1. APPEAL AND ERROR (§ 1024*)-REVIEW-mony was immaterial, since, if his testimony CHANGE OF VENUE.

3. MALICIOUS PROSECUTION (§ 20*)-"PROBA-11. WITNESSES (§ 269*)-CROSS-EXAMINATION. BLE CAUSE." "Probable cause" for a prosecution is a suspicion founded upon circumstances warranting a reasonable man to believe that the charge is true.

An objection to testimony as being "not Actions for malicious prosecution are not favored, since they tend to discourage punish-cross-examination" cannot be made for the first time on appeal. ment of offenders.

offense, and subjecting the defendant there- "What facts and circumstances amount to in to the expense, annoyance, and ignominy | probable cause is a pure question of law. of a public trial lasting five days and resulting in his acquittal.

Every allegation in the complaint impugning the motive, or challenging the good faith of defendants, or charging the want or probable cause for said prosecution is denied in the answer. There was a demand and motion for a change of venue on the part of plaintiff, supported by his affidavit, in which some startling and rather grotesque accusations are made against the defendants, to the effect that "they are and were skilled in the art of securing verdicts and manipulating the members of the panel, and, aside from such skilled manipulations, they exercised such influence and power over the citizens who were or might be called to pass upon their conduct as to make it impossible for plaintiff or any one else to get a fair trial where they were parties to the action." But, conceding that plaintiff's strange averments are not inherently improbable, and that his affidavit should be accorded the same consideration as that of any other person, it is sufficient to say that every suggestion therein of improper influence is positively denied, and every implication of bias or prejudice on the part of the citizens of the county is expressly negatived in the counter affidavits filed by defendants and used at the hearing of the motion.

[1] Under the familiar rule of conflicting evidence, therefore, it is unquestionable that the order denying the application for a change of the place of trial cannot be disturbed.

It is stated by appellant that "after the denial of said motion the plaintiff, having had the personal experience of the defendants' skill in securing verdicts, waived a jury, and the case was tried by the court, who promptly gave judgment to the defendants on their motion for a nonsuit." Appellant does not complain, apparently, so much that the judgment was given "promptly," as he deplores the mistake he made in assuming that the great skill of defendants could not influence the court to decide at all against the law and the evidence.

Whether they exist or not in any particular case is a pure question of fact. The former is exclusively for the court, the latter for the jury."

With these elementary principles in view, we deem it unnecessary to go beyond an examination of the question of probable cause for said prosecution.

[5] The evidence introduced by plaintiff included his indictment by the grand jury, on June 10, 1901, for perjury alleged to have been committed on May 31, 1900, and the record of his trial thereon, resulting in a verdict of not guilty. The indictment was based upon the testimony of plaintiff given at the trial of the cause of McGorray v. Robinson in the superior court of San Joaquin county, to the effect that "he, the said A. H. Carpenter, on or about the blank day of January, 1892, sent by mail to Bernard McGorray at Rochester, New York, the deed, meaning thereby a certain deed," describing a deed to the property, the title to which was involved in the said suit of McGorray v. Robinson, said deed purporting to conVey said property to Bernard McGorray by Stephen W. McGorray, and "signed, sealed, and delivered in the presence of A. H. Carpenter" and acknowledged before J. H. Tam, a notary public, on the 29th day of December, 1891. The pleadings in said cause of McGorray v. Robinson, consisting of the complaint, answer, and cross-complaint, and answer to the cross-complaint, were then offered by plaintiff and received in evidence. The verified complaint therein was filed, it appears, on November 15, 1899, and therein it was alleged that "plaintiff is now and for more than seven years last past has been the owner in fee" of the land described.

The verified answer and cross-complaint was filed December 21, 1899, in which, among other things, it was denied that plaintiff ever had been the owner of any of the property described in the complaint. To the cross-complaint the plaintiff, on January 20, 1900, filed an answer in which he alleged [2-4] Be that as it may, the legal princi- that "he is now and always has been since ples involved are well established and may the 29th day of December, 1891, the owner be stated in the language of the Supreme in fee of all the real property described in Court, as they have been thoroughly con- the complaint." It was further shown heresidered and clearly enunciated in the three in by the evidence that at the trial of the following cases: Ball v. Rawles, 93 Cal. 222, said McGorray case, H. T. Fee, a deputy 28 Pac. 937, 27 Am. St. Rep. 174; Davis v. county recorder of San Joaquin county, proPacific Teleph., etc., Co., 127 Cal. 312, 57 duced and read in evidence, from volume 72 Pac. 764, 59 Pac. 698; and Booraem v. Pot- of Deeds of said county, the record of the ter Hotel Co., 154 Cal. 99. 97 Pac. 65. "It deed set out in the indictment; that Beris incumbent upon the plaintiff, and the bur- nard McGorray, who was plaintiff in that den of proof is upon him in an action of case and grantee in said deed, and who was this kind, to prove both malice and want a client of plaintiff herein, testified that the of probable cause." "Probable cause is a recorded deed had been sent by its grantor suspicion founded upon circumstances suf- (Stephen McGorray) to and received by him ficiently strong to warrant a reasonable (Bernard) through the mail, at Rochester, man in the belief that the charge is true." N. Y., in 1892; that he then and there saw

upon it the recorder's marks or certificate | such testimony was given, that it was will and the acknowledgment certificate of the ful, and that perjury was therefore comnotary; "that he knew the deed was made mitted. Being district attorney of the counin December, 1891, and his only manual ty, it is reasonable and just, therefore, to receipt thereof was so by mail;" that there- conclude that Ashley considered it his duty after, at the said McGorray trial, Carpenter—and, so believing, it was his duty-to pre(plaintiff herein) testified that he drew the sent the matter to the grand jury, and, in deed and witnessed it; that he had it record- case of indictment, to prosecute Carpenter ed; that furthermore he testified: "I am for the crime of perjury. It was accordsure of this, that the envelope-it was en- ingly presented to the grand jury with a closed in a long envelope and it was my en- transcript of the testimony taken at the velope and I am sure that I backed it, and said trial of McGorray v. Robinson, and it Mr. McGorray may have put it in a letter, appears, also, that Mr. Carpenter testified in with the deed; I don't know; it is so long before the grand jury, going over, as he ago; have forgotten"; and he was sure that says, "the entire ground," and, furthermore, it was sent to McGorray at Rochester; that that Mr. Ashley advised the grand jury thereafter the cross-complainants called Dep-that the evidence was sufficient to constitute uty Recorder Eschback, who brought with the crime of perjury on the part of Carpenhim said deed and testified that it had not ter, and therefore to indict him. been out of the recorder's possession after it was filed for record. Afterwards Mr. Carpenter had himself recalled, and he testified that the deed he sent might have been a prior deed, executed in 1883, but it appeared that the said deed of 1891 was the only one that had ever been recorded. It is true that Mr. Carpenter, in one portion of his testimony, declared it to be his impression that he had sent the deed; in another portion that such was his recollection; but it is a fair inference from all his testimony that he intended to have the court understand that he had mailed this identical deed to Bernard McGorray at Rochester, N. Y.

From the foregoing it follows that Mr. Ashley had probable cause for believing: (1) That the testimony of Mr. Carpenter in the trial of said cause of McGorray v. Robinson was material to the issue involved in said action. This is indeed clear, since the litigation directly concerned the ownership of a certain tract of land, and plaintiff claimed under said deed of 1891, and the testimony of Carpenter related to the delivery of said deed. It is true that, in a separate defense to the action, it was averred that the said deed was executed and delivered in trust; but inconsistent defenses are permitted under our practice, and it is manifest that the denial of ownership herein before quoted raised an issue as to the delivery of the deed. (2) That the testimony of said Carpenter was false, being contradicted by the testimony of said deputy recorder Eschback, and of Bernard McGorray, who testified that he received the said deed through the mail in an envelope addressed in the handwriting of his brother Stephen. There are other inconsistencies also revealed in the testimony at said trial, which we deem unnecessary to notice specifically, tending to discredit said testimony of Carpenter.

Mr. Ashley then having probable cause to believe that false testimony was given by Carpenter on a material matter in the trial of an action, it is reasonable to conclude

Without intimating in the slightest degree an opinion as to the guilt or innocence of Mr. Carpenter of the charge against him, we have no hesitation in saying that the showing made by plaintiff at the trial herein not only failed to disclose the want of probable cause for his prosecution by the district attorney and his codefendant, George F. McNoble, who was the assistant district attorney, but, to the contrary, in the attempt to establish his case, plaintiff's evidence revealed sufficient facts and circumstances, known to the defendants, to constitute, so we must hold, reasonable grounds for believing that the charge made against the plaintiff was true.

[6] It is well to remember, also, that the evidence against the plaintiff must be viewed here in the light of the following familiar principles, that "actions for malicious prosecution have never been favored in law, although they have been readily upheld when the proper elements therefor have been presented. It is for the best interests of society that those who offend against the laws shall be promptly punished, and that every citizen who has good reason to believe that the law has been violated shall have the right to cause the arrest of the offender.

[7] For the purpose of protecting him in so doing, it is the established rule that if he have reasonable grounds for his belief, and act thereon in good faith in causing the arrest, he shall not be subjected to damages, merely because the accused is not convicted." Ball v. Rawles, supra.

