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upon the record; that in such transaction he (Kee) was the third person referred to in the statute above quoted; that, therefore, he had parted with his money to Ewing, relying upon a clear record, which was clear only because of the laches of the Union Trust Compány; and he urges as the law of this proposition that when one of two innocent persons must suffer because of the fraud of another, it shall be the one who placed it within the power of such other to do the wrong. This argument can have no application to the debt of Kee secured by the deed, as the note to secure which the deed was given was made in November, 1901, for an obligation due to one Wells, who thereafter sold the same to plaintiff in error, and afterwards on the 10th day of March, 1902, Ewing gave a quitclaim deed to secure the payment thereof, to the property in question. As this deed was not recorded by Kee for nearly a month after its execution, and 15 days after the recording of the trust company's mortgage, it was at the time of bringing this suit clearly an inferior lien to that of the trust company's mortgage. The obligation of Ewing to Wells was not executed upon the faith of a clear title to the real estate of Ewing; hence the rule invoked by the plaintiff in error could not be relied upon, if at all, to protect the transaction. At At the time the Trust Company's mortgage was recorded, Kee, so far as the deed was concerned, and the trust company, were both guilty of laches in the recording of their securities. The trust company's mortgage was recorded first, and it clearly thereafter took precedence as a conveyance.

With reference to the mortgage of the plaintiff in error to the land in question, we have had much more trouble to reach a conclusion. It was taken as a security for a direct obligation from Ewing and wife to Kee upon the property in question when the record was silent as to the obligation from Ewing to the trust company, and there are equities in favor of its enforcement in preference to the mortgage of the trust company for this reason: The mortgage of the plaintiff in error was recorded on the 28th of November, the day following its execution and delivery, and four months prior to the recording of the mortgage to the Union Trust Company, which clearly gave it precedence, if the same was entitled to record at that time. It is urged, however, by the defendant in error, that it was not entitled to record, and did not, because of being recorded, acquire a superior right of enforcement over the mortgage of defendant in error, because of the fact that the National Bank of Weatherford had some interest therein, and O. H. Cafky, cashier of said bank, and stockholder therein, took the acknowledgment of Ewing and wife to its execution. Our statute requires the due acknowledgment of the execution of a written instrument affecting real estate before the same is entitled to record, and may be properly recorded, and it is clear un

der the authorities that a person cannot acknowledge the execution of an instrument of this kind made to himself, and we think they are equally clear that an officer of a bank, who is a stockholder therein, may not take an acknowledgment of such an instrument made to secure a debt made payable to the bank; and, if so taken and acknowledged, the instrument would not be entitled to record, and such record, if made, would not give to it the force and effect of a recorded instrument. But that is not this case. The note and mortgage was made to the plaintiff in error, O. B. Kee, and this action was brought by Kee to enforce the same. There is nothing on the face of the mortgage to indicate either that the bank had any interest in the mortgage, or that Cafky had any interest in the bank, or in the debt secured by the mortgage. The instrument was fair upon its face, and, as such, was entitled to record when presented to the register of deeds for that purpose. It was found by the referee that the National Exchange Bank of Weatherford was interested in this note and mortgage, which finding is justified from the evidence; but the nature and extent of its interest is not found by the referee, nor does the evidence disclose the same. May the validity of this mortgage as against the interests of the Union Trust Company be impeached, because the National Exchange Bank was interested in it, and O. H. Cafky, its cashier, and one of its stockholders, took the acknowledgment of Ewing and wife to the execution of the same?

