to secure to the tenant the exclusive possession of his share of the joint property; and where no such possession can follow the judgment, no reason is shown for invoking the aid of the law, or calling the other owners into court, and subjecting them to the expense incident to the proceeding, much less to compel them to submit to a forced sale of their interest, under circumstances which can hardly fail to result in a sacrifice. Before this can be done, the applicant must show that he is submitting to the incon- venience of joint possession, and that to protect him in the actual enjoyment of what belongs to him, it is necessary to interfere with the rights and interests of his cotenants. Until this is shoAvn, there is no joint possession to sever, and, consequently, nothing upon which the judgment of the court can legitimately operate. The primary object of the parti- tion statute is to effect an actual division of the property among the owners, and it is only where this cannot be done without manifest injury to the value thereof, that election or sale is allowed. In making such division the commissioners are to have due regard to the improvements, situation and quality of the different parts of the estate, and this is to be done on actual view. A large part of its value may then 10 Roberts v. Remy, 56 0. S. 249. 885 REAL ACTIONS. — STATUTORY. § 1204 consist of buildings or other improvements, wliicli, before the expiration of the life estate, may be entirely destroyed or become comparatively valueless. If, instead of the com- parative certainty which this section enjoins, the commis- sioners were permitted to speculate on its probable condition at the termination of the life estate, the blindest conjecture would, unavoidably be substituted, and the chances of equitable division much diminished." But one who owns in fee simple an undivided half in- terest in real estate can sue to compel partition as against his cotenants who have only a life interest in the other undivided half.^^ Sec. 1204. Heirs may not have partition of homestead occu- pied by wife and family. Where a homestead is, by order of the probate court, set aside to the use of the wife and family of a deceased hus- band, the same cannot be partitioned at the suit of some on the adult heirs. The courts of other States having a home- stead law similar to ours have so held." 11 Fritz V. Fritz, 16 0. S. 218; 12 Johnson v. Brown, 74 Kan. Stevens v. Enders, 1 Green's N. J. R. 346, 86 Pac. 503 ; Kinkead v. Max- 271; Brown v. Brown, 8 N. H. 93; well, 75 Kan. 50, 38 Pac. 5^23. Striker v. Mott, 2 Paige, 389; Wood ^^ Funk v. Baker, 21 Okla. 402, V Clute, 1 Sand. Chy. Rep. 202; 96 Pac. 608; Fore v. Fore, 2 N. D. Hieatt V. Black, 14 C. C. (Ohio), 260, 50 N. W. 712; Nicholas v. 194- Tabler v. Wiseman, 2 0. S. Purezell, 21 la. 256, 89 Am. Dec. 208. The owners of a fee subject 572; 21 Cyc. 594; 15 Am & Eng. to a life estate may divide the land Ency. of Law, 699. Where the in severalty before the termination head of a family dies leaving chil- of the life estate, and on such par- dren, some of whom are minors who tition the former cotenancy of the occupy the homestead, it cannot be fee is at an end, and each owner partitioned against their objection may then take title to the life until they become of age^ Rowe v. estate in his own portion, and hold Rowe, 61 Kan. 2 60 Pac. .049; the entire estate adversely to the Hofer v. Hofer. 33 Kan. 449, 6 Pac. other. McCullough v. Finley, 69 537. Kan. 705, 77 Pac. 696. §§ 1205-1207 merwine's trial of title to land. 886 Even in case where the homestead of a deceased husband, while occupied by the surviving wife as a homestead for herself and family, it cannot be partitioned by an adult heir.^* Sec. 1205. The real estate must be described in the petition to partition. When the object of an action is to effect the partition of real property, the petition must describe the property and the respective interests of the owners thereof, if known.* Sec. 1206. The power of a general guardian in partition cases. The guardian of a ward has statutory power to join in and assent to the partition of real estate of the ward, whenever such assent may be given by any person." Sec. 1207. Allegation as to unknown owners— Creditors as parties. If the number of shares or interests is known, and the owners thereof are unknown, or if there are, or are supposed to be any interests which are unknown, contingent or doubt- ful, these facts must be set forth in the petition with reason- able certainty.^^ Creditors having a specific or general lien on all or any portion of the property, may be made parties.'' 14 Miller v. Hassman, 24 Okla. is Snyder, 5,493; Wilson, 1,835; 381, 103 Pac. 577. ^^'^- 6,004, Dakota Code (1887). ♦Snyder, 6,135; Wilson, 4,801; is Snyder, 6,136; Wilson, 4,803; Kansas, 5,101 (1901), identical; Kansas, 4,718 ( 1889), identical. Nebraska, 1,750 (1907). A petition i7 Snyder, 6,137; Wilson, 4,803; for partition, tlie allegations of Kansas, 5,103 ( 1901) , identical. In which bring the case within the an action between the heirs of a reason of the code requiring the decedent to partition his real estate, interests of the owners to be de- the general creditors are not proper scribed by setting forth the convey- parties and the administrator should ances from which the interests of be joined under exceptional circum- the several parties appear, is not stances. Sheehan v. Allen, 67 Kan. demurrable because it fails to allege 712, 74 Pac. 245. in terms the respective interests of the owners. Johnson v. Brown, 74- ^ Kan. 346, 86 Pac. 503. 887 REAL ACTIONS. — STATUTORY. §§ 1208-1211 Sec. 1208. The allegations of the answer. The answer of defendants must state, among other things, the amount and nature of their respective interests. They may also deny the interests of any of the plaintiffs or any of the defendants.^* Sec. 1209. The allegations of the petition where the executor or administrator has charge of the estate. Where an executor or administrator has been appointed for the estate, the petition should allege, and the evidence should show that the decedent left sufficient personal prop- erty to pay all debts, including costs of administering his estate.^^ Sec. 1210. The causes of action that may be joined with partition. In the action in partition it is not necessary, as in some jurisdictions, to allege that plaintiff is in possession of the real estate to be partitioned. He may allege that he is not in possession and that someone is holding it adversely to him. He may unite in his petition a cause of action for the recovery of the real estate, a cause of action for the rents and profits and a cause of action for the partition thereof.^** Sec. 1211. Sale in partition where real estate is encumbered by lien. As shown above, the statute authorizes anyone holding a lien of any kind on real estate sought to be partitioned, to be made parties defendant. Where the property sought to be 18 Snyder, G,138; Wilson, 4,804; cotenants holding adversely, with- Kansas, 4,720 (1889). out joining with the demand for 19 Sample v. Sample, 34 Kan. 73, partition a eause of action for pos- 8 Pac. 248; O'Keefe v. Behrens, 73 session. Denton v. Fyfe, 65 Kan. 1, Kan. 460, 85 Pac. 555. 68 Pac. 1,074; Moorhead v. Robin- 20 Scarborough v. Smith, 18 Kan. son, 68 Kan. 534, 75 Pac. 603. 399. A joint tenant, or tenant in One out of possession cannot main- common, out of possession, cannot tain partition for real property bring suit for partition against his against one in possession claiming §§ 1212-1214 merwine's trial of title to land. 888 partitioned is encumbered by various liens, the petition should allege that these parties, naming them, claim some lien or interest in the premises, and the petition should ask that they be made parties to the action, and be required to come into the case by appropriate pleading, and assert the interest they may have therein, under penalty of being .forever barred from asserting their claim or right to said real estate. The court has the power, in such instances, to order the real estate sold, free of all liens and interests of the various parties, and distribute the proceeds of such sale to the par- ties in the order of their respective priorities.-^ Sec. 1212. Heirs not divested by foreclosure proceedings, when. In order to cut out all interest of all parties to real estate in foreclosure, or other judicial proceeding, it is necessary to bring such parties into the case, under penalty of for- feiting their rights. If an heir to property sold under foreclosure, or other judicial proceeding is not so made a party, he may, after the sale, compel the purchaser at such sale to allow partition. ^- Sec. 1213. Trustees under a will may partition, when. "Where a will vests a trustee with title to real estate, with power to sell it and divide the proceeds, such trustee may maintain an action to partition it."^ Sec. 1214. The order of partition. After the interests of all parties have been ascertained, the court is required to make an order specifying the interests of title to the entire property, unless he -^ Hagen v. Webb, 65 Kan. 38, first establishes his title and right 08 Pac. 1,096. of possession to a portion of the ~- Curtis v. Parker, 29 Kan. 93. property in an action for the recov- 23 Xoecker v. Xoecker, 66 Kan. ery of real property, or joins such 347, 71 Pac. 815. cause of action with his action for partition. Chandler v. Richardson, 65 Kan. 152, 69 Pac. 168. 889 REAL ACTIONS. — STATUTORY. §§ 1215-1219 the respective parties, and directing partition to be made accordingly.^* Sec. 1215. The commissioners in partition. Upon making such order the court must appoint three commissioners to make partition into the requisite number of shares.^'' Sec. 1216. The fees of commissioners. Each commissioner for partition of real estate is entitled to receive for each day two dollars; traveling fees the same as are allowed to sheriffs; but this action does not limit the right of the parties to agree on a higher rate of compensation for commissioners in any case.^^ Sec. 1217. The duty of commissioners as to allotment of spe- cial tracts of land. For good and sufficient reasons appearing to the court, the commissioners may be directed to allot particular portions to any one of the parties.^ 27 Sec. 1218. The oath of the commissioners. Before entering upon their duties, such commissioners are required to take and subscribe an oath that they will per- form their duties faithfully and impartially, and to the best of their ability." Sec. 1219. The report of the commissioners in partition. The commissioners must make partition of the property among the parties according to their respective interests, if 24 Snyder, 6,139; Wilson, 4,805; 27 Snyder, 6,141; Wilson, 4,807; Kansas, 4,721 (1889). Kansas, 4,723 (1889). 25 Snyder, 6,140; Wilson, 4,806; 28 Snyder, 6,142; Wilson, 4,808; Kansas, 4,722 (1889). Kansas, 4,727 (1889). 26 Snyder, 3,408; Wilson, 3,034; Act of IVIarch 12, 1887. §§ 1220-1223 merwine's trial of title to land. 890 such partition can be had without manifest injury. But if such partition cannot be made, the commissioners are re- quired to make a valuation and appraisement of the property, and to make a report of their proceedings to the court forthwith.'^ Sec. 1220. The report may be set aside, when. Any party may file exceptions to the report of the com- missioners, and the court may, for good cause, set aside such report, and appoint other commissioners, or refer the matter back to the same commissioners.^" Sec. 1221. Judgment upon the report of the commissioners. If partition be made by the commissioners and no excep- tions are filed to their report, the court will render judgment that such [petition] be and remain firm and effectual forever.'^ Sec. 1222. Party may elect to take at appraisement, when. If partition cannot be made, and the property has been valued and appraised, any one or more of the parties may elect to take the same at the appraisement, and the court may direct the sheriff to make a deed to the party, or par- ties, so electing, on payment to the other parties of their proportion of the appraised value.^^ Sec. 1223. The property to be sold, when. If none of the parties elect to take the property at its valuation, or if several of the parties elect to take the same 29 Snyder, 6,143; Wilson, 4,809; cannot be made without manifest Kansas, 4,725 (1889). injury, it is error to direct a sale 30 Snyder, 6,144; Wilson, 4,810; of the land until the parties in- Kansas, 4,726 (1889). terested have been afforded reason- si Snyder, 6,145; Wilson, 4,811; able time to elect to take the land Kansas, 4,727 (1889). at its appraised value, the statut > 32 Snyder, 6,146; Wilson, 4,812; fixinor no time within which sui^^ Kansas, 4.728 (1889). Whore the election shall be made. Morris . commissioners report that partition Tracy, 58 Kan. 137, 48 Pac. 571. 891 REAL ACTIONS. — STATUTORY. §§ 1224-1226 at the valuation, in opposition to each other, the court must make an order directing the sheriff of the county to sell the same in the same manner as in sales of real estate on execu- tion, but no sale can be made at less than two-thirds of the valuation placed on the property by the commissioners.^^ Sec. 1224. The sheriff's return and deed. The sheriff shall make return of his proceedings to the court, and if the sale made by him be approved by the court, the sheriff must then execute a deed to the purchaser, upon the payment of the purchase money, or securing the same to be paid in such manner as the court may direct.^* Sec. 1225. Apportionment of attorneys' fees and taxing costs. The court making partition must tax the costs, attorneys' fees and expenses, which may accrue in the action, and apportion the same among the parties according to their respective interests, and may award execution therefor as in other cases.^^ Where the property cannot be divided by metes and bounds, and it is sold, out of the proceeds of the sale there must be paid the costs of the proceeding, including attorney fees, before the proceeds may be divided among the heirs.^^ Sec. 1226. The powers of the court in partition. The court has full power to make any order not incon- sistent with the provisions of this article, that will be neces- sary to make a just and equitable partition between the parties and secure their respective interests.^^ 33 Snyder. 6,147; Wilson, 4,813 Kansas, 4,729 (1889). 34 Snyder, 6,148; Wilson, 4,814 Kansas, 4,730 (1889). 35 Snyder, 6,149; Wilson, 4.815 Kansas, 5,115 (1901), identical. 36 Sarbach v. Xewell, 35 Kan. 180, 10 Pac. 529. 37 Snyder, 6,150; Wilson, 4,816; Kansas, 4,732 (1889). §§ 1227, 1228 merwine's trial op title to land, 892 Sec. 1227. The doctrine of lis pendens as applied to parti- tion suits. The doctrine of lis pendens applies to partition suits as well as other actions, but a purchaser pendente lite is only affected to the extent of the decree and subsequent proceedings therein, and where the suit, instead of terminating in a judi- cial sale, provides for one of the parties acquiring the title by sheriff's deed, at its appraised value, a mortgagee may assert his mortgage lien acquired while the action is pend- ing.^* Sec. 1228. Form for petition by gnardian for partition. District Court of County, State of Oklahoma. , as Guardian of , an Infant, Plaintiff, vs. No. . , , and , Defendants. PETITION. Plaintiff says that on the day of , 19—, she was duly appointed guardian of the person and estate of , an infant, by the probate court of County, Oklahoma, and thereupon duly qualified and entered upon the discharge of the duties of her office, and that this action is brought by her as such guardian. Plaintiff says that her said ward is a grandchild of , late of County, Oklahoma, deceased, who died intestate on the day of , 19 — ; that the last will and testa- ment of said , deceased, was duly proved in the probate court of said County, where the said decedent was domi- ciled at the time of his death, and was duly admitted to probate and record on the day of , 19 — . A copy of said will is hereto attached, marked Exhibit "A" and made a part of this petition ; that said decedent, by the terms of his last will ssTidball v. Schmeltz, 77 Kan. 440, 94 Pac. 794. 393 REAL ACTIONS.