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W. W. Kaye, for appellant. Chas. N. 267), in an amended form. An attempt to Sears (0. B. Carter, amicus curiæ), for amend these sections after their repeal in respondents.

1895 at the same session of the Legislature

(St. 1895, pp. 327, 328, c. 218) was ineffectTAGGART, J. This is an action to quiet ive. In so, far, then, as the objection rests title. Defendant relied upon a deed from the upon the certificate of sale, it may be disrestate of California. The only title of the garded (Carter v. Osborn, supra), and it bestate to the property in dispute was vested comes immaterial when the certificate of sale by tax sale and deed. The deeds and tax was made, whether upon the date of sale or sales were held valid, and judgment was in at some other time. Any ambiguity in the favor of defendant. Plaintiff appeals from recital in the deed of what the certificate of the judgment, and from an order denying his sale contained or stated was also immaterial. motion for a new trial.

As the law did not require a certificate of Appellant contends that the deed from the sale at all, the provision that the recitals in tax collector to the state is void because (1) | the certificate should be embodied in the deed it does not recite the amount for which the became inoperative and a compliance thereproperty was sold; (2) it does not recite with unnecessary. Fox v. Townsend, supra. when the right of redemption expired; (3)

(3) | This ambiguity eliminated, there is no doubt it does not correctly recite the date of sale; as to the application of the act of 1903 to the (4) it incorrectly recites that the time for tax deed here under consideration. It was redemption had expired; and (5) it was is- made on the 28th day of June, 1901, and sued before the expiration of the time for re- shows by its recitals that the tax sale was demption. The validity of the deed from the made on June 27, 1896, and the finding of the state to defendant is also assailed on the court is that five years had elapsed between grounds that it was issued before a valid the date of sale and the date of the execution deed to the state had been filed with the con- of the deed. All of the objections to the troller as required by section 3897, Pol. Code, validity of the tax deed may therefore be and it is not executed in accordance with the summarily disposed of in favor of respondent provisions of section 14, art. 5, of the Con- on the authority of the cases cited above, and stitution of the state. The questions raised

The questions raised applying the act of 1903 to that deed. on this appeal are all substantially answered Appellant contends that the cases mentionby the opinions of the Supreme Court in the ed do not cover all the objections made to case of Baird v. Monroe (Cal.) 89 Pac. 352, and respondents' title; that, admitting that their the recent cases citing and approving that application to the case at bar disposes of the case. Carter y. Osborn (Cal.) 89 Pac. 608; questions of the validity of the deed to the Fox v. Wright, (Cal.) 91 Pac. 1005; Fox v. state, and the constitutionality of the act Townsend (Cal.) 91 Pac, 1007; Bank of Le- empowering the tax collector to execute, in moore v. Fulgham (Cal.) 90 Pac. 936.

the name of the state, deeds conveying propIt is contended, further, by appellant that erty acquired by the state in the enforcethe validating act of 1903 does not apply to ment of the revenue laws, there is another the tax deed in this case, because it appears question necessary for this court to deterupon the face of the tax deed that "five years mine before it can affirm the judgment of the have not elapsed between the date of sale lower court that was not decided by the of the property to the state for nonpayment cases cited nor either of them. Appellant's of taxes and the date of the execution of such position, stated in full, is as follows: The deed." The tax deed is dated June 28, 1901, property was sold to the state June 27, 1896, and contains the following recital: "And, the deed to the state was made June 28, whereas, the certificate stated that, unless 1901, the deed from the state to defendant the said real estate was redeemed within five bears date January 14, 1902. and the validatyears from the date of the sale to the state, ing act, which took effect immediately, was the purchaser thereof would be entitled to a approved February 28, 1903. The act purdeed thereof, on the 27th day of June, 1901, ports to confirm, validate, and legalize the that said certificate of sale bears date the tax certificates and deeds to the state only. 22d day of August, 1896, the day of said At the time the deed was made from the sale." The certificate of sale is dated August state to defendant, the defective tax pro22, 1896, and certifies that the sale of the ceeding had not been cured and the deed of property was made "on the 27th day of June, January 14, 1902, could and did convey such 1896," and that “the purchaser thereof will title, and only such title, as the state then be entitled to a deed thereof, on the 27th day had to the property in question; that any of June, 1901.” Sections 3776 and 3777 of additional title acquired by the state by the Political Code, which provide for the ex- virtue of the act of 1903 did not feed the ecution and recordation of a certificate of void title acquired by the defendant by the sale for taxes, were not in force at the time deed from the state. In none of the cases of making of the sale here under considera- cited was this question directly presented tion. Those sections were repealed on Feb- and urged. In the case of Baird v. Jonroe ruary 25, 1895 (St. 1893, p. 19, c. 11), and it appears from the language of the opinion re-enacted April 1, 1897 (St. 1897, p. 432, c. that it was expressly admitted that the defendant regularly succeeded to whatever ti- | the property by a deed which was subsetle the state acquired by virtue of the tax quently confirmed and made valid. There proceedings. From the opinion in this case was no right or property taken away from we derive the principles upon and the rules the appellant or his predecessor in title, as by which the Supreme Court considered the the absolute right of redemption expired at act in question. It is said of the act of 1903: the end of the five-year period. Taking the "It is essentially a curative act, intended to view, however, that the curative act operated give effect to past acts or transactions which to make good only the title to the state as of are ineffective because of neglect to comply the date of its passage, such additionally acwith some requirement of law." It was in- quired title went to feed and validate the tended to operate retroactively. 89 Pac. 354. title of defendant. Again: "At the time of the execution of the Judgment and order appealed from are deed, the fire years from the date of sale affirmed. within which the owner had the absolute right of redemption having expired (section We concur: ALLEN, P. J.; SHAW, J. 3780, Pol. Code), the state was entitled to the deed from the tax collector, and it was then the duty of the tax collector to execute such

(19 Okl. 357) deed in the manner prescribed by law. The KAW CITY MILL & ELEVATOR CO. v. state was then equitably the quner of the PURCELL MILL & ELEVATOR CO. property. [The italics are ours.]

(Supreme Court of Oklahoma. Sept. 5, 1907. The deed to the state provided for by the

Rehearing Denied Oct. 12, 1907.) statute, though designated a 'deed,' is noth

SALE-ACCEPTANCE OF OFFER. ing more, in effect, than formal written evi

An offer of sale of personal property and dence of the various facts essential to vest its acceptance must receive a reasonable conthe property in the state. * * * It is the

struction, and the proposer is bound by its ac

ceptance in that sense. Immaterial variances evidence, primary in some particulars, and

between the offer and its acceptance will be conclusive in others, of those facts from disregarded. which the vesting of the title to the property TI Note.-For cases in point, see Cent. Dig. in the state necessarily follows as a matter

vol. 43, Sales, $ 12.] of law, and prima facie operates as a muni

(Syllabus by the Court.) ment of title. Political Code, $$ 3786, 3787.”

Error from Probate Court, Kay County ; Page 355. In other words, given a valid as

R. L. Howsley, Judge. sessment of his property and a reasonable

Action by the Purcell Mill & Elevator Comopportunity to pay his taxes, it is the duty of the property owner to do so. Failing to

pany against the Kaw City Mill & Elevator

Company. Judgment for plaintiff. Defenddo this for five years after a sale in accord

ant brings error. Affirmed. ance with the statute has been made, his property passes to the state. The recitals J. F. King, for plaintiff in error. Sam K. in the deed are but evidence that the steps

Sullivan, for defendant in error. provided by law have been followed, and it is the acts themselves which vest the title in HAINER, J. This was an action brought the state. From the opinion in Fox by the defendant in error, plaintiff in the Wright, 91 Pac. 1005, we quote: “At the end court below, against the Kaw City Mill & of this five years the deed to the state is Elevator Company, to recover damages for made, and the title of the state becomes ab- the nonperformance of a contract alleged to solute.

* We are unable to see why have been entered into between said parties the state may not obtain a title free from all for the purchase of a quantity of corn før a equities in the former owner at the expira- stipulated price. From a judgment for the tion of five years as may a private citizen plaintiff in the court below, the defendant after foreclosure upon the mortgage when appeals. the period of redemption following such fore- There is but one question for determination closure has passed.” In Fox v. Townsend, by this court, and that is whether the facts, 91 Pac. 578, it is said: “Yo reason is dis- as shown by the evidence, were such as to cernible why the state, like a private in- constitute a contract between the parties. Tlie dividual, may not obtain a proper correction evidence upon this point is presented by an deed for the betterment of the title to prop- | agreed statement of facts, which is as folerty which it has conveyed, and, if this be lows: “It is hereby stipulated and agreed done after conveyance, why, as in the case of by and between the said plaintiff and the said an individual, it should not serve to perfect defendant, as facts in said cause: That on the title granted.” It seems to us the cases the 11th day of January, 1904, the said plainmentioned fully cover the question, and that tiff sent the following telegram from its place no further authorities need be cited to show of business in Purcell, I. T., to the defendant, that the curative act operated to make which was delivered to said defendant, in due good the tax deed as of the date it was made. course at its place of business in Kaw, Okl., The state, at the end of the five-year period on that date: 'Purcell. I. T., Jan. 11, 1990+. of redemption, acquired an absolute title to To Kaw City J. & E. Co., Kaw City, 0. T.:


Accept affright mixed chronic basis Kaw Kaw City Mill & Ele. Co. Which letter derush same forward confirm. Purcell Mill & fendant sealed up, and addressed the same to Elevator Co.' And which telegram was in said plaintiff at Purcell, I. T., its place of what is known as 'Robinson's Code,' used business, and deposited the same on said among grain men and elevators, and inter- date, postage prepaid, in the post office at preted into the English language is as fol- Kaw, Okl., and which letter plaintiff relows: "Accepit four cars, mixed ear

ceived in due course of mail. That on Janu3412 cts. jier bu., basis Kaw, rush same for- ary 20, 1901, the said defendant wrote to the ward, confirm.' That the words 'basis Kaw,' plaintiff, the following letter: "Kaw City, in this telegram, mean that the plaintiff Oklahoma, Jan. 20, 1904. Purcell Mill & will pay freight on said corn equal in amount Eler. Co., Purcell. I. T.-Gents: We had . to the freight thereon from Kaw, Okl., re- your wire of the 19th offering 37¢ for corn; gardless of where said corn might be shipped also have your letter of the 19th before me from. That on the same date, and upon re- just now. Your price is not in line at pres(eipt of said telegram by it, and in reply ent, so can't sell you any. You speak of us thereto, a telegram was sent by the defend- wiring when we have corn. We hare corn ant to the plaintiff in the same code, a copy all the time, when prices are in line. The of which is as follows: "Kaw City, Jan, 11, four cars ear from Burbank we have as yet 1904. To Purcell M. & E. Co., Purcell: Con- been unable to get cars. We have one that firm affright, ear corn, chronic f. o. b. Bur- we expect to be able to get out in a day or bank. Kaw City V. & E. Co. Which tele

two and will have others follow as quickly gram was on the same date received by plain- as we can. Yours truly, Kaw City Mill & tiff, and which being interpreted is as fol- Elevator Co.. by H. E. Guy. And on said lows: 'Confirm, four (ars ear (orn 311., cents date sealed said letter up and addressed the per bu. f. o. b. Burbank.' That immediately same to the plaintiff at Purcell, I T., and on the sending of said telegram by plaintiff, | deposited the same, postage prepaid, in the and on the same day, the plaintiff wrote to post office at Kaw, Okl., which was received the defendant the following letter: 'Purcell, by plaintiff in due course of mail." 1. T., Jan. 11, 1904. Kaw City Mill & Ele. We think the trial court was fully justified Co., Kaw City, Okla.--Gentlemen :. We are in holding that the telegrams and letters, in receipt of message from our Mr. Orme, as shown by the agreed statement of facts, stating you offer us four cars mixed corn constituted a contract of sale, and that no at 31124. We wired you in reply: "Accept other reasonable construction could be placfour cars mixed ear at 34140, basis Kaw, ed upon the intent of the parties. The rule is rush same forward.” If you can get this clearly stated in 24 Am. & E. Enc. Law (20 corn from your Burbank station, it will suit Ed.) 1032, where it is said: "Immaterial us just as well. Please let same come for- variances between the offer and its acceptward, as we are needing it badly. Respect- ance may be disregarded. An offer must refully, Purcell Mill & Elerator Co.' Which let- ceive a reasonable construction, and the ter was duly sealed up and addressed to de- proposer is bound by its acceptance in that fendant at Kaw, Okl., its place of business, sense." We have carefully examined the and deposited on that date by plaintiff in the authorities cited by plaintiff in error upon post office at Purcell, I. T., postage prepaid, which a rerersal is asked. These authorities and received in due course of mail by the undoubtedly correctly state the law, but they defendant. That immediately on the send- not applicable to the facts of this case. ing of said telegram by defendant, on the The undisputed testimony, in our opinion, same day, to wit, January 11, 1904, the said shows that there was an absolute and uncondefendant wrote to said plaintiff the fol- ditional acceptance by the plaintiff in error, lowing letter: ‘Kaw City, Oklahoma, Jan. and the subsequent letters of the plaintiff in 11, 1904. Purcell Mill & Ele. Co., Purcell, error clearly indicate an intention upon its I. T.--Gents: We have your account sales part to comply with the contract; and we are for cars as follows: 20,331, 31.012 and 11,- unable to perceive on what theory it failed 494. But you leave out cars Yo. 1,172 and to perform the contract, unless it was on ae10.310, former shipped Dec. 12, latter Dec. count of the fact that the price of corn had 22, and both prior to the 11,494, which was advanced between the time of the acceptance shipped Dec. 30. Please look this matter up. of the proposition and the time that cars These are the first cars we have had run could be secured in which to make the shipsliort. We now have a new pair of Hopper ment. We think this is a clear case of the scales, and will have a positive check in breach of a just, valid, and binding obligation, future, but as a rule in the past returns have and that the defendant in error was entitled shown from 10 to 33 bu. overrun. We wired to recover such damaces as it sustained by you in reply to yours of to-day, confirming f. reason of the nonperformance of the con0. b. Burbank. While I think rate is the tract. same, still I will not guarantee Kaw rate. There is no merit in the contention of the Tariff's for Burbank are not thoroughly set- plaintiff in error, and the judgment of the tled. If you do not want the four cars that court below is affirmed. All the Justies conway, wire at once on receipi of this. Yours, curring, except IRWIN, J., absent.

(19 Okl. 492)

ment, such verdict should be signed by the STEUDLE et al. v. TERRITORY.

foreman and sealed up and delivered to the (Supreme Court of Oklahoma. Sept. 20, 1907.) foreman, after which the jury could separate 1. CRIMINAL LAW-DISMISSAL AS TO ONE DE

until the reconvening of court, at which time FENDANT-WAIVER OF OBJECTION.

the jury should reassemble and return their Where two or more persons are included in verdict into court at 9 o'clock a. m. April the same indictment, the court may, at the request of the county attorney, dismiss as to any

19, 1906. The jury arrived at a verdict durdefendant for the purpose of making him a wit- ing adjournment and separated, and returnness at any time in the trial before the defend- ed a verdict at 9 o'clock a, m, on the 19th of ants have gone into the deiense; and where this

April, finding the defendants guilty as chargis done after the jury are impaneled and sworn . to try the case against all the defendants, and

ed, but not specifying which of the defendwhere the other defendants make no objection ants were found guilty. The trial judge and save no exceptions, the same cannot be as- then ordered the jury to again retire and say signed as error in the Supreme Court.

by their verdict which of the defendants they 2. SAME-CORRECTION OF VERDICT. Where a jury in a criminal case have been

find guilty, and the jury again retired, and ordered by the court in case they agree upon a returned into court their verdict, finding the verdict during the recess of the court to have defendants, Oscar Steudle, John Steudle, and the verdict so agreed upon signed by their

Charlie Steudle, guilty as charged in the inforeman, sealed in an envelope and delivered to the foreman, and then are allowed to separate

dictment. Motion for new trial was filed to meet at the convening of court at their jury and, upon hearing, the motion was sustained rooms, and where the jury do so agree upon a

as to the defendant John Steudle, and oververdict, and separate and at the next convening of court bring in a sealed verdict, which, on

ruled as to Oscar Steudle and Charles Steubeing opened, is found defective for the reason dle. Judgment and sentence was pronounced that it does not name the particular defendants

upon the defendants Oscar Steudle and found to be guilty, and where the court has

Charles Steudle, to which exceptions were ordered the jury to retire and correct their verdict by inserting the names of such defend- saved, and the case is brought here for reants as they find guilty, and the jury do so view. retire and correct their verdict and return tae same into court, such action of the court does S. C. Massingale, J. A. Duff, and L. R. not constitute reversible error.

Shean, for plaintiffs in error. W. 0. Crom[Ed. Note.-For cases in point, see Cent. Dig.

well, Atty. Gen., Don C. Smith, and J. H. vol. 14, Criminal Law, $ 2112.]

Cline, for the Territory. 3. SAME-REVIEW ON APPEAL.

Where there is evidence which reasonably tends to support the verdict of the jury, and IRWIN, J. (after stating the facts as such verdict is sustained by the court in refusing to grant a new trial. this court will not

above). The first assignment of error is reverse the case on a question of fact.

the court erred in directing the defendant [Ed. Note. For cases in point, see Cent. Dig. George Hysaw to be discharged from the invol. 15, Criminal Law, $ 3084.)

dictment on the application of the county (Syllabus by the Court.)

attorney for the purpose of using him, the

said George Hysaw, as a witness for the terError from District Court, Washita Coun

ritory, after the jury had been impaneled ty; before Justice James K. Beauchamp.

and sworn to try the case against all of said Oscar Steudle and Charles Steudle were

defendants, under one joint indictment. As couvicted of larceny, and bring error. Af

to this assignment of error, the record shows firmed.

the following facts (pages 9 and 10 of the At the October term, 1905, of the district record): "County Attorney: We desire to court of Washita county, Oklahoma Terri- dismiss this case as to George Hysaw, one tory, a joint indictment was returned against of the defendants. The Court:

The Court: What is the George Hysaw, Oscar Steudle, John Steudle, purpose of that? County Attorney: We deand Charlie Steudle, charging them with sire to use him as a witness. Mr. Massin. the larceny of two domestic animals. The gale: I would like an expression from the defendants were arrested and arraigned un- county attorney as to the effect now of this der this indictment on the 1st day of Novem- dismissal. I understand under the statutes ber, 1905, and then entered their plea of not that the rule is where there is a joint indictguilty. On the 18th day of April, 1906, this ment under certain circumstances the county case came on for trial under said indict- attorney might dismiss as to one defendant ment, the territory and defendant announ- for the purpose of using him as a witness. cing ready for trial. After the jury had been The Court: I understand that is what he selected and sworn to try the case, the de- wants; that is what he stated, to use him fendant George Hysaw was discharged from as a witness. Mr. Massingale: That dismisthe indictment that he might be used as a sal is an acquittal. The Court: Yes, sir; the witness for the territory. Upon hearing the defendant Hysaw is discharged.” Now, no evidence adduced by the territory, the de- exceptions of any kind or character were fendants offering none, the jury retired to saved to this ruling of the court, and, from consider of their verdict, under instructions the foregoing colloquy between the county from the court that should a verdict be attorney, the attorney for the defendants, found by them during the hour of adjourn- and the court, it would reasonably be infer

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red that this ruling of the court was entire

(19 Okl. 214) ly satisfactory. We think the dismissal was TEST OIL CO. v. LA TOURETTE et al. clearly within the power of the court, and (Supreme Court of Oklahoma. Sept. 5, 1907.) was not error, but whether error or not it 1. COVENANTS-CONSTRUCTION-RESTRICTIONS. was not excepted to and exceptions were not Restrictions and prohibitions of the use of saved, and it is not presented to this court real property are not favored in the law, and in such a way that error could be assigned

the terms of such covenants will not be en

larged by implication. but confined to their acon it.

cepted usage and the clear intention of the parThe second assignment of error is that aft. ties expressed therein. er the jury had returned into court a sealed 2. SAME. verdict finding the defendants, not naming

The intention of the parties, being clearly

expressed in the terms of a covenant to prohibit them, guilty as charged, it was error on the

the drilling of oil and gas wells upon a certain part of the court to have the jury retire to tract in all deeds for the conveyance of any and their jury room and find a verdict naming

all portions thereof, will not be enlarged by the defendants found guilty. Section 5530,

implication to include the prohibition in a lease

on said tract. p. 1237, Wilson's Rev. & Ann. St. 1903, pro

3. SAME-DEED-LEASE. vides that the court may order the jury to The following covenant in an oil and gas seal up their verdict where they agree on a lease, being a restriction upon the alienation of verdict during a temporary vacation of the

the land and clearly expressing the intention of

the parties, will be strictly construed: “Said court, and that they shall return their ver

first parties hereby further agree that they will dict into court at the next convening of court, in and by any deed hereafter executed by them and also provides that they may separate aft- or either of them for any part of said 'La

Tourette's second addition to said town of er so signing and sealing their verdict. Sec

Cleveland prohibit any drilling for oil or gas tion 5539, p. 1239, Wilson's Rev. & Ann. St.

on any land so hereafter conveyed'in said 'sec1903, provides: "If the jury render a ver- ond addition."" Held, that the general usage dict not in form, the court may, with proper

and acceptation of the term "deed,” in the above instructions as to the law, direct them to

clause, clearly expressing the intention of the

parties. did not include "lease," and thereby reconsider it.

This verdict as first

prohibit the first parties from leasing said tract returned by the jury found all of the de- for the purpose of drilling oil and gas wells

thereon. tendants guilty as charged in the indictment. This, of course, could not apply to the de

(Syllabus by the Court.) fendant llysaw, who had been, by order of

4. WORDS AND PHRASES-"DEED. the court, previously dismissed out of the

The word “deed,” in its common usage and

acceptation, undoubtedly means the conveycase, but it necessarily found all the other

ance of real estate, and a deed of conveyance is defendants guilty as charged in the indict- a sealed writing, signed by the party to be ment. The failure to insert the specific

charged, which evidences the terms of the con

tract between the parties whereby the title to names of the particular defendants in the

real property is transferred from one to the verdict could at best have been only an irreg- other, and this is the more usual, though someularity. It could only render the verdict what restricted, meaning of the word "deed.” defective in form, and we think it was clear

[Ed. Note.-For other definitions, see Words

and Phrases, vol. 2, pp. 1919-1924; vol. 8, ly within the province of the court to order

p. 7630.] the jury to retire and correct their verdict, and the inserting of the particular names

Error from District Court, Pawnee County; could have worked no hardship to either of

before Justice Bayard T. Hainer. the defendants, and is not such an error, if

Action by the Test Oil Company against error at all, upon which a reversal could be

Isaac V. La Tourette and others. Judgment predicated

for defendants, and plaintiff brings error.

Affirmed. The only remaining assignment of error is that the court erred in refusing to grant George & Julian and Biddison & Eagleton, the defendants Oscar Steudle and Charles for plaintiff in error. Sornborger & Williams Steudle a new trial for the reason that the and Wrightsman & Diggs, for defendants in evidence was not sufficient to warrant their error. conviction. We have examined the entire record, and we think there is ample and GARBER, J. On January 27, 1905, the de sufficient evidence to sustain the finding of fendants, Isaac V. La Tourette and wife, exthe jury, and under the well-recognized rule ecuted and delivered to John L. Moran what in this court that, where there is evidence is commonly known and designated as an oil reasonably tending to support the finding of and gas lease upon a certain portion of the the jury, this court will not disturb or re- N. W. 14 of section 9, in township 21 N. of verse the case on a question of fact.

range 8 E. I. M., which tract, so far as the Having examined the entire record, and particular description is relative to this case, finding no error therein, the judgment of the lies immediately east of the east line of what district court is affirmed, with directions to is known as “La Tourette's second addition the sheriff of Washita county to proceed with to the town of Cleveland,” in Pawnee counthe enforcement of the judgment and sen- ty, Okl. T. (which tract hereafter will be destence of the district court.

ignated as "Second addition"). On the oth All the Justices concurring, except PAN- day of March, 1903, Moran assigned his lease L'OAST and GARBER, JJ., absent.

to the plaintiff herein, the Test Oil Company, 91 P.-65

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