W. W. Kaye, for appellant. Chas. N. Sears (0. B. Carter, amicus curiæ), for respondents.

TAGGART, J. This is an action to quiet title. Defendant relied upon a deed from the state of California. The only title of the state to the property in dispute was vested by tax sale and deed. The deeds and tax sales were held valid, and judgment was in favor of defendant. Plaintiff appeals from the judgment, and from an order denying his motion for a new trial.

Appellant contends that the deed from the tax collector to the state is void because (1) it does not recite the amount for which the property was sold; (2) it does not recite when the right of redemption expired; (3) it does not correctly recite the date of sale; (4) it incorrectly recites that the time for redemption had expired; and (5) it was issued before the expiration of the time for redemption. The validity of the deed from the state to defendant is also assailed on the grounds that it was issued before a valid deed to the state had been filed with the controller as required by section 3897, Pol. Code, and it is not executed in accordance with the provisions of section 14, art. 5, of the Constitution of the state. The questions raised on this appeal are all substantially answered by the opinions of the Supreme Court in the case of Baird v. Monroe (Cal.) 89 Pac. 352, and the recent cases citing and approving that

Carter v. Osborn (Cal.) 89 Pac. 608; Fox v. Wright, (Cal.) 91 Pac. 1005; Fox v. Townsend (Cal.) 91 Pac. 1007; Bank of Lemoore v. Fulgham (Cal.) 90 Pac. 936.

It is contended, further, by appellant that the validating act of 1903 does not apply to the tax deed in this case, because it appears upon the face of the tax deed that "five years have not elapsed between the date of sale of the property to the state for nonpayment of taxes and the date of the execution of such deed." The tax deed is dated June 28, 1901, and contains the following recital: "And, whereas, the certificate stated that, unless the said real estate was redeemed within five years from the date of the sale to the state, the purchaser thereof would be entitled to a deed thereof, on the 27th day of June, 1901, that said certificate of sale bears date the 22d day of August, 1896, the day of said sale." The certificate of sale is dated August 22, 1896, and certifies that the sale of the property was made "on the 27th day of June, 1896," and that "the purchaser thereof will be entitled to a deed thereof, on the 27th day of June, 1901." Sections 3776 and 3777 of the Political Code, which provide for the execution and recordation of a certificate of sale for taxes, were not in force at the time of making of the sale here under consideration. Those sections were repealed on February 25, 1895 (St. 1895, p. 19. c. 11), and re-enacted April 1, 1897 (St. 1897, p. 432, c.

267), in an amended form. An attempt to amend these sections after their repeal in 1895 at the same session of the Legislature (St. 1895, pp. 327, 328, c. 218) was ineffective. In so, far, then, as the objection rests upon the certificate of sale, it may be disregarded (Carter v. Osborn, supra), and it becomes immaterial when the certificate of sale was made, whether upon the date of sale or at some other time. Any ambiguity in the recital in the deed of what the certificate of sale contained or stated was also immaterial. As the law did not require a certificate of sale at all, the provision that the recitals in the certificate should be embodied in the deed became inoperative and a compliance therewith unnecessary. Fox v. Townsend, supra. This ambiguity eliminated, there is no doubt as to the application of the act of 1903 to the tax deed here under consideration. It was made on the 28th day of June, 1901, and shows by its recitals that the tax sale was made on June 27, 1896, and the finding of the court is that five years had elapsed between the date of sale and the date of the execution of the deed. All of the objections to the validity of the tax deed may therefore be summarily disposed of in favor of respondent on the authority of the cases cited above, and applying the act of 1903 to that deed.

