tended, even though denominated as such. By virtue of section 1225, Rev. Laws 1910, amended articles of incorporation may be executed and an amended charter issued which when issued shall relate back and be considered and be a part of the original articles of in CRANE CO. v. NAYLOR et al. (No. 8335.) (Supreme Court of Oklahoma. March 5, 1918. Rehearing Denied May 21, 1918.) (Syllabus by the Court.) corporation to the same effect as if original- 1. MECHANICS' LIENS 132(14) — Subcon ly set forth therein, but in order to amend its articles of incorporation it is necessary for the new articles to be filed signed by all the directors and officers of the company. The mere fact that the paper executed was denominated "amended articles of incorporation" could not make it such unless executed in pursuance to the authority of section 1225, which was not done. None of the officers, directors, or stockholders of the State Bank of Capitol Hill were interested in or participated in the execution of the so-called amended articles of incorporation. This instrument was nothing more nor less than original articles of incorporation executed by persons who were strangers to or had no interest in or connection with the State Bank of Capitol Hill. The judgment must be affirmed. All the Justices concur. SOUTHWESTERN SURETY INS. CO. v. (Supreme Court of Oklahoma. March 5, 1918. Action between the Southwestern Surety In surance Company and the Capitol State Bank of Oklahoma City. Judgment for the latter, and the former brings error. Affirmed. Embry, Crockett & Johnson, of Oklahoma City, for plaintiff in error. Wilson, Tomerlin & Buckholts, of Oklahoma City, for defendant in error. HARDY. J. This case involves an issue between the Southwestern Surety Insurance Company and the Capitol State Bank of Oklahoma City. In June, 1913, the board of county commissioners of Oklahoma county commenced an action against the State Bank of Capitol Hill and plaintiff herein to recover the sum of $5.000, which sum was alleged to have been deposited by the county treasurer of Oklahoma county in said State Bank of Capitol Hill to secure the payment of which the Southwestern Surety Insurance Company had executed a depository bond. Judgment was rendered in favor of the board of county commissioners for said sum with interest thereon, and it is to recover this sum that this action is brought; it being alleged that the Capitol State Bank of Oklahoma City was originally incorporated under the name of State Bank of Capitol Hill, and was and is the same institution as reorganized. The facts in this case with the exceptions stated are identical with those in the case of Western Casualty & Guaranty Insurance Co. v. Capitol State Bank of Oklahoma City, 172 Pac. 954, and the questions of law involved are identical.' Upon authority of that case the judgment is All the Justices concur. affirmed. TRACTOR'S LIEN-STATUTE. Under section 3864 Rev. Laws 1910, the theory upon which the lien of a subcontractor may be sustained is that his material or lien has statement is filed in the proper office within 60 benefited the owner's premises; and if the lien days from the time the material is last furnished to the owner by the subcontractor, the statement is filed within the time authorized by stat2. SUFFICIENCY OF EVIDENCE. ute. The evidence in this case examined, and it appearing that the material furnished by the subcontractor was delivered to the premises of the owner on December 3, 1917, and the lien statement was filed by the subcontractor within 60 days thereafter, the subcontractor is entitled to a lien upon said property to secure the payment of his claim. Commissioners' Opinion, Division No. 3. Error from District Court, Pittsburg County; W. R. Higgins, Judge. Action by the Crane Company against Sim Naylor and others. Judgment for defendants, and plaintiff brings error. Reversed and remanded for new trial. A. C. Markley, of McAlester, for plaintiff in error. W. H. H. Clayton, Jr., and Gordon & McInnis, all of McAlester, for defendants in error. HOOKER, C. The record shows that in the month of March, 1913, William Weaver, the owner of the real estate here, entered into a verbal contract with Liddell & Mann, by the terms of which they were to install three sections of an Ideal boiler, with trimmings and fixtures, and to furnish the labor and material therefor in a building located on said real estate, for which they were to receive the sum of $225, to be paid when the work was completed; that before the work was done Liddell retired from the partnership, and David Mann performed the contract with Weaver, and completed the same about the 7th of November, 1913; that about the 8th of October, 1913, the firm of Liddell & Mann ordered the materials which they were to furnish to William Weaver under said contract from Crane Company at the agreed price of $157, and the said Crane Company on the 16th day of October, 1913, shipped said materials, no freight allowance, to Liddell & Mann, and said materials arrived in McAlester on the 3d of November, 1913, at which time they were taken by David Mann from the freight depot and installed in their place on the William Weaver property. Crane Company, not receiving the purchase price, on the 27th day of December, 1913, duly executed and filed with the clerk of the district court of Pittsburg county its affidavit and itemized statement of its ac count and mechanic's lien statement containing the amount and value of said material as provided by statute, for the purpose of establishing a lien upon said property to secure the payment of its indebtedness. It appears from the evidence that this material thus furnished by Crane Company to Liddell & Mann was ordered from the American Radi In Barker Lbr. Co. v. Marathon P. M. Co., 146 Wis. 16, 130 N. W. 867, 36 L. R. A. (N. S.) "But if the subcontractor delivers material to ator Company, at Buffalo, N. Y., and that the same was consigned by the American Radiator Company to Liddell & Mann on the 16th day of October, 1913, and delivery made to the common carrier on that date, to be trans-ed into the structure, delivered upon the premported for Liddell & Mann as above stated. ises, nor placed under control of the owner of the structure, no lien arises, because the material cannot be said to have been furnished for, The theory upon which the lien of subcontractors is sustained is that the subcontractor's material or labor has benefited the owner's premises, and the subcontractor could not possibly have any lien, unless his material or labor improved the owner's premises, of the statute would be that when the mateso it would seem that a reasonable meaning rial is last furnished to the owner and not when last furnished to the contractor. Smalley v. Gearing, 121 Mich. 190, 79 N. W. 1114, 80 N. W. 797, the Supreme Court of Michigan said: In "The other defendants are lien claimants, and It is contended by the plaintiff in error here that inasmuch as a delivery of this ma-in, or about the erection of the structure." terial was not made at McAlester until November 3, 1913, that its lien claim filed on December 27, 1913, was within the 60 days' time allowed a subcontractor by virtue of section 3864, Revised Laws 1910, and that said company is entitled to a lien upon said premises; while upon the contrary it is claimed by the defendants in error that the material was furnished and delivered on the 16th of October, 1913, to Liddell & Mann by Crane Company, as on that date the same was delivered to a common carrier for transportation to said firm at McAlester, f. o. b. Buffalo, N. Y., and that by virtue thereof the furnishing and delivery was completed upon said day, and that said Crane Company, under the statute aforesaid, was allowed only 60 days from that date in which to file a lien upon said property, and, not having done so, it is not entitled to recover in this action. [1, 2] The question involved here is, When was the delivery of said material to be made by Crane Company to Liddell & Mann? The record is silent as to the terms of the contract between them as to where this delivery was to be made, but the material was to be used by Liddell & Mann at McAlester, Okl. Our statute (section 3864, Revised Laws 1910) provides that the lien statement must be filed within 60 days after the date upon which materials were last furnished or labor last performed. As stated, there is no conflict as to the date when the shipment was made by the American Radiator Company for Crane Company to Liddell & Mann at McAlester, Okl., which was on October 16, 1913, nor is there any dispute as to the date said material arrived at McAlester and was received by Liddell & Mann, which was November 3, 1913. Section 3864, Rev. Laws 1910, provides that: "Any person who shall furnish any such material or perform such labor as a subcontractor, etc., may obtain a lien upon such land, or improvements, or both, from the same time, in the same manner. and to the same extent as the original contractor, for the amount due him for such material and labor. So the question presented here is, When was this material furnished so as to entitle the subcontractor to a lien upon this property? In 18 R. C. L. 922, it is said: The the complainants, as well as the defendant own- law was enacted for the benefit and protection of laborers and materialmen, and should be construed liberally. The verified statement of account must be filed within 60 