trinsic evidence, apply the description to the very land intended to be sold, held, that such agreement, being otherwise sufficient, will be enforced."

With reference to the description of the property in Foss, owned by Edwards as described in this contract, the writer is not free from doubt as to the views herein expressed, but from an examination of the authorities is of the opinion that the same is sufficient to take the contract out of the statute of frauds. In Carson v. Ray, 52 N. C. 609, 78 Am. Dec. 267, the court held:

bring about a conflict in the outside testimony. I the court can without doubt, by the aid of exIf the description is such that it can be identified beyond a doubt, it is sufficient. * But there is a tendency to relax the rigor of the rule as to the admissibility of parol evidence in such cases, and where the note or memorandum contains sufficient data, so that it can, with the aid of parol testimony, be certainly applied to the land, it is, in some of the states, held to be sufficient. Thus in a Massachusetts case, S., in a writing signed by himself and P., agreed to convey to P. 'my estates located as follows: Three houses in the town of R. as shown this day; two are Frenchroof, and valued at $3,000 each; the other is a pitchroof house, and valued at $6,000; together with all the land as now fenced; the whole being valued at $12,000. Also, three tenement houses on B. street in C. as shown this day, and valued at $8,000, subject to a $2,000 mortgage; all the aforementioned estates having an equity of $18,000.' On a bill brought by P. and wife for specific performance, it was held that the contract, though not signed by the wife, was a sufficient memorandum within the statute of frauds, and that a demurrer to the bill must be overruled."

"My house and lot in the town of Jefferson, in Ashe county, North Carolina,' the grantor having a house and lot, and only one, in that town, was held to be a sufficient description of the premises to pass them by deed."

And in the body of the opinion rendered in that cause it is said:

"But my house and lot' imports a particular house and lot, rendered certain by the descrip

In Reed on the Statute of Frauds, vol. 1, § tion that it is one which belongs to me, and, 410, p. 715, it is said:

By reference to the contract in question it is readily ascertainable that the farm to be conveyed by the purchaser to Edwards is described by its local appellation, and in addition thereto same is located by sections 26, 27, 34, and 35 in township 7, north of range 6 west. This, in our judgment, is a sufficient description to identify the property and to exempt the same from the statute of frauds, and renders that certain which is capable of being made certain. The following cases support our view upon this proposition: Richards v. Edick, 17 Barb. (N. Y.) 260; Tewksbury v. Howard, 138 Ind. 103, 37 N. E. 355; Price v. McKay, 53 N. J. Eq. 588, 32 Atl. 130; Scanlan v. Goddes, 112 Mass. 15; Mead v. Parker, 115 Mass. 413, 15 Am. Rep. 110; Lente v. Clarke, 22 Fla. 515, 1 South. 149; Hollis v. Burgess, 37 Kan. 487, 15 Pac. 536; Winn v. Henry, 84 Ky. 48; Francis v. Barry, 69 Mich. 311, 37 N. W. 353; Cherry v. Long, 61 N. C. 466; Ross v. Baker, 72 Pa. 186: Farris v. Caperton, 1 Head (38 Tenn.) 606, and cases cited at note P, on page 716, Reed on the Statute of Frauds. In Hollis v. Burgess, supra, the Supreme Court of Kansas

said:

"To answer the requirements of the statute of frauds, the written contract should describe the land sold with certainty; but it is not essential that the description should be given with such particularity as to make a resort to extrinsic evidence unnecessary. Where the land sold is described in the written contract as the 'Snow Farm,' and is commonly designated in the neighborhood where situated, and by all the parties to the contract, by the same name, and

upon the face of the instrument, is quite as definite as if it had been described as the house and lot in which I now live, which is undoubtedly good. Where the deed or will does not itself show that the grantor or devisor had more than one house and lot, it will not be presumed that he had more than one, so that there is no patent ambiguity, and if it be shown that he has more than one, it must be extrinsic proof, and the case will then be one of a latent ambiguity, which may be explained by similar proof.