We are unable to find any case that goes to this extent. It would seem that the interest of the Exchange Bank in the note and mortgage, i. e., what interest it had in it. should be disclosed before attempting to determine O. H. Cafky's power to take the acknowledgment of its execution. But the more serious question presented is its status after record, being fair on its face, the property of O. B. Kee. There are many authorities which go to the extent of holding that if the note was the property of the bank, and for convenience was taken in the name of O. B. Kee, Cafky's interest would be such as to have disqualified him from taking the acknowledgment, and the record of the instrument for this reason void; and this, we think, is the weight of the authorities. There are, however, many well-reasoned authorities the other way, notably the Supreme Court of the state of Missouri, which court, in Stevens. v. Hampton, 46 Mo. 408, says: "When a recorded instrument shows on its face that the acknowledgment was taken by a party in interest, it is improperly recorded, and is not: constructive notice; but when it is fair upon its face, it is the duty of the register to receive and record it, and its record operates as notice, notwithstanding there may be some hidden defect." The rule here laid down has special force in this territory at this time, because of the determination of this court in Watts v. First National Bank, 8 Okl. 645, 58

Pac. 782, in which this court declares the Missouri rule laid down in Stevens v. Hampton, supra, to be the just, reasonable, and correct rule in this class of cases; and, when the same is applied to the facts in this case, it leaves no question but that the plaintiff in error, Kee, under his mortgage of November 27, 1901, had a first lien upon the premises involved, to the extent of such mortgage.

It follows that the judgment of the court below should be reversed, and the plaintiff in error, under his mortgage of November 27, 1901, held to have a first lien on the premises involved, and the defendant in error Union Trust Company should be held to have a second interest lien thereon, equal to its mortgage interest under its mortgage of July 5, 1901, and that the plaintiff in error have a third interest in the premises to the extent of the obligation secured by the deed of Ewing and wife to plaintiff, of March 10, 1902; that said cause be reversed, and remanded to the court below for the purpose of judgment in accordance with this opinion. All the Justices concurring, except IRWIN. J., who presided in the court below, not sitting.

(17 Okl. 397)

FIDELITY & DEPOSIT CO. OF MARY-
LAND v. GUTHRIE NAT. BANK.
(Supreme Court of Oklahoma. Sept. 6, 1906.)
INSURANCE-INDEMNITY COMPANY REPRE-
SENTATIONS, WHAT ARE.

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Where the president of a bank applies to a bonding company to make a bond indemnifying the bank against defalcations by one of its employés, and such bank president answers certain questions in writing at the request of the bonding company regarding the former conduct of such employé, such questions and answers will ordinarily be construed to be representations, and not warranties; but such answers must be given in good faith, as any material false representations will relieve the bonding company from liability. (Syllabus by the Court.)

Appeal from District Court, Logan County; before Justice John II. Burford.

Action by the Guthrie National Bank against the Fidelity & Deposit Company of Maryland. Judgment for plaintiff, and defendant appeals. Affirmed.

Lawrence & Huston and Chas. R. Miller, for appellant. Dale & Pierer, for appellee.

BURWELL, J. This is the second time that this case has reached this court. On the original trial in the district court judgment was rendered in favor of the surety company. On appeal the judgment was reversed and a new trial granted. Guthrie National Bank v. Fidelity & Deposit Company, 14 Okl. 636, 79 Pac. 102. On the second trial judgment was given in favor of the Guthrie National Bank for $4,186.96, and the surety company again appeals to this court.

We have read the briefs of the respective parties, and are familiar with the record. The judgment of the lower court should be