— STATUTORY. § 1228 and testament, devised all of his property, both real and per- sonal, to ]iis wife, , for and during her natural life, with remainder after her death to be divided equally among his children, the defendants herein, and his grandchild, , daughter of his deceased son, , being plaintiff's said ward herein, the said being one and the same person named and designated by said , deceased, in his last will and testament, as " , my grandchild and daughter of my de- ceased son, The said was duly appointed and qualified as executrix of the last will and testament of said , deceased, on the day of , 19—, and continued to act as such execu- trix until the day of , 19-, at which time she died testate, leaving plaintiff's said ward and the defendants herein named as her next of kin and the only heirs at law. The last will and testament of said , deceased, was duly proved in the probate court of County, Oklahoma, where the said decedent was domiciled at the time of her death, and was duly admitted to probate and record on the day of , 19—, being recorded in Vol. , page , of the will records of said County. Said decedent made no disposition of any real estate in her last will and testament. The defendant, , was duly appointed and qualified in the probate court of County, on the day of , 19—, as administrator with the will annexed of said 's estate, and is now acting as such. All of the debts and claims against the estate of said and have been fully paid. The said died seized in fee of the first and second parcels, and that he and the said , each, respectively, died seized in fee of the undivided half of the third parcel of the real estate hereinafter described. Plaintiff's said ward, , and the defendants herein named, are all the heirs at law r.vA the devisees of the said , deceased, and as such devisees and heirs at law, respec- tively, they are seized of the estate in fee as tenants in common of the following described real estate, of which said and § 1229 merwine's trial op title to Ij.vnd. 894 died seized, as above stated, and all of which is situate in the city of , county of , in tlie State of Okla- homa, and described as follows, to-wit : (Here insert description of real estate.) The said and the said defendants, , , and , are entitled each to an undivided part of said real estate. Wherefore, plaintiff, as guardian as aforesaid, prays that her said ward's interest in said premises may be set off to her in severalty; that partition may be made of all real estate among the several parties in the proportion above stated, and if that cannot be done without manifest injury, that such proceedings be had as are authorized by law, and for all other necessary and proper relief. — ■ Attorneys for Plaintiff. Petition should be verified. See Sec. , Sec. 1229. Form for petition for equitable partition where advancements have been made. District Court of County, State of Oklahoma. , Plaintiff, vs. No. . , and The Company, Defendants. PETITION. 1. First Cause op Action. — On the day of , 19 — , , late of County, Oklahoma, hereinafter des- ignated decedent, died intestate. Plaintiff and said , and , are his children and only heirs at law, and the defendant, , is decedent's duly appointed, qualified and acting administrator. Said decedent died seized in fee simple of the following lands and tenements situated in said county, and described as follows, to-wit: (Here give description of same.) Decedent left personalty to the amount of about $ . His debts amounted to the sum of $ . g95 REAL ACTIONS. — STATUTORY. § 1229 Decedent, in his lifetime, advanced to his son, , toward and as a part of his distributive share of decedent's estate, the following real estate in the county aforesaid, and described as follows: (Give description here), and the deed of conveyance ^Q said , specified said real estate to be of the value of In like manner decedent, in his lifetime, advanced to the said -, as his part of his distributive share of decedent 's estate, the following described real estate, to-wit : (Give description here), and the deed of conveyance to the said , specified said real estate to be of the value of $ . In like manner decedent, in his lifetime, advanced to the said ^ as his part of his distributive share of decedent's estate, the sum of $ in money, and the said received said money as and for such advancement. 2. Second Cause of Action. — Ever since decedent's death the defendants, and and , have been in the use and enjoyment, and have received all the rents, issues and profits of the real estate first herein described. The fair annual rental of said real estate first herein described is of the value of $ . Wherefore, plaintiff prays judgment against said defendants, . and , for the value of said rents from the day of , 19—, at the rate of $ per annum; that said real estate so advanced to said defendants and the per- sonalty so advanced to defendant, , and the fund now in the hands of said defendant, administrator, be brought into hotchpotch so that a just and equal division in partition may be made of the real estate first herein described, among the plain- tiffs, the said , and ; that from said lands the value of $ there be deducted from the one-fourth part of said 's share of the said ; that the said be charged with the sum of $ against his distributive share of the personalty of decedent, and if his share be more than his distributive portion thereof, the residue be deducted from his said part of said land to be partitioned; that the court cause to be partitioned the real estate first herein § 1230 merwine's trial of title to land. 896 described to plaintiff and to and among the said , and , in view of said advancements and in accordance with their respective rights, regard being had thereto, and if partition cannot be made, that said real estate may be sold, and that plaintiff may have such other and further relief as equity and the nature of the case may require. Attorneys for Plaintiff. The petition should be verified. Sec. 1230. Form for petition where an account for rents and profits is asked. District Court of County, State op Oklahoma. , Plaintiff, vs. No. . , Defendant. PETITION FOR PARTITION. Your petitioner, , of County, State of Oklahoma, alleges that he, together with the said , who resides in County, Oklahoma, is seized of an estate as tenants in common, in the following described real estate, situate in the county of , State of Oklahoma, and in the of • , and bounded and described as follows, to-wit: (Here insert description of premises.) Plaintiff further alleges that he and the defendant hold the premises in the following proportions, to-wit: Said plaintiff is the owner in fee simple of the undivided thereof. Plaintiff further says that, since he and the defendant have owTied the said premises above described in common, to-wit, since the day of , 19 — , the defendant, , has received all the rents and profits arising therefrom ; that plain- tiff has paid all the taxes, insurance, repairs and improvements on said premises, and has paid certain incumbrances, the exact amount of which plaintiff is unable to state, and plaintiff cannot 897 REAL ACTIONS. STATUTORY. § 1231 state the exact amount of the rents and profits so received by the said . Plaintiff is desirous of holding his interest in said premises in severalty, and therefore prays that his interest may be set off to him, and if the same cannot be done without manifest injury, then that the premises be sold, or other order taken pursuant to the statute in such case made and provided, and that an account- ing be made of the rents and profits of said premises, the taxes, insurance, repairs and improvements and incumbrances paid by plaintiff' up to the date when the partition shall be made; that the same may be declared to be a lien on the premises in favor of the plaintiff, and for further and proper relief. Attorney for Plaintiff. The petition should be verified. Sec. 1231. The proceedings by which real estate is parti- tioned by the court — The ordinary form for partition. District Court of County, State of Oklahoma. , Plaintiff, vs. No. , Unmarried, and , His Wife, and , His AVife, , , and , Defendants. PETITION. Comes now the plaintiff, and, for his cause of action herein, alleges and states : 1. That he has a legal right to, and is seized of an estate in fee simple in the undivided interest in and to the follow- ing described real estate situate in County, and State of Oklahoma, to-wnt: (Here describe real estate.) 2. That said defendants, , and , each have a legal right to, and are seized in fee simple, of the undi- §1231 merwine's trial of title to land. 898 yided interest each in and to the aforesaid real estate. The said is the wife of said , and the said is the wdfe of . The said defendants, and , each claim some mort2:age lien or interest in and to the real estate aforesaid. The defendants, and , each claim some interest in and to said real estate, the nature of which plaintiff is not advised. Plaintiff prays that the said , , and , be required by this court to come into this action, and, by appropriate pleadings herein set up their respective inter- ests in and to said real estate, if any they have, or be forever barred from asserting the same in any court; that his interest may be set off to him, in severalty, and if the same cannot be done without manifest injury to said real estate, then that said real estate be sold or other order taken pursuant to the statutes in such cases made and provided, and that plaintiff have such other and further relief as the case may require. Attorneys for Plaintiff. State of Oklahoma, County, ss. : , being first duly sworn, says that plaintiff is a non- resident of the State of Oklahoma ; that he is attorney for plain- tiff, and that the facts stated and the allegations contained in the foregoing petition are true as he verily believes.* Sworn to before me and subscribed in my presence on this day of , 19 — . [Seal.] Clerk of the District Court. ■ The praecipe for summons and the summons are the same as in other notions. 899 REAL ACTIONS. — STATUTORY. §§1232,1233 £ec. 1232. Form for answer of defendant disclaiming any interest in the real estate. District Court of County, State of Oklahoma. , Plaintiff, vs. No. , Unmarried, and , His Wife, and , His Wife, , , and , Defendants. ANSWER DISCLAIMING INTEREST. Comes now , one of the defendants above named, by , his attorney, and, for his answer to the petition filed herein, states that he disclaims any right, title or interest or claim in and to the premises mentioned and set forth in plain- tiff's petition. — , By , His Attorney. Sec. 1233. Form for answer in partition. District Court of County, State of Oklahoma. , Plaintiff, vs. No. , Unmarried, and His Wife, and , His Wife, , , and , Defendants. ANSWER OF DEFENDANTS. Now comes and , defendants herein, being one and the same person made defendant in the name of , and, in answer to plaintiff's petition, these defendants admit that is the absolute owner of an undivided § 1234 MER wine's trial of title to land. 900 interest in and to the real estate described in said petition ; that and are husband and wife. As to other matters alleged in said petition these defendants are not advised, but pray proper proof thereof, excepting these defendants deny that and have any interest whatever in said real estate or any part thereof; that their alleged claims have here- tofore been adjudged void and removed as clouds from the title against said realty. Attorneys for and Sec. 1234. Form for decree for partition. District Court of County, State of Oklahoma. -, Plaintiff, vs. No. -, Unmarried, and His Wife, and , His Wife, , , and , Defendants. DECREE FOR PARTITION. This cause having been regularly placed on the trial docket of this term of court and set for hearing on this day, and now coming on to be beard upon the petition of plaintiff, , and the answer thereto of the defendants, and , the answer of , disclaiming any interest in said real estate, and the evidence, and the argument of counsel, and the court, upon due consideration, finds that each and every of the re- maining defendants are in default for answer and demurrer to the petition, and were called three times in open court, and came not, and their having confessed the allegations in the petition to be true, the court finds that the plaintiff has a legal right to and is seized of an estate in fee simple in the undivided interest in and to the folloAnng described real estate, to-wit: (Here describe it.) And that said defendants, , and , each have a legal right to and are seized in 901 REAL ACTIONS. — STATUTORY. § 1235 fee simple of the undivided interest in and to said real estate. It is Therefore ordered, adjudged and decreed that partition be made of said real estate among said parties in the proportion and as found herein, and that , and , three judicious and disinterested householders of this county, and not of kin to any of the parties interested thereto, are hereby ap- pointed commissioners to make said partition. It is further ordered that a writ of partition issue to the sheriff of County, Oklahoma, commanding him that by the oaths of the commissioners above named, he caused to be set off and divided to each of the above named parties, tenants in common, the parts and portions of said real estate, to which they are hereinabove severally found entitled, to-wit : To , the part thereof. To , the part thereof. To , the part thereof. And that if, in the opinion of sard commissioners, said real estate cannot be divided by metes and bounds without injury to the value thereof, then that they appraise said real estate, and that said sheriff make due return of his proceedings under said vrrit , Judge of the District Court. Sec. 1235. The writ of partition directed to the sheriff by the clerk. District Court of County, State of Oklahoma. , Plaintiff, vs. No. . , Unmarried, and , His Wife, and , His Wife, , , and , Defendants. State of Oklahoma, County, ss. : To the Sheriff of said County, Greeting: We command you that without delay, by the oaths of , and , you cause partition to be made of the follow- § 1236 MER wine's trial of title to land. 902 ing described real estate, situate in County, State of Oklahoma, to-wit: (Here describe it), among the following per- sons in the following proportions, to-wit : To , the part thereof; To , the part thereof; and To , the part thereof. If, however, it is the opinion of said commissioners that said real estate cannot be divided by metes and bounds without manifest injury to the value thereof, you will then cause said commissioners to make an appraisement thereof. This writ issues in pursuance of an order lately made in the district court of County, Oklahoma, in a certain action for partition, wherein the said was plaintiff, and and others were defendants, and numbered on the docket of said court . Of your proceedings in the premises you shall distinctly certify under your hand to o ursaid court forthwith. "Witness my hand and seal of said court at the courthouse in , County, Oklahoma, this day of , 19—. . [Seal.] Clerk. Sec. 1236. The oath of the commissioners. District Court op County, State of Oklahoma. , Plaintiff, vs. No. , Unmarried, and His Wife, and , His Wife, , , and , Defendants. We, , and , the undersigned commission- ers in the above entitled cause, appointed to appraise or parti- tion lands in said cause, do solemnly swear that we will per- 903 REAL ACTIONS. — STATUTORY. § 1237 form our duties as commissioners in the above action faithfully, impartially and to the best of our ability. Sworn to before me and subscribed in my presence tnis day of , 19 — . _ [Seal.] Notary Public. My commission expires . Sec. 1237. The commissioners' report of their proceedings. District Court of County, State of Oklahoma. , PUmitiff, vs. No. , Unmarried, and His Wife, and , His Wife, , , and , Defendants. According to the command of the writ of partition in this case issued, and on call of the sheriff of said county, we, the under- signed commissioners in partition in said cause, after being first duly sworn, and after actual view of the premises, do make par- tition thereof as follows, to-wit: To the said , the following portion: (Here specifically describe