up to the time the writ of attachment was | levied, so that no laches can be imputed to levied was in the eyes of the law the agent the plaintiff because he did not discover that As of the plaintiff. It is apparent that an agent cannot in consummating a trade for his principal take the consideration which he receives for a sale of his principal's property to himself; and, if he attempts to do so, the principal can make him account therefor, and can recover the property taken as consideration for such sale from the agent or any one claiming under him, unless he has been estopped by his conduct in the premises, as will be hereinafter considered. [2] We do not think the authorities cited by defendants upon the subject of ratification are applicable to the facts in this case. has been said the agent, Chas. Awad, acted without authority in making this trade; but plaintiff unquestionably had the right and authority to ratify his acts in making the trade. But the rule sought to be invoked in this case by the defendants that such ratification extends to an acquiescence in and ratification of the wrongful acts of the agent in attempting to take to himself and appropriate to his own use the consideration received by him for his principal's property would make the use of an agent in a business transaction a. most perilous thing. Under the contention of defendants, in a case like the one at bar, if the principal acquiesced in and ratified the passing of the title to his property by his agent, where the agent had taken the consideration therefor to his own use and benefit, he would also ratify such wrongful act of the agent, and would there after be estopped from demanding an accounting or a return of the consideration from the agent. If plaintiff had no right to maintain an action of replevin for property wrongfully appropriated by his agent against an officer holding the same under a writ of attachment levied upon it as the property of such agent, he would equally be without right to maintain an action of replevin against the agent to recover his property. The evidence shows that the plaintiff had no knowledge that his agent, Chas. Awad, had taken this stock of goods as his own and was holding himself out as the owner thereof until he came to Woodward and after the stock of goods had been seized by the de fendants under the writ of attachment. There is no evidence to contradict the testimony of plaintiff as to this matter, and there is no evidence of any facts which would have put him upon inquiry. It cannot be claimed that he was bound to presume that his agent would violate his instructions and attempt to defraud him so as to require him to keep constant supervision over the acts of the agent with relation to the property intrusted to the agent. If such were the rule, a principal would have no need of an agent; and it seems from the evidence that only a period of about 20 days elapsed from the taking of possession of the stock of goods by the agent the agent was in possession of this stock of goods and claimed to be the owner thereof. It seems apparent, therefore, that there are no facts upon which an estoppel might be claimed against the plaintiff to prevent him asserting his title to the stock of goods and his right to possession thereof, even if the defendants came within the class of persons who could avail themselves of such an estoppel. The debt for which defendants levied upon this stock of goods was incurred by Chas. Awad more than a year before the trade in controversy here; and there is no evidence in the record that the defendant the Howard Mercantile Company, his creditor, extended any credit or parted with anything of value on the faith of the claim made by Chas. Awad that he was the owner of the stock of goods in controversy, so that the defendants in this case could not have availed themselves of an estoppel against the plaintiff even if there was any evidence which would justify applying the rule of estoppel. Limerick v. Lee, 17 Okl. 165–173, 87 Pac. 859; Palmer v. Meiners, 17 Kan. 478483; Hill v. Van Sandt, 1 Kan. App. 367, 40 Pac. 676; Brant v. Virginia Coal & Iron Co., 93 U. S. 326, 23 L. Ed. 927. The contention of the defendants that the petition of plaintiff admits his knowledge of the acts of Chas. Awad in taking the bill of sale to the stock of goods in his own name and in holding himself out as the owner thereof is not borne out by the record. The parts of the petition upon which defendants rely have been set out above, and they nowhere contain any statement as to the knowledge of the plaintiff. They do allege that plaintiff was in possession of the stock of goods prior to the attachment, and that Chas Awad was in his employ, and that he had been compelled to pay him $2 per day during a period of 6 days when he was prevented from work by reason of the attachment. These are statements of fact connected with the case concerning which plaintiff's knowledge might have been acquired after his coming to Woodward, and after the writ of attachment had been levied. An allegation of fact in a pleading is not a statement or an admission by the pleader that he knew such fact at the time of its occurrence. As we have said before, Chas. Awad, while acting in violation of his instructions, and while apparently trying to defraud his principal, was still the agent of the plaintiff, and his possession of the stock of goods would in law be the possession