upheld. This court in its former opinion decided that the questions and answers embraced in the application for an indemnity bond for W. T. Phillips, a clerk in the bank, were mere representations, and not absolute warranties, and that, Phillips having embezzled the funds of the bank, the surety company was liable. The facts are that Phillips was short with the bank at the time the application was made by J. W. McNeal, the president of the bank, to the surety company, for bond for him, and the answers given by McNeal were to the effect that Phillips had kept his accounts correctly and made proper settlements for all cash and securities intrusted to his care; that his books and accounts were last inspected and examined on November 15, 1899, and were at that time in every respect correct, and proper securities on hand to balance. Mr. McNeal believed the statements to be true when he made them, but the truth was that Phillips had not kept his accounts correctly, and he did not have on hand the proper securities with which to make settlements. It is insisted that good faith on the part of McNeal was immaterial, and that because these answers were incorrect the bank cannot recover. This question was necessarily involved in the other decision. In a case of this kind, when statements are made in answer to questions propounded by a surety company, and they fall within the class known as "representations," absolute correctness is not required in every instance. If it were, they would be warranties, and not representations. In the case of Rice et al. v. Fidelity & Deposit Company of Maryland, 103 Fed. 430, 43 C. C. A. 270, the Circuit Court of Appeals for the Eighth Circuit, in which participated Justices Caldwell, Sanborn, and Thayer, said: "In insurance a representation is a statement by the applicant to the insurer regarding a fact material to the proposed insurance, and it must be, not only false, but fraudulent, to defeat the policy." And again, on page 432 of 103 Fed., and page 275 of 43 C. C. A., in the same opinion, appears the following language: "The crucial distinction between a representation and a warranty is that the one is not, and the other is, a part of the contract between the parties, and that the truth of the one is not, and the truth of the other is, a condition precedent to a recovery upon the policy or bond to which they relate." See, also, Moulor v. Am. Life Ins. Co., 111 U. S. 335, 4 Sup. Ct. 466, 28 L. Ed. 447. This case is squarely in point. In answering the questions propounded by the surety company to McNeal he was bound to answer them in good faith, and the company had a right to rely upon his knowing all of those facts which, in his position and relations. with the bank and Phillips, a proper discharge of his own duties would have reasonably discovered. The questions were asked

McNeal because of the position he held and the opportunities he had for observing Phillips. The record of the bank had been checked over, and every reasonable precaution taken to discover any errors in the bank books. Nothing had occurred to arouse the bank's suspicions. McNeal believed Phillips to be honest, and, while the shortage might have been discovered by an investigation made in a particular manner, in all of the circumstances of this case such unusual investigation could hardly have been expected. We concede that the answers to all of the questions were not literally correct, but the surety company was seeking to find out what Phillips' employer knew about him, and did not intend to make the bank warrant the absolute truthfulness of such answers.

It is unnecessary to discuss at length every question in the case. If the view of appellant had been adopted, we could not have rendered our former opinion. If we now adhere to our former opinion, this judgment should be affirmed, at the cost of appellant. It is so ordered. All of the Justices concurring, except BURFORD, C. J., who presided at the trial below, not sitting.

(17 Okl. 455)

FISHER v. TERRITORY. (Supreme Court of Oklahoma. Sept. 6, 1906.) CRIMINAL LAW-ACCOMPLICE - CORROBORATION OF WHEN SUFFICIENT-INSTRUCTION.

Where one is on trial for a felony, and an accomplice testifies against him, he is entitled to have the court instruct the jury that "a conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof"; and where the trial court, upon request, refuses to include in his instructions a statement that the corroboration is insufficient if it merely show the circumstances of the crime, or words of like meaning, such refusal constitutes reversible error, for which a new trial will be granted. [Ed. Note.--For cases in point, see vol. 14, Cent. Dig. Criminal Law, $§ 1859-1863.] (Syllabus by the Court.)

Error from District Court, Comanche County; before Justice Frank E. Gillette.

P. F. Fisher was convicted of larceny, and brings error. Reversed.

J. A. Baker, for plaintiff in error. P. C. Simons, Atty. Gen., and Don C. Smith, Asst. Atty. Gen., for the Territory.

BURWELL, J. The defendant, F. F. Fisher. was indicted with Dick Coleman and Herman Bertram for the crime of larceny from the person. It is the theory of the prosecution that there was a conspiracy between these defendants and one Maud Jarvis, a common prostitute at the time, to steal money from the person of one G. L. Reiser, and that, pursuant to such conspiracy, Reiser was gotten drunk, and that Maud Jarvis

