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(209 P.) purpose of having reviewed an order sustain-| utory judgment, in which the court decreed ing a demurrer to the petition filed by the that each of the parties to the action owned plaintiff, we are unable to conceive of any a one-third interest in the leases, and the record other than the petition, the demurrer, profits thereof accrued, subject, however, to and the order of the court that would in any the right of Wells, one of the defendants, to way be useful to the court in determining the hold title to the leases until he shall have correctness of the court's ruling. Where the been paid certain expenditures in full, and sufficiency of summons by publication notice ordered that an accounting be had before a is involved, and copy of such summons or referee. Thereafter, upon the report of the notice, together with the ruling of the court, referee, the court entered a final judgment is in the record, it is sufficient to determine in the action fully adjudicating the rights of the validity of such summons or notice. the parties in the action. It was the conten.

The second ground of the motion to dismiss tion of the defendant in error that, more the appeal, and urged in the supplemental than six months having elapsed before the motion to dismiss, is that the order appealed | filing of the appeal in the Supreme Court from is not a final order. Under section from the date of entering the first order in . 5236, Revised Laws 1910, an appeal may be the cause, all the questions adjudicated in taken without regard to the finality of the the first order were res adjudicata, and not order. This section of the statute reads: subject to review. This court held, under “The Supreme Court may reverse, vacate or

the facts as disclosed by the record in the modify judgments of the county, superior or case, that the first order was not a final Judg. district court, for errors appearing on the rec-ment, that it did not finally determine the ord, and in the reversal of such judgment or rights of the parties, and that the first order order, may reverse, vacate or modify any in- disclosed on its face that the trial court termediate order involving the merits of the would be unable to finally determine the reaction, or any portion thereof. The Supreme spective rights of the parties to the action Court may also reverse, vacate or modify any until an accounting had been taken, and that of the following orders of the county, superior the decree entered after the report of the refor district court, or a judge thereof: "First. A final order,

eree was the final judgment of the court ad"Second. An order that grants or refuses a judicating the rights of the parties. It is continuance; discharges, vacates or modifies a plain from the facts, as disclosed by the recprovisional remedy; or grants, refuses, vacates ord in the case, that the first order of the or modifies an injunction; that grants or re- court was only a preliminary statement of fuses a new trial; or confirms or refuses to the court as to what the final judgment confirm, the report of a referee; or sustains or would be with respect to certain issues inoverrules a demurrer,

volved in the case after an accounting had “Third. An order that involves the merits of been had before a referee. Mr. Justice Millan action, or some part thereof."

er, in the opinion, said: [1] It will be observed under the language

"In cases of doubt, the intent of the court as of the statute, supra, that an appeal may shown by the orders made should not be disbe prosecuted to vacate or modify any inter- regarded in considering this question. The ormediate order involving the merits of the der made on the 26th day of May, 1914, was action, or any order that sustains or over- not a Judgment; therefore it was not necesrules a demurrer, or any order that involves sary to file a motion for a new trial, or appeal the merits of the action or some part there

therefrom." of. The order of the court in the instant case sustained a demurrer to that portion It is quite clear that the case does not sup: of the petition of the plaintiff wherein he port the contention of the defendants in the sought to foreclose his mortgage lien and de instant case. In the instant case, if Kne. creed the mortgage to be void. It is too clear bel, the plaintiff, has no lien upon the lands that such an order involved a part of the under his mortgage, he has lost his security merits of the action to necessitate the cita- for the money loaned to the defendants. The tion of any authority other than the stat- order of the court sought to be reviewed ute; therefore, the second ground of the mo here deprives the plaintiff of all his security tion to dismiss the appeal is untenable. for the payment of his debt, and the fore

The case of Wells v. Shriver, 81 Okl. 108, closure of the mortgage lien was, at least, a 197 Pac, 460, does not support the contention substantial part of the relief for which the of the defendants. In the case supra Shri- plaintiff invoked the jurisdiction of the court. ver, the plaintiff, instituted the action In the case of Wesley et al. v. Diamond et against Wells and Bumbaugh, defendants, to al., 26 Okl. 170, 109 Pac. 524, this court held: recover an undivided one-third interest in

"Under section 6067, Comp. Laws Okl. 1909, certain oil and gas leases, and for an ac

an order that involves the merits of an accorinting as to the profits derived from the tion or some part thereof may be reversed, leased premises. At the conclusion of the vacated or modified by the Supreme Court beevidence in the trial of the cause, the trial fore final judgment is rendered in the cause in court entered what it designated an interloc- the trial court."