of the plaintiff. So that the allegations in the petition, in our view of the case, do not constitute an admission of knowledge, nor are they in conflict with the testimony of plaintiff. [3] The second, third, fourth, fifth, and sixth propositions contained in the brief of defendants assign error in the instructions instructions, and do not think they are open | dence offered could not have affected the reto the criticism made by defendants. think the law of the case is stated substantially correctly, and that the issues between plaintiff and the defendants are fairly submitted to the jury, and that the court did not in the instructions complained of invade the province of the jury and instruct them as to the weight of evidence or as to the facts in the case. We think, in fact, that the theory of the defendants was presented by the instructions more favorably to the defendants than they were entitled. We do not think it necessary to set out the instruction given in detail, as we find no prejudicial or reversible error to be contained in them. We sult of the case; and therefore, if the court committed any error in the rejection of such evidence, it was harmless and not ground for reversal. But we think the evidence offered was not competent to show the judgment of the court. It is not sufficient to prove a judgment to offer alone the precedent for journal entry signed by the judge; the judgment must be proved by the records of the court entering the same, and not by the files thereof. 1 Black on Judgments, § 106; Boynton v. Crockett, 12 Okl. 57, 69 Pac. 869; Ex parte Stevenson, 1 Okl. Cr. 127, 94 Pac. 1071; Ex parte Howard, 2 Okl. Cr. 563, 103 The seventh, eighth, ninth, and tenth propositions in the brief of defendants assign error of the court in refusing instructions requested by the defendants. We do not state these requested instructions in full in this opinion, as we do not think it necessary, but we have carefully examined them, and do not think that the court erred in refusing the instructions requested, for the reason that the record contains no evidence upon which the requested instructions could have been based; therefore it was not error to refuse them. The eleventh proposition assigns error in the admission by the court of testimony over the objection of defendants. The defendants have not complied with rule 25 of this court (137 Pac. xi) by setting out in their brief the full substance of the testimony to the admission of which they object, and stating specifically their objection thereto; but we have examined the pages of the record to which we have been referred, and we are of the opinion that the court did not commit prejudicial or reversible error in admitting the evidence complained of. Pac. 663. In the absence of fraud, every contract of a debtor is valid against all his creditors, existing or subsequent, who have not acquired a lien on the property affected by such contract. Section 2894, Rev. Laws 1910. Cent. Dig. §§ 220-226; Dec. Dig. 108.] 3. GARNISHMENT ORITY OF RIGHTS. 108-ASSIGNMENT-PRI An assignment in writing of a debt owing to a defendant, free from fraud, and for a valuable consideration, and prior to the service of a writ of garnishment on such debtor of defendant, gives such assignee a right to the amount of the debt, which is superior to the claim of the garnishing_plaintiff. Cent. Dig. 88 220-226; Dec. Dig. 108.] [4] In the twelfth assignment of error defendants complain of the rejection by the court of their offer to introduce the precedent for journal entry of the judgment of the district court of Woodward county in the attachment suit brought by the defendant Howard Mercantile Company against Chas. Owad. It is argued by the defendants that, as it was necessary for defendants not only to prove that the goods were in their possession by virtue of a valid writ of attachment, but that there existed at the time of the attachment a valid indebtedness upon which to base it, they were entitled to show the judgment of the court upon such claim of indebtedness, and that the attachment had been sustained by the court. Since the court, Action by the El Reno Foundry & Machine in submitting the case to the jury, proceeded Company, a corporation, against the Western upon the theory that the defendants had a Ice Company, a corporation, wherein R. S. valid claim against Chas. Owad by reason Trulock, trustee, intervened, and the Chicago, of their writ of attachment, and his indebted- Rock Island & Pacific Railway Company, a ness to the defendant Howard Mercantile corporation, was garnishee. Judgment for Company was not questioned by any sug-intervener, and from an order directing that gestion of either counsel or the court in the money garnished be paid over to him, plaintrial of the cause, the admission of the evi- tiff brings error. Affirmed. Commissioners' Opinion, Division No. 1. Error from County Court, Canadian County; W. A. Maurer, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes E. E. Blake, of Oklahoma City (B. D. Shear and A. T. Boys, both of Oklahoma City, of counsel), for plaintiff in error. M. D. Libby, of El Reno, for defendant in error Trulock. Trulock, as trustee aforesaid, all sums now At a hearing in the county court, judgment was rendered in favor of the intervener, holding that his right, under the assignment, to the fund in court was superior to the right of the plaintiff, under its writ of