She

took the money from him, in a wineroom in a saloon in the city of Lawton. Fisher was tried separately from the other defendants. The jury found him guilty, and he was sentenced to a term of three years in the Territorial Penitentiary. On the trial. Maud Jarvis testified that Fisher told her at two different times that Reiser had $300 or $400 on him, and proposed that they get it. also testified to other damaging circumstances against Fisher, some of which were corroborated by other witnesses. She also testified that just immediately before she took the money, Dick Coleman told her to go down to the wineroom where Reiser was and get the money, or he would get it himself; that she went to the wineroom and found Reiser and Fisher there, but that Fisher went to another part of the saloon, and began playing cards; that she took the money and hid it in one of the beds up stairs, and that Dick Coleman, who was under the bed at the time, took the money, and it was subsequently divided between her and Coleman. Fisher never received any of the money. The evidence further showed that Fisher was with Reiser more or less during the evening and night of the larceny, and that Reiser was pretty drunk. Taking the evidence altogether, we are not prepared to say that it does not support the verdict, and, although the defendant urges its insufficiency, it is not necessary to decide that point, as there is at least one other question presented by the record which will reverse the case.

On the trial, the court gave the following instructions: "The jury are instructed that a conviction cannot be had in this case upon the testimony of an accomplice, unless the testimony of such accomplice is corroborated by other evidence, tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense. The corroborating testimony, to be sufficient as such, must be proof of such facts and circumstances, or proof of such facts, or proof of such circumstances, which, standing alone. tend to connect the defendant with the crime. By the word 'accomplice,' as here used, is meant a person who has participated in the commission of the offense charged; and the court instructs the jury that the witness Maud Jarvis, upon her own testimony, is and was an accomplice in the commission of the crime charged in the indictment in this case, and that her testimony must be corroborated; that is, that the jury must find, from the evidence introduced in the case, that her testimony has been corroborated, to the extent that corroboration has been by this instruction required, before the jury can be justified in finding the defendant guilty, if her testimony is relied upon in reaching a conclusion of guilt." To the giving of this instruction, the defendant duly excepted. counsel requested the following instruction,

which was denied, and an exception saved: "The court instructs you, gentlemen of the jury, that Maud Jarvis or Maud Anderson [her name having been changed by subsequent marriage], is an accomplice in this case, if you find that any offense has been committed, and that a conviction cannot be had upon her testimony, unless she be corroborated by such other evidence as tends to connect the defendant, Fisher, with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." The instruction contained other provisions which were not justified by the evidence; and the instruction, as requested, was properly refused.

The defendant complains that the expression "or the circumstances thereof" is omitted from the instruction given, and that, by reason of such omission, the defendant was prejudiced. Section 5209 of the Statutes of Oklahoma of 1893 provides: "A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely show the commission of the offense or the circumstances thereof." It will be seen that the part of the instruction quoted above, and which was denied by the court, was based squarely upon this section of the Statutes, and, if given, would have advised the jury that proof of the circumstances of a crime is not a sufficient corroboration of an accomplice to authorize a conviction, while the instruction given by the court nowhere contained such a statement. The Legislature, in its wisdom, declared in positive terms that a corroboration of an accomplice, which merely shows the commission of a crime, or the circumstances thereof, is not sufficient. The defendant was entitled to have the jury advised of this rule of the law; and, having been denied this safeguard, it is possible that the jury may have given to the evidence of the accomplice, Maud Jarvis, greater weight than it otherwise would have received. Taylor v. Commonwealth (Ky.) 8 S. W. 461. See, also, footnote to case of Stone v. State (Ga.) 98 Am. St. Rep. 145. Other errors are assigned, but it is unnecessary to discuss them.

For the reasons stated, the judgment of the lower court is hereby reversed, and a new trial granted, at the cost of the territory. All of the Justices concurring, except GILLETTE, J., who presided at the trial below, not sitting.

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the garnishee a notice in writing that he elects to take issue on his answer.

[Ed. Note.--For cases in point, see vol. 24, Cent. Dig. Garnishment, § 275.]

2. SAME JUDGMENT.

Where a garnishee has answered that he is not indebted to the defendant in any manner, and the plaintiff fails to give the statutory notice that he elects to take issue on such answer, it is error to render judgment against the garnishee.

[Ed. Note. For cases in point, see vol. 24, Cent. Dig. Garnishment, §§ 351, 352.] (Syllabus by the Court.)

Error from District Court, Custer County; before Justice C. F. Irwin.

Action by E. A. Lilly against W. W. Smith. Charