SYLLABUS OF OPINIONS RENDERED BY THE SUPREME COURT AND THE SUPREME COURT COMMISSION TUESDAY, JANUARY 11: L. B. Brown et al. v. M. S. Wilson et al., Muskogee county superior court; Reversed and remanded. Opinion by Turner. 1. 2. 3. Where an oil and gas lease was made, executed and delivered for the consideration og $1.00 in hand paid the lessor and the Covenants and agreements hereinafter contained on the part of the lessee and leased and let to him a certain tract of land for a term of ten years and as long thereafter as oil and gas or either were produced therefrom by the lessee, he to yield to the lessor certain royalties from the oil and gas produced and, where the lessee agreed to complete a well on the premises within four months from the date thereof or pay at the rate of $80.00 in advance for each three months such completion was delayed; Held, That the $1.00 supported the four months period in which the lessee had to complete a well and supported no other stipulation in the lease; that the prospective royalties was the sole consideration for the execution of the lease on the part of the lessor; that the agreements on the part of the lessee to complete a well on the demised premises within four months or pay for delay conferred an option on the lessee to drill or pay and that a failure to do either forfeited the lease at the option of the lessor, who, thereafter was entitled to have the same judicially declared forfeited and cancelled as a cloud upon his title. Where such lease reserves to the lessee and his assigns the right at any time after four months, on the payment of $1, and all payable obligations then due the lessor or his assigns, to surrender the lease, if not tested, for cancellation. Held that, as said lease, construed as a whole, confers on the lessee an option to complete a well within four months or pay for delay, and a further option to surrender at any time after four months, and thereby avoid doing both, it was voidable at the option of the lessor at any time after four months for lack of mutuality in that it imposed no legal obligation on the lessee; that, as prospective royalties was the sole consideration for the execution of the lease on the part of the lessor, payment of which could be defeated by a surrender thereof by the lessee the lease was nudum pactum and that, as the same reserves to the lessee the right to surrender the lease at any time after four months before development, a corresponding right exists in the lessor to compel a surrender. Where said lease as to eight yacres of the demised premises was assigned to the S. S. Co., and where on July 17, 1914, $20 delay money fell due and payable thereon from the lessee to the lessor, as 4. 5. suming that the lessor and all parties in interest under the lease agreed to the substitution of said company as lessee of said eighty acres so assigned. Evidence examined and Held; That said company defaulted in said payment; that time was the essence of the contract and that the court erred in refusing to so hold and that said lease was forfeit as to the holdings of said company under the lease and to cancel the lease accordingly. Where said lease as to 240 acres of the demised premises was assigned to W. and C. and where on April 17, 1914, $60 delay money fell due and payable thereon from them to the lessor; evidence examined and held: That they defaulted in said payment; that time was the essence of the contract and that the court erred in refusing to so hold and that said lease was forfeit as to their holdings thereunder, and to cancel the same accordingly. Where the lessor, after forfeiture ineurred, brought suit to have the same judicially declared and to clear his title, and thereafter executed a second lease on the same premises, and thereafter parted with his interest as lessor in the demised premises; evidence examined and held: That the court erred in refusing to grant such relief to him and to all parties in interest under the second lease. Billings Hotel company v. City of Enid. original application for writ of prohibition; Writ denied. Opinion by Turner. * A municipal corporation, in the exercise of a * * * to power granted in the charter," define what shall be a nuisance in the city, * and to abate such nuisance by summary proceedings, and to punish the authors by penalties, fines and imprisonment, may not invoke the aid of a court of equity to abate a nuisance consisting of a rooming house where intoxicating liquors are sold contrary to section 14, chapter 70, Session Laws, 1911, and the city charter, and defined by both to be a nuisance. George K. Hunter, treasurer, v. State of O lahoma ex rel. Pottawatomie county su perior court; Reversed and remanded. Opinion by Hardy. 1. 2. 3. By sec. 2, art. 3, chap. 43, Session Laws 1895, page 220, amending section 1, article 10, chapter 70, Statutes 1893, and by seetion 3, article 9, chapter 32, Session Laws 1897, page 257, it was provided that all interest, penalties and forfeitures upon delinquent taxes should be paid into the county sinking fund. Said provisions were not repealed by Aet of March 12, 1897, amending section 2, article 3, chapter 43, Session Laws 1895. Where statutes relating to the same subject matter have been enacted at the same legislative session, they should be construed together as in pari materia so 2. 3. 4. 