Other cases supporting this rule are: W., closed unless the registration tax had been H. Ashley Silk Co. v. Oklahoma Fire Insur- paid. ance Co., 33 Okl. 348, 125 Pac. 449; Starbuck The purpose of the amendment of section v. Dunklee, 10 Minn. 168 (Gil. 136), 88 Am. 4, supra, as provided for in chapter 105, Sess. Dec. 68; Kingsley v. Gilman et al., 12 Minn. Laws 1915, was to require the mortgagee to 515 (Gil. 425); Am. Surety Co. v. Ashmore pay the registration tax, and to make it an et al., 74 Kan. 325, 86 Pac. 453; Backus v. offense punishable as a misdemeanor for the Clark, 1 Kan. 303, 83 Am. Dec. 437; St. John mortgagee to charge to, or exact from, the v. West, 4 How. Pr. 331; Tallman v. Hinman, mortgagor the payment of the registration 10 How. Pr. 90; Burhans v. Tibbits, 7 How. tax. Pr. 78; Whitney v. Waterman, 4 How. Pr. It is contended by the defendants that, un313; Seiffert, etc., Lumber Co. v. Hartwell, der the following clause in the mortgage at94 Iowa, 576, 63 N. W. 333, 58 Am. St. Rep. tached as an exhibit to the plaintiff's peti413.

tion, the registration tax was to be paid by [2] The third ground of the motion to dis the mortgagor, and that by the insertion of miss the appeal challenges the jurisdiction the clause in the mortgage the mortgagor of the trial court to determine the action for bad contracted to pay the tax, and that the the reason that the publication notice was contract, ing unlawful, and in violation of insufficient to confer jurisdiction upon the the statute, is void. The clause reads: court. The specific objections to the publi

"That said second party may pay any taxes cation notice are that it was not dated nor

or assessments levied against said premises, made under the seal of the court. We deem or any other sum necessary to protect the it sufficient to say that, upon an examination rights of such party or assigns, including inof the demurrer filed by the defendants, we surance upon buildings, and recover the same are clearly of the opinion that the defend- from the first party with 10 per cent. interest, ants, by filing the demurrer, entered their ap- and that every such payment is secured hereby, pearance in the action. It is true the de- and that, in case of a foreclosure hereof, and murrer challenged the jurisdiction of the as often as any foreclosure hereof may be court, but, in addition to challenging the ju- first' party an attorney's fee of $100, which

filed, the holder hereof may recover from the risdiction of the court, the defendants, by shall be due upon the filing of the petition in the demurrer, invoked the jurisdiction of the foreclosure, and which is secured hereby, and court to determine and adjudicate the valid-' which the first party promises and agrees to ity of the mortgage sought to be foreclosed, pay, together with all costs. The first party and thereby asked relief beneficial to them, further agrees to pay any tax that may be which required an exercise of jurisdiction on assessed against this mortgage under the laws the part of the court in the action, and the of Oklahoma and county aforesaid. Any exdefendants by invoking the jurisdiction of pense of litigation or otherwise, including atthe court to grant them beneficial relief en- torney's fees and an abstract of title of said tered their appearance for all purposes. Chi- premises, incurred by reason of this mortgage, cago, R. I. & P. Ry. Co. et al. v. Austin, 63 or to protect its lien, shall be repaid by the Okl. 162, 163 Pac. 517, L. R. A. 1917D, 666; interest thereon at 10 per cent. per annum,

mortgagors to the mortgagee or assigns, with Walton et al. v. Kennamer et al., 39 Okl. and this mortgage shall stand as security there629, 136 Pac. 584. The motion to dismiss the for.” appeal cannot be sustained.

The only question for decision upon the The petition filed by the plaintiff in the merits in this cause is whether or not the second paragraph alleged that the mortgagee mortgage sought to be foreclosed by the paid the mortgage tax, as provided for in the plaintiff is void under section 4 of chapter statute, at the time of filing the same for 246, Sess. Laws 1913, as amended by chapter record, and that said mortgage tax has not 105, Sess. Laws 1915, which reads as follows: been charged to, or exacted from, the mort

gagor. “The tax herein provided for shall be paid by the mortgagee, and any mortgagee, agent, the clause, “the first party further agrees to

[3] It is contended by the defendants that representative, or person who shall through any scheme, arrangement, inducement or device

by pay any tax that may be assessed against an increase of the rate of interest, commission, this mortgage under the laws of Oklahoma brokerage, or otherwise, charge to or exact and county aforesaid," obligates the mortfrom the mortgagor the payment of such tax, gagors to pay the registration tax in violashall be deemed guilty of a misdemeanor, and tion of the statute. We are unable to concur upon conviction be punished accordingly." in the contention of the defendants. It is

very doubtful whether the language conSection 8 of chapter 246, Sess. Laws 1913, tained in the clause of the mortgage under in substance provided that no mortgage on consideration could be construed to include real property shall be recorded by any regis- the registration tax as provided for in the ter of deeds unless there shall be paid the statute, for the reason this tax is in the na tax imposed by and as in this article provid- ture of a registration fee, and by the payed. Under the act a mortgage was not ad- ment of this registration fee, or tax, the missible in evidence, nor could it be fore- mortgage is thereby, together with the in(209 P.) debtedness, exempt from taxation. It is, reason for the rule is that parties to a contherefore obvious that the construction of the tract are presumed to have contracted within clause of the mortgage contended for by the the law. Foreman v. Needles. 78 Okl. 105, defendants is at least a doubtful construc: 188 Pac. 1087, Martin et al. v. Oklahoma tion. Under the allegations of the petition State Bank (Okl. Sup.) 206 Pac. 824 (not yet the parties to this mortgage contract have officially reported). not placed the construction upon the contract [5] The respective parties have extensively as contended for by the defendants, but, on briefed the proposition as to whether or not the other hand, the parties to this contract, the mortgage would be invalid if by its terms by their conduct and actions, under the alle. it violated the statute making it a misdegations of the petition, have construed the meanor for the mortgagee to exact the paymortgage contract so as to place the obliga- ment of the registration tax of the mortgation of paying the registration tax, as re- gors. We are clearly of the opinion that, if quired by the statute, upon the mortgagee. the mortgage by its terms violated the statThe mortgagee alleges that he paid it. The ute, the contract would be within the general demurrer to the petition admits that he paid rule of illegal contract, and unenforceable. it, and that he did not charge it to, or ex- It is obvious that a contract violative of a act it of, the mortgagors. It is a rule of law criminal statute is, upon the ground of pubin the construetion of contracts, supported al- lic policy, void. But, as we view the record most unanimously by the authorities, that, in the instant case, the mortgage is not suswhere the terms of a contract are doubtful, ceptible of the construction placed upon it by but such terms have been construed and act the trial court, and the order of the court ed on by the parties interested, such construc-sustaining the demurrer and decreeing the tion will be adopted. This is true although mortgage to be void is reversed, and the the language used in the contract may more cause is remanded to the district court to strongly support another construction. Pitts- overrule the demurrer of the defendants. burg Vitrified Pav, & Brick Co. v Bailey, 76 Kan. 42, 90 Pac. 803, 12 L. R. A. (N. S.) 715; JOHNSON, MCNEILL, MILLER, ELTING, Minnetonka Oil Co. v. Cleveland Vitrified and NICHOLSON, JJ., concur. Brick Co., 27 Okl. 130, 111 Pac. 326; Strange et al. v. Hicks et al., 78 Okl. 1, 188 Pac. 347 ; Prowant v. Sealy, 77 Okl. 244, 187 Pac. 235; Malloy y. Interstate Irr. Co., 62 Wash. 487,

YORK V, TRIGG et al. (No. 13168.) 114 Pac. 167; Harlow v. Oregonian Publishing Co., 53 Or, 272, 100 Pac. 7.