Appellant contends that the cases mentioned do not cover all the objections made to respondents' title; that, admitting that their application to the case at bar disposes of the questions of the validity of the deed to the state, and the constitutionality of the act empowering the tax collector to execute, in the name of the state, deeds conveying property acquired by the state in the enforcement of the revenue laws, there is another question necessary for this court to determine before it can affirm the judgment of the lower court that was not decided by the cases cited nor either of them. Appellant's position, stated in full, is as follows: The property was sold to the state June 27, 1896, the deed to the state was made June 28, 1901, the deed from the state to defendant bears date January 14, 1902, and the validating act, which took effect immediately, was approved February 28, 1903. The act purports to confirm, validate, and legalize the tax certificates and deeds to the state only. At the time the deed was made from the state to defendant, the defective tax proceeding had not been cured and the deed of January 14, 1902, could and did convey such title, and only such title, as the state then had to the property in question; that any additional title acquired by the state by virtue of the act of 1903 did not feed the void title acquired by the defendant by the deed from the state. In none of the cases cited was this question directly presented and urged. In the case of Baird v. Monroe it appears from the language of the opinion that it was expressly admitted that the de

fendant regularly succeeded to whatever title the state acquired by virtue of the tax proceedings. From the opinion in this case we derive the principles upon and the rules by which the Supreme Court considered the act in question. It is said of the act of 1903: "It is essentially a curative act, intended to give effect to past acts or transactions which are ineffective because of neglect to comply with some requirement of law." It was intended to operate retroactively. 89 Pac. 351. Again: "At the time of the execution of the deed, the five years from the date of sale within which the owner had the absolute right of redemption having expired (section 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 deed in the manner prescribed by law. The state was then equitably the owner of the property. [The italics are ours.]

The deed to the state provided for by the statute, though designated a 'deed,' is nothing more, in effect, than formal written evidence of the various facts essential to vest the property in the state. * * * It is the evidence, primary in some particulars, and conclusive in others, of those facts from which the vesting of the title to the property in the state necessarily follows as a matter of law, and prima facie operates as a muniment of title. Political Code. §§ 3786, 3787." Page 355. In other words, given a valid assessment of his property and a reasonable opportunity to pay his taxes, it is the duty of the property owner to do so. Failing to do this for five years after a sale in accordance with the statute has been made, his property passes to the state. The recitals in the deed are but evidence that the steps provided by law have been followed, and it is the acts themselves which vest the title in the state. From the opinion in Fox V. Wright, 91 Pac. 1005, we quote: "At the end of this five years the deed to the state is made, and the title of the state becomes absolute. * ** We are unable to see why the state may not obtain a title free from all equities in the former owner at the expiration of five years as may a private citizen after foreclosure upon the mortgage when the period of redemption following such foreclosure has passed." In Fox v. Townsend, 91 Pac. 578, it is said: "No reason is discernible why the state, like a private individual, may not obtain a proper correction deed for the betterment of the title to property which it has conveyed, and, if this be done after conveyance, why, as in the case of an individual, it should not serve to perfect the title granted." It seems to us the cases mentioned fully cover the question, and that no further authorities need be cited to show that the curative act operated to make good the tax deed as of the date it was made. The state, at the end of the five-year period of redemption, acquired an absolute title to

the property by a deed which was subsequently confirmed and made valid. There was no right or property taken away from the appellant or his predecessor in title, as the absolute right of redemption expired at the end of the five-year period. Taking the view, however, that the curative act operated to make good only the title to the state as of the date of its passage, such additionally acquired title went to feed and validate the title of defendant.

Judgment and order appealed from are affirmed.

We concur: ALLEN, P. J.; SHAW, J.

(19 Okl. 357) KAW CITY MILL & ELEVATOR CO. v. PURCELL MILL & ELEVATOR CO. (Supreme Court of Oklahoma. Sept. 5, 1907. Rehearing Denied Oct. 12, 1907.)

SALE-ACCEPTANCE OF OFFER.

An offer of sale of personal property and its acceptance must receive a reasonable construction, and the proposer is bound by its acceptance in that sense. Immaterial variances between the offer and its acceptance will be disregarded.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43. Sales, § 42.]

(Syllabus by the Court.)

Error from Probate Court, Kay County; R. L. Howsley, Judge.

Action by the Purcell Mill & Elevator Company against the Kaw City Mill & Elevator Company. Judgment for plaintiff. Defendant brings error. Affirmed.