days from the date on which the last of the materials shall have been furnished. We think the meaning of the statute is that the 60 days begin to run from the date when the last materials shall have been furnished to the owner or delivered at the building. The materialman furnishes the material to the owner through the contractor, the same as the laborer performs labor for the owner under the direction and authority of the contractor. The stone company, it is true, delivered the stone at the yard of Gearing; but it was delivered there at the request of Gearing, to be dressed and afterwards delivered at the building. Had Gearing filed a claim of lien for this material at the time it was filed by the stone company, no question could be raised as to the time. The claim of lien would have been filed in time. It was purchased for the very purpose of being put into this building. The claimant could not have filed a claim of lien for the materials until they were delivered to the owner of the building. In Wentworth v. Tubbs, 53 Minn. 388, 55 N. W. 543, it was held, under the statute of that state, that 'materials for a building are usually said to be furnished when they are delivered on the premises on which they are to be used.' The court below was not in error in deducting from the claim the value of the stone not used in the building. The equity of a lien claim for labor or materials arises from the fact that the value of the property to which they have been applied has been increased. The language of the act giving the lien provides that 'every person, who shall as contractor, laborer or materialman perform any labor or furnish material to such original contractor or any subcontractor in carrying forward or completing such contract, shall have a lien therefor.'" Applying the rule announced to the facts in this case, it is apparent that the lien statement of the subcontractor was filed within 60 days from the time the material was furnished to the owner, and the plaintiff in error is entitled to a lien upon said property to secure the payment of its indebtedness. The judgment of the lower court is therefore reversed, and this cause remanded for a new trial. PER CURIAM. Adopted in whole. KING V. ANTRIM LUMBER CO. et al. (No. 8274.) (Supreme Court of Oklahoma. Dec. 11, 1917. Rehearing Denied May 21, 1918.) (Syllabus by the Court.) 1. DEEDS 59(4)-CONVEYANCE OF TITLE DELIVERY. Where a deed is made without consideration to an infant of tender years not of kin to the grantor, and placed by the grantor upon record, and after the deed is recorded it is returned to the grantor and never delivered to the grantee or any one for her, and the intention of the grantor in making the deed was not to pass title to the grantee, but to place the property where it could not be reached for a legal liability of the grantor, and the possession of the property continuously remained in the grantor, there was not such a delivery of the deed as necessary to convey title thereby to the grantee, and such infant is not entitled to 2. EQUITY 65(2)-DEEDS-RELIEF-CLEAN HANDS. Where a deed is executed and placed on record by a grantor for the purpose alone of plac ing the property beyond the reach of his creditors, and such deed is not delivered by the grantor to the grantee or any one for her, but is surreptitiously taken by and is in her possession, and the grantor brings action praying for the removal of the cloud created by such deed upon such property, and for the cancellation of the deed and record thereof, equity will deny such relief for the reason that the grantor does not come into court "with clean hands," and therefore "equity leaves him where it finds him." Commissioners' Opinion, Division No. 1. Error from District Court, Washita County; Thomas A. Edwards, Judge. Action by the Antrim Lumber Company to foreclose a mechanic's lien against W. B. King which Minnie and Minnie Zschornack, in Zschornack was permitted to interplead, with answer and cross-petition by W. B. King to the petition of intervention, and in which the Antrim Lumber Company by demurrer to the evJudgidence was eliminated from the case. ment for intervener quieting her title against defendant King, his motion for a new trial overReversed and reruled, and he brings error. manded, with instructions to dismiss the intervention and the cross-action. A. M. Beets, of Cordell, for plaintiff in error. Richard A. Billups, of Cordell, for defendants in error. COLLIER, C. This action was brought by the Antrim Lumber Company to foreclose a mechanic's lien on lots described in the petition against the defendant W. B. King and Minnie Zschornack, alleging that the title to said property was in Minnie Zschornack, but that