(Supreme Court of Oklahoma. July 25, 1922. The tax referred to in the clause in the Rehearing Denied Oct. 3, 1922.) mortgage under consideration, to wit, “Pay any tax that may be assessed against this

(Syllabus by the Court.) mortgage,” if used in its ordinary accepted 1. Appeal and error 1009 (4) Finding of meaning, clearly referred to such a tax as is

fact not disturbed unless clearly against usually assessed in the ordinary manner as

weight of evidence. provided by the general laws of the state

On appeal in the Supreme Court from a

judgment rendered in an action in equity, the by the tax assessor, and the phrase has findings of fact of the trial court will not be no reference to the registration tax as disturbed unless it appears after a consideration provided for in chapter 246, Session Laws of the entire record of the evidence that such 1913. It is true that this registration tax findings are clearly against the weight of the exempted the mortgage from all other tax, evidence. but parties cannot ordinarily anticipate just 2. Sufficiency of evidence. what taxes may be imposed upon property

Record examined, and held, that the findings by the taxing power in he state, which is of fact of the trial court are not clearly against the Legislature. It appears from the lan- the weight of the evidence. guage used, “to pay any tax that may be

3. Gifts molt What constitutes "gift inter assessed against this mortgage," contemplat

vivos." ed some future tax, and was an attempt to provide for such a contingency. It undoubt-transfer of the property from the donor to

A valid gift "inter vivos” is an absolute edly would require a strained construction the donee, taking effect immediately, and a deof the clause to hold that it imposed the ob- livery of the property, the subject of the gift, ligation upon the mortgagors of paying a to the donee and its acceptance. registration tax in order to have the mort- [Ed. Note.--For other definitions, see Words gage recorded by the mortgagee.

and Phrases, First and Second Series, Gift In[4] Another rule of law applicable in the ter vivos.] case is that, in construing a contract, if it 4. Wills 90-Gift inter vivos distinguished appears that the contract is susceptible of from gifts by will. two constructions, one lawful and the other A gift "inter vivos" is distinguishable from unlawful, the former will be adopted. The a will in that such a gift may be made by parol,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
209 P.-27

and, upon the acceptance of the gift by the KENNAMER. J. Elizabeth York, plaindonee, the gift is irrevocable by the donor, tiff, commenced this action in the district while ordinarily a will is required to be in court of McCurtain county on the 30th day writing, and usually is made in view of the of December, 1919, against Mary Y. Trigg fact of death, and is ineffective until the death and Robert York, defendants, to establish of the testator and the admission of the will her ownership and title in and to an undividto probate.

ed one-third interest in the estate of Jerome * [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Will.]

B. York, deceased, and to have canceled,

set aside, and held for naught certain deeds 5. Husband and wife Om6(2, 3) – Married and instruments of writing by which Jerome

man's gifts in lifetime, acquired during cover. B. York attempted to convey, give, devise, ture, not in fraud of marital rights of widow, and bequeath certain real and personal valid, and right not limited by law prohibiting property to the defendants. bequeathing more than two-thirds away from The material allegations of the petition in wife.

substance are: À married man may during his lifetime

That Jerome B. York died in the city of give away his property, both personal and real, Paris, Lamar county, state of Texas, on acquired during coverture, except the homestead, and such gift will be binding against about the 6th day of July, 1919, but that his widow as an heir of his estate unless it be on the date of his death he was a resident shown that the gift was made in fraud of the of the town of Valliant, McCurtain county, marital rights of the surviving widow; and state of Oklahoma. That Mary Y. Trigg section 8341, Rev. Laws 1910, prohibiting a and Robert York had been by the county married man from bequeathing more than twothirds of his property away from his wife in no utris and executor of the estate of Jerome

court of McCurtain county appointed exec. way limits or restricts him in making such gifts.