J. F. King, for plaintiff in error. Sam K. Sullivan, for defendant in error.

HAINER, J. This was an action brought by the defendant in error, plaintiff in the court below, against the Kaw City Mill & Elevator Company, to recover damages for the nonperformance of a contract alleged to have been entered into between said parties for the purchase of a quantity of corn for a stipulated price. From a judgment for the plaintiff in the court below, the defendant appeals.

There is but one question for determination by this court, and that is whether the facts, as shown by the evidence, were such as to constitute a contract between the parties. The evidence upon this point is presented by an agreed statement of facts, which is as follows: "It is hereby stipulated and agreed by and between the said plaintiff and the said defendant, as facts in said cause: That on the 11th day of January, 1904, the said plaintiff sent the following telegram from its place of business in Purcell, I. T., to the defendant, which was delivered to said defendant, in due course at its place of business in Kaw, Okl., on that date: 'Purcell. I. T., Jan. 11, 1904. To Kaw City M. & E. Co., Kaw City, O. T.:

Accept affright mixed chronic basis Kaw rush same forward confirm. Purcell Mill & Elevator Co.' And which telegram was in what is known as 'Robinson's Code,' used among grain men and elevators, and interpreted into the English language is as follows: Accept four cars, mixed ear 341⁄2 cts. per bu., basis Kaw, rush same forward, confirm.' That the words 'basis Kaw.' in this telegram. mean that the plaintiff will pay freight on said corn equal in amount to the freight thereon from Kaw, Okl., regardless of where said corn might be shipped from. That on the same date, and upon receipt of said telegram by it, and in reply thereto, a telegram was sent by the defendant to the plaintiff in the same code, a copy of which is as follows: Kaw City, Jan. 11, 1904. To Purcell M. & E. Co., Purcell: Confirm affright, ear corn, chronic f. o. b. Burbank. Kaw City M. & E. Co.' Which telegram was on the same date received by plaintiff, and which being interpreted is as follows: Confirm, four cars ear corn 3415 cents per bu. f. o. b. Burbank.' That immediately on the sending of said telegram by plaintiff, and on the same day, the plaintiff wrote to the defendant the following letter: 'Purcell, 1. T., Jan. 11, 1904. Kaw City Mill & Ele. Co., Kaw City, Okla.-Gentlemen: We are in receipt of message from our Mr. Orme, stating you offer us four cars mixed corn at 341⁄2¢. We wired you in reply: "Accept four cars mixed ear at 34%, basis Kaw, rush same forward." If you can get this corn from your Burbank station, it will suit us just as well. Please let same come forward, as we are needing it badly. Respectfully, Purcell Mill & Elevator Co.' Which letter was duly sealed up and addressed to defendant at Kaw, Okl., its place of business, and deposited on that date by plaintiff in the post office at Purcell. I. T., postage prepaid. and received in due course of mail by the defendant. That immediately on the sending of said telegram by defendant, on the same day, to wit, January 11, 1904, the said defendant wrote to said plaintiff the following letter: 'Kaw City, Oklahoma, Jan. 11, 1904. Purcell Mill & Ele. Co., Purcell, I. T.-Gents: We have your account sales for cars as follows: 20,331, 31,012 and 11.494. But you leave out cars No. 1.172 and 10,340, former shipped Dec. 12, latter Dec. 22. and both prior to the 11.494, which was shipped Dec. 30. Please look this matter up. These are the first cars we have had run short. We now have a new pair of Hopper scales, and will have a positive check in future, but as a rule in the past returns have shown from 10 to 35 bu. overrun. We wired you in reply to yours of to-day, confirming f. o. b. Burbank. While I think rate is the same. still I will not guarantee Kaw rate. Tariffs for Burbank are not thoroughly settled. If you do not want the four cars that way, wire at once on receipt of this. Yours,