[8] There was no error in the court's ruling sustaining an objection to the introduction in evidence of the record in the case of People v. A. H. Carpenter on a charge of subornation of perjury. It was offered only for the purpose of showing, on account of the imprisonment of plaintiff, that the statute of limitations had not run against the present action. The evidence was unnecessary by reason of the failure of defendants in their answer to deny the allegation as to

and Thomas v. Black, 84 Cal. 221, 23 Pac. 1037. In the former it was held that, "under section 273 of the Code of Civil Proce dure, the stenographer's transcript of the testimony, in a civil case, given by a party in a prior action, although certified to by the stenographer as being correct, is not ad

- said the incarceration was admitted in open irrelevant, immaterial, and cannot be proven court. in that way." Reliance is had upon the cas[9] Plaintiff offered in evidence the judges of Reid v. Reid, 73 Cal. 206, 14 Pac. 781, ment roll in the said case of Bernard McGorray v. Kate Robinson, for the purpose of showing that, under the issues therein made, his alleged false testimony was entirely immaterial. Manifestly this was a circumstance of importance. If the testimony was entirely immaterial, it could not be made the basis for a charge of perjury. Upon the hypothe-missible in a subsequent action as evidence of sis that it was immaterial, since the evidence upon a motion for a nonsuit must be construed as favorably for the plaintiff as possible, the inference would have to be indulged that the district attorney knew or believed it was immaterial. Hence it would be evidence that the prosecution was instituted without probable cause. The court, therefore, committed a technical error in admitting the judgment roll only for the purpose of showing that there was such

a case.

what he said on the former trial." In the Thomas Case, supra, the deposition sought to be introduced was not certified or authenticated in any way whatever, and the witness had no opportunity to correct it. The cases are not in point here, however, for the reason that appellant admitted that the transcript contained a correct statement of the testimony of the witness. It required no further authentication. It was proper to introduce it in evidence as the testimony of the witness in the trial of the McGorray

[10] The error, however, was without prej- Case, and, as read before the grand jury, udice, for the reason that on the cross-constituted an important circumstance in the examination of plaintiff the pleadings were consideration of the question of probable read into the record without restriction, cause. and besides the pleadings show, as we have already seen, that the testimony of plaintiff was material.

[11] Appellant complains because the court overruled his objection to the two following questions asked on cross-examination of the witness J. A. Plummer: "Mr. Ashley was then district attorney of this county?" and "Mr. George F. McNoble was assistant district attorney?" The witness, who was counsel for the defendant in the trial of the perjury charge, had testified in his direct examination that "Mr. Ashley and Mr. McNoble acted as attorneys for the people in that case." Hence said questions were proper cross-examination. But the contention is little short of frivolous, because plaintiff alleges in his complaint that Arthur H. Ashley was the district attorney and George F. McNoble, the assistant district attorney of the county.

[12] The court was clearly right in sustaining defendants' objection to the question asked of Bernard McGorray: "You may state the facts that led to the institution of that suit that is entitled Bernard McGorray v. Kate Robinson." The answer to the question could have no bearing whatever upon the materiality of plaintiff's testimony in the cause, and the facts that induced McGorray to bring the suit would not be evidence of the motives of these defendants in the prosecution of plaintiff.

[14] Appellant also urges in his brief that it was "not cross-examination," but no such objection was made at the trial.

We have endeavored to notice all the points made by appellant, but we are convinced that there is no ground for interfering with the action of the court below. The judgment and order are affirmed.

We concur: CHIPMAN, P. J.; HART, J.

(28 Okl. 541)

SPEICHER v. LACY. (Supreme Court of Oklahoma. April 14, 1911.) (Syllabus by the Court.) VENDOR AND PURCHASER ($$ 54, 194*)-CONVEYANCES-TITLE-GROWING CROPS.

Equity treats things agreed to be done as actually performed, and, when real estate is agreed to be conveyed by a valid executory contract of sale, without reservation, the equitable title passes at once to the vendee, and with it title to all crops growing on the land, but not as to crops severed from the soil. Purchaser, Cent. Dig. §§ 85, 403; Dec. Dig. §§ 54, 194.*]

[Ed. Note.-For other cases, see Vendor and

Error from District Court, Pawnee County; L. M. Poe, Judge.

Action by L. F. Lacy against I. B. Speicher. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Wm. Blake, for plaintiff in error. Louis S. Wilson and Victor O. Johnson, for defendant in error.