B. York, deceased, and are now qualified and 6. Wills Coll, 782(7)-Will disposing of more acting executrix and executor of said estate.

than two-thirds of his property away from That the plaintiff, Elizabeth York, and the wife invalid as to wife; widow may elect to said Jerome B. York were legally married take under will or law.

Under section 8341, Rev. Laws 1910, a will on the 12th day of May, 1870, in the state by a married man which bequeaths more than of Illinois. That the plaintiff and Jerome two-thirds of the testator's property away from B. York lived in the state of Illinois until his wife is invalid as to his wife, and such sur- 1871, when they moved to the city of viving wife has the right to elect whether she Wichita, Kan., where they lived until 1893, will take under the will or receive her distribu- when they moved to the city of Pine Bluff, tive share of such deceased testator's property Ark., and resided there until 1908, when with which he died seized as an heir at law.

they moved to the city of Memphis, Tenn., 7. Equity Om3, 62–Has no power to change and lived together as husband and wife

rights clearly established by law; unavailable until 1912, when Jerome B. York left the to create right where none exists, as equity city of Memphis and took up his residence follows law.

in the town of Valliant, McCurtain county, Where the rights of parties to an action are Okl. That of the marriage of the plaintiff clearly defined and established by law, equity has no power to change or unsettle such rights. and Jerome B. York there were born six The maxims of equity may be invoked to pro- children, names as follows: Mary Y. Trigg, tect an existing right, but are unavailable to née York, a daughter, one of the defend. create a right where none exist. Equity follows ants; Robert York, a son, one of the dethe law.

fendants herein; Grace Nelson, née York, a 8. Judgment of trial court affirmed.

daughter; Minnie Anderson, née York, a

daughter, who died subsequent to the death Record examined, and held, that the judg- of the said Jerome B. York;—and two chilment of the trial court must be affirmed.

dren who died in infancy. That at the time

of the marriage of the plaintiff and Jerome Appeal from District Court, McCurtain B. York neither of them had any property. County; Harve L. Melton, Judge.

That after the marriage of the plaintiff and

they each labored and Action by Mrs. Elizabeth York against Jerome B. York Mary Y. Trigg and another. Judgment for worked together, using their best efforts, defendants, and plaintiff appeals. Affirmed. skill, and mental accomplishments to ac

cumulate property, real and personal, to Etheredge & Arnett, of Idabel, and Rainey provide for their support, maintenance, and & Flynn, of Oklahoma City (Fitzhugh, Mur- to provide for the education, maintenance, rah & Fitzhugh and Ewing, King & King, all and support of their children. That all of of Memphis, Tenn., and M. Danaher, of Pine the property subsequent to the marriage of Bluff, Ark., of counsel), for appellant. the plaintiff and Jerome B. York held in the

Harsh & Harsh, of Memphis, Ten., Arm- name of Jerome B. York, or any person for strong & Jones, of Idabel, and McPherren & his use and benefit, was accumulated, acCochran, of Durant, for appellees.

quired, earned, owned, and purchased by the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(209 P.) joint industry, efforts, and labor of the plain- joint industry of the plaintiff. That Jerome titr and the said Jerome B. York.