it.) To the said , the following portion thereof: (Here spe- cifically describe it.) To the said , the following portion thereof: (Here spe- cifically describe it.) Given under our hands this day of , 19 — . Cotnmissioners . §§ 1238, 1239 merwine's trial of title to land. 904 Sec. 1238. The sheriff's return of his proceedings. As commanded by the foregoing writ of partition, I have executed the same by the oaths of , and , causing said partition to be made of the real estate in this writ described, all of which will appear by the report of the commis- sioners returned herewith. Given under my hand this day of , 19 — . Sheriff of County, Oklahoma. Sec. 1239. Confirmation of commissioners' report. District Court of County, State of Oklahoma. , Plaintiff, vs. No. , Unmarried, and , His Wife, and , His Wife, , , and , Defendants. This cause coming on this day to be heard upon the return of the sheriff and the report of the commissioners heretofore ap- pointed herein, and upon application to confirm the same, and it appearing from the evidence adduced and the argument of counsel, that said return and said report are regular and in due form of law, and that the same should be approved and con- firmed. It is Therefore ordered, adjudged and decreed that said return and said report be, and the same are hereby approved and confirmed ; and It is further ordered that the sheriff execute and deliver to each of the parties herein the shares allotted to each in said report. And the court coming now to fix and apportion the attorney's fee herein and the costs, it is ordered that the attorney for 905 REAL ACTIONS. — STATUTORY. § 1240 plaintiff, , be paid $ for his services herein, and that the same, together with the costs herein, taxed at $ , be paid by each of the parties hereto in portions, and for the payment of said fee, and said costs, let an execution issue. Judge of the District Court. Sec. 1240. The sheriff's deed. THE SHERIFF'S DEED. "Whereas, on the day of , 19 — , , as plain- tiff, filed his certain petition and then and there commenced an action in the district court of County, Oklahoma, against and others, and numbered on the docket of said court, ■ — , demanding partition of certain real estate; and. Whereas, such proceedings were had tliat commissioners in partition were duly appointed by said court in said cause, who, after being duly sworn according to law, and upon actual view, made partition thereof, and assigned and set off to the real estate hereinafter described; and, Whereas, the said commissioners made their return of said partition to the court for confirmation, and upon due considera- tion whereof, the court approved and confirmed the same and ordered the sheriff of said County to execute and de- liver a deed to the parties to whom said lands had been assigned. Now, Therefore, I, , sheriff of said County, Oklahoma, in consideration of the premises, and by virtue of the powers in me vested by law, do, by these presents, grant, bargain, sell and convey unto the following described real estate, to-wit : (Here describe it.) To Have and to Hold the same unto , his heirs and assigns, as fully and completely as I, the said , sheriff of said county and State, by virtue of said order of said court and of the statute made and provided for such cases, might or should convey the same. § 1241 MER wine's trial of title to land. 906 In Witness Whereof, I have hereunto set my hand this day of , 19—. Sheriff of said County and State. State of Oklahoma, County, ss. ; Before me, a in and for said county and State, per- sonally appeared , sheriff of said county and State, to me kno\\Ta to be the identical person who executed the within and foregoing instrument, and acknowledged to me that he executed the same as his free and voluntary act and deed as such sheriff for the uses and purposes herein set forth. In Witness Whereof, I have hereunto affixed my hand and seal on this day of , 19 — . [Seal.] Notary Public. *My commission expires , Sec. 1241. Commissioners' report when the property cannot be divided and must be sold. District Court of County, State of Oklahoma. , Plaintiff, vs. No. , Unmarried, and , His Wife, and , His Wife, , , and , Defendants. According to the command of the writ of partition in this case issued, and call of the sheriff of said county, we, the undersigned commissioners in partition, after being first duly sworn, and • In case the lands cannot be to take it at the appraisement, the divided without manifest injury proceedings by the commissioners thereto, or one of the parties elect assume the following form. 907 REAL ACTIONS. — STATUTORY. §§1242,1243 after actually viewing the premises, are of the opinion that said real estate cannot be divided Avithout manifest injury, and we do estimate the value of the same at $ . Given under our hands this day of , 19 — . Commissioners. Sec. 1242. Sheriff's return. As commanded by the writ of partition above directed to me, I have executed the same by the oaths of , and , and the said commissioners being of the opinion that the said real estate cannot be divided without manifest injury, I have caused the same to be appraised, all of which will appear by the report of the commissioners returned herewith. Given under my hand this day of , 19 — . Sheriff. Sec. 1243. Election by one of the parties to take real estate at the appraisement. District Court of County, State of Oklahoma. , Plaintiff, vs. -, Unmarried, and No. His Wife, and , His Wife, , , and , Defendants. Comes now , one of the parties to this action, and a tenant in common to the real estate sought to be partitioned herein, and elects to take the same at the appraisement thereof, and he asks the court to award such real estate to him. § 1244 MER wine's trial op title to land. 908 Sec. 1244. Entry confirming sale, order of deed and dis- tribution of funds. District Court of County, State op Oklahoma. , Plaint ijf, vs. No. . , Unmarried, and , His Wife, and , His Wife, , , and , Defendants. This cause coming on this day to be heard upon the return of the sheriff and the report of the commissioners heretofore ap- pointed herein, and on motion to confirm the same, and it appearing from said report that said real estate could not be divided by metes and bounds without injury to the value thereof, and that said commissioners have made and returned their ap- praisement of said real estate at $ , and the court being fully advised in the premises, finds said return, appraisement and the proceedings under said writ of partition to be in all respects correct and in conformity to law, and the former orders of this court, and does therefore approve and confirm the same. And it appearing to the court that said is one of the tenants in common of, and interested in, said real estate, and has elected to take the same, the court, on good cause showTi, directs and requires said sum to be paid in cash, and that upon said paying the same into court, the said premises and estate be, and hereby are, adjudged to him, the said , and said sheriff is ordered thereupon to make and to execute a deed in fee simple therefor. And the court, coming now to distribute the proceeds of said sale, amounting to the sum of $ , it is ordered that out of said sum the sheriff pay : 1. To the clerk the costs of this action, including attorney fee, to , in the sum of $ , in all the sum of $ . 909 REAL ACTIONS. — STATUTORY. § 1245 2. To , the sum of $ , his distributive share. 3. To , the sum of $ , his distributive share. 4. To , the sum of $ , his distributive share.* Sec. 1245. Entry confirming report of appraisement and ordering sale of real estate. District Court of County, State of Oklahoma. ■ , Plaintiff, No. . vs. , Unmarried, and , His Wife, and , His Wife, , , and , Defendants. This cause coming on this day to be heard upon the return of the sheriff and the report of the commissioners heretofore ap- pointed herein, and on application to confirm the same, and it appearing from said report that said real estate could not be divided by metes and bounds without injury to the value thereof, and that said commissioners have made and returned their ap- praisement of said real estate at $ , and the court, being fully advised in the premises, finds said return, appraisement and the proceedings under said writ of partition to be in aV respects correct and in conformity to law and former orders of this court, and does, therefore, approve and confirm the same. And it further appearing to the court that and , tenants in common in and to said real estate and parties to this action, have by motion in writing herein, elected to take said real estate at the appraised value thereof, thus requiring a sale of said real estate, it is therefore ordered, adjudged and decreed *The deed can be made up from elects to take it, the proceedings the forms at Section . Where after the appraisement and the two of the parties elect to take at sheriff's return assume the following the appraisement, or where none form. § 1246 MER wine's trial of title to land. 910 that said sheriff of County, Oklahoma, proceed at once to advertise and sell said real estate as in sales of real estate on execution, at not less than two-tliirds of the appraised value thereof, and that he make due return of his proceedings here- under to this court for confirmation and further order. Judge of the District Court. Sec. 1246. The order of sale from the clerk to the sheriff. District Court of County, State of Oklahoma. , Plaintiff, vs. No. . , Unmarried, and , His Wife, and , His Wife, , , and , Defendants. To the Sheriff of said County, Greeting: In pursuance of an order of our district court within and for the county of , State of Oklahoma, at the , 19 — Term, in a certain petition for partition now pending in said court, wherein is plaintiff, and and others are defendants, we command you that, without delay, you proceed to sell at public auction, the lands and tenements in said petition described, to-wit: (Here describe same), appraised at $ , and that your proceedings in the premises you make known to our said district court at its next term, and have you then and there this writ. Witness my hand and the seal of said court at this day of , 19. Clerk. 911 REAL ACTIONS. — STxVTUTORY. §§1247,1248 Sec. 1247. Legal notice of sale. District Court of County, State of Oklahoma. , Plaintiff, ^'s- No. . , Unmarried, and , His Wife, and , His Wife, , , and , Defendants. In pursuance of an order of sale in partition from said court to me directed, I will offer for sale, at public auction, at the door of the courthouse in , Oklahoma, on the day of , 19 — , at o'clock, — m., the following described real estate: (Plere describe it), appraised at $ . Terms of sale, cash. Sheriff of County, Oklahoma. Sec. 1248. Proof of publication. State of Oklahoma, County, ss. : , of lawful age, being first duly sworn, says that he is the of the , a weekly newspaper, published and printed in the city of , in County, Oklahoma, and of general circulation in said county and State ; that said has been published for more than fifty-two consecutive weeks prior to the dates on which the notice herein referred to was published, and the notice, of which a true copy is hereto at- tached, was published in the regular and entire edition of said , and not a supplement thereof, for weeks, the first publication being on the day of , 19 — , and the last of said publications being on the day of , 19—. Subscribed and sworn to before me this day of , 19—. 1 [Seal.] Notary Public. My commission expires . §§ 1249, 1250 merwine's trial of title to land. 912 Sec. 1249. Sheriff's return. As commanded by this writ, I have caused the lands and tenements herein described to be duly advertised for weeks next preceding the day of sale in , a newspaper, printed and published and of general circulation in County, Oklahoma, on the day of , 19 — , at o'clock, — m., on said day, at the courthouse in said county, I offered for sale at public auction the lands and tene- ments described in this writ. And thereupon, at said sale. bid therefor the sum of $ , and said sum being more than two-thirds of the appraised value thereof, and being the highest and best bidder, he, the said , was declared the purchaser thereof. , Sheriff of County, Oklahoma. Sec. 1250. Confirmation of sale, order for distribution and deed. District Court of County, State op Oklahoma. , Plaintiff, No. . vs , Unmarried, and , His Wife, and , His Wife, , , and , Defendants. This cause coming on to be heard on the said day of , 19 — , comes the plaintiff by , his attorneys, and moves the court to confirm the sale of real estate made by the sheriff of County, State of Oklahoma, on the day of , 19 — , under an order of sale in partition, issued out of the office of the clerk of this court, said sale being of the following described real estate, to-wdt: (Here describe it.) And the court, having examined the proceedings of said sheriff, under said order of sale, finds the same to have been performed in all respects in conformity to law and the previous orders of this court, no objections having been made thereto, it is ordered 913 REAL ACTIONS. — STATUTORY. §1250 and adjudged by this court that said proceedings and sale be, and they are, hereby approved and confirmed. It is further ordered that the sheriff of said county make and execute a deed to the purchaser of said real estate. And the court, coming now to distribute the proceeds of said sale now in the hands of said sheriff, it is ordered that he pay: 1. To the clerk of this court the costs of this action, taxed at $ , including an attorney fee for , in the sum of $ . , the sum of $ 2. To tributive share. 3. To the sum of $- tributive share. 4. To the sum of $- tributive share.* the same being his dis- the same being his dis- the same being his dis- Judge of said Court. The from at Section will indicate the deed. §1251 MERWINE S TRIAL OF TITLE TO LAND. 914 4. PARTITION. (&) County Court. SECTION 1251. The partition may be made, when — The commissioners in partition — Their oatli and duties. 1252. The petition for partition and the notice required. 1253. The partition when the real estate is in dillerent coun- ties. 1254. Partition may he made when licirs of devisees may liave conveyed. 1255. Both partition and distrihu- tion — Metes and bounds. 1256. The rule when estate cannot be divided — Owelty in par- tition — Males preferred to females — Duties of commis- sioners when estate cannot be divided. 1257. The whole tract may be as- signed to whom — The pay- ment by the others. 1258. The real estate to be sold — Manner of sale — See laws, 1910. 1259. The notice required — ^Commis- sioners may take evidence — Duties of. 12G0. The report of the commis- sioners — Other commission- ers may be appointed, when — The decree to be recorded and where. SECTION 1261. Commissioners need not be appointed, when. 1262. The court lias power to hear and determine questions of advancements. 1263. Form for petition for parti- tion, county court. 1264. Order for hearing petition for partition. 1265. Tlie notice for the hearing of tiie petition. 1266. P'orm for order of the court appointing commissioners to ];artition. 1267. Form for oath of the com- missioners in partition. 1268. Report of commissioners awarding partition among the heirs. 1269. Form for confirmation of commissioners' report. 1270. The notice to be given by the commissioners in partition of the time and place of their hearing. 1271. Form for return of commis- sioners assigning estate to one of the parties. 1272. Form for report of commis- sioners when property is to be sold. 1273. Form for order for sale in partition and a distribution of proceeds. Sec. 1251. The partition may be made, when— The commis- sioners in partition— Their oath and duties. When the estate, real or personal, assigned by decree of distribution to two or more heirs, devisees or legatees, is in common and undivided, and the respective shares are not sep- arated and distinguished, partition or distribution may be 915 REAL ACTIONS. — STATUTORY. § 1252 made by three disinterested persons, to be appointed com- missioners for that purpose by the county court, or judge, who must be duly sworn to the faithful discharge of their duties. A certified copy of the order of their appointment, and of the order of decree assigning and distributing the estate, must be issued to them as their warrant, and their oath must be indorsed thereon. Upon consent of the parties, or when the court deems it proper and just, it is sufficient to appoint one commissioner only, who has the same authority and is governed by the same rules as if three were appointed.^ Sec. 1252. The petition for partition and. the notice required. Such partition may be ordered and had in the county court, on the petition of any person interested. But before commissioners are appointed, or partition ordered by the county court as directed in this chapter, notice thereof must be given to all persons interested who reside in this State, or their guardians, and to the agents, attorneys or guardians, if any in this State, of such as reside out of the State, either personally or by public notice, as the county court may direct. The petition may be filed, attorneys, guardians and agents appointed and notice given at any time before the order or decree of distribution, but the commissioners must not be appointed until the order or decree is made distrib- uting the estate.- 1 Snyder, 5,418; Wilson, 1,760; a Snyder, 5,419; Wilson, 1,761; California, 1,075 (Kerr), identical. North Dakota, 8,217 (1905), iden- As to limited powers of court in, tical; South Dakota, 314 (1904), see Buckley v. Superior Court, 102 identical; California, 1,677 (Kerr), Cal. 6, 36 Pac. 300, 41 Am. St. 135; identical; Buckley v. Superior Estate of Hinckley, 58 Cal. 487. As Court, 102 Cal. 6, 36 Pac. 360, 41 ancillary to power of probate court, Am. St. 135. "May" of the statute said courts have power to partition. means "must." Buckley v. Superior Kobinson v. Fair, 128 U. S. 53, 32 Court, ibid. Administrator may L. Ed. 415; Richardson v. Loup, not have partition, when. Ryer v. 60 Cal. 490, 22 Pac. 227. Cannot Fletcher, 126 Cal. 482, 58 Pac. 908. partition homestead occvipied by wife and children. Trumbly v. Martell, 61 Kan. 703, 60 Pac. 741. §§ 1253-1255 merwine's trial op title to land. 916 Sec. 1253. The partition when the real estate is in different counties. If the real estate is in different counties, the county court may, if deemed proper, appoint commissioners for all, or different commissioners for each county. The whole estate, whether in one or more counties, must be divided among the heirs, devisees or legatees, as if it were all in one county, and the commissioners must, unless otherwise directed by the county court, make division of such real estate wherever situ- ated within this State.^ Sec. 1254. Partition may be made where heirs or devisees may have conveyed. The partition or distribution of the real estate may be made, as provided in this chapter, altliough some of the original heirs, legatees or devisees may have conveyed their shares to other persons, and such shares must be assigned to the person holding the same in tlie same manner as they other- wise would have been to such heirs, legatees or devisees.* Sec. 1255. Both partition and distribution — Metes and bounds. When both distribution and partition are made, the several shares in the real and personal estate must be set out to each individual in proportion to his right by metes and 3 Snyder, 5,420; Wilson, 1,762; Richardson v. Loup, 80 Cal. 490, North Dakota, 8,217 (1905); South 22 Pac. 227; Martinovitch v. Mar- Dakota, 314 (1004), identical; Cali- sicano, 137 Cal. 354, 70 Pac. 459; fornia, 1,677 (Kerr). Estate of Crookes, 125 Cal. 457, 58 4 Snyder, 5,421; Wilson, 1,763; Pac. 89; Chever v. Ching, 82 Cal. California, 1,678 (Kerr), identical; 68, 22 Pac. 1,081; DeCastro v. North Dakota, 8,214 (1905), iden- Berry, 18 Cal. 97; Estate of Stew- tical; South Dakota, 315 (1904), ard, 81 Pac. 78; Estate of Ryder, identical; see section construed by 141 Cal. 371, 74 Pac. 993. 917 REAL ACTIONS. — STATUTORY. § 1256 bounds, or description, so that the same can be easily dis- tinguished, unless two or more of the parties interested con- sent to have their shares set out so as to be held by them in common and undivided." Sec. 1256. The rule when estate cannot be divided — Owelty in partition — Males preferred to females — Du- ties of commissioners when estate cannot be divided. When the real estate cannot be divided without prejudice or inconvenience to the owners, the court may assign the whole to one or more of the parties entitled to shares therein, who will accept it, always preferring the males to the females, and among children preferring the elder to the younger. The parties accepting the whole must pay to the other par-- ties interested their just proportion of the true value thereof, or secure the same to their satisfaction; or in case of the minority of such party, then to the satisfaction of his guard- ian, and the true value of the estate must be ascertained and reported by the commissioners. When the commissioners appointed to make partition are of the opinion that the real estate cannot be divided without prejudice or inconvenience to the owners, they must so report to the court, and recom- mend that the whole be assigned as herein provided, and must find and report the true value of such real estate. On filing the report of said commissioners, and on making or securing payment as before provided, the court, if it appears just and proper, must confirm the report and thereupon the assignment is complete, and the title to the Avhole of such real estate vests in the person to whom the same is so assigned.^ 5 Snyder 5,422; Wilson, 1,764; e Snyder, 5,423; Wilson, 1,765; Xorth' Dakota, 8,215 (1905), iden- North Dakota, 8.219 (1005); South tical; California, 1.679 (Kerr), Dakota, 317 ( 1004) , identical; Cali- identical; South Dakota, 316 fornia, 1,680 (Kerr), identical (1904), identical §§ 1257-1259 merwine's trial of title to land. 918 Sec. 1257. The whole tract may be assigned to whom — The payment by the others. When any tract of land or tenement is of greater value than any one's share in the estate to be divided, and cannot be divided without injury to the same, it may be set off by the commissioners appointed to make partition, to any one of the parties who will accept it, giving preference as pre- scribed in the preceding section. The party accepting must pay or secure to the others such sums as the commissioners may award to make the partition equal, and the commission- ers must make their award accordingly ; but such partition must not be established by the court until the suras awarded are paid to the parties entitled to the same, or secured to their satisfaction.'^ Sec. 1258. The real estate may be sold — Manner of sale. "When it appears to the court from the commissioners' report that it cannot be otherwise fairly divided, and should be sold, the court may order a sale of the whole or any part of the estate, real or personal, by the executor or ad- ministrator or by a commission appointed for that purpose, and the proceeds distributed. The sale must be conducted, reported and confirmed in the same manner, and under the same requirements as provided in sections from 5308 to 5346, Wilson, from 1652 to 1690, inclusive.* Sec. 1259. The notice required — Commissioners may take evidence — Duties of. Before any partition is made, or any estate is divided as provided in this chapter, notice must be given to all persons interested in the partition, their guardians, agents or at- torneys, by the commissioners, of the time and place when 7 Snyder, 5,424; Wilson, 1,766; 8 Snyder, 5,425; North Dakota, North Dakota, 8,220 (1905), iden- 8,222 (1005), identical; South Da- tical; South Dakota, 314 (1904), kota, 1,767 (1904), identical; Cali- identical; California, 1,681 (Kerr), fornia, 1,682 (Kerr), identical, identical. 919 REAL ACTIONS. — STATUTORY. §§ 1260-1262 and where they shall proceed to make partition. The com- missioners may take testimony, order surveys and take such other steps as may be necessary to enable them to form a judgment upon the matters before them.^ Sec. 1260. The report of the commissioners — Other commis- sioners may be appointed, when — ^The degree to be recorded and where. The commissioners must report their proceedings and the partition agreed upon by them to the county court in writing, and the court may, for sufficient reasons, set aside the report and commit the same to the same commissioners or appoint others; and when such report is finally confirmed, a certified copy of the judgment or decree of partition made thereon, attested by the judge under the seal of the court, must be recorded in the office of the register of deeds in the county where the lands lie.^° Sec. 1261. Commissioners need not be appointed, when. When the county court makes a judgment or decree as- signing the residue of any estate to one or more persons entitled to the same, it is not necessary to appoint commis- sioners to make partition or distribution thereof, unless the parties to whom the assignment is decreed, or some of them request that such partition is made.^^ Sec. 1262. The court has power to hear and determine ques- tions of advancements. All questions as to advancements made, or alleged to have been made by the decedent to his heirs, may be heard and determined by the county court, and must be specified in the 9 Snyder, o,42G ; Wilson, 1,768; tical; South Dakota, 321 (1904), Xorth Dakota, 8,218 (1905), iden- identical; California, 1,GS4 (Kerr), tical; South Dakota, 320 (1904), identical. identical; California, 1,683 (Kerr), u Snyder, 5,428; Wilson, 1,770; identical. South Dakota, 322 (1904); Cali- 10 Snyder, 5,427; Wilson, 1,769; fornia, 1,685 (Kerr), identical. North Dakota, 8,221 (1905), iden- § 12G3 merwine's trial op title to land. 920 decree assigning and distributing the estate; and tlie final judgment or decree of the county court, or in case of an appeal, of the district court or Supreme court, is binding on all parties interested in the estate/- Sec. 1263. Form for petition for partition, county court. County Court, County, State op Oklahoma. In re Estate of , Deceased. No. PETITION FOR PARTITION. Comes now and alleges : 1. That he is one of the children and one of the heirs at law of , deceased. 2. That the following are the names and residences of all of the persons Avho are interested in said estate of , deceased, and the names and place of residence of all guardians, agents and attorneys residing in this State, who represent any of such persons so interested in said estate, to-wit: (Here set forth names and place of residence of such persons.) 3. That on the day of , 19—, the said was duly appointed of said estate, Avho qualified and who is now performing the duties of such office. 4. That said estate by such has been duly adminis- tered, and that a petition for such distribution is now filed and is pending in said estate and in said cause. 5. That the property of said estate will vest in and be as- signed for distribution herein to , , and , in common and undivided, and the real estate will not be divided and set off to them by metes and bounds by said decree of dis- tribution. The premises considered, your petitioner prays for a decree setting off and assigning to each of the persons interested in 12 Snyder, 5,428; Wilson, 1,777; Dakota, 323 (1904), identical; Cali- INorth Dakota, 8,212 (1905); South fornia, 1,686 (Kerr), identical. 921 REAL ACTIONS. — STATUTORY. § 1264 said estate his share in severalty ; that commissioners by order of court be appointed to assign and set off to each party his re- spective share in severalty, and for such order in the premises as to the court may be proper. Petitioner. Sec. 1264. Order for hearing petition for partition. County Court, County, State of Oklahoma. In re Estate of , Deceased. No. — ORDER FOR HEARING PETITION FOR PARTITION. Whereas, , one of the heirs at law of , deceased, has filed his petition in said cause asking that partition may be made in said estate, and that this court appoint commissioners for that purpose. It is ordered by this court that on , the day of , 19 — , at o'clock, — m., of said day, at the court- room, is fixed as the time and place for the hearing of said petition. It is ordered that the clerk of this court give the time and place of said hearing to the persons to whom the law requires such notice to be given by posting such notices in not less than three public places in the county, the same to be posted for not less than ten days before the time fixed for said hearing. In Witness Whereof, I have hereunto affixed my hand this day of , 19—. Judge of the County Court in and for said County and State. §§1265,1266 merwine's trial of title to land. 922 Sec. 1265. The notice for the hearing of the petition. County Court, County, State of Oklahoma. In re Estate of , Deceased. No. . NOTICE FOR HEARING OF PETITION FOR PARTITION. , having filed his petition for the partition of tlie estate of , deceased, praying for the partition thereof among the parties entitled thereto, notice is given that on , the day of , 19 — , at o'clock, — m., of said day, at the courtrcom of said court, is fixed as the time and place for the hearing of said petition. All persons interested may appear at said time and place and may be heard on the matters alleged and prayed for in said petition. Dated this day of , 10—. Clerk of said Court. Sec. 1266. Form for order of the court appointing commis- sioners to partition. County Court, County, State of Oklahoma. In re Estate of ■ , Deceased. No. . ORDER APPOINTING COMMISSIONERS TO PARTITION. This day this cause came on to be heard upon the petition for partition of the property in said estate as prayed for in said petition, and petitioner appearing by , his attorney, and the court finds that due notice, as required by law and the orders of this court, was given of the time and hearing hereof, and that all parties interested are now subject to the jurisdiction of this court, and it appearing from the evidence and the records and files in this cause that an order and decree of distribution has been made herein, the court, from the evidence adduced in 923 REAL ACTIONS. — STATUTORY. § 1267 this case, finds that partition should be made and that commis- sioners in partition should be appointed for that purpose. It is ordered that , and , be, and they are hereby, appointed commissioners herein, and required to give notice as required by law, and to make partition of the fol- lowing property: (Here describe it) by assigning and setting over the same to the following persons in severalty, the same being so marked and described that each share be distinguished, to-wit : To , the part thereof ; to , the undivided part thereof, and to , the undivided part thereof. It is further ordered that the partition so to be made be reported to this court forthwith. Dated this day of , 19—. Judge of the County Court aforesaid. Sec. 1267. Form for oath of the commissioners in partition. County Court, County, State of Oklahoma. In re Estate of , Deceased. No. . "We, , and , commissioners appointed to make partition of the property of , deceased, being duly sworn, say that we will, impartially, faithfully and to the best of our ability, discharge our duties as such commissioners according to law. ~ » Sworn to before me and subscribed in my presence this day of , 19—. [Seal.] Notary Public. My commission expires . § 1268 merwine's trial op title to land. 924 Sec. 1268. Report of commissioners awarding partition among the heirs. County Court, County, State of Oklahoma. In re Estate of , Deceased. No. . REPORT OF COMMISSIONERS. To the Honorable County Court in and for County, Oklahoma : The undersigned, as coramissioners in partition, each having been first duly sworn, according to law, and having received a certified copy of the order issuing out of this court appointing us as such coramissioners, and the order and decree of this court giving the manner of the distribution and partition of the estate of , deceased, and the parties entitled thereto, and the proportion thereof, certified copies of such appointment and order of distribution and partition having been issued to us as our power and authority to act in the premises, and our said oath being attached hereto, in , all of which will more fully appear by tlie same which is annexed hereto, respectfully report as follows : We gave notice according to law to all persons interested in said partition of the time and place of the hearing, at which time, having heard the evidence and proofs offered, and after viewing the property, did make partition thereof as follows : We assigned to the property described as follows: (Here specifically describe it.) We assigned to the prop- erty described as follows: (Here specifically describe it), etc. Given under our hands this day of , 19 — . Commissioners in Partition. 