Kaw City Mill & Ele. Co.' Which letter defendant sealed up, and addressed the same to said plaintiff at Purcell, I. T., its place of business, and deposited the same on said date, postage prepaid, in the post office at Kaw, Okl., and which letter plaintiff received in due course of mail. That on January 20, 1904, the said defendant wrote to the plaintiff, the following letter: Kaw City, Oklahoma, Jan. 20, 1904. Purcell Mill & Elev. Co., Purcell. I. T.-Gents: We had . your wire of the 19th offering 37¢ for corn; also have your letter of the 19th before me just now. Your price is not in line at present, so can't sell you any. You speak of us wiring when we have corn. We have corn all the time, when prices are in line. The four cars ear from Burbank we have as yet been unable to get cars. We have one that we expect to be able to get out in a day or two and will have others follow as quickly as we can. Yours truly, Kaw City Mill & Elevator Co.. by H. E. Guy.' And on said date sealed said letter up and addressed the same to the plaintiff at Purcell, I T., and deposited the same, postage prepaid, in the post office at Kaw, Okl., which was received by plaintiff in due course of mail."

We think the trial court was fully justified in holding that the telegrams and letters, as shown by the agreed statement of facts, constituted a contract of sale, and that no other reasonable construction could be placed upon the intent of the parties. The rule is clearly stated in 24 Am. & E. Enc. Law (2d Ed.) 1032, where it is said: "Immaterial variances between the offer and its acceptance may be disregarded. An offer must re

reasonable construction, and the proposer is bound by its acceptance in that sense." We have carefully examined the authorities cited by plaintiff in error upon which a reversal is asked. These authorities undoubtedly correctly state the law, but they are not applicable to the facts of this case. The undisputed testimony, in our opinion, shows that there was an absolute and unconditional acceptance by the plaintiff in error, and the subsequent letters of the plaintiff in error clearly indicate an intention upon its part to comply with the contract; and we are unable to perceive on what theory it failed. to perform the contract, unless it was on account of the fact that the price of corn had advanced between the time of the acceptance of the proposition and the time that cars could be secured in which to make the shipment. We think this is a clear case of the breach of a just, valid, and binding obligation, and that the defendant in error was entitled to recover such damages as it sustained by reason of the nonperformance of the contract.

There is no merit in the contention of the plaintiff in error, and the judgment of the court below is affirmed. All the Justices con curring, except IRWIN, J., absent.

(19 Okl. 492)

STEUDLE et al. v. TERRITORY. (Supreme Court of Oklahoma. Sept. 20, 1907.) 1. CRIMINAL LAW-DISMISSAL AS TO ONE DEFENDANT WAIVER OF OBJECTION.

Where two or more persons are included in the same indictment, the court may, at the request of the county attorney, dismiss as to any defendant for the purpose of making him a witness at any time in the trial before the defendants have gone into the defense; and where this is done after the jury are impaneled and sworn . to try the case against all the defendants, and where the other defendants make no objection and save no exceptions, the same cannot be assigned as error in the Supreme Court. 2. SAME CORRECTION OF VERDICT.

Where a jury in a criminal case have been ordered by the court in case they agree upon a verdict during the recess of the court to have the verdict so agreed upon signed by their foreman, sealed in an envelope and delivered to the foreman, and then are allowed to separate to meet at the convening of court at their jury rooms, and where the jury do so agree upon a verdict, and separate and at the next convening of court bring in a sealed verdict, which, on being opened, is found defective for the reason that it does not name the particular defendants found to be guilty, and where the court has ordered the jury to retire and correct their verdict by inserting the names of such defendants as they find guilty, and the jury do so retire and correct their verdict and return the same into court, such action of the court does not constitute reversible error.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 2112.] 3. SAME-REVIEW ON APPEAL.

Where there is evidence which reasonably tends to support the verdict of the jury, and such verdict is sustained by the court in refusing to grant a new trial. this court will not reverse the case on a question of fact.

[Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3084.]

(Syllabus by the Court.)

Error from District Court, Washita County; before Justice James K. Beauchamp. Oscar Steudle and Charles Steudle were convicted of larceny, and bring error. firmed.