B. York during their marriage relation atDuring the year 1911 the said Jerome B. tempted to devise, bequeath, and will away York and the two defendants herein entered from plaintiff more than two-thirds of the into a conspiracy to cheat and defraud this property owned by Jerome B. York at the . plaintiff out of her share and part of the time of his death, and attempted to bequeath property, real, personal, and mixed, ac- to the plaintiff an annuity of $300 per month quired, owned, and accumulated by plaintiff during her lifetime. Said will had been aland Jerome B. York during their marriage lowed to probate by the county court of Mcrelation, and to defraud the plaintiff by de- Curtain county, Okl., and the defendants priving her of her right to inherit or take appointed and qualified as executrix and any part of said property from her husband executor thereunder. That at the time of on his death, either by the law of descent or the death of Jerome B. York he had in his by will. That, acting in pursuance of said name and under his control real and personconspiracy to cheat and defraud plaintiff of al property, owned, acquired, and accumuher part and share of the property, and to lated by the joint industry of the plaintiff overreach the said Jerome B. York, the de- and Jerome B. York, of the value of $2,000,fendants, by fraudulent statements and rep 000. That at the time of the death of resentations, and false and fabricated offers Jerome B. York the defendants held in their of reward, did during the year 1911 have this name, in trust and for the use and benefit plaintiff incarcerated in an insane asylum in of Jerome B. York, real and personal propthe city of Flint, Mich., where she was con- erty of the value of $2,000,000. That all of fined and deprived of her liberty until, with the conveyances, gifts, devises, and bequests the aid of her two daughters, Grace Nelson, made by Jerome B. York to the defendants, neé York, and Minnie Anderson, neé York, or either of them, were as to plaintiff void she managed to escape and return to her and of no effect. home in Memphis, Tenn. That, in pursu- The plaintiff prayed the judgment of the ance of the conspiracy to cheat and defraud court be to require that the defendants displaintiff out of her share and part of the close and reveal to the court all property, property acquired, owned, and accumulated real and personal, which Jerome B. York by the joint efforts and industry of plain- gave, conveyed, devised, bequeathed, sold, or tiff and · Jerome B. York, and to deprive transferred to them, or either of them, at plaintiff of her right to inherit as a wife any time subsequent to the marriage of and heir at law of Jerome B. York at his plaintiff and Jerome B. York; that the death, the said Jerome B. York converted plaintiff be adjudged to be the owner of onea large part of said property into cash and third of all the property owned by Jerome invested the same into lands situated in MC-B, York, and for all property and equitable Curtain county, Okl., and had the title, deeds relief deemed to be just and right. to the lands, made in the name of the de The defendants answered the petition of fendants, Mary Y. Trigs and Robert York. the plaintiff, denying generally all of the But the said Jerome B. York invested a allegations, pleading a conspiracy to delarge amount of money in corporation stock, fraud the plaintiff ; alleged that on the date chattels, goods, wares, and merchandise, tak- of the marriage of Jerome B. York he ing title to said property in the name of the had property of the value of $3,000; alleged defendants, the amount and value of the that in the beginning of the married life same being unknown to the plaintiff. That, of the plaintiff and Jerome B. York the in furtherance of said conspiracy to defraud plaintiff did the usual and customary duties the plaintiff, Jerome B. York and the de- that a wife does at home, but denied that fendants placed the title of said property in she ever helped him in any way in his busisuch a condition as to have the title in the ness; alleged that in the early married life defendants at the date of the death of the of the plaintiff and Jerome B. York the said Jerome B. York, and, in order to avoid plaintiff had nervous prostration, and that the statute of the state of Oklahoma pro- some years after their marriage she develhibiting Jerome B. York from willing and oped a goitre on her neck; that many years giving away from his wife more than two- prior to the death of Jerome B. York the thirds of his property. Jerome B. York did plaintiff was not in a condition to attend to attempt to give and convey to the defend the ordinary household duties; that the propants practically all of his real estate and erty accumulated was solely by Jerome B. personal property by deeds and conveyances, York. a description of the property being set out. It was alleged by the defendants that the That the value of the property described goitre on the neck of the plaintiff, more than was unknown to the plaintiff, but alleged to 30 years prior to the death of Jerome B. be of the value of $500,000.

York, had developed to such an extent that, That Jerome B. York attempted to make according to the opinion of eminent physia will and testament, devising and bequeath- cians, caused the mind of the plaintiff to be ing to the defendants all of the personal, affected; that the plaintiff imagined that real, and mixed property acquired by the she had some supernatural power, or in

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