(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 plaintiff, we are unable to conceive of any record other than the petition, the demurrer, and the order of the court that would in any way be useful to the court in determining the correctness of the court's ruling. Where the sufficiency of summons by publication notice is involved, and copy of such summons or notice, together with the ruling of the court, is in the record, it is sufficient to determine the validity of such summons or notice. The second ground of the motion to dismiss the appeal, and urged in the supplemental motion to dismiss, is that the order appealed from is not a final order. Under section 5236, Revised Laws 1910, an appeal may be taken without regard to the finality of the order. This section of the statute reads: that each of the parties to the action owned a one-third interest in the leases, and the profits thereof accrued, subject, however, to the right of Wells, one of the defendants, to hold title to the leases until he shall have been paid certain expenditures in full, and ordered that an accounting be had before a referee. Thereafter, upon the report of the referee, the court entered a final judgment in the action fully adjudicating the rights of the parties in the action. It was the contention of the defendant in error that, more than six months having elapsed before the filing of the appeal in the Supreme Court from the date of entering the first order in the cause, all the questions adjudicated in the first order were res adjudicata, and not subject to review. This court held, under the facts as disclosed by the record in the case, that the first order was not a final judg ment, that it did not finally determine the rights of the parties, and that the first order disclosed on its face that the trial court would be unable to finally determine the respective rights of the parties to the action until an accounting had been taken, and that the decree entered after the report of the referee was the final judgment of the court adjudicating the rights of the parties. It is plain from the facts, as disclosed by the record in the case, that the first order of the court was only a preliminary statement of the court as to what the final judgment would be with respect to certain issues involved 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." "The Supreme Court may reverse, vacate or modify judgments of the county, superior or district court, for errors appearing on the record, and in the reversal of such judgment or order, may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof. The Supreme Court may also reverse, vacate or modify any of the following orders of the county, superior or district court, or a judge thereof: "First. A final order. "Second. An order that grants or refuses a continuance; discharges, vacates or modifies a provisional remedy; or grants, refuses, vacates or modifies an injunction; that grants or refuses a new trial; or confirms or refuses to confirm, the report of a referee; or sustains or overrules a demurrer. [1] It will be observed under the language of the statute, supra, that an appeal may be prosecuted to vacate or modify any intermediate order involving the merits of the action, or any order that sustains or overrules a demurrer, or any order that involves the merits of the action or some part there of. The order of the court in the instant case sustained a demurrer to that portion of the petition of the plaintiff wherein he sought to foreclose his mortgage lien and decreed the mortgage to be void. It is too clear that such an order involved a part of the merits of the action to necessitate the citation of any authority other than the statute; therefore, the second ground of the motion to dismiss the appeal is untenable. The case of Wells v. Shriver, 81 Okl. 108, 197 Pac. 460, does not support the contention of the defendants. In the case supra Shriver, the plaintiff, instituted the action against Wells and Bumbaugh, defendants, to recover an undivided one-third interest in certain oil and gas leases, and for an accounting as to the profits derived from the leased premises. At the conclusion of the evidence in the trial of the cause, the trial court entered what it designated an interloc er, in the opinion, said: "In cases of doubt, the intent of the court as shown by the orders made should not be disregarded in considering this question. The order made on the 26th day of May, 1914, was not a judgment; therefore it was not necessary to file a motion for a new trial, or appeal therefrom." It is quite clear that the case does not support the contention of the defendants in the instant case. In the instant case, if Knebel, the plaintiff, has no lien upon the lands under his mortgage, he has lost his security for the money loaned to the defendants. The order of the court sought to be reviewed here deprives the plaintiff of all his security for the payment of his debt, and the foreclosure of the mortgage lien was, at least, a substantial part of the relief for which the plaintiff invoked the jurisdiction of the court. In the case of Wesley et al. v. Diamond et al., 26 Okl. 170, 109 Pac. 524, this court held: "Under section 6067, Comp. Laws Okl. 1909, an order that involves the merits of an action or some part thereof may be reversed, vacated or modified by the Supreme Court before final judgment is rendered in the cause in the trial court." The purpose of the amendment of section 4, supra, as provided for in chapter 105, Sess. Laws 1915, was to require the mortgagee to pay the registration tax, and to make it an offense punishable as a misdemeanor for the mortgagee to charge to, or exact from, the mortgagor the payment of the