925 REAL ACTIONS. — STATUTORY. §§ 1269, 1270 Sec. 1269. Confirmation of commissioners' report. County Court, County, State of Oklahoma. In re Estate of , Deceased. No. . DECREE CONFIRMING COMMISSIONERS' REPORT. This cause came on to be heard upon the report of and , returned herein by said commissioners for confirmation and approval thereof, and the same was examined by the court and heard upon the evidence, and the court, finding tliat the same is regular and in due form of law, and according to the former orders of the court herein, does approve and con- firm the same, and it is ordered, adjudged and decreed that each of said parties hold in severalty and in fee simple the property set off and assigned them. Dated this day of , 19 — . Judge of the County Court aforesaid. Sec. 1270. The notice to be given by the commissioners in partition of the time and place of their hearing. County Court, County, State of Oklahoma. In re Estate of , Deceased. No. . and , etc., will take notice that the commissioners whose names hereto are attached and who were by the county court of County, Oklahoma, appointed to make partition of the estate of , deceased, will meet at , in , Oklahoma, at , on the day of , 19 — , at o'clock, — m., of said day, to perform their duties by making such partition. You may be heard in the premises at said time and place. Commissioners in Partition. §§ 1271-1273 merwine's trial of title to land. f)2G Sec. 1271. Form for return of commissioners assig^ning estate to one of the parties. County Court, County, State ok Oklahoma In re Estate of , Deceased. No. . RETURN OF CO.M.MISSIOXKRS. (Follow form to in form at Sec. , and proceed with) And , one of the parties inti-rt'stcd. is willing, under the statute, to pay tlie wliole value, or seeure its pityinent, as provided by law. We here annex a true description of the Sec. 1272. Form for report of commissioners when property is to be sold. County Court, County, State of Oklahoma. In re Estate of , Deceased. No. , Here follow with form at Sec. , to , tlien begin, and state that said real estate cannot, in our judgment, be divided fairly amongst the parties interested, and we therefore recommend that said real estate above herein described be sold, and the proceeds divided and distributed among the parties in accordance with their respective interests. Sec. 1273. The order for sale in partition and a distribution of proceeds. County Court, County, State of Oklahoma. In re Estate of , Deceased. ;j«^q ORDER FOR SALE AND DISTRIBUTION OF PROCEEDS. This cause this day coming on for hearing on the return of the commissioners appointed herein to make partition of the prop- erty of , deceased, of their report, and it appearing from 927 REAL ACTIONS. — STATUTORY. § 1273 said report that the property of said estate cannot be divided without manifest injury thereto, and to the prejudice of the parties interested therein; that none of the parties are willing to take the whole of said estate and pay or secure the payment of the value thereof to the other parties having an interest therein, and that it is, by reason of the premises, necessary to sell the following described property of said estate: (Here de- scribe it specifically.) It is Therefore ordered that said property be sold and the proceeds arising from such sale be distributed according to law to the parties entitled thereto. It is further ordered that the administrator, before making such sale, make, execute and file herein his additional bond in the sum of $ . Dated this day of , 19—. Judge of said County Court. §1274 MERWINE S TRIAL OF TITLE TO I^VND. 928 5. THE PRODUCTION OF EVIDENCE IN REAL ACTIONS. SECTION 1274. In ejectment. 1275. Proof of title in the action to recover land. 1276. When evidence of title imma- terial. 1277. Tlie degree of proof in eject- ment. 1278. Admissibility of deeds — Deed not in chain of title — Void description. 1279. Deed not executed according to law may not be intro- duced in evidence in actions to determine title. 1280. The authentication of deeds and instruments of convey- ance. 1281. The statute in this Stat(-- Instrument itself may be introduced, when. 1282. The record of the instrument may be introduced, when. 1283. Meaning of the term "not in possession or control" of party. 1284. Register of deeds to transfer old records to his office, when. 1285. Records transcribed from any county, and effect of such record in evidence. 1286. Copies from any public rec- ord, how certified and how admitted. 1287. Copies of records of foreign courts, how authenticated and how admitted. SECTION 1288. E.xemplificd copies of govern- ment books may be ad- mitted in evidence. 1289. Evidence of receipts from tlio register of the land office. 1290. Copies of [Kipers in register or receiver's office may be u.-ied in evidence. 1291. The admis^icin of deed or other document in writing Admission if required, when. 1292. Production of deeds and other papers — Inspection of docu- ment books. 1293. Copy of deed or other instru- ment in writing may be demanded, when. 1294. Births— Deaths— Evidence of marriage — Copies of mar- riage register. 1295. Certified cnities of the enroll- ment records of the commis- sioners to the five civilized tribes evidence as to blood and age of the allotee. 1296. Affidavit as to age a declara- tion against interest and admissible in evidence — Party competent to testify as to age. 1297. The law making the rolls final as to blood and age of an allotee is constitutional. 1298. Admissibility of rolls to show tribal blood of the allotee. 1298a. The enrollment records have always been conclusive as to blood and age of an allotee. Sec. 1274. Evidence in ejectment. A deed from one not shown to have any interest in or connection with the land proposed to be conveyed, is inad- missible as evidence of title in an action for its recovery; and an instrument purporting to convey land, in which the 929 REAL ACTIONS. — STATUTORY. § 1274 description is so vague and uncertain as to be meaningless, and there is nothing in the deed by which the identity of the premises can be ascertained, is void. The order in which evidence shall be received must to a great degree be left to the discretion of the court trying the case, and, unless that discretion has been abused, its action furnishes no ground for complaint.^ Where a defendant in an action of ejectment claims title based on a tax deed, and also upon a decree quieting title in his antecedent grantor in possession under such tax deed, and in an action to which plaintiff was a party, the validity or invalidity of the tax deed is not material unless the decree quieting title is absolutely null and void, and subject to the collateral attack made in the ejectment action.^ It is error to reject an offer of evidence tending to prove that the holder of a quitclaim deed from one who had received a warranty deed, and had then executed back to his grantor a bond for reconveyance, knew that the deed and bond were in fact given as security for money, and not for a conveyance and reconveyance of the land.^ In tlie action plaintiff need not state, on offering in evi- dence the record of the patent to the land in controversy, that he intends to follow up the conveyance of title from the patentee down to himself, as, without proof of this original conveyance of title, proof of other conveyances would be futile. And where plaintiff claims title through a sheriff's deed, he has a right to begin at the source of his title, and go forward, and need not begin at the sheriff's deed, and trace his title down to the Government.* In an action for the recovery of real estate where the answer is a general denial, on trial, the plaintiff must show a perfect title, or state all the facts which correspond with that degree of proof. When in such action the plaintiffs 1 McBride v. Steinweden, 72 Kan. s Pope v. Nichols, 61 Kan. 230, 59 508, 83 Pac. 822. Pac. 257. 2 Priest V. Robinson, 64 Kan. 416, * Green v. Holmes, 9 Kan. App. 67 Pac. 850. 886, 58 Pac. 128. § 1274 merwine's trial of title to land. 030 show a deed to their ancestors, and then rest, they have not made out a prima facie case; nor is this defect supplied by the defendant who puts in evidence a deed from the admin- istrator of the estate of phiintill's' ancestors, to his vendoi-s, without any testimony that he hokls uiuh-r the title. Tlu; deed is some evidence that he holds under it. hut not con- clusive.^ It was held that where parents and their children unite in a deed conveying lands belonging to the estate of a deceased member of the family, a statement that the persons so joining in the deed are heirs of the decedent, is admissible as evidence of the identity of a sister of the decedent, joining in the conveyance as an heir under a surname dilVerent from her maiden name.® Where the defendant claims a right of possession, only under a contract with the plaintiff for the purchase of the property, evidence of title on the plaintiff's part, becomes immaterial.^ In an action of ejectment, proof of possession under claim of title for over fifteen years is sufficient to sustain a finding of title as against a party under no disa])ility, and claiming title only by virtue of a recent and insufficient tax deed.' 5 Bancroft v. Chambers, 10 Kan. ploadod by liim, wliicli purported to 275; Clayton v. School Dist., 20 decide some controversy between the Kan. 257; Allen v. Houston, 21 Kan. railway company and M, adversely 201. In an action brought by C to the company, but the questions against M to recover a tract of land, involved and decided were not C oflFered evidence tending to show shown. Held, that the notice did that the land was granted by the not overthrow tlie prima facie show- United States to a railway company, ing of a right of recovery in C, and through which C claimed the land. that there was sufficient evidence to M subsequently attempted to pre- sustain the judgment in her favor, empt the land as public land, claim- IMosier v. Clapp, 44 Kan. 450, 24 ing that, while it was within the Pac. 951. limits of the grant, it was excepted c King v. Hyatt, 51 Kan. 504, 32 from it; but the only evidence of- Pac. 1105. fered to support his claim v.'as a ''' Baldridge v. Centgraf, 82 Kan. notice of a decision by the local 240, 108 Pac. 83. land officers, made three days prior 8 Hollenbeck v. Ess, 31 Kan. 88, to the trialj and which was not 1 Pac. 275. 931 REAL ACTIONS. — STATUTORY, § 1275 Where, on the trial of an action in ejectment, the record of a deed was offered in evidence, purporting to have been made and signed by George H. Case, but the certificate of acknowledgment was to the effect that the execution of the instrument was the act of George H. Crane; and there was evidence that the original deed was not in the possession or under the control of the party offering the same; and there is further evidence from the grantee named in the deed that the acknowledging officer, grantor, and attesting witness were dead ; and that he was present at the time the deed was executed by George H. Case, and was cognizant of such fact; held, that the record of such deed was admissible in evidence, notwithstanding the apparent error in the cer- tificate of acknowledgment.' Sec. 1275. Proof of title in the action to recover land. In an action for the recovery of the possession of land from a defendant claiming title by adverse possession, the plaintiff is required to show his claim of title to the land in dispute by a chain of conveyances from the Government, or from a grantor proved to have been in the possession of the land is dispute when he executed the conveyance therefor. It has been said that a prima facie case is made by showing a conveyance to plaintiff or one of his grantors in the chain of title, by one then in possession and occupancy of the land. If this' is not done, he must run his title by deed or other necessary proof, to someone shown or admitted to be the common source of title, back to the Government.^" «Heilv. Redden, 45 Kan. 562, 26 20 Ohio State, 99; Blackburn v. Pac 2. Attention is directed to the Blackburn, 8 0. 81; Avery v. Sites, chapter in this book relating to con- W. 56. The following rule is given vevances in actions concerning real by Newell on Ejectment page 585: - "In actions of ejectment it is sei- ^'I'lMiddletonv.Wostonney.TC.C. dom necessary, especially in the 268- Blake v Davis. 20 0. 239: older portions of the country, to Hart V. Johnson. 6 O. 87: Newell go back to the government as a on Ejectment, 585: Cunningham v. source of title or ^^^^^^^l^^^'^^ Harper W. 366; Star v. Wright, the chain of the plaintiff s title. The §§1276,1277 merwine's trial op title to land. 932 In an action of ejectment, plaintiff need not state, on offering in evidence the record of the patent to the land in controversy, that he intends to follow up the conveyance of title from the patentee down to himself, as, without proof of this original conveyance of title, proof of other convey- ances would be futile. Where plaintiff claims title through a sheriff's deed, he has a right to begin at the source of his title, and go forward, and need not begin at the sheriff's deed, and trace his title down to the Government.^^ Sec. 1276. When evidence of title immaterial. In ejectment, where the defendant claims a right of pos- session only under a contract with the plaintiff for the purchase of the property, evidence of title on the plaintiff's part becomes immaterial. ^^ Sec. 1277. The degree of proof in ejectment. Where the answer is a denial of title, the plaintiff will be required to show a perfect title, or a state of facts that dispenses with that degree of proof. Where in such action the plaintiff shows a deed from the ancestor, they have not made out a prima facie ease; nor is this defect supplied by the defendant who puts in evidence a deed from the admin- istrators of the plaintiff's ancestor to his vendors, without any testimony that he holds under the title. The deed is some evidence that he holds under it, but is not conclusive.^* government in this country is the latest common source as a starting common source of all titles, but it point in the chain of his title." very frequently happens that a com- n Green v. Holmes, 9 Kan. App. mon source of title may be found 886, 58 Pac. 128. after the government parted with 12 Baldridge v. Centgraf, 82 Kan. its title to the lands in controversy. 240, 108 Pac. 84. In such cases the plaintiff is not 1 3 Bancroft v. Chambers, 10 Kan. required to go back further than the 275. 933 REAL ACTIONS. — STATUTORY. §§ 1278. 1279 Sec. 1278. Admissibility of deeds— Deed not in chain of title — Void description. A deed offered as evidence in the action on behalf of one not appearing in the chain of title, and not in possession of the land under color of title, will not be admitted; and where the description in a deed is so vague and indefinite as to not connect it in any way with the description of the land in controversy, the deed cannot be admitted in evi- dence:^* Sec. 1279. Deed not executed according to law may not be introduced in evidence in actions to determine title. The law provides a way by which title to the real estate of anyone can be determined by an inspection thereof from the records in the recording office, and every instrument there can be examined, and from the contents thereof it can be determined whether the same is sufficient to convey title. In an action by which title is to be determined, before a deed may be introduced, it must be executed and acknowl- edged as prescribed by law, for if it were not so, then any instrument of writing containing words of grant and con- veyance, could be made to take the place of the properly executed deed. A deed, the acknowledgment of which does not contain the seal of the officer taking the acknowledg- ment, or does not contain the name of the person whose acknowledgment is taken, is void. The reason is well under- stood, and it has been adopted for the safety and security of land titles. This law is supported by a long list of au- thorities.^"* 14 McBride v. Steinwaden, 72 Kan. la. 60 ; Wills v. Atkinson, 24 Minn. 508 83 Pac. 822; Bancroft v. 161; Barrett v. Proskaner, 62 Ala. Chambers, 10 Kan. 364; McKibben 486; Hayden v. Wescotte, 11 Conn. V Newell 41 111. 461; Kennedy v. 129; Hiss v. McCabe, 45 Md. 77; Bogart, 7 Serg. & R. C. Pa. 97; Smith v. Hunt, 13 Ohio, 260, 42 Scrock V. Zubler, 34 Pac. 38. Am. Dec. 201. isWarvells on Vendors, Sees. 508 and 511; Schaffenbery v. Bishop, 35 §§ 1280-1282 merwine's trial op title to l.vnd. 934 Sec. 1280. The authentication of deeds and instruaents of conveyance. Before the matter was changed by legislation in this Rtate, there were two kinds of documents — attested and unat- tested — which required to be authenticated before they could be offered in evidence. It has always been the rule, in the absence of any statute on the subject, that all attested docu- ments must be proved by tliose Avhose names wt-rt" attached thereto as subscribing witnesses. The unattested document must be proved by the testimony of those wlio know the handwriting of the maker. Sec. 1281. The statute in this State — Instrument itself may be introduced, when. All instruments affecting real estate and executed and acknowledged in substantial compliance herewith shall be received in evidence in all courts without finthcr proof of their execution; and in all cases where copies or other instru- ments might lawfully be used in evidence, copies of the same, duly certified from the records by the register of deeds may be received in evidence; and if the same need not be recorded to be valid for the purpose for which such evidence is offered, a copy duly verified by oath or atVidavit of any person knowing the same to be a true copy may be received in evidence.^® Sec. 1282. The record of the instrument may be introduced, when. The books and records required by law to be kept by any probate judge, county clerk, county treasurer, register of deeds, clerk of the district court, justice of the peace, police judge or other public ofiicers, may be received in evidence in any court; and when any such record is of a paper, document or instru- ment authorized to be recorded, and the original thereof is not in the possession, or under the control of the party 16 Snyder, 1,209; Wilson, 902. 935 REAL ACTIONS. — STATUTORY. §§1283,1284 desiring to use the same, such record shall have the same effect as the original; but no public officer herein named or other custodian of the public records shall be compelled to attend any court, officer or tribunal sitting more than one mile from his office with any record or records belonging to his office or in his custody as such officer.^^ Sec. 1283. Meaning of the term "not in possession or con- trol" of party. The Supreme Court of Kansas, in construing this section of our statute, decided that the records of a register of deeds may be received in evidence to prove an instrument author- ized to be recorded by the statute therein, when the original thereof is not in the possession or under the control of the party desiring to use the same. If it appears that the written instrument has been executed to the adverse or opposing party, and the party desiring to use the same is not entitled to the custody thereof, the presumption is that it is not in his possession or control. ^^ Again, the same court held in another case that only that degree of proof is necessary to satisfy the court of the existence of the fact that the orig- inal is not in the possession or control of the party desiring to introduce it in evidence at the trial.^^ Sec. 1284. Register of deeds to transfer old records to his office, when. The register of deeds of any county in this State, wherein is situated a town in which prior to November sixteen, nineteen hundred and seven, an office for the filing and recording of deeds, mortgages, liens and other instruments was maintained by the United States, is hereby authorized, empowered and directed to receive and to transfer to his office all the records, files, books and instruments kept in such office and which pertain to and properly belong in the office of register of deeds, and when so transferred, such records, IT Snyder, 5,908; Wilson, 4,574; i9 Stratton v. Hawks, 43 Kan. Kansas, 4,836, identical. 538, 23 Pac. 591. 18 Mclvcan v. Webster, 45 Kan. G44, 26 Pac. 10. § 1285 MERWINE'S TRI.VIi OF TITLE TO LAND. 936 files, books and instruments sliall Ix' and bceome a part of the permanent records of the office of the register of deeds in such county.-" Sec. 1285. Records transcribed from any county, and effect of such record in evidence. The board of county commissioners of the several counties of this State are authorized and empowered to copy and transcribe, or to have copied and transcribed, any part of the records of any other county whenever such records eflfect such county desiring such transcript or property situate therein. Such transcript sliall be made in a well InMiiid book and the person, or persons making such transcript shall verify the correctness under oath. One oath shall be suffi- cient to verify a volume of such tran.scripts. Such transcribed records shall, wlien approved by the board of county com- missioners and placed in the office of the regi.ster of deeds, be and become a part of the permanent records of his office. And the record of all instruments contained in such tran- scripts shall have the same force and etTcct as if such instru- ment was originally recorded in said county. Each register of deeds who receives such records under this act shall have the same authority relative to the same as if they were records of his own office; he shall have authority to relea.se mort- gages therein recorded in the same manner now provided by law; to make certified copies of all such records, and do such other acts in relation to the same as the clerks of the United States courts could have done had there been no change from territorial to State government. The certified copies of such records, when made by the register of deeds having custody of the same under this act, under his hand and seal, shall be admissible in evidence in any proceeding, whenever com- petent, in the same manner as provided by law for the admission of copies of other papers required to be filed or recorded in any public office.^i 20 Snyder, 1,741; Act of 1908. =1 Snyder, 1,742, 1,743, 1,745 and 1,746; Act of 1908. ^'^'^ REAL ACTIONS. — STATUTORY. §§ 1286, 1287 These provisions of the statute relating to the public records are quite important in cases where one is called upon to prove title through homestead and allotment deeds, the records of which were made from copies made from the originals. It is only by virtue of the statutes that either the records of the same or certified copies of the record are admissible. Sec. 1286. Copies from any public record, how certified and how admitted. Copies of all papers authorized or required by law to be filed or recorded in any public office, or of any record required by law to be made or kept in any such office, duly certified by the officer having the legal custody of such paper or record, under his seal, if he have one, may be received in evidence with the same effect as the original, when such original is not in the possession or under the control of the party desiring to use the same." In order that the copy may be introduced under this pro- vision of the statute, it must first be shown not to be in the possession or control of the party desiring to introduce the same. It is error for the court, if the adverse party object thereto, to allow a copy to be introduced without first show- ing that the party asking for its introduction comes within the requirement of the statute.-^ Certified copies offered in evidence under the statute can- not be rejected simply because copies had not been furnished to a plaintiff under a written demand therefor.-* Sec. 1287. Copies of records of foreign courts, how authenti- cated and how admitted. Copies of records and the proceedings in the courts of foreign countries may be admitted in evidence upon being 22 Snyder, 5,892; Wilson, 4,559; 23 pjlcher v. Atchison, 7 Pac. 613, Kansas, 4,820 (1901), identical. 34 Kan. 46. See herein, and aiithorities there 24 Hammerslough v. Hackett, 1 cited on this subject. Pac. 41. §§1288,1289 merwine's trial of title to i^vnd. 938 authenticated as follows: First, l)y the otlicial attestation of the clerk or officer in whose custody such records are legally kept; and, second, by the certificate of one of the judges or magistrates of such court, tliat the person so attesting is the clerk or officer legally intrusted with the custody of such records, and that tlu' signature to his at- testation is genuine; and, lliiid. liy tlie oHicial certificate of the officer who has the custody of the principal seal of the Government under whose authority the coui't is held, attested by said seal, stating that such court is duly constituted, specifying the general nature of its jurisdiction, and verify- ing the seal of the court.'-'' Sec. 1288. Exemplified copies of Government books may bo admitted in evidence. Exemplification from the l)ooks of any of the departments of the Government of the United States, or any papers filed therein, shall be admitted in evidence in the same manner and with like effect as the originals, when attested by the officer having the custody of such originals. The signature of the officer to any certificate or document hereinbefore mentioned shall be presumed to be genuine until the con- trary is shown.'" Sec. 1289. Evidence of receipts from the register of the land office. The usual duplicate receipt of the receiver of any land office, or, if that be lost or destroyed, or beyond the reach of a party, the certificate of such receiver that the books of his office show the sale of a tract of land to a certain indi- vidual, is proof of title equivalent to a patent against all but the holder of an actual patent." 25 Snyder, 5,891; Wilson, 4,558; 27 Snyder, 5,903; Wilson, 4,570; Kansas, 4,819 (1901), identical; Kansas, 1,831 (1901), identical; Nebraska, 1,401. McClurg v. Penny, 12 Okla. 303, 70 26 Snyder, 5,905, 5,906; Wilson, Pac. 404; Weeks v. White, 41 Kan. 4,572, 4,573. 569, 21 Pac. 600; O'Neill v. Dout- hitt, 39 Kan. 316, 18 Pac. 199; Dorsey v. McCartney, 12 Pac. 104. 939 REAL ACTIONS. — STATUTORY. §§ 1290-1292 Sec. 1290. Copies of papers in register or receiver's oflace may be used in evidence. Copies of all papers and documents lawfully deposited in the office of the register or receiver of any land office of the United States within this State, and copies of any official letter or communication received by the register or receiver, of any such land office, from any department of the Govern- ment of the United States, when duly certified by the register or receiver having the custody of such paper, document, letter or other official communication, shall be received in evidence in the same manner and with like effect as the originals.^^ Sec. 1291. The admission of deed or other document in writ- ing — Admission if required, when. Either party may exhi])it to the other, or to his attorney at any time before the trial, any paper or document material to the action, and request an admission, in writing, of its genuineness. If the adverse party or his attorney, fail to give the admission in writing within four days after the request, and if the party exhibiting the paper or document be afterward put to any costs or expense to prove its genuine- ness, and the same be finally proved or admitted on the trial, such costs and expenses, to be ascertained at the trial, shall be paid by the party refusing to make the admission, unless it shall appear to the satisfaction of the court that there was good reasons for the refusal.'® Sec. 1292. Production of deeds and other papers— Inspection of document books. Either party, or his attorney, may demand of the adverse party, an inspection and copy, or permission to take a copy of a book, paper or document in his possession or under 28 Snyder, 5,904; Wilson, 4,571; spection of books and papers is left Kansas, 4.832 (1901), identical; to the discretion of the court Stinson V. Green, 42 Kan. 520, 22 whether or not to exclude such Pap 5S6. books and papers at the trial if in- 29Snvder, 5,887; Wilson, 4.554; spection is not permitted." Cham- Nebraska, 1,378 (1907), identical. berlain v. Chamberlain, 93 N. W. "The granting of orders for the in- 1021. § 1293 merwine's trial of title to land. 940 his control, containing evidence relating to the merits of the action or defense therein. Such demand shall be in writing, specifying the book, paper or document with sufficient par- ticularity to enable the other party to distinguish it, and if compliance of the demand, within four days, be refused, the court, or judge, on motion and notice to the adverse party may, in their discretion, order the adverse party to give to the other, within a specified time, an inspection and copy, or permission to take a copy of such book, paper or document ; and on failure to comply ^^^th such order, the court may exclude the paper or document from licing givi-n in evidence, or if wanted as evidence by the party applying, may direct the jury to presume it to be such as the party by affidavit, alleges it to be. This section is not to be construed to prevent a party from compelling another to produce any book, paper or document w^hen he is examined as a witness.'"' Sec. 1293. Copy of deed or other instrument in writing may be demanded, when. Either party, or his attorney, if required, shall deliver to the other party or his attorney, a copy of any deed, instru- ment or other writing whereon the action or defense is founded, or which he intends to offer in evidence at the trial. If the plaintiff or defendant shall refuse to furnish the copy or copies required, the party so refusing shall not 30 Snyder, 5,888; Wilson, 4,555: will, under the statute, order that Kansas, 4,856 (1901), identical. said defendant give to said counsel The counsel for plaintiff, upon for complainant, within a specified proper demand, has a right to an time, an inspection and copy or inspection and copy, or permission permission to take a copy of said to take a copy, of the county rec- records. State v. Allen, 5 Kan. 213, ords, within the custody of the said 124. Where a party has told the defendant, containing evidence relnt- adverse party that the writing of ing to the merits of the action, which an insnection is asked, has and after said defendant has, for been destroyed, the notice required more than four days, persistently by the statute is dispensed with. refused such inspection and copy, Barmby v. Plummer, 45 N. W. 277. the court upon motion and notice As to cases where secondary evi- to such defendant, and sufficient evi- dence of a document may be admit- dence of such demand and refusal, ted, see Whitney v. State, 73 N. W. 941 REAL ACTIONS. — STATUTORY. § 1294 be permitted to give in evidence, at the tri^.1, the original of which a copy has been refused. This section shall not apply to any paper, a copy of Avhich is filed with any pleading.^^ Sec. 1294. Births — Deaths — Evidence of marriage — Copies of marriage register. When, by ordinance or custom of any religious society or congregation in this State, a record is required to be kept of marriages, births, baptisms, deaths or interments, such reg- ister shall be admitted as evidences- Testimony tending to prove the laws, usages and customs of the Creek Nation, Avith regard to the marriage relation and the legitimacy of the children of such marriage and their consequent legal status as heirs during the period in question, are held to be competent, and it would be error at the trial to exclude such testimony, if otherwise competent.! Copies of the register referred to in the preceding para- graph, certified by the pastor or other head of any such society or congregation, or by the clerk or other keeper of such register, and verified by his affidavit in writing, shall be received in evidence.