transfer from the defendant King to Minnie Zschornack was void as being without consideration. Thereafter R. Brett, as amicus curiæ, filed motion to make Minnie Zschornack a party to the cause. Minnie Zschornack was permitted to interplead and set up her rights in said cause; the important part of said interplea being as follows: "(3) Your interpleader further states to the court: That she is and has been the owner in fee of the real property set out in plaintiff petition, to wit: Lots twenty-one (21), twentytwo (22), and twenty-three (23), in block fiftyeight (58), in the town of New Cordell, Okl., and lots seventeen (17) and eighteen (18), in block fifteen (15), East Hill addition to New Cordell, Okl., since the 19th day of April, 1906. That on said day and date W. B. King, then a single man, conveyed said real property and all of the same to this interpleader by good and sufficient warranty deed, which deed is now held by this interpleader, and is on record in the office of the register of deeds of Washita county, Okl.; same having been filed for record the 19th day of April, 1906, at 8:10 o'clock a. m. of said date, and recorded in volume 14, page 233, of the records of said office; a copy of said deed is filed herewith, as a part hereof, marked Exhibit A. That the said W. B. King has no right, title, or interest in said property, nor any part thereof. That no other person or persons have any right, title, or interest in and to said property or any part thereof, except your interpleader herein, who is the legal holder and owner of all of said real property. "(4) Your interpleader further states that the register of deeds, in copying and recording said deed to said property, incorrectly copied the said grantee appearing of record as Minnie S. Schormack, instead of Minnie Zschornack, which is the real and true name which appears in the original deed presented for record; that your interpleader did not know of said mistake in the recorder's office until her attention was called to same upon the filing of this suit, but presumed that said register of deeds had correctly recorded the deed presented for record as was his duty to do. "(5) Your interpleader specifically denies that the plaintiff herein has any interest in or lien upon the above-described property of your interpleader, by reason of the pretended lien statement filed herein, but states, as aforesaid: That this interpleader was at that time, and has been ever since, and is now, a minor under the age of 21 years, and of the age of 16 years at this time, and owes the plaintiff nothing. "(6) That said pretended lien statement is a cloud upon the title of this interpleader, and said cloud should be removed. "Wherefore, your interpleader prays that the plaintiff take nothing of her by reason of said lien; that said lien statement be declared void as a lien against the property of this interpleader, and that the cloud on the title created by reason of said lien statement be removed, and that the record in the office of the register of deeds be corrected and made to show the real name of the grantee in said deed as shown by the original deed to said property, and that she go hence with her costs in this behalf expended, and for other proper relief." W. B. King filed his answer and crossaction to the petition of intervention filed by the interpleader, Minnie Zschornack; the material averments of said amended answer and cross-action being as follows: First. That he denies each and every material allegation contained in said interplea. Second. For his second and further answer to said interplea, the said defendant alleges and states that he is the owner in fee simple of lots 21, 22, and 23, in block 58, in the city of New Cordell, Okl., and lots 17 and 18, in block 15, East Hill addition to the city of New Cordell, Okl., all in Washita county, as described in said plea of intervention. That said intervener has no right, title, or interest in said premises, but alleges the fact to be that on the 19th day of April, 1906, the said defendant W. B. King executed a deed to said property to Minnie Zschornack, but that said deed was executed without consideration and was not delivered to the said Minnie Zschornack or said interpleader or any other person for her benefit, and that the title to said premises was not intended to pass and did not pass from said defendant. That said defendant was at said time, and has been at all times since, in possession of said premises, and has paid the taxes and made valuable improvements thereon. Defendant further states that the deed so made at said time and placed on record is a cloud upon defendant's title, and that unless the same is canceled, set aside, and held for naught