registration 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 v. Dunklee, 10 Minn. 168 (Gil. 136), 88 Am. Dec. 68; Kingsley v. Gilman et al., 12 Minn. 515 (Gil. 425); Am. Surety Co. v. Ashmore et al., 74 Kan. 325, 86 Pac. 453; Backus v. Clark, 1 Kan. 303, 83 Am. Dec. 437; St. John v. West, 4 How. Pr. 331; Tallman v. Hinman, 10 How. Pr. 90; Burhans v. Tibbits, 7 How. Pr. 78; Whitney v. Waterman, 4 How. Pr. 313; Seiffert, etc., Lumber Co. v. Hartwell, 94 Iowa, 576, 63 N. W. 333, 58 Am. St. Rep. 413. tax. It is contended by the defendants that, under the following clause in the mortgage attached as an exhibit to the plaintiff's petition, the registration tax was to be paid by the mortgagor, and that by the insertion of the clause in the mortgage the mortgagor had contracted to pay the tax, and that the contract, being unlawful, and in violation of the statute, is void. The clause reads: [2] The third ground of the motion to dismiss the appeal challenges the jurisdiction of the trial court to determine the action for the reason that the publication notice was insufficient to confer jurisdiction upon the 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 as often as any foreclosure hereof may be murrer challenged the jurisdiction of the 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 Okl. 169, 163 Pac. 517, L. R. A. 1917D, 666; Walton et al. v. Kennamer et al., 39 Okl. 629, 136 Pac. 584. The motion to dismiss the appeal cannot be sustained. The only question for decision upon the merits in this cause is whether or not the mortgage sought to be foreclosed by the plaintiff is void under section 4 of chapter 246, Sess. Laws 1913, as amended by chapter 105, Sess. Laws 1915, which reads as follows: "The tax herein provided for shall be paid by the mortgagee, and any mortgagee, agent, representative, or person who shall through any scheme, arrangement, inducement or device by an increase of the rate of interest, commission, brokerage, or otherwise, charge to or exact from the mortgagor the payment of such tax, shall be deemed guilty of a misdemeanor, and upon conviction be punished accordingly." Section 8 of chapter 246, Sess. Laws 1913, in substance provided that no mortgage on real property shall be recorded by any register of deeds unless there shall be paid the tax imposed by and as in this article provided. Under the act a mortgage was not admissible in evidence, nor could it be fore mortgagors to the mortgagee or assigns, with or to protect its lien, shall be repaid by the interest thereon at 10 per cent. per annum, and this mortgage shall stand as security therefor." The petition filed by the plaintiff in the second paragraph alleged that the mortgagee paid the mortgage tax, as provided for in the statute, at the time of filing the same for record, and that said mortgage tax has not been charged to, or exacted from, the mortgagor. the clause, "the first party further agrees to [3] It is contended by the defendants that pay any tax that may be assessed against this mortgage under the laws of Oklahoma and county aforesaid," obligates the mortgagors to pay the registration tax in violation of the statute. We are unable to concur in the contention of the defendants. It is very doubtful whether the language contained in the clause of the mortgage under consideration could be construed to include the registration tax as provided for in the statute, for the reason this tax is in the na ture of a registration fee, and by the payment of this registration fee, or tax, the mortgage is thereby, together with the in (209 P.) It is, reason for the rule is that parties to a contract are presumed to have contracted within the law. Foreman v. Needles, 78 Okl. 105, 188 Pac. 1087, Martin et al. v. Oklahoma State Bank (Okl. Sup.) 206 Pac. 824 (not yet officially reported). debtedness, exempt from taxation. therefore obvious that the construction of the clause of the mortgage contended for by the defendants is at least a doubtful construction. Under the allegations of the petition the parties to this mortgage contract have not placed the construction upon the contract as contended for by the defendants, but, on the other hand, the parties to this contract, by their conduct and actions, under the allegations of the petition, have construed the mortgage contract so as to place the obligation of paying the registration tax, as required by the statute, upon the mortgagee. The mortgagee alleges that he paid it. The demurrer to the petition admits that he paid it, and that he did not charge it to, or exact it of, the mortgagors. It is a rule of law in the construction of contracts, supported almost unanimously by the authorities, that, where the terms of a contract are doubtful, but such terms have been construed and acted on by the parties interested, such construction will be adopted. This is true although the language used in the contract may more strongly support another construction. Pittsburg Vitrified Pav. & Brick Co. v Bailey, 76 Kan, 42, 90 Pac. 803, 12 L. R. A. (N. S.) 745; Minnetonka Oil Co. v. Cleveland Vitrified Brick Co., 27 Okl. 180, 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 v. Interstate Irr. Co., 62 Wash. 487, 114 Pac. 167; Harlow v. Oregonian Publishing Co., 53 Or. 272, 100 Pac. 7. The tax referred to in the clause in the mortgage under consideration, to wit, "Pay any tax that may be assessed against this mortgage," if used in its ordinary accepted meaning, clearly referred to such a tax as is usually assessed in the ordinary manner as provided by the general laws of the state by the tax assessor, and the phrase has no reference to the registration tax as provided for in chapter 246, Session Laws 1913. It is true that this registration