In Hurley v. Brown, 98 Mass. 545, 96 Am. Dec. 671, it is held:

"In a written contract to convey real estate, the words used to describe the estate agreed owned at the time of the contract by the party to be conveyed are presumed to relate to estate agreeing to make the conveyance; and if the agreement is to convey 'a' house and lot of land on a certain street, and, in a suit in equity to compel specific performance thereof, it appears that there are several lots of land, with houses, on that street, oral evidence is admishouse and lot of land so situated, and so sible to apply this description to a particular

owned."

And in the body of the opinion the court said:

a

"In a deed, the words of description are, of course, intended to relate to an estate owned by the grantor. And, in our opinion, this is also the presumption in construing a contract for a future conveyance. If the party who enters into the agreement in fact owns a parcel answering to the description, and only one such, that must be regarded as the one to which the sumption, the words 'a house and lot' on description refers. With the aid of this prestreet where the party who uses the language owns only one estate arc as definite and precise as the words 'my house and lot' would be; a description the sufficiency of which has been placed beyond all doubt by very numerous authorities. * In both cases the same extrinsic evidence must be resorted to, by the aid of which all uncertainty is removed. Where the words used are 'my estate' in a particular locality, oral evidence is necessary to show what estate the vendor did own. A latent ambiguity always exists where the party owns two parcels, to each of which the description used is equally applicable. In the present case the writing does not show that there is more than one house and lot on Amity street. This fact

was disclosed by the oral evidence at the trial; [by the first party. Under the authorities and the familiar rule would seem to apply that above cited, we are of the opinion that the parol evidence is admissible to explain and re

This question being the sole question presented here by the plaintiff in error, and the one upon which he relies for reversal of this case, and being of the opinion that his position is not well taken, the judgment of the lower court is affirmed.

move a latent ambiguity. If there had been description is sufficient to enable the court only one house and lot on the street, there to apply the description to the property, and would have been no indefiniteness in the de- to take the same without the statute of scription. The supposed uncertainty having frauds. been created by parol, evidence of the same character may be resorted to for its removal. But, without relying much upon this consideration, we regard the fair construction of the words used to be that they relate to a house and lot owned, at the time the memorandum was signed, by the parties who subscribed it. Thus interpreted, they are sufficiently certain, and the oral evidence is needed only to apply the description. This must be done by extrinsic evidence in every contract or conveyance, however minutely the boundaries of the estate may be set forth. The maxim 'Id certum est quod certum reddi potest,' is the established rule of construction in suits for specific performance."

PER CURIAM. Adopted in whole.

MCCORNACK et al. v. FLEMING et al. (No. 8082.) (Supreme Court of Oklahoma. Dec. 11, 1917. Rehearing Denied May 21, 1918.)

(Syllabus by the Court.)

FICATION- - POWER OF DISTRICT COURT-
STATUTE.

"A return by an officer that he has attached all the real estate owned by the defendant in the town of K. constitutes a valid attach- 1. JUDGMENT 342(3)-VACATION OR MODIment of all lands which come within that description, and it makes no difference that at the time of the attachment the defendant had conveyed away all his lands in the town of K. by a deed which had not then been recorded." In Mead v. Parker, 115 Mass. 413, 15 Am. Rep. 110, construing a contract as follows: "This is to certify that I, Jonas Parker, have sold to Franklin Mead a house on Church street for the sum of fifty-five hundred dollars," etc.

-the court said:

The district court has no power to vacate or modify its judgment on account of "an irregularity in obtaining a judgment or order," under subdivision 3 of section 5267, Rev. Laws 1910, upon a motion filed after the adjournment of the term at which such judgment was rendered and entered. 2. JUDGMENT 338-VACATION OR MODIFICATION-POWER OF TRIAL COURT-MOTION FOR NEW TRIAL.

The power of the trial courts to vacate or modify their judgments or orders at or after the term does not authorize the setting aside of a judgment or final order at a subsequent term for mere errors of law which were properly subject to review upon motion for new trial at the term when rendered or made.

3. MORTGAGES 526(2) — CONFIRMATION OF SALE-IRREGULARITIES-CONSIDERATION. A Where objections to confirmation of sale of mortgaged premises under foreclosure, raised no jurisdictional question, and are directed merely at certain irregularities in the trial of the cause, such irregularities are concluded by the judgment rendered; and, upon failure of defendant to except thereto and appeal therefrom, said errors cannot be considered.

"It is not a question of the sufficiency of the writing under the statute of frauds, so much as it is of the right to resort to parol evidence in aid of the writing, where an ambiguity exists in respect to the property intended to be sold, or to which the contract relates. The most specific and precise description of the property intended requires some parol proof to complete its identification. more general description requires more. When all the circumstances of possession, ownership, situation of the parties, and of their relation to each other and to the property, as they were when the negotiations took place and the writing was made, are disclosed, if the meaning and application of the writing, read in the light of those circumstances, are certain and plain, the parties will be bound by it as a sufficient written contract or memorandum of their agreement. That parol evidence is competent to furnish these means of interpreting and applying written agreements is settled by the uniform current of authorities."

And in Slater v. Smith, 117 Mass. 96, it is said:

"A bill in equity was brought by husband and wife for the specific performance of a contract signed by the husband and the defendant, by which the defendant agreed to convey to the husband, 'my estates located as follows: Three houses in the town of R., as shown this day,' etc. The defendant demurred, setting up the statute of frauds. Held, that the contract, though not signed by the wife, was a sufficient memorandum within the statute of frauds, and that the demurrer must be overruled."

The contract in question designates the property as located in the town of Foss, and being the same property heretofore inspected

Commissioners' Opinion, Division No. 2. Error from District Court, Oklahoma County; John W. Hayson, Judge.

Action on notes and to foreclose a mortgage by Fred W. Fleming against James M. McCornack and Elizabeth J. McCornack. Judgment for plaintiff, with order of sale, motion to vacate judgment overruled, and J. H. Everest, assignee under the sale, moved to confirm the sale, and from an order confirming the sale, defendants bring error. Affirmed.

W. F. Harn, of Oklahoma City, for plaintiffs in error. Everest & Campbell, of Oklahoma City, for defendants in error.

WEST, C. This cause was originally instituted in the district court of Oklahoma county on the 9th day of June, 1914, by Fred

assigned in both motions, some of which might be well taken if exceptions had been saved at the trial, and had been raised upon appeal from the original judgment, but this is not the case, and not one of them come within the class that may be urged here upon an appeal from the action of the court upon objections filed, for the reason that the court had jurisdiction of the subjectmatter, jurisdiction of the parties, and judgment was after all parties appeared at the trial, and no motion for new trial filed, and no appeal taken from the action of the court in rendering the judgment.

W. Fleming against John M. McCornack | trial court in arriving at the amount of the and Elizabeth J. McCornack, to recover on a judgment. Practically the same errors are principal note for $10,000 and three commission notes of $750 each, and foreclosure of mortgage. The parties will be referred to herein as they appeared in the court below. Defendants filed answer, and on January 21, 1915, plaintiff appeared in person and by attorney and defendant appeared by attorney, and upon trial of said cause judgment was rendered on said date in favor of plaintiffs and against defendants in the sum of $11,614.48, with interest at the rate of 10 per cent. per annum and $1,000 attorney's fee as stipulated and set forth in the mortgage. On August 6th, plaintiff had execution and order of sale issued upon this judgment, and on August 7th, sheriff advertised said property to be sold on September 7th. On August 25, 1915, defendants filed motion to vacate judgment; same was overruled. On September 20th special execution or order of sale was returned by sheriff, showing the property had been sold to J. H. Everest, assignee. On September 22d the assignee filed motion to conform sheriff's sale. On September 25th defendants filed objection to and motion to set aside sheriff's sale. On October 9th defendants filed objection to the confirmation of sheriff's sale, and on same date the court overruled said motions, and confirmed said sale, from which order de fendants have appealed, and bring the action of the court upon the objection to the confirmation of the sale here for review.