said defendant will be unable to dispose of said property. Defendant further says that, if the intervener herein has possession of said deed as alleged in said petition of intervention, the same was surreptitiously and fraudulently obtained without the consent of the said defendant. Third. Defendant further states that, in the event that the court should hold that the deed herein involved was delivered to the interplead er as a matter of law, then said defendant alleges the facts to be that said interpleader holds the legal title to said described property in trust for the use and benefit of this defendant W. B. King. That the said W. B. King is the owner of the equitable title thereto, and that said interpleader has no right whatever in the equitable title to said property. Wherefore said defendant prays that the deed heretofore executed by the said W. B. King 1 to the said Minnie Zschornack be set aside, canceled, and held for naught, and his title quieted against the said Minnie Zschornack; or that the court declare the said Minnie Zschornack to hold the title in trust for the said defendant W. B. King, and for such other and further relief as the court may deem the defendant entitled to in law and equity. To said amended answer and cross-action the interpleader, Minnie Zschornack, filed a general denial. The Antrim Lumber Company, by demurrer to its evidence, was eliminated from the case, and the trial of the case proceeded upon the issue joined between the interpleader, Minnie Zschornack, and W. B. King. The material evidence is that W. B. King was a single man and owned the property in litigation; that the mother of Minnie Zschornack was keeping house for him; that Minnie was then a little girl about six years old; and that King got into some difficulty regarding a suit which he had against some parties, and fearing the result of the litigation executed a deed to the little girl, and placed the deed on record; that after the deed was recorded it was returned to King and remained in his possession for several years, and never was delivered to the interpleader; that King married the interpleader's mother and the interpleader lived with King and his wife; that thereafter trouble arose between the parties, and the interpleader took the deed from King's possession without his knowledge and left home; that King continued to remain in possession of the property, paid the taxes thereon, and received the rents; that he made improvements from time to time, which he paid for; that said King about the time of the execution of the deed informed the interpleader that he was deeding the property in controversy to her; that subsequently when the interpleader in the interest of said King was summoned to court she was instructed by King to swear that she came by the property in controversy from money she had inherited from her father, and that King had borrowed from the interpleader's mother, and that her mother told King just to deed the property to interpleader instead of replacing the money. King testified that he met J. K. Little, the attorney on the other side of the case, down at the Finerty Bank, who said, "I think we can get the costs on to you;" that caused him to put this property into somebody's name for safe-keeping; that he went to Mr. Coker and had this deed written up and had it recorded; that after its record the recorder delivered the deed to him; that when the intervener left home he missed the deed; that he positively never intended to deliver the deed to Minnie Zschornack or convey the property to the intervener; that he had been constantly in possession of the property in controversy, and also of the deed until the intervener took the deed. The intervener testified that she had never paid any consideration for the property involved; that she had never been in possession of or | brief to, and have not been able to find, any paid taxes on said property; and that she opinion by this court in which the question had never been in possession of the deed until she took it from the papers at home, and that no one was present when she took it. Judgment was rendered for the intervener "that the title to the real estate involved in this action both legal and equitable be, and the same is, vested in said Minnie Duncan, formerly Minnie Zschornack, and that the defendant W. B. King be and is forever denied any right, title, or interest in and to said lots or either of them, and the title of the said Minnie Zschornack Duncan to said lots is forever quieted as against the said W. B. King, or any person or persons claiming or to claim under him." To the rendition of said decree the said W. B. King duly excepted. The Antrim Lumber Company was adjudged to pay