* A marriage may be proved by general reputation in all actions where it is necessary to prove title to real estate. It is to be observed that the language is "general reputation." It cannot be proved by any other reputation. A witness introduced to prove a marriage by reputation may be asked if he knows the general reputation of the parties, and if he answers in the affirmative, he may testify as to the general reputation in the community in which they lived as to their being married.'^ 696; Baldwin v. Burt, 61 K W. Kan. 160, 114; Psyche v. Shinn, 601: Hawley v. Robinson, 16 N. W. 94 N. W. 135. 438; Westinghouse v. Tilden, 76 32 Snyder, 5,900; Wilson, 4,567; N. W. 416: see, for right to require Kansas, 4,828 (1901), identical; witness at trial on duces tecum to ]\reconce v. Mower, 37 Kan. 298, produce writing, ^March v. Davis, 6 15 Pnc. 155. Pac. 612: Atchison v. Burke, 90 t Oklahoma Land Co. v. Thomas, Pac. 950. et al., Supreme Court, not yet re- 31 Snyder, 5.889: Wilson. 4.556: ported. Nebraska. 1.380 (1907), identical: • Snyder. 5,901 ; Wilson, 4.568. Hammerslough v. Hackett, 1 Pac. 33 Warvelle on Ejectment, Sec. 382. 41: Kansas v. Christian Berry, 3 § 1295 merwine's trial of title to land. 942 Sec. 1295. Certified copies of the enrollment records of the commissioners to the Five Civilised Tribes — Evidence as to blood and age of the allotee. In order for the security of the laud titles of all of the lands allotted in this State to the Indians, Congress was careful to provide a means for the determination of the age and of the blood of any allotee of said lauds. It declared "that the roll of citizenship and of freedmeu of the Five Civilized Tribes, approved by the secretary of the interior, shall be conclusive evidence as to the f|uantu!n of Indian blood of any enrolled citizens or freedmeu of said tribe, and of no other persons, to determine questions arising under this act, and the enrollment records of the commissioner to the Five Civilized Tribes shall hereafter be conclusive evi- dence as to the age of said citizen or freedman.^* The following construction has been placed by the Federal courts on this statute : ''The object, purpose and intent of Congress by this por- tion of the act was not by its ipse dixit to make tliat which was black, white, or the reverse, nor was it enacted for the purpose of putting questions of fact beyond the pale of judicial inquiry. This, of course, it could not do and would not attempt. On the contrary, however, said portion of the act, and the public rolls, prepared according to the authority of Congress as well, were all part and parcel of a general scheme w^orked out and employed by the Government in the allotment of tribal property in severalty to the members of the tribes and in an endeavor to protect such allotees in their several property rights by such means, and to such extent as the exigencies of the case, the ignorance and en- vironment of the allotee considered, demanded for the best interests of the wards of the Government. In carrying out this scheme of protection. Congress, as it had the undoubted right to do, defined the word 'minor' as it did therein, and referred any and all persons intending to become pur- 34 Act of May 27, 1908; Bledsoe's Indian Land Lavs, Sec. 605. 943 REAL ACTIONS. — STATUTORY. § 1296 chasers of any portion of the tribal lands from an allotee thereof, not to the uncertain hazard of a judicial inquiry, based on the evidence of ignorant and interested witnesses, but to the fixed and definite public rolls to ascertain whether such allotee did or did not possess the qualified age or requisite degree of Indian blood to confer upon him the power of disposition under the law. If an intending pur- chaser of an allotee of tribal property holding the public rolls in one hand and this act in the other, by a comparison of the two, found such allotee possessed the power of dis- position under the act and the rolls, he was at liberty to purchase and he was protected in such purchase. If, on the other hand, the law and the public rolls considered together, denied the right of the allotee to convey, a purchaser from such allotee was not protected, and this regardless of the true state of facts as they might be made to appear in the case." ^' Sec. 1296. Affidavit as to age a declaration against interest and admissible in evidence — Party competent to testify as to age. Where an affidavit is made as to the age of an allotee by a party, before conveying lands, such affidavit is competent evidence as an admission, and may be introduced on trial for the purpose of fixing the age. In the action in which this doctrine was announced the allotee, in order to sell his land, made an affidavit for the purchaser that he was of age. Afterward, at the trial where the question of the age of the allotee was in issue, the court permitted it to be introduced in evidence, and this ruling was affirmed.^® We quote from the opinion in this case, delivered by Mr. Justice Dunn, of the Supreme Court : "The evidence discloses that the defendant is a freedman member of the Creek Tribe of Indians, and the land involved 35 Bell V. Cook, et al., Circuit 36 Ross v. Heriott, decided by Su- Court of the United States for the preme Court of Oklahoma, March Eastern District of Oklahoma, sit- 12, 1912, tin? at Muskogee (October 26, 1911). §1297 merwine's trial o. title to land. 944 his allotment, forty acres of which was designated as his homestead; that he was enrolled by the Commission in the month of September, 1898, as of the age of eight years; that on June 25, 1908, he executed and delivered to C. I. Earn- hart a warranty deed to this entire tract of land; that on March 19, 1909, Earnhart executed a deed to Tackaberry ; that on the 8th day of April, 1909, the defendant and his wife acknowledged and delivered a deed to J. V. Tackaberry. The question of the age of the allotee and original grantor is the pivot around which all of the propositions of this case revolve. On the trial, the plaintiff, for the purpose of showing that the defendant was of age at the time of the execution and delivery of the deed to P'arnhart, submitted in evidence the testimony of Tackaberry, who stated that the defendant told him that his father had informed him that he was born :\rarch 1. 1887; that ho stated tliat hr was of age, and that he looked like a man just as he now does; that there was no change in him ; also an affidavit made by the defendant for the purpose of fixing his age under date of February 29, 1908, in whieh he stated that he was born on the 1st day of IMarch, 1887. This testimony was sufficient, if believed by the jury, to support its conclusion that the defendant was of age at the time shown by the affidavit mentioned, the same being on the part of the defendant, an admission against his interest which he was competent to make. 1 Ene. of Ev. 735, and cases cited in notes 15 and 16; State V. McLain, 49 Kan., 750; Burke v. Hindsman, 70 111. App., 496." It has been held that a party to an action where his age is a question at issue, may testify as to his age.^'' Sec. 1297. The law making the rolls final as to blood and age of an allotee is constitutional. This act of Congress providing that the rolls of citizenship and of freedmen of the Five Civilized Tribes, approved by the secretary of the interior, shall be conclusive evidence as 37 Stevens v. Elliott, 118 Pac. (Okla.) 407. 945 REAL ACTIONS. — STATUTORY. § 1297 to the quantum of Indian blood of an enrolled citizen or freedman of said tribes, and that the enrollment records should thereafter be conclusive evidence as to the age of said citizen or freedman, has been held to be constitutional. For a long time ii:everal of the district courts of Eastern Okla- homa had been holding that this act was unconstitutional because Congress could not legislate that which is not a fact to be a fact. The court in the opinion declaring the law to be constitu- tional, said : "In consideration of a law all doubts are resolved in favor of its constitutionality. "When it is attacked, if a doubt exists, it must be resolved in its favor. Counsel for defend- ants contend that the section of this act making the rolls conclusive evidence as to the age of the allotee is unconsti- tutional, unenforceable and void. The act in question is an act of Congress, and, as we have seen, has been interpreted and held valid by the Federal court sitting within the juris- diction wherein these people and their lands are; the reasons advanced in support of the conclusion reached by that court appear to us to be sound and correct, and we adopt them. It would hardly be possible to enlarge on the language used by the Supreme Court of the United States, and later fol- lowed and used by this court in recognizing the plenary power possessed by Congress in dealing with these Indian wards and their property. Among the numerous cases in which it is noted is that of Lonewolf v. Hitchcock, 187 U. S., 553; 23 Sup. Ct., 216; 47 Law Ed., 299, wherein speaking of this subject, Mr. Justice White says: " 'The power of the general government of these remnants of a race once powerful, now weak and diminished in num- bers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never existed anywhere else, because the theater of its existence is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes. That § 1297 merwine's trial of title to land. 946 Indians who had been fully emancipated from the control and protection of the United States are subject, at least so far as the tribal lands were concerned, to be controlled by- direct legislation of Congress, is also declared in Choctaw Nation v. United States, 112 U. S., ; 17 Sup. Ct., 76; 30 Law Ed., 306; and Stephens v. Choctaw Nations, 174 U. S., 445; 19 Sup. Ct., 723; 43 Law Ed. 1041.' " Quoting the foregoing this court in the case of Gleason et al. V. Wood, 26 Okla., 502; 114 Pac, 703, said: "Not only has this power been exercised over tribal aiTairs, but it is extended to the property of the iiu'inhers anil tlie disposition thereof, its tenure, title, and idl rifjhts growing out of it. The individual interest therein which has been given had been by virtue of its plenary legislative authority, and the interest and title withheld has been under the same power. For, as was said by Judge Hook, in Ligou v. .John- son, 164 Fed., 670; 90 C. C. A., 486, 'The disposition of the tribal property of the Indian tribes falls within the legislative domain; the power of Congress is supreme, and its action is conclusive upon the courts.' " ^Vnd having under consideration this identical act of Congress, this court, speaking through ]\Ir. Justice Hays, in the case of Jefferson v. Winkler, 26 Okl., 653; 110 Pac, 755, said: "It is unnecessary to comment upon the extent or limita- tion of the authority over the lands and property of such Indians, that is, by the enabling act reserved to the United States Government; for, whatever be the extent of that authority or its limitations, we think it cannot be questioned that said authority reserved is sufficient to retain in the Government of the United States jurisdiction over the re- stricted lands of said Indians to determine and provide how and in w^iat manner such restrictions shall be removed; and that until such restrictions are removed, the lands of said Indian minor allotees are not within the jurisdiction of the probate courts of the State with poAver in said courts to order the sale thereof for any purpose. Since the power to 947 REAL ACTIONS. — STATUTORY. § 1297 remove such restrictions are wholly within Congress, it may say upon what terms and conditions they will be removed, and under the supervision of what court or officer the sale of the same shall be made. "Among the terms and conditions fixed by this act are found the provisions that the jurisdiction of the probate courts of the State of Oklahoma over the lands of minors and incompetents is made subject to the foregoing provisions, to-wit: the status of the lands, and thereunder was defined the term 'minor' or 'minors,' to the end that the State might not pass an act making either a less or greater number of years conclude the minority of the parties with whom it was then dealing, or otherwise effect a change in their rights of alienation. It was also provided that the rolls, made by the Dawes Commission, approved by the secretary of the interior, should be conclusive as to the quantity of Indian blood of any enrolled citizen or freedmen, and that they should hereafter be conclusive evidence as to the age of said parties in determining matters arising under the act. The power to thus legislate for these citizens of the State of Oklahoma, was reserved to Congress by Section 1 of the Enabling Act, and recognized and sanctioned in Section 3 of Article 1 of the Constitution, and the State courts are bound in good faith to enforce these congressional regula- tions in reference to the lands of members of these tribes. The record introduced was one made under Congressional authoritv bv a commission organized for the purpose of perfecting these rolls. A census was authorized, if not di- rectly enjoin-d, and the information, thus gathered at great expense, was in possession of Congress. All agree upon the purpose and end to be secured by restricting these allotees in their right to alienate their lands. Counsel charge and admit on both sides that on a trial wherein the question of the ages of these allotees arises, virtually no dependence what- soever is to be placed in the accuracy of the testimony or evidence adduced. It is asserted and admitted to be a matter of general knowledge, that these people generally § 1297 merwine's trial op title to land. 948 kept but few, if any, records showing their family history or ages, and that as a consequence, any proof adduced at any time in any controversy is subject to all the fluctuations incident to ignorance or self-interest. This bt'ing true, Con- gress cannot be presumed to have been ignorant of these facts and these ages, thus fixed by an impartial judicial commission, without interest to do aught else than with such light as it could obtain, fix them correctly, wei-e in the main, more likely to be accurate tiiau ages established at a time and under conditions where self-support or ignorance would produce either deception or error. The stability of land titles is of paramount importance everywhere, and this wise and salutary statute of Congress will have much to do with permanently determining the same to large quantities of these tribal lands. Congress has not sought herein to make that which was false true or to make that whieh was true false; the ages fixed were not for the purpose of estab- lishing any rights whatsoever under the laws of the State; they were not conclusive of the age of consent, or marriage, or of the right to exercise the elective franchise ; they refer solely to the determination of questions arising under the act. The fact that some of these ages are manifestly inaccu- rately stated in the records in no wise changes or alters the rule laid down. The power of Congress to say upon what terms restrictions should be relaxed or removed was abso- lute and the act in this respect is, in our judgment, constitu- tional and valid. ' ' ^* 38Yarbrough v. Spalding, decided held at the beginning of the action by the Supreme Court of Oklahoma, by tlie defendants, claiming title March 12, 1912. The facts giving under plaintiff's deed. On tlie trial rise to this opinion, briefly stated, there was offered by the plaintiff are these: Plaintiff in error, Jennie and received in evidence over the Yarbrough (nee Hammonds), a defendants' objection, a certified Creek citizen of the half blood, as copy of plaintiff's enrollment card, plaintiff in the lower court, began as follows: "Department of the an action to recover certain allotted Interior. Commissioner to the Five lands which she had alienated dur- Civilized Tribes, Creek Roll. Citizens ing the year 1908, and which were by Blood. Number 4431; name, 949 REAL ACTIONS. — STATUTORY. § 1298 Since the text in this section was written, the Supreme Court, on a rehearing or Ross v. Ilenott, supra, decided