[13] To the offer of the testimony of F. Eschbach, given upon the trial of McGorray v. Robinson, which was presented to the consideration of the grand jury, plaintiff object- TURNER, C. J. This is an action in reed upon the ground that it was "incompetent, plevin brought by the defendant in error, *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

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L. F. Lacy, against the plaintiff in error, I. | demurrer to the evidence as to it, the same B. Speicher, in the district court of Pawnee being clearly the property of plaintiff under county to recover 40 bushels of wheat in said contract. But not so as to the corn the stack, 300 bushels of corn in a crib, and growing in the field at that time. It being 300 bushels of corn standing in the field; part of the freehold, all equitable title and all on a certain piece of land described in interest therein, the property of plaintiff, the petition, situate in Pawnee county. Aft- passed to defendant, and became from that er general denial filed, there was trial to time his property, and as to it the demurrer a jury and judgment for plaintiff, and de- to the evidence should have been sustained, fendant brings the case here. At the close of the theory of the law being with reference to plaintiff's testimony, defendant demurred to written executory contracts of sale as stated the evidence, which was overruled, after by the court in the syllabus of Dunn v. which additional evidence was introduced. Yakish et al., 10 Okl. 388, 61 Pac. 926, thus: The first assignment is that the court erred "Equity treats things agreed to be done as in overruling said demurrer. When this is actually performed, and when real estate the state of the case, the rule is: "Where the is sold under a valid contract, the purchase district court overrules a demurrer to plain- money to be paid in part, and the deed extiff's evidence, and thereafter both parties ecuted at a future day, the equitable title proceed with the trial and introduce further passes at once to the vendee. * *" And and additional evidence, and sufficient evi- in 1 Pom. Eq. Jur. § 368, thus: "In some dence is introduced to make out a case for respects, and for some purposes, the contract the plaintiff, a judgment rendered and enter- is executory in equity as well as at law; ed in his favor on a verdict for plaintiff will but so far as the interest or estate in the not be disturbed." Max Meyer et al. v. R. land of the two parties is concerned, it is S. White, 112 Pac. 1005. regarded as executed, and as operating to transfer the estate from the vendor and to vest it in the vendee. By the terms of the contract the land ought to be transferred to the vendor. Equity therefore regards these as done; the vendee as having acquired the property in the land, and the vendor as having acquired the property in the price. The vendee is looked upon and treated as the owner of the land. An equitable estate has vested in him commensurate with that provided for by the contract, whether in fee, for life, or for years. Although the vendor remains owner of the legal estate, he holds it as a trustee for the vendee, to whom all the beneficial interests have passed, having a lien on the land, even if in possession of the vendee, as security for any unpaid portion of the purchase money. * It follows also, as a necessary consequence, that the vendee is entitled to any improvement or increment in the value of the land after the conclusion of the contract, and must himself bear any and all accidental injuries, losses, or wrongs done to the soil by the operations of nature, or by tortious third persons not acting under the vendor." In determining the question of title between plaintiff and defendant, to said corn upon the execution and delivery of said contract, the test is which of them would be compelled to sustain the loss should the corn have been destroyed after that time without the fault of either. This was the test applied in the Dunn Case, supra. In that case Yakish, in writing, sold and agreed to convey to Dunn by general warranty deed a house and lot in Oklahoma As the wheat at the time of the contract City for $1,000, $100 of which was cash in of sale was severed from the soil, it seems to hand, the balance to be made in certain paybe conceded, and properly, that the same, ments. Possession was to be delivered Janubeing no part of the real estate, did notary 1, 1898, and a warranty deed thereto was pass to the defendant by said contract, and agreed to be executed February 1, 1898. Aft

There is no material conflict in the testimony. Resolving all controverted questions of fact in favor of plaintiff, the evidence discloses that prior to February 13, 1906, defendant in error, L. F. Lacy, hereafter called plaintiff, was the owner of the land described in the petition; that on said day he and one J. H. Wiley entered into a contract whereby he leased to said Wiley said land for one year from March 1, 1906; that said Wiley immediately took possession of the premises and farmed the same during that year; that on July 27, 1906, plaintiff entered into a written contract with plaintiff in error, hereafter called defendant, entitled "Articles of Agreement for Warranty Deed," whereby without reservation said Lacy, for $400 cash in hand and $4,600 when paid, agreed to convey to defendant said land by warranty deed not later than 30 days thereafter; that said sum was paid on August 18, 1906, whereupon plaintiff executed and delivered to him the deed as agreed, and also delivered to him the lease contract entered into between plaintiff and said Wiley; that at the date of said contract of sale the wheat in controversy had been cut and stacked on the demised premises; that the next day plaintiff, who was entitled to receive the same from Wiley as rent under said lease, sold 350 bushels of corn to one Fisher, and two days later 250 bushels more to one Fayne, which was all the corn in controversy, and for which, when defendant refused to let the purchasers remove the same, plaintiff bought it back and brought this suit.

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