5. Under section 3384, Revised Laws 1910, it is the duty of the State Election Board where an election is had upon a date other than the general election in November, to forward to the county clerks not later than 40 days before such election a sufficient number of copies of the text of the measure to be voted upon, together with a copy of the arguments for and against such measure, and a copy of the official ballot, bound together in a single pamphlet, with a table of contents, to supply every voter therewith, and an additional number equal to ten per cent of the number of such voters, and it is the duty of the county clerks to immediately distribute them to the precinct election inspectors, who should, not later than five days prior to such election convoke, hold or cause to be held public meetings of the electors of his district, and distribute or cause to be distributed such pamphlets to the assembled voters and to use all other diligent means of distributing them to all the voters of such election precinct. The purpose of this provision is to place in the hands of every voter in the State the text of the proposition to be voted upon, with copy of the official ballot and the arguments for and against such proposition, so that the voters may have an opportunity to acquaint themselves with the merits thereof and cast an intelligent ballot thereon. And while by section 3393 it is provided that the procedure regulating elections under the initiative and referendum is not mandatory, yet a substantial compliance therewith is required, and where it appears that by reason of the failure to substantially comply with the provisions of section 3384, a sufficient number of electors have been deprived of the opportunity to exercise their franchise as to change the results of the election had they participated therein, same will not be upheld. Held, under the facts disclosed in the 6. 7. opinion, there was not a substantial compliance with the law, and the election held August 4, 1914, upon State Question No. 62, cannot be sustained. Where the State Election Board met in regular session to canvass the returns of a primary election at which certain State questions were voted upon, and proceeded to canvass the returns upon such State question, but prior to the completion of such canvass one of the members absented himself from the sessions of said board on private business and thereafter the remaining members complete the canvass and certify the result to the Governor, their action in so doing is valid and will be upheld. The filing of a petition referring to the people an Act passed by the Legislature suspends the operation thereof until the same shall have been approved by a majority of the vote cast at an election held thereon. J. H. Brader v. Rachael Jones, Choctaw county district court; Affirmed. Opinion by Sharp. 1. 2. 3. 4. Section 22, of the Act of Congress of April 26, 1906 (34 Stat. A. L. 137, ch. 1876), giving to the adult heirs of any deceased Indian of either of the Five Civilized Tribes, whose selection has been made, or to whom a deed or patent has been issued for his or her share of the land of the tribe to which he or she belongs or belonged, authority to sell and convey the lands inherited from such decedent, but which further provides, All conveyances made under this provision by heirs who are full-blood Indians are to be subject to the approval of the Secretary of the Interior, under such rules and regulations as he may prescribe," renders void a deed to inherited lands, whether surplus or homestead, allotted during the lifetime of a deceased fullblood Choctaw who died prior to the date of the passage of the Act, by the heir. on August 17, 1907, without obtaining the approval of the Secretary of the Interior to such conveyance. The title to the lands in controversy being, at the date of the passage of the Act of April 26, 1906, in the defendant in error, any conveyance thereafter made by her was controlled by the law then in force; and as such law provided that a conveyance by a full-blood Indian heir was subject to the approval of the Secretary of the Interior, and such approval not having been secured, the deed was void. Congress, in pursuance to the long established policy of the government, has a right to determine for itself when the guardianship which has been maintained over the Indian shall cease. Congress, in the exercise of its constitutional authority, and while the guar dianship relation over full-blood Indians continues, may impose restrictions on fullblood Indian heis, requiring that convey ances by them of inherited allotted lands be approved by the Secretary of the Interior; and this, notwithstanding the restrictions imposed by prio legislation have expired by limitation, or by the death of the allottee. The Acts of Congress of July 1. 1902, (32 Stat. a. L. 641, ch. 834); April 26, 1906 (34 St. a. L. 37); June 16, 1966, 34 Stat. a. L. 267, ch. 3355) and May 27, 1908 (35 Stat. a. L. 312, eh. 1995, pertaining to the affairs of the Chickasaw and Choctaw Indians, and the Enabling Act, evince no intention on the part of the United States to discontinue or surrender, but on the contiary to continue its relations of guardianship over full blood Choctaw and Chickasaw Indians, in respect to the alienation by them of inherited allotted lands. The rights of full-blood Choctaws, who were made citizens of the United States by the Act of March 3, 1901, 31 St. a. L. 1447, ch. 868), with all the rights, privileges, and immunities of such citizens, were not unconstitutionally impaired by the Act of April 26, 1906, Par. 22, imposing restrictions upon the alienation by them of inherited allotted lands, notwithstanding that prior to the passage of the Act the lands so inherited, or a part thereof, may have been free of all restric tions. Lee Drummond v. Bessie Drummond, original application for writ of prohibition; Denied. Opinion by Thacker. 