tax exempted the mortgage from all other tax, but parties cannot ordinarily anticipate just what taxes may be imposed upon property by the taxing power in the state, which is the Legislature. It appears from the language used, "to pay any tax that may be assessed against this mortgage," contemplated some future tax, and was an attempt to provide for such a contingency. It undoubtedly would require a strained construction of the clause to hold that it imposed the obligation upon the mortgagors of paying a registration tax in order to have the mortgage recorded by the mortgagee. [5] The respective parties have extensively briefed the proposition as to whether or not the mortgage would be invalid if by its terms it violated the statute making it a misdemeanor for the mortgagee to exact the payment of the registration tax of the mortgagors. We are clearly of the opinion that, if the mortgage by its terms violated the statute, the contract would be within the general rule of illegal contract, and unenforceable. It is obvious that a contract violative of a criminal statute is, upon the ground of public policy, void. But, as we view the record in the instant case, the mortgage is not susceptible of the construction placed upon it by the trial court, and the order of the court sustaining the demurrer and decreeing the mortgage to be void is reversed, and the cause is remanded to the district court to overrule the demurrer of the defendants. JOHNSON, MCNEILL, MILLER, ELTING, and NICHOLSON, JJ., concur. YORK v. TRIGG et al. (No. 13168.) (Supreme Court of Oklahoma. July 25, 1922. Rehearing Denied Oct. 3, 1922.) (Syllabus by the Court.) Finding of unless clearly against 1. Appeal and error 1009 (4) On appeal in the Supreme Court from a findings of fact of the trial court will not be judgment rendered in an action in equity, the disturbed unless it appears after a consideration of the entire record of the evidence that such findings are clearly against the weight of the evidence. 2. Sufficiency of evidence. Record examined, and held, that the findings of fact of the trial court are not clearly against the weight of the evidence. 3. Gifts 4 vivos." What constitutes "gift inter transfer of the property from the donor to A valid gift "inter vivos" is an absolute the donee, taking effect immediately, and a delivery of the property, the subject of the gift, to the donee and its acceptance. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Gift Inter vivos.] 4. Wills 90-Gift inter vivos distinguished from gifts by will. [4] Another rule of law applicable in the case is that, in construing a contract, if it appears that the contract is susceptible of two constructions, one lawful and the other unlawful, the former will be adopted. The a will in that such a gift may be made by parol, A gift "inter vivos" is distinguishable from For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and, upon the acceptance of the gift by the [ 5. Husband and wife 6(2, 3) - Married KENNAMER. J. Elizabeth York, plaintiff, commenced this action in the district court of McCurtain county on the 30th day of December, 1919, against Mary Y. Trigg and Robert York, defendants, to establish her ownership and title in and to an undivided one-third interest in the estate of Jerome B. York, deceased, and to have canceled, set aside, and held for naught certain deeds and instruments of writing by which Jerome B. York attempted to convey, give, devise, and bequeath certain real and personal property to the defendants. The material allegations of the petition in substance are: A 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 two-court of McCurtain county appointed execthirds of his property away from his wife in no utrix and executor of the estate of Jerome way limits or restricts him in making such gifts. 6. Wills 11, 782(7)—Will disposing of more than two-thirds of his property away from wife invalid as to wife; widow may elect to take under will or law. Under section 8341, Rev. Laws 1910, a will by a married man which bequeaths more than two-thirds of the testator's property away from his wife is invalid as to his wife, and such surviving wife has the right to elect whether she will take under the will or receive her distributive share of such deceased testator's property with which he died seized as an heir at law. 7. Equity 3, 62-Has no power to change rights clearly established by law; unavailable to create right where none exists, as equity follows law. Where the rights of parties to an action are clearly defined and established by law, equity has no power to change or unsettle such rights. The maxims of equity may be invoked to protect an existing right, but are unavailable to create a right where none exist. Equity follows the law. 8. Judgment of trial court affirmed. B. York, deceased, and are now qualified and acting executrix and executor of said estate. That the plaintiff, Elizabeth York, and the said Jerome B. York were legally married on the 12th day of May, 1870, in the state of Illinois. That the plaintiff and Jerome B. York lived in the state of Illinois until 1871, when they moved to the city of Wichita, Kan., where they lived until 1893, when they moved to the city of Pine Bluff, Ark., and resided there until 1908, when they moved to the city of Memphis, Tenn., and lived together as husband and wife until 1912, when Jerome B. York left the city of Memphis and took up his residence in the town of Valliant, McCurtain county, Okl. That of the marriage of the plaintiff and Jerome B. York there were born six children, names as follows: Mary Y. Trigg, née York, a daughter, one of the defendants; Robert York, a son, one of the defendants herein; Grace Nelson, née York, a 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 chil ment of the trial court must be affirmed. Appeal from District Court, McCurtain County; Harve L. Melton, Judge. Action by Mrs. Elizabeth York against Mary Y. Trigg and another. Judgment for defendants, and plaintiff appeals. Affirmed. dren who died in infancy. That at the time of the marriage of the plaintiff and Jerome B. York neither of them had any property. That after the marriage of the plaintiff and they each labored and Jerome B. York worked together, using their best efforts, skill, and mental accomplishments to accumulate 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 Bluff, Ark., of counsel), for appellant. Harsh & Harsh, of Memphis, Ten., Armstrong & Jones, of Idabel, and McPherren & Cochran, of Durant, for appellees. the property subsequent to the marriage of the plaintiff and Jerome B. York held in the name of Jerome B. York, or any person for his use and benefit, was accumulated, acquired, 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 tiff and the said Jerome B. York. B. York during their marriage relation attempted to devise, bequeath, and will away from plaintiff more than two-thirds of the property owned by Jerome B. York at the. time of his death, and attempted to bequeath to the plaintiff an annuity of $300 per month during her lifetime. Said will had been allowed to probate by the county court of McCurtain county, Okl., and the defendants appointed and qualified as executrix and executor thereunder. That at the time of the death of Jerome B. York he had in his name and under his control real and personal property, owned, acquired, and accumulated by the joint industry of the plaintiff and Jerome B. York, of the value of $2,000,000. That at the time of the death of Jerome B. York the defendants held in their name, in trust and for the use and benefit of Jerome B. York, real and personal property of the value of $2,000,000. That all of the conveyances, gifts, devises, and bequests made by Jerome B. York to the defendants, or either of them, were as to plaintiff void and of no effect. During the year 1911 the said Jerome B. York and the two defendants herein entered into a conspiracy to cheat and defraud this plaintiff out of her share and part of the property, real, personal, and mixed, acquired, owned, and accumulated by plaintiff and Jerome B. York during their marriage relation, and to defraud the plaintiff by depriving her of her right to inherit or take any part of said property from her husband on his death, either by the law of descent or by will. That, acting in pursuance of said conspiracy to cheat and defraud plaintiff of her part and share of the property, and to overreach the said Jerome B. York, the defendants, by fraudulent statements and representations, and false and fabricated offers of reward, did during the year 1911 have this plaintiff incarcerated in an insane asylum in the city of Flint, Mich., where she was confined and deprived of her liberty until, with the aid of her two daughters, Grace Nelson, nee York, and Minnie Anderson, neé York, she managed to escape and return to her 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 and heir at law of Jerome B. York at his death, the said Jerome B. York converted a large part of said property into cash and invested the same into lands situated in McCurtain county, Okl., and had the title, deeds to the lands, made in the name of the defendants, Mary Y. Trigg and Robert York. But the said Jerome B. York invested a large amount of money in corporation stock, chattels, goods, wares, and merchandise, taking title to said property in the name of the defendants, the amount and value of the same being unknown to the plaintiff. That, in furtherance of said conspiracy to defraud the plaintiff, Jerome B. York and the defendants placed the title of said property in such a condition as to have the title in the defendants at the date of the death of the said Jerome B. York, and, in order to avoid the statute of the state of Oklahoma prohibiting Jerome B. York from willing and giving away from his wife more than twothirds of his property. Jerome B. York did attempt to give and convey to the defendants practically all of his real estate and personal property by deeds and conveyances, a description of the property being set out. That the value of the property described was unknown to the plaintiff, but alleged to be of the value of $500,000. any time subsequent to the marriage of plaintiff and Jerome B. York; that the plaintiff be adjudged to be the owner of onethird of all the property owned by Jerome B. York, and for all property and equitable relief deemed to be just and right. The defendants answered the petition of the plaintiff, denying generally all of the allegations, pleading a conspiracy to defraud the plaintiff; alleged that on the date of the marriage of Jerome B. York he had property of the value of $3,000; alleged that in the beginning of the married life of the plaintiff and Jerome B. York the plaintiff did the usual and customary duties that a wife does at home, but denied that she ever helped him in any way in his business; alleged that in the early married life of the plaintiff and Jerome B. York the plaintiff had nervous prostration, and that some years after their marriage she developed a goitre on her neck; that many years prior to the death of Jerome B. York the plaintiff was not in a condition to attend to the ordinary household duties; that the property accumulated was solely by Jerome B. York. It was alleged by the defendants that the goitre on the neck of the plaintiff, more than 30 years prior to the death of Jerome B. 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 |