There was no motion for new trial filed, no appeal taken to review the action of the trial court in rendering the original judgment, and the matters raised here upon the motions objecting to the confirmation raises no jurisdictional questions, and only attacks certain irregularities with reference to the trial of said cause. Defendants, on page 33 of their brief, use the following language:

"In this appeal two general propositions are involved, namely, the validity of the original judgment (on which the sheriff's sale is based), and the validity of the sale itself and the order confirming and proceedings in connection therewith. The proceedings now before this court is a direct appeal from the judgment overruling the objections to the sheriff's sale and confirming the same."

[1] As we understand the record before us, the only thing to be reviewed is the action of the court overruling the objection to the confirmation of the sale. However, the defendants in their brief argue the grounds raised in their motion to vacate the judgment, but it does not appear that any appeal was taken from this action of the court. However this may be, this motion was filed after the term at which the original judgment was rendered, and raises no jurisdictional question and no question enumerated in section 5267, R. L. 1910, which may be raised by motions of the kind filed, and only attacks certain irregularities of the

The questions raised are: First, that the cause was not regularly docketed upon the trial calendar for the term at which it was heard; second, that too much interest had been included in computing the amount of the judgment; third, that the property was sold for an inadequate consideration, and other objections which could not be seriously considered. If the motion directed at the computation of the interest had been directed at the excess, and shown wherein the court was wrong, it might have been available; but this was alleged as a reason for vacating the entire judgment, and it was alleged that said judgment was void because it contained an overcharge of interest.

[2, 3] From the reading of the record in this case it appears to have been an appeal to delay the effect of the judgment rather than to correct errors thereof. However, none of the matters alleged in said motions would render the judgment void, and are, as we think, concluded by the decree rendered and the failure of the defendant to except thereto and appeal therefrom. Said errors cannot now be considered upon the motion before this court. In case of Guy v. Guy, 150 Pac. 1058, first paragraph of the syllabus is as follows:

"The district court has no power to vacate or modify its judgment on account of an irregularity in obtaining a judgment or order,' under subdivision 3 of section 5267, Rev. Laws 1910, upon a motion filed after the adjournment of the term at which such judgment was rendered and entered."

See McAdams v. Latham, 21 Okl. 511, 96 Pac. 584; Le Force v. Haymes, 25 Okl. 190,

105 Pac. 644.

In case of Clark v. Roman et al., 151 Pac. 479, the syllabus is as follows:

fy their judgments or orders at or after the
"The power of trial courts to vacate or modi-
term does not authorize the setting aside of
a judgment or final order at a subsequent term
for mere errors of law which were properly sub-
term when rendered or made."
ject to review upon motion for new trial at the

We have carefully read the record, and find no error in the action of the trial court in overruling the motions complained of. Cause is therefore affirmed.

PER CURIAM. Adopted in whole.

In 1913 the State Bank of Capitol Hill was engaged in a general banking business at Capitol Hill, which at the time was an independent town, but was later incorporated into 4. BANKS AND BANKING 23, 65-AMENDED and became a part of Oklahoma City. About ARTICLES OF INCORPORATION-INSOLVENCY- the first of 1913, said State Bank of Capitol STATUTE.