costs, but did not except thereto. W. B. King made timely motion for a new trial, which was overruled and excepted to, and error brought to this court. The Antrim Lumber Company not having excepted to or appealed from the judgment rendered against it, no question is presented as to the action of the court in rendering judgment against said company on the demurrer interposed to its evidence or in taxing it with costs; the appeal being taken by W. B. King alone. We do not think that, as contended by the plaintiff in error, and to which question the discussion of both briefs is principally directed, the transaction under consideration created a trust in favor of W. B. King, or that a question of trust is at all involved therein. We are of the opinion that there are but two questions for proper determination of this cause: (1) Was there such a de livery of the deed executed by the grantor to the intervener as to pass title to the intervener? (2) Does the evidence show that King was entitled to the relief prayed for in his cross-action? We are of the opinion, and so hold, that both of said questions must be answered in the negative. of the effect of recording a deed by the grantor and the retention of the deed by him as to delivery to the grantee has been determined, but we are of the opinion, and so hold, that, while the authorities are not entirely harmonious, the great weight of authority is that the recording of a deed to a minor is not such delivery as would pass title to such minor, unless it was the intention of the grantor that such recording was to operate as a delivery, so shown by evidence. The registry of a deed by the-grantor might, perhaps, in the absence of opposing evidence, justify a presumption of delivery, but such presumption is repelled where the registry was made without the knowledge or assent of the grantee, and the property it purported to convey always remained in the possession and under the control of the grantor. Younge v. Guilbeau, 3 Wall. 636, 18 L. Ed. 262. The recording of a deed by a grantor does It denot of itself constitute a delivery. pends upon the grantor's intention. Humiston v. Preston, 66 Conn. 579, 34 Atl. 544; Moore v. Giles, 49 Conn. 570; Jamison v. Craven, 4 Del. Ch. 311; Masterson v. Cheek, 23 Ill. 72; Weber v. Christen, 121 Ill. 98, 11 N. E. 893 [2 Am. St. Rep. 68]; Hutton v. Smith, S8 Iowa, 238, 55 N. W. 326; Berkshire Mut. F. Ins. Co. v. Sturgis, 13 Gray [Mass.] 177; Glaze v. Three Rivers Farmers' Mut. F. Ins. Co., 87 Mich. 349, 49 N. W. 310 [595]; Babbitt v. Bennett, 68 Minn. 260, 71 N. W. 22; Doorley v. O'Gorman, 6 App. Div. 591, 39 N. Y. Supp. 768; Hayes v. Davis, 18 N. H. 600; Thompson v. Jones, 1 Head [Tenn.] 576; Chess v. Chess, 1 Pen. & W. 32, 21 Am. Dec. 350. "The fact that the grantor executed the deed and had it recorded does not amount to a delivery where it is proven as a fact that he never intended to make it his deed except under a contingency which never happened." Jones v. Bush, 4 Har. (Del.) 1. "The registration of a deed by the grantor does not of itself operate as a delivery, nor does [3] In Powers v. Rude, 14 Okl. 381, 79 Pac. it supersede the necessity of proof of a delivery." 89, it is held: "A deed does not take effect or operate to pass title until it is delivered." In Hunter, etc., Co. v. Spencer, 21 Okl. 155, 95 Pac. 757, 17 L. R. A. (N. S.) 622: Hawkes v. Pike, 105 Mass. 560, 7 Am. Rep. 554. In Barnes v. Barnes, 161 Mass. 381, 37 N. E. 379, the delivery of a deed was held not to be shown, in a controversy between the grantor and the grantee, under the following circumstances: The plaintiff signed and sealed a deed to the defendant, and caused it to be recorded, intending at the time to pass the In Daniel et al. v. John P. London Co. et title to the defendant, but without doing or al., 44 Okl. 297, 144 Pac. 596, it is held: "No title will pass by a deed which is not delivered by the grantor or some one duly authorized by him." "A deed signed and acknowledged, but not delivered, is not effective as a conveyance, and does not transfer or pass title." saying anything else to manifest that intention. He afterwards received the deed back from the recorder and it was never in the [1, 2] It is not even contended by the in- possession of the defendant, or of any one tervener that there was a manual delivery representing her, and, when requested by her of the deed from W. B. King to her or to counsel to surrender the deed, refused to do any one for her, and thus the deed did not so. Before such request, but after he had re convey title to her, unless under the evi-ceived the deed back from the registry, he dence herein the record thereof was a de- communicated its existence to the defendant, |