The

At the October term, 1905, of the district court of Washita county, Oklahoma Territory, a joint indictment was returned against George Hysaw, Oscar Steudle, John Steudle, and Charlie Steudle, charging them with the larceny of two domestic animals. defendants were arrested and arraigned under this indictment on the 1st day of November, 1905, and then entered their plea of not guilty. On the 18th day of April, 1906, this case came on for trial under said indictment, the territory and defendant announcing ready for trial. After the jury had been selected and sworn to try the case, the defendant George Hysaw was discharged from the indictment that he might be used as a witness for the territory. Upon hearing the evidence adduced by the territory, the defendants offering none, the jury retired to consider of their verdict, under instructions from the court that, should a verdict be found by them during the hour of adjourn

ment, such verdict should be signed by the foreman and sealed up and delivered to the foreman, after which the jury could separate until the reconvening of court, at which time the jury should reassemble and return their verdict into court at 9 o'clock a. m. April 19, 1906. The jury arrived at a verdict during adjournment and separated, and returned a verdict at 9 o'clock a. m. on the 19th of April, finding the defendants guilty as charged, but not specifying which of the defendants were found guilty. The trial judge then ordered the jury to again retire and say by their verdict which of the defendants they find guilty, and the jury again retired, and returned into court their verdict, finding the defendants, Oscar Steudle, John Steudle, and Charlie Steudle, guilty as charged in the indictment. Motion for new trial was filed and, upon hearing, the motion was sustained as to the defendant John Steudle, and overruled as to Oscar Steudle and Charles Steudle. Judgment and sentence was pronounced upon the defendants Oscar Steudle and Charles Steudle, to which exceptions were saved, and the case is brought here for review.

S. C. Massingale, J. A. Duff, and L. R. Shean, for plaintiffs in error. W. O. Cromwell, Atty. Gen., Don C. Smith, and J. H. Cline, for the Territory.

IRWIN, J. (after stating the facts as above). The first assignment of error is the court erred in directing the defendant George Hysaw to be discharged from the indictment on the application of the county attorney for the purpose of using him, the said George Hysaw, as a witness for the territory, after the jury had been impaneled and sworn to try the case against all of said defendants, under one joint indictment. As to this assignment of error, the record shows the following facts (pages 9 and 10 of the record): "County Attorney: We desire to dismiss this case as to George Hysaw, one of the defendants. The Court: What is the purpose of that? County Attorney: We desire to use him as a witness. Mr. Massingale: I would like an expression from the county attorney as to the effect now of this dismissal. I understand under the statutes that the rule is where there is a joint indictment under certain circumstances the county attorney might dismiss as to one defendant for the purpose of using him as a witness. The Court: I understand that is what he wants; that is what he stated, to use him as a witness. Mr. Massingale: That dismissal is an acquittal. The Court: Yes, sir; the defendant Hysaw is discharged." Now, no exceptions of any kind or character were saved to this ruling of the court, and, from the foregoing colloquy between the county attorney, the attorney for the defendants, and the court, it would reasonably be infer

red that this ruling of the court was entirely satisfactory. We think the dismissal was clearly within the power of the court, and was not error, but whether error or not it was not excepted to and exceptions were not saved, and it is not presented to this court in such a way that error could be assigned on it.

The second assignment of error is that aft er the jury had returned into court a sealed verdict finding the defendants, not naming them, guilty as charged, it was error on the part of the court to have the jury retire to their jury room and find a verdict naming the defendants found guilty. Section 5530, p. 1237, Wilson's Rev. & Ann. St. 1903, provides that the court may order the jury to seal up their verdict where they agree on a verdict during a temporary vacation of the court, and that they shall return their ver dict into court at the next convening of court, and also provides that they may separate after so signing and sealing their verdict. Section 5539, p. 1239, Wilson's Rev. & Ann. St. 1903, provides: "If the jury render a verdict not in form, the court may, with proper instructions as to the law, direct them to reconsider it. ***" This verdict as first returned by the jury found all of the defendants guilty as charged in the indictment. This, of course, could not apply to the defendant Hysaw, who had been, by order of the court, previously dismissed out of the case, but it necessarily found all the other defendants guilty as charged in the indictment. The failure to insert the specific names of the particular defendants in the verdict could at best have been only an irregularity. It could only render the verdict defective in form, and we think it was clearly within the province of the court to order the jury to retire and correct their verdict, and the inserting of the particular names could have worked no hardship to either of the defendants, and is not such an error, if error at all, upon which a reversal could be predicated.

