Opinion of the Court. to other persons, was, at the time of the alleged marriage of the defendant Hunis Johnson to Susan Dyer, applicable to or embraced citizens and members of the Chickasaw Tribe of Indians. No evidence was introduced as to the laws or customs of the Chickasaw Tribe with regard to marriage, and the court, in order to administer justice between the parties, properly applied the law of this state, which embraces the common law as to marriages, and determined their rights accordingly. The established rule in this jurisdiction is: "Where on the trial of an action at law all the issues are submitted to the court without the intervention of a jury, and a demurrer to the evidence is passed upon and sustained, unless it affirmatively appears from the record that the trial court treated the cause as one finally submitted for its determination, and, upon considering and weighing all the evidence, found that the demurrant should prevail, the correctness of the decision sustaining such demurrer must be tested by the general rule that a demurrer admits all the facts which the evidence tends to establish, as well as every fair and reasonable inference to be drawn therefrom" (Porter v. Wilson, 39 Okla. 500, 135 Pac. 732; Lyon v. Lyon, 39 Okla. 111, 134 Pac. 650; D'Yarmitt v. Cobe, 51 Okla. 113, 151 Pac. 589.) But this is a suit in equity, and the rule which obtains in such cases is that in an equity proceeding, where it is clearly shown that the court failed to consider competent evidence, this court may consider the entire record in the cause, weigh the evidence, and render such judgment as the trial court should have rendered. Shock v. Fish, 45 Okla. 12, 144 Pac. 584; Wimberly v. Winstock, 46 Okla. 645, 149 Pac. 238; Tucker v. Thraves, 50 Okla. 691, 151 Pac. 598. In Schock v. Fish, supra, it is said: Johnson et al. v. Perry et al. "From the foregoing authorities, the true rule, and which should be recognized by this court, is, in all cases. which were cognizable only in a court of chancery, it is the duty of this court to consider the whole record, to weigh the evidence, and, when the judgment of the trial court is clearly against the weight of the evidence, render, or cause to be rendered, such judgment as the trial court should have rendered. We think this is a reasonable interpretation of the section of the statute quoted supra, and is conducive of a more speedy determination of litigation. It will, no doubt, often save the expense and trouble of a second trial in the lower court, a second appeal, and a further consideration by this court. There is no sound reason to be urged against this rule. There are many reasons why this should be the rule. It is necessary that the court examine thoroughly the entire record to ascertain if prejudicial error has been committed and injustice done. Having familiarized ourselves with the record in order to ascertain the rights of the parties, we have the same opportunity and authority to do equity between the parties and finally determine the controversy by rendering a decree as the trial court would have upon another trial, or as we would upon a second consideration of the cause. Why put the parties to the expense and trouble of a second trial, for no purpose, except for this court to have an opportunity to again re-examine the case to ascertain if prejudicial error has been committed?" Under the authority of these cases, even if there was error in the action of the trial court in sustaining the demurrer to the evidence of defendants, such would not necessarily require a reversal, as this court is empowered to consider and weigh all of the evidence and to render such judgment here as the trial court should have rendered. Murray et al. v. Speed et al. After a careful consideration of all the evidence introduced upon the trial on behalf of both plaintiffs and defendants, we conclude that the same is entirely insufficient to establish even a common-law marriage between the defendant Hunis Johnson and Susan Dyer. It follows that the judgment of the trial court should be affirmed. By the Court: It is so ordered. 1. 3. MURRAY et al. v. SPEED et al. No. 5442. Opinion Filed November 16, 1915. (153 Pac. 181.) EQUITY-Jurisdiction-Scope of Relief. Where a court of equity has obtained jurisdiction of the controversy for any purpose, it will retain jurisdiction for the purpose of administering complete relief, and it may for this end determine purely legal rights which otherwise would be beyond its authority. EXCHANGE OF PROPERTY-Fraud-Damages Recoverable. Where the plaintiff and defendant agreed on an exchange of plaintiff's farm for certain town lots, which the parties examined. and the agreeement was that the farm should be exchanged for specific lots, examined by the parties, but by a mistake the deed was made for lots in another block, of less value than those agreed on, and before the mistake was discovered the defendant had sold the farm to a bona fide purchaser, for value and without notice, held. in an action to rescind the contract on the ground of fraud, that the plaintiff might recover, as damages, the difference between the value of the lots agreed on and those actually conveyed. APPEAL AND ERROR-Prejudicial Error-Amendment to Petition. Where it reasonably appears that a request to allow an amendment to the petition to be filed, so as to conform the allegations to the proof, was refused owing to an erroneous finding of Murray et al. v. Speed et al. fact by the trial court, and where it also appears that such amendment would be proper in furtherance of justice, an order refusing to allow such amendment to be filed is prejudicial error. (Syllabus by Devereux, (.) Error from District Court, Beckham County; G. A. Brown, Judge. Action by J. R. Murray and another against H. K. Speed and another. Judgment for defendants, and plaintiffs bring error. Reversed and remanded for new trial. The petition alleged, in substance: That on January 21, 1909, the plaintiffs in error were the owners of certain real estate in Beckham county, describing it, and that the defendant in error Speed was the owner of lots 39 to 44, inclusive, in block 1, Alta Vista addition to Oklahoma City, and that he desired to exchange these lots for the land in Beckham county belonging to the plaintiffs in error. That after discussing the trade, plaintiffs in error came to Oklahoma City with Speed for the purpose of ascertaining on what terms the exchange could be effected, and that on arriving in Oklahoma City, instead of showing the plaintiffs the lots above set out, he showed them other lots in block 2 in said addition, and falsely and fraudulently, and with intent to deceive them, represented that the lots he was showing them were the ones he proposed to exchange for the land of plaintiffs in error. That plaintiffs in error, believing the lots shown. them by Speed to be the lots which were to be exchanged, and relying on his statement to that effect, agreed to the exchange, and about January 21, 1909, .executed a deed to Speed for their land, and Speed executed to them a deed to certain lots in block 1 of the same addition. That plaintiffs did not know, and had no means of knowing, that the deed given them by Speed did not convey the Statement of the Case. lots they had inspected, until after Speed had sold the Beckham county land. That the lots in Oklahoma City they inspected, and for which they intended to exchange their land, were valuable, but that the land actually conveyed by Speed was valueless. The petitioners also alleged that Harvey purchased the land from Speed with notice, tendered a deed for the lots conveyed, and prayed for a cancellation of the deed to Speed, and, in the alternative, that they recover damages in the sum of $1,500. The answer was a general denial. The evidence tends to show: That the plaintiffs live in Beckham county, and knew nothing of the location of the lots and blocks in Oklahoma City, and that the defendant Speed also lived in Beckham county, and although he owned an interest in this land, he had never visited it until he came to Oklahoma City with the plaintiffs. and that he did not know where the lots and blocks were located. That on arrival in Oklahoma City, the parties went to the office of one J. W. Teams, who was a real estate agent, and who had formerly owned this land, and had caused it to be platted and had a plat thereof in his office, showing the lots and blocks on this land, which the parties consulted. After reaching the land, both parties, being ignorant of the location of the lots and blocks, looked at certain lots in block 2, which were level, good lots, and of considerable value. That they never examined the lots in block 1, afterwards conveyed to them by Speed, and Speed offered to exchange the lots they inspected in block 2 for their Beckham county land; that is, irrespective of lot and block numbers. Speed offered to trade the land they looked at for their land, neither party having reference to the lots afterwards deeded to |