that "Under section three of the act of May 27, 1908, the enroll- ment records of the Five Civilized Tribes, are from and after the date of said act conclusive evidence of the age of the citizen or freedman referred to therein for the purposes of the said act, and a deed from the allotee executed after the approval thereof and at a time when the said records show him to be a minor, is void." Sec. 1298. Admissibility of rolls to show the tribal blood of an allotee. In discussing this (luestion our Supreme Court has said: "Dora Hanby and her husband both testified that she and her deceased son were members of the Creek Tribe of Indians by blood. They testified that she was one thirty-second Creek, and that the deceased was one sixty-fourth Creek. The enrollment card showed them to have Creek blood. If any of the testimony taken before the commission to the Five Civilized Tribes could be considered, then the testimony of Mary E. Bowen, Dora Ilanby's grandmother, shows she was of Creek blood. The defendant introduced a copy of the testimony of some witnesses, taken before the commis- sion to the Five Civilized Tribes, for the purpose of showing that Mary E. Bowen, the grandmother of Dora Ilanby, was not a Creek by blood. A great deal of the testimony offered Hammonds, Jennie; age, eight; sex, Five Civilized Tribes." Defendants female; blood, half; Card No. 13!)3. then offered over plaintiff's objec- This is to certify that I am the tion, evidence, which, if competent, officer having the custody of the ap- established that the plaintiff was proval roll of Creek citizens by eighteen years of age on the 20th blood, and that the above and fore- day of December, 1907. The trial going is a true and correct copy court found for the defendants, of that portion of said mil appear- which necessarily included a finding ing at No. 44.31. Enrolled as of that this was the correct age of January 18, 1000. ^luskogee, Okla- plaintiff, and rendered a decree hold- homa. C. H. Drew, Clerk. Musko- ing valid the deeds to the allotted gee, Oklahoma, November 22, 1910. lands in qaestion. J. G. Wright, Commissioner to the §§ 1298a, 1298b merwine's trial of title to land. 950 for tliis purpose was inadmissible at tbo tiiiu' it was givt-n before the commission, even under the liberal rulf with reference to pedigree and family relationship. Hut certainly none of the testimony taken before the commission in the application for enrollment of Mary E. Bowen ct al. was admissible in this case. No attempt whatever was made to account for the absence from this trial of the witnesses who had testified before the commission. The plaintiff ob- jects to its introduction, and when the court admitted it, over his objection, excepted. Whether the court proceeded upon the theory that many courts do, where there is no jury. that it saves time to admit everything, and then reject the incompetent testimony when con.sidering the case, or whether he considered the evidence, does not appear from the record. But, considering all the evidence, incompetent as well as competent, it cannot be said that there is not sufficient evi- dence to sustain the finding of the court. "^" Sec. 1298a. Allotment certificate sufficient to make out case, when. In an action of ejectment by an allotee, the proof of the certificate of allotment, in the absence of any other proof, is sufficient to make a case for the plaintiff.* Sec. 1298b. The enrollment records have always been con- clusive evidence as to the age and blood of an allotee. The writer has always been of the opinion that the enroll- ment records were conclusive as to age and blood of an allotee, even prior to the enactment of section three of the act of May twenty-seven, nineteen hundred and eight. Both the cases above herein, Yarbrough v. Spalding and Ross v. Heriott, were argued to the Supreme Court at the same time, and ••'sSkelton V. Dill, 29 Okla, 813, ♦ Devin v. Adkinson, — Okla. — . 119 Pac. 2(57; Sec. 1298a. Allot- ment certificate sufficient to make out case, when. ^ » 951 REAL ACTIONS. — STATUTORY. § 1298b the writer then in oral agreement and by written brief urged this proposition on the court. This proposition was involved in both cases, but the court decided both cases without passing on the proposition here stated. The argument pre- sented in each of these cases we here present. We are led to do this because the Supreme Court, at this writing, has handed down an opinion which decided this question. It is the case of Campbell v. Vance, an action on appeal from Craig County. The writer has the written opinion, and here quotes from the syllabus : "The enrollment records of the commissioner to the Five Civilized Tribes, as provided for by act of Congress,* are conclusive evidence as to the age of citizens and freedmen allotees of said tribe. "In a controversy as to which of two instruments of con- veyance executed by an allotee is valid, and it appears from the enrollment records that such allotee was enrolled as of fifteen years of age September first, nineteen hundred and two, and would therefore become twenty-one years of age September one, nineteen hundred and eight, and one of said instruments was executed prior and the other subsequent to such date, the latter instrument is held to convey the valid title." The court, after announcing this opinion has withheld the same as it did in the case of Parkinson v. Skelton, supra. Both cases were decided correctly and the court will eventu- ally, on more mature deliberation, so hold. The decision in Campbell v. Vance, supra, is an announcement (though not in the same language), of the conclusions of the writer in written argument by brief in that court, and this is the excuse for here giving the argument in full: "The finding of the Commission of the Five Civilized Tribes, having established the age of the allotee, the same •Act of June 10, 1896 {29 Stat. L. 321). § 1298b merwine's trial op title to land. 952 could not be changed or modified except by judgment of a court of competent jurisdiction, and the said fiiidint^ never having been questioned or changed or modified pn-vious to tlie Act of ]\Iay twenty-seven, nineteen hundred and eight, wliieh made the findings of said commission conclusive as to age; therefore, said finding of the said commission stands as judieial finding and stands as conelusive since the date of the enroll- ment of said allotee and finding of said commission. ''But there is another reason why the census or roll card is conclusive as to the age of the allotee at all tinu's after enrollment. The finding and conclusion of tiie commission was a judgment, and until set aside or corrected by tiie method provided by law for that purpose, it became res adjudicata. "By the Act of June twenty-seven, nineteen hundred and eight, we find that the Commission, in making the census rolls, was given authority to administer oaths, examine wit- nesses, to require the production of documents and papers, and anyone testifying falsely before it, was guilty of per- jury. The same act provided that the rolls, when so made up and approved by the secretary of the interior, should be final. The enrollment records were thus made by a commis- sion, sitting as a court, taking the testimony, and the rolls so found, determined and made by the commission, were afterwards passed upon and confirmed by the United States Government, under the Department of the Interior. It will thus be seen that Congress conferred upon this commission, thus acting as a court, all of the powers and attributes incident to a court of record; it had the power to bring witnesses before it, to administer oaths, to bring papers and other evidence as to sex, age, blood, tribal relations, before it, and its judgment should be final; it gave th« right of appeal to anyone aggrieved by its judgment and its judg- ment and proceeding was finally recorded and open to the inspection of the public. "It will be thus seen from this Federal law, given below, that the commission, acting as a court of record, was author- 953 REAL ACTIONS. — STATUTORY, § 1298b ized to make an enrollment of the citizens and freedmen of the Five Civilized Tribes, and in addition thereto, it was authorized to make a census of the tribe, or to adopt any other means deemed necessary to make such rolls. In making the census, the commission was obliged, under the law, to take evidence as to the age and quantum of blood of the Indians and freedmen; for the term 'census' is defined to be 'an official enumeration of the inhabitants of a State or country, with details of sex and age, family,' etc. (6 Cyc, 725.) "In addition to the several attributes of a court, the law gave to the finding and conclusion of the commission the finality of a judgment, carrying with it the same conclusive estoppel as belongs to a judgment in a court of record, for it says: 'The judgment of a court shall be final.' "The enrollment record thus made by the commission, sitting as a court, has every attribute of a judgment, and this law in controversy, calls it such. The logical conclusion upon this subject, therefore, is that the judicial determination of the commissioner to the Five Civilized Tribes under this law of Congress, fixing the quantum of Indian blood and the age of an allotee, as to the lands allotted him by the Gov- ernment, carries with it the same conclusive estoppel pos- sessed by every judgment of a court of record, and so long as not repealed or set aside by a court having power and jurisdiction to do so, is notice to everyone who may after- wards purchase the lands allotted to such Indian or freedman. In the cause at bar there was therefore a judicial determina- tion of the question of the age of the plaintiff, in the enroll- ment record of the Commissioner to the Five Civilized Tribes, that was just as final and carried the same conclusiveness as any court of record in the United States. Now, can it be said, after the quantum of Indian blood and the age of an allotee has been so fixed and determined by this judicial authority, that a purchaser of the land allotted to an Indian or freedman would not be bound by the roll? § 1298b merwine's trial of title to land. 954 "Aside from these considerations, the act itself, says: 'And hereafter the enrollment records shall be conclusive evidence as to the age of said citizen and freedman.' "We here quote from an act of Congress, supporting tiie statements above given as to the powers and duties of the Commissioner to the Five Civilized Tribes, in making up tlie enrollment records : " 'In the performance of sucli duties, said cotnmission sliall have power and authority to administer oatlis, to issue proc- ess for, and to compel the attendance of witnesses, and to send for persons and papers, and all depositions and atli- davits and other evidence in any form wluitsoever, iiereto- fore taken, Avhere tlie witnesses giving such testimony are dead, or now reside beyond the limits of said territory, and to use every fair and reasonable means within their reach for the purpose of determining tlie rights of persons chiiming such citizenship, or to protect any of said nation from fraud or wrong, and the rolls so prepared by them shall hereafter be held to be the true and correct rolls of the jx'rsons entitled to the rights of citizenship in said several tribes: Provided, that if the tribe or any person be aggrieved with the decision of the tribal authority, or the commission provided for in this act, it, or he, may appeal from such decision to the United States district court: Provided, further, that the appeal shall be taken within sixty days, and the judgment of the court shall be final. " 'That the said commission, after the expiration of six months, shall cause a complete roll of the citizenship of each of said nations to be made up from their records, and add thereto the names of citizens whose rights may be conferred under this act, and said rolls shall be, and are hereby, made rolls of citizenship of said nation or tribe, subject, however, to the determination of the United States district courts, as provided herein. '"The commission is hereby required to file a list of mem- bers as they finally approve them with the commissioner of 955 REAL ACTIONS. — STATUTORY. § 1298b Indian affairs, to remain there for use as the final judgment of the duly constituted authorities. And said commission shall also make a roll of persons entitled to citizenship in said tribe, and shall include their names in the list of mem- bers to be filed with the commissioner of Indian affairs.*" " 'Said commission shall make such rolls descriptive of the persons therein, so that they may be identified, and it is authorized to take a census of said tribe, or to adopt any other means necessary to make such roll. * * * 41 " 'The members of said commission shall, in performing all duties required of them by law, have authority to admin- ister oaths, examine witnesses, send for persons and papers; and any person who shall wilfully and knowingly make any false affidavit or oath to any material fact or matter before any officer authorized to administer oaths, to any affidavit or other paper to be filed, or oath taken before said com- inissi(m, shall be deemed guilty of perjury, and, on convic- tion thereof, shall be punished for such offense.'*^ "The judgment of the commission is a matter of public record, and everyone has notice of it and is bound by its terms, just as everyone is bound with the notice of a recorded mortgage or judgment lien, on real estate, for which he takes a deed. "The tribunal thus created by act of Congress had the power to pass these two questions into res adjudicata. In support of this proposition we cite the following: " 'It is a universal principle that where power or jurisdic- tion over a subject is delegated to any public officer or tribunal, whether executive, legislative, judicial or special, and its exercise is confided to his or their discretion, the decisions made or acts done are binding as to the subject- matter, and cannot be questioned collaterally; provided they are within the scope of the authority and power conferred. *oibi(l; Act of June 10, 1896 (29 i-^IUd; Sec. 21, Act of June 28, Stat. L. 321). 1898 (30 Stat. L. 495). *i Ihid; Act of June 28, 1898. § 1298b merwine's trial of title to land. 956 If not void for want of authority, they are final and conclu- sive except on appeal or other mode of revision, if any such is provided by lavi^, or proceedings to annul for fraud.'" "But it is urged in the court below that the commission is not authorized to fix and determine the quantum of blood and the age of the allotee, and therefore its determination and finding on either question would not import absolute verity. "Congress by this law making the rolls final as to quantum of blood and age, explicitly recognized tlie commission had power and did fix both the question of blood and age. "Again, whoever heard of a census that did not fix the question of age? " 'A census is the official registration of the number of the people; an official enumeration of the inhabitants of a State or country with details of sex and age.'** "The term 'census' means 'an official enumeration of the inhabitants of a State or country, with details of sex and age, family, etc.'*' "As will be seen by looking at the provisions of the act above herein set forth, creating this tribunal, it was given power to make a census, and as the term 'census' includes age, the deduction is that it had power to fix the age of an allotee." Everyone agrees that the records are conclusive as to the blood of an allotee. They agree to this proposition because of the necessity of some absolute conclusive proof on the subject. The vast flood of cases now in the Supreme Court, caused by the uncertainty as to proof of the age of an allotee, is the strongest argument that could be made for the proposi- tion for which w^e here urge and contend. A wise public policy demands it for the security of land titles in almost the half of our State. 43 2 Freeman on Judgments, Sec. 44 2 Words and Phrases Judiciilly 531; 24 Am. and Eng. Ency. 721 Defined, 1026; City v. Cast, 48 N. E. (2d Ed.); 2 Black on Judgments, 1025, 149 Ind. 255. Sec. 516, 23 Cyc. 1219. ^^Ihid; e'Cyc. 725, cited above. AA 000 742 677