garnishment, and directed that the money be paid to the intervener. To reverse this order this appeal is prosecuted. BREWER, C. This suit was filed in the county court of Canadian county by plaintiff in error, El Reno Foundry & Machine Company, a corporation, against Western Ice Company, a corporation, on an open account, for labor in repairing machines and machinery, and for furnishing supplies and material therefor in the sum of $450. At the same time, a writ of garnishment was obtained against the Chicago, Rock Island & Pacific Railway Company, requiring it to answer, touching its indebtedness to the ice company. Thereafter judgment was rendered against the ice company for the amount claimed. The writ of garnishment was served upon the garnishee railway company on September 11, 1912. In response thereto, it filed its answer on October 17, 1912, in which it admit'ted it had received ice from defendant company to the value of a large sum, against which it had an offset for freight charges, but that it was not indebted to defendant [1] The record in this case is large, and excompany in any sum whatever, for the reason cellent briefs have been presented on each that on the 9th day of September, 1912, it side of the case. Each of the briefs, howhad been served with a copy of a written as- ever, is built upon a fundamentally different signment of all the sums due to defendant premise. This, upon a very careful examinafor ice, and that same was executed by de- tion of the record, in our judgment, grows fendant to R. S. Trulock as trustee, and di- out of the fact that the intervener, in the rected the garnishee to pay all sums in its preparation of his intervention, overpleaded hands to said trustee; and that inasmuch as his case by setting up at least two separate said assignment was prior in point of time to and distinct reasons why he thought his right the service of the writ of garnishment, it to the fund in court was superior to plainwas not indebted in any sum to defendant; tiff's. Therefore the main part of our work and that it ought to go hence with its costs. has been to ascertain from the record-and A copy of the assignment was attached to it has taken a complete examination of it— and made a part of the answer. Thereafter just what claim intervener set forth and reR. S. Trulock was permitted to intervene in lied upon in the lower court as giving him a the suit, and did so, claiming the fund that right to the fund. This is all-important; for, had been garnished. To this plea of inter- as we view the case, its determination pracvention, plaintiff, foundry company, filed its tically decides it for the one or the other. This condition arose out of the fact that answer and gave notice of issue raised on the answer of the garnishee. Thus it will be intervener set up as his first claim to the seen that the issue involved here arises out fund the assignment of it to him by defendof the plea of intervention, the answer there- ant ice company, dated September 4, 1912, to, and intervener's reply, and narrows down and served on the railway company Septemto a contest between these parties as to which ber 9, 1912, prior to service of the writ of of them has the superior right to the fund, garnishment. Had intervener stopped with which, in the meantime, had been paid into this claim in his pleadings very little would court. The written assignment set out by have been required of us, but he saw fit to both the garnishee and intervener, after re- go further, and in paragraphs 2 and 3 of his citing the fact that the Western Ice Company intervention (which he styled an answer) aphad been furnishing ice to the garnishee at a pears to make a claim to the money through stipulated price, and was under contract to the operation of a trust deed to secure a continue to so furnish it, and that the gar- large bond issue, executed by the ice comnishee was indebted to it therefor $3,002.70, pany to him as trustee, and under the terms less certain freight charges, and that the said of which, after-acquired property and all ice company was indebted to Trulock, as trus-rents, profits, and incomes of the ice company tee under the terms of a certain deed of trust, were embraced within the lien created by and that $9,000 of such indebtedness had ac- the trust instrument; and, as an aid to this crued and was unpaid, contains the follow- claim, intervener further set up that in some ing language: other suit pending in the federal court, in* And that the said Western Ice volving an attempt to put the ice company here had been urged as a ground of bank-vener overpleaded his case, when it came to ruptcy, but that the federal court had held that it was not for the reason that the sums due for ice were going to the intervener under the income provision of the trust deed, and that the written assignment was a mere aid to the trustee in securing the funds due for ice, and which he was entitled to, under the trust deed. Said two claims to the fund in court have provided widely different premises upon which to build the opposing arguments. The defendant in error, the intervener, therefore contends that he claims under the written assignment of the fund by the party to whom it was owing, at a time and in a way that was lawful, and all of which was prior to the service of the writ of garnishment, and that therefore, these facts being admitted, or shown without any conflict in the evidence, he