1. Under section 3931, Statutes 1893 (Sec. 4703, Revised Laws 1910), where the summons in an action for divorce is in due time served, the court acquires jurisdietion of the subject matter of the action as of the date of the filing of the petition and issuance of summons thereon by virtue of the doctrine of relation. Where a husband commenced action for divorce against his wife in the district court of a county and thereupon said wife 2. commenced action for divorce and incidental relief against him in the district court of another county, and it does not appear that there is or will be any sharp, and intolerable conflict of jurisdiction between said courts against which there is no adequate remedy at law, the writ of prohibition will not issue to prevent the latter court from exercising jurisdiction. Commonwealth Cotton Oil company v. M. W. Hudson et al, Pawnee county district court; Reversed and remanded. Opinion by Brewer. 1. A defendant, who has objected to the jurisdiction of the court over his person. may, after his objection has been overruled, in any manner defend against the action without waiving his objection; but if he does more, and, aside from his de fense, voluntarily demands affirmative relief in the same action, and thus invokes the jurisdiction of the court in a matter unnecessary to his defense, he will be deemed to have waived such objection. (a) Testing the sufficiency of the petition by demurrer, or by motion to make more definite, to the end that it may be intelligently answered and defended, is not asking such affirmative relief as will deprive the defendant of the benefit of his objection to the jurisdiction. ci (b) Where the objection of a defendant to the jurisdiction of the court over his person has been overruled and exceptions saved, he is not required to appeal from such action within the statutory time allowed for appeals, but may save the point and have it reviewed here on ap peal from the final judgment in the case. The exemption allowed a witness, while actually attending court in obedience to the commands of a subpoena, from being served with summons in a suit in a county in which he does not reside, and would. ordinarily, not be suable, extends to the service of summons on him in his representative capacity as managing officer or agent of a corporation. National Life Insurance company v. M. F. Hale, Canadian county district court: Modified and affirmed. Opinion by Collier. 1. 2. Where a promissory note, drawing five and one-half per cent interest, payable semi-annually, contains a clause which provides that the rate shall be increased to the maximum legal rate of interest, in the event of default in payment of either principal or interest at maturity, such increased rate of interest is not a penalty but a valid contract for the payment of interest. (Overruling the first syllabus in National Life Ins. Co. v. Hall et al., 34 Okla. 395). Where the answer fails to state a defense to the action, or to any part thereof, a motion to strike said answer from the files should prevail. J. L. Miller v. C. E. Hair et al., Osage county 1. 2. court; reversed. Opinion by Devereux. Where a firm of architects were employed by a county to make drawings, ets., of a court house and jail, being constructed by the county, and in the contract it is specified that the county shall employ a superintendent who shall be paid out of the compensation of the architects, but the contract leaves the amount of his compensation blank; Held, That in the absence of a contract with him fixing his compensation, he was entitled to recover a reasonable sum for his services. In such case it is not material that the architects agreed with the county commissioners that the compensation should not exceed $75.00 per month, when this was not communicated to the plaintiff, the contract on file with the commissioners left the salary blank, and for some months the commissioners paid him at a higher rate. Springfield Fire and Marine Insurance com 1 2. pany et al. v. Hays & Son, Garvin county district court; reversed in part and affirmed in part. Opinion by Devereaux. Evidence that the insured, after loss, separated the undamaged from the damaged personal property, and sold the same, without consent of the insurer, before its adjuster had seen it, shows a breach of a policy requiring the insured to separate the damaged and undamaged personal property, and make a complete inventory, and exhibit it when required to the company's adjuster. But where, in such case, the insured goes to the adjuster of the insurers, and informs him that he is ignorant of all matters pertaining to the adjustment of the loss, and such adjuster instructs him to separate the damaged goods from those not damaged, to inventory them and have them appraised and remove them to another building, all of which the insured does, but the adjuster does not tell the insured that he must not sell the salvage; Held, That by such instruction the insurers waive the condition of the policy in regard to selling the salvage, as by their conduct and course of action they led the insured to believe that by conforming thereto a forfeiture of the policy would not be insurred. 1. or A contract obtained by the fraudulent representations, or conduct of one of the parties thereto, should not be enforced if it satisfactorily appears from the evidence, that the party seeking a recession has been misled in regard to a material matter, by such misrepresentations conduct to his injury; and it matters not that the party, so misled may have been in some degree negligent, for it is not just, nor equitable, for a person who has deceived another, to challenge his creduality, or shield himself from the consequence of his own misconduct behind the faith and confidence reposed in him by his victim. 2. 3. 1. The rule of caveat emptor is no longer a shield and protection to the deliberate frauds and cheats of the "blue sky sharper," and where a party positively makes false representations, as an inducement for another to contract with him, and such person relying wholly upon such false representations, enters into a contract, such contract is voidable for fraud, even though the false representations were innocently made. Statements by a vendor, that he has been offered a certain sum for the property on sale, or that a third party has been offered a certain sum for the same kind of property in the same location, is a statement of a material fact affecting the value, and if false, may form the basis of an action for deceit. James E. Jones v. J. H. Gallagher, Pittsburg county superior court; reversed and remanded. Opinion by Robberts. Section 639 of Mansfield's Digest of the laws of Arkansas, which was put in force in the Indian Territory by the Act of Congress of February 19, 1903, Vol. 10, Fed. State. Ann., 130, and which was in force at the time the contract involved herein was entered into, provides: lands, tenements and hereditaments may be aliened and possession thereof transferred by deed without livery of seizin, and the words 'grant, bargain and sell,' shall be an express covenant to the grantee, his heirs and assigns, that the grantor is seized of an indefeasible estate in fee simple, free from incumbrances done or "All 2. 3. suffered from the grantor except rents or services that may be expressly reserved by such deed, as also for the quiet enjoyment thereof against the grantor, his heirs and assigns, and from the claim or demand of all other persons whatsoever, unless limited by express words in such deed.' Held, That this section being in force at the time the conveyance involved herein was made, entered into and became a part of the agreement as fully, and to the same extent as though the language had been written in the body of the contract. And, held, further; That there being no express words of limitation embodied in the contract involved, the words "grant, bargain and sell," as used herein, import an express covenant by the grantor to the grantee, his heirs and assigns, that the grantor is seized of an indefeasible estate in fee simple in said premises, and that he conveyed the same with full convenant of seizin. While it is true, that if prior to eviction, a grantor of land with covenant of warranty, purchases an outstanding title, it insures to the benefit of the grantee, and operates as a discharge of the warranty, but where the purchase of a paramount title is made by the grantor after eviction of the grantee, the grantor cannot compel the grantee to accept such afteracquired title in satisfaction of the covenant of warranty, nor in mitigation of damages for the breach thereof. If a grantor assumes to convey with full covenants of warranty unoccupied lands to which he has no title, there is at once a constructive eviction of the grantee which entitles him to the same remedies that he would be entitled to had he been turned out of the actual possession of the land by legal process, and if in such case the grantor subsequently obtains a good title, while he will be estopped to deny the title of his grantee, yet he cannot compel the latter, after his eviction by title paramount, to accept such after acquired title in satisfaction of the convenants, in his deed, nor in mitigation of damages for the breach thereof. fendant counter-claimed for damages and afterwards filed a supplemental answer praying for damages accruing after he filed his original answer. The defendant moved to strike the original and supplemental answers so far as the same asked for affirmative relief upon the ground that the damages occurring after the com mencement of the action cannot be recovered by a counter-claim filed in that action. Held; That the plaintiff, in filing his supplemental petition, invited the court to adjust the damages between the parties in that action. Uncle Sam Oil company v. A. M. Richards et al., Pawnee county district court; affirmed. Opinion by McKeown. 1. 2. 3. The words "after the completion of a well," in an opinion contract covering an oil and gas lease are words of plain meaning and significance; but courts place oil and gas leases and contracts relating thereto in a class of their own, and the rule that the intention of the parties gov erns the interpretation of the same should be diligently applied. An oil well is completed" when the well is fitted for use as an oil well, that is to say, when it is made ready and put in proper condition to be operated for oil. The date upon which an oil well is completed is a question of fact, and the opinion of persons skilled in drilling and producing oil is competent and entitled to great probative force. SYLLABUS OF OPINIONS RENDERED BY 1. 2. A fire insurance policy drawn under the regular Oklahoma standard form, being sec. 3482, R. S. of O., 1910 and sec. 3800 C. L., 1909, which contains a provision that, "This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void, if the subject of insurance be personal property, and be, or become incumbered by a chattel mortgage, is a promissory warranty on the part of the assured, that the property covered by the policy is and will, be kept free from incumbrance, and if the terms of said provision are violated the the policy becomes null and void, and no recovery can be had on said policy for for the loss or damage of said property by fire, unless the insurer had notice of such incumbrance, and in some manner waived the same. |