homa City, which articles were complete and, holders of the State Bank of Capitol Hill full in every particular, but in the first para- complied with any of the conditions stated. graph thereon it was stated that instead of Neither did they surrender their stock to the name "State Bank of Capitol Hill this Bonner, Dennis, and Clark. The stock held bank shall be known as Capitol State Bank by them was never canceled, but so far as of Oklahoma City." Said articles were ap- the record is concerned is still in their hands. proved by the bank commissioner and a The charter of that bank was never taken charter issued to the Capitol State Bank of up by the bank commissioner nor delivered Oklahoma City, whereupon Bonner, Dennis, to Bonner and his associates, nor is it, or has and Clark paid up a capital of $10,000 in it ever been, in their possession. Clearly this cash, held a stockholders meeting, elected di- was not a reorganization of the failed bank. rectors and officers, none of whom were inThe conclusion here reached is not in conterested in or connected with the State Bank flict with the case of First State Bank of of Capitol Hill, appointed reserve agents, Oklahoma City v. Lee, 166 Pac. 186. In that issued certificates of stock to the stockhold- case it was agreed that the First State Bank ers, and proceeded to carry on a banking of Oklahoma City was the same institution business in all respects as required by law. as the First State Bank of Oklahoma City It was expressly understood and agreed be- before it became insolvent. An assessment tween the bank commissioner and Bonner, was made against the stockholders after its Dennis, and Clark that said Bonner and his failure for 100 per cent. to repair its capital associates did not assume the obligation to stock, which assessment was paid, and the pay the deposit made by the commissioners stockholders transferred their stock to Meneof the land office and secured by the bond of the books of the corporation and issued new fee and his associates, who canceled same on plaintiff; it being expressly understood that certificates in their place to themselves. The same was excluded from the terms of their capital of the failed institution was repaired agreement. The question, as we view it, is, and the reserve substituted and the requireDid the transaction between the bank comments of section 306 substantially complied missioner, Bonner, Dennis, and Clark and the subsequent conduct of Bonner and his associates amount to a reorganization of the State Bank of Capitol Hill, or was it the institution of a new and different bank?

with. In addition to this, the subject-matter of that action was the leasehold, which was sold to Menefee and his associates, and after its reorganization the bank occupied the building for a period of time, paying the [1-4] The question whether the Capitol rent thereon according to the terms of the State Bank of Oklahoma City was legally in- lease which had been executed by the bank corporated or paid the fees required by law prior to its insolvency. The facts are so disis a question in which plaintiff is not inter- similar that a statement of them distinguishested. If in fact said bank was not legally es the case from this. No assessment was incorporated and is not a reorganization of made against the stockholders of the State the State Bank of Capitol Hill, plaintiff's Bank of Capitol Hill to restore or substitute action must fail. The manner of reorganiz- its capital or reserve, or to place it in a soling a bank under the laws of this state is vent condition, and none of the stock was acquired by Bonner, Dennis, and Clark, being prescribed by section 306, Rev. Laws 1910, unretained by the old stockholders. Upon this der the authority of which a failed bank may be reorganized by complying with the fol- state of facts the law of the case is stated in the former appeal where it was said: lowing particulars: The stockholders must repair its credit, restore or substitute its between the bank commissioner and Bonner, "It cannot be said that by virtue of the contract reserve, and place it in condition so that it Dennis, and associates and their action there is qualified to do a general banking business under, a solvent institution arose, phoenix-like, as before it was taken possession of by the which became liable, not only for the amounts from the ashes of the old defunct corporation, bank commissioner, and its credits and funds due the general depositors whom it agreed to must be repaired in all respects, and all ad- pay, but also for the debts due to another class of creditors who were not entitled to particivances, if any, made from the depositor's pate in the proceeds derived from the sale of guaranty fund must be fully paid before it the assets, and who were excluded from payis permitted again to reopen for business. ment by the purchasers of the assets by the When all of these conditions have been com- ment, the liability of Bonner, Dennis, and asexpress terms of the contract. In our judgplied with the bank commissioner is author-sociates and of the new banking institution ized to issue a written permission for reopening said bank in the same manner as permission is granted to do business after original incorporation thereof. This section authorizes stockholders of the failed bank to comply with the conditions enumerated and to reorganize the insolvent institution. This right is not conferred directly or by implication upon any one else. None of the stock

launched by them by permission of the state ment with the bank commissioner, and this bank commissioner is limited by their agreeagreement does not contemplate the payment by them, or the institution formed by them, of mentioned in the contract, to wit, the claims of any of the debts of the old bank, except those the general depositors."

The articles of incorporation filed by Bonner, Dennis, and Clark on April 26th were not amended articles of incorporation as con