prevailed rightly below, and is bound to prevail here. trial, he did not overtry it. He introduced the intervener as a witness; confined his proof to a showing, through the defaulted interest and other payments due under the mortgage, a lawful consideration for the assignment of the ice debt, that in a foreclosure suit under the mortgage the ice debt had been treated as a cash payment, and was applied as such to the judgment taken, foreclosing the properties. He then introduced the assignment, testified to his ownership and rights to the fund assigned, and rested his case. Later on, in the production of its proof, the plaintiff sought to go into the matter of the adjudication in the federal court, upon the assumption, still held by it, that intervener was claiming under the mortgage. At this point objection was interposed in the following language: "We object to the introduction, and to all that portion of the answer which has heretofore been withdrawn, to wit, paragraphs 2 and 3." Paragraphs 2 and 3, as will be recalled, are the paragraphs setting up a claim to the fund in court by virtue of the mortgage; but, independent of this, it is quite certain that the only claim put forward by intervener at the trial, and here, is the claim under the written assignment of the fund. Having no doubt of this, there is very little else to decide. On the other hand, plaintiff in error starts with the premise that the intervener claimed the fund by virtue of and under the terms of the trust deed, a provision of which gave a lien on all after-acquired property, including rents, revenues, profits, and incomes, and, starting with this as a premise, very skillfully, and perhaps correctly, argues that the mortgage on income, where, as here, the mortgagor was left in possession of the property, and under the duty of operating and maintaining same, extends only to such net [2] Section 2901, Rev. Laws 1910, authorincome as remained after the current ex-izes a debtor to prefer one of his creditors, penses of operation, repairs, etc., had been by paying or securing by mortgage of either met, and that as said trust deed specifically provided that the mortgagor, who should remain in possession, should repair, replace, and keep in good condition the machinery and apparatus of the ice plant, there was in fact a contractual dedication by the parties of such of the gross income as might be needed to the very purpose of repairing and keeping the machinery and apparatus of the plant in a working condition, and that under this situation, the lien created by the service of the writ of garnishment would be superior to intervener's claim under the mortgage. real or personal property to such creditor, etc. Section 2894, Id., provides: "In the absence of fraud, every contract of a debtor is valid against all his creditors, exlien on the property affected by such contract." isting or subsequent, who have not acquired a Durant v. Smith, 43 Okl. 320, 140 Pac. 150, [3] This court, in First State Bank of held: "In the absence of statutory provisions to the contrary, a debtor, though in failing circumstances, may prefer one or more of his creditors to the exclusion of the rest, and such preference is not in itself sufficient to sustain an attachment upon the ground that the defendant has disposed of his property with the intent to defraud, hinder, or delay his creditors." See, also, Kentucky Bank & Trust Co. et al. v. Pritchett et al., 143 Pac. 338. Closely related to this claim, and in a manner dependent upon it, the further contention is put forward that these repairs and supplies furnished the ice company were absolutely necessary to keep it a going concern, and Here the debtor assigned a sum due it to that therefore they preserved the mortgage a creditor, for a lawful consideration on Sepsecurity, and that the doctrine of an equita- tember 4, 1912. A copy of the assignment ble lien, sometimes allowed by the courts as was served on the corporation owing the debt superior to an underlying mortgage (Fosdick September 9, 1912. This suit was not filed, v. Schall, 99 U. S. 235, 25 L. Ed. 339, and nor was the garnishment writ served, until later cases), was applicable and should be September 11, 1912. Plaintiff must depend resorted to. These claims of plaintiff, were upon the lien created by the service of the the premises out of which they grow justi-writ. The ownership of the debt having passfied, would present very interesting, although ed out of defendant and into intervener prior somewhat involved, propositions; but we do to such service, there was nothing owing denot think the premises assumed are correct. fendant to which the lien could attach. We have searched this record more than Market Nat. Bank of Cincinnati v. Rasponce, almost hoping to find them so; but berry, 34 Okl. 243, 124 Pac. 758, it is said: they are not. "A plaintiff who causes a writ of garnishment While, as we said before, we think inter- to be served upon the debtor of the defendant is In not a purchaser for value, and therefore cannot take the debt as against a prior assignee thereof for value, who has not given notice to the debtor of his assignment." This leads us to conclude that the rights of the assignee of the debt are superior to the rights of the garnishing creditor, and that the court did not err in so holding. The judgment should be affirmed. PER CURIAM. Adopted in whole. WILSON, C. This is an action originally commenced in the trial court by the plaintiff in error, as plaintiff, against the defendants in error, as defendants, for the purpose of procuring the cancellation of a deed to certain lands described in plaintiff's petition and having the title to said lands decreed to be in the plaintiff. It was alleged, in substance, in plaintiff's petition, that plaintiff was, at the times mentioned in said petition, a member of the Osage Tribe of Indians and the owner of certain lands in the reservation of that tribe which had been allotted to him as his surplus lands; that on July 10, 1910, he was granted a certificate of competency by the Secretary of the Interior which evidenced his right to sell his surplus lands, but that said certificate of competency was conAPPEAL AND ERROR 1152-CANCELLATION ditioned to become effective 30 days from the OF INSTRUMENTS 60-JUDGMENT DEFEC-date thereof, "and not before"; that on the TIVE IN FORM - GROUND FOR REVERSAL 9th day of August, 1910, he was induced, by (54 Okl. 222) GRANT v. CREED et al. (No. 4149.) (Supreme Court of Oklahoma. Dec. 21, 1915.) (Syllabus by the Court.) MODIFICATION. G., a member of the Osage Tribe of Indians, deeds land in the Osage Indian reservation, which was a part of his surplus allotment to Creed, who afterwards deeds said land to Conrod. G. then sues C. and C. to recover possession of land and to have the title thereto decreed to be in him, G., free of any rightful claim thereto of Creed or Conrod, alleging that Creed procured his deed from G. through fraud, and that the order of the Secretary of the Interior, removing his restrictions on the right to alienate the same, had not become final and effective at the time he deeded said land to Creed, and that Conrod took his deed from Creed with knowledge of all the infirmities of Creed's title. Creed and Conrod file their answer to G.'s petition, in which they deny the allegations of G.'s petition which tend to establish G.'s title, set out their own title, and pray that their own title be confirmed, and for such other relief as may be equitable, but the allegations of their answer, as a whole, were not sufficient to constitute a cause of action, entitling them to the affirmative relief granted them by the court, had the alleged facts of their answer been set up in a cross-petition or cross-bill. On the trial of the case the decree of the court, without specifically denying the plaintiff the relief prayed for by him, confirmed defendants' title to the land and quieted it as against the claims and pretensions of the plaintiff. Held, that while the decree was affirmative in form, it was, in substance, a denial of the relief prayed for by the plaintiff; that the judgment of the court should not be reversed because of the defect in the form thereof, but that said judgment should be so modified in form as to be simply a denial of the relief prayed for by the plaintiff, and affirmed as modified. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4483-4496; Dec. Dig. 1152; Cancellation of Instruments, Cent. Dig. §§ 127-129; Dec. Dig. 60.] Commissioners' Opinion, Division No. 5. Error from District Court, Osage County; R. H. Hudson, Judge. Action by Charles Grant against Martin L. Creed and another. Judgment for defendants, and plaintiff brings error. Modified and affirmed. S. H. King, of Tulsa, for plaintiff in error. L. F. Roberts and Louis P. Mosier, both of Pawhuska, for defendants in error. means of certain alleged acts of fraud then and theretofore perpetrated on him by the defendant Martin L. Creed, to execute to the said Martin L. Creed a deed to said lands; that subsequently and on the 11th day of August, 1910, said lands were deeded by said Creed to the defendant W. B. Conrod and Dora Conrod, his wife, for an alleged consideration of $1 and other valuable considerations. Plaintiff further alleged that said Conrod was not a purchaser of said lands for a valuable consideration, and that said deed was made and delivered without any consideration whatever, and without anything of value being paid, or intended to be paid, therefor, and that said conveyance was a false and fraudulent pretense, made with the sole intent and purpose to cheat and defraud the plaintiff out of his lands. Plaintiff brings his case to this court by petition in error, with a transcript of the record attached and without a case-made or bill of exceptions.. For their answer to plaintiff's petition in the lower court the defendants admit the execution of the two deeds, deny the allegations of fraud on part of the defendant Creed, and the want of consideration for the deed from Creed to the defendant Conrod, and allege that long after the dates of the two deeds mentioned in plaintiff's petition, and in substantial compliance with the terms of an agreement between the plaintiff and the defendant Creed, made at the time the deed from plaintiff to Creed was executed, and in consideration of the payment of a balance of the purchase price due to plaintiff from said defendant, plaintiff did, on the 1st day of October, 1910, make and deliver another deed to said lands to the defendant W. B. Conrod, to whom Creed had, for a valuable consideraDefendants pray that tion, sold the same. the court confirm their title to said land, and that they recover their costs. Some of plaintiff in error's assignments of error cannot be considered here because a consideration thereof would involve an in |