The only remaining assignment of error is that the court erred in refusing to grant the defendants Oscar Steudle and Charles Steudle a new trial for the reason that the evidence was not sufficient to warrant their conviction. We have examined the entire record, and we think there is ample and sufficient evidence to sustain the finding of the jury, and under the well-recognized rule in this court that, where there is evidence reasonably tending to support the finding of the jury, this court will not disturb or reverse the case on a question of fact.

Having examined the entire record, and finding no error therein, the judgment of the district court is affirmed, with directions to the sheriff of Washita county to proceed with the enforcement of the judgment and sentence of the district court.

All the Justices concurring, except PANCOAST and GARBER, JJ., absent.

91 P.-65

(19 Okl. 214)

TEST OIL CO. v. LA TOURETTE et al. (Supreme Court of Oklahoma. Sept. 5, 1907.) 1. COVENANTS-CONSTRUCTION-RESTRICTIONS. Restrictions and prohibitions of the use of real property are not favored in the law, and the terms of such covenants will not be enlarged by implication. but confined to their accepted usage and the clear intention of the parties expressed therein.

2. SAME.

The intention of the parties, being clearly expressed in the terms of a covenant to prohibit the drilling of oil and gas wells upon a certain tract in all deeds for the conveyance of any and all portions thereof, will not be enlarged by implication to include the prohibition in a lease on said tract.

3. SAME-DEED-LEASE.

The following covenant in an oil and gas lease, being a restriction upon the alienation of the land and clearly expressing the intention of the parties, will be strictly construed: "Said first parties hereby further agree that they will in and by any deed hereafter executed by them or either of them for any part of said 'La Tourette's second addition' to said town of Cleveland prohibit any drilling for oil or gas on any land so hereafter conveyed in said 'second addition."" Held, that the general usage and acceptation of the term "deed." in the above clause, clearly expressing the intention of the parties, did not include "lease," and thereby prohibit the first parties from leasing said tract for the purpose of drilling oil and gas wells thereon.

(Syllabus by the Court.)

4. WORDS AND PHRASES-"DEED."

The word "deed." in its common usage and acceptation, undoubtedly means the conveyance of real estate, and a deed of conveyance is a sealed writing, signed by the party to be charged, which evidences the terms of the contract between the parties whereby the title to real property is transferred from one to the other, and this is the more usual, though somewhat restricted, meaning of the word "deed." [Ed. Note.-For other definitions, see Words and Phrases, vol. 2, pp. 1919-1924; vol. 8, p. 7630.]

Error from District Court, Pawnee County; before Justice Bayard T. Hainer.

Action by the Test Oil Company against Isaac V. La Tourette and others. Judgment for defendants, and plaintiff brings error. Affirmed.

George & Julian and Biddison & Eagleton, for plaintiff in error. Sornborger & Williams and Wrightsman & Diggs, for defendants in

error.

GARBER, J. On January 27, 1905, the defendants, Isaac V. La Tourette and wife, executed and delivered to John L. Moran what is commonly known and designated as an oil and gas lease upon a certain portion of the N. W. 4 of section 9, in township 21 N. of range 8 E. I. M., which tract, so far as the particular description is relative to this case, lies immediately east of the east line of what is known as "La Tourette's second addition to the town of Cleveland," in Pawnee county, Okl. T. (which tract hereafter will be designated as "Second addition"). On the 6th day of March, 1905, Moran assigned his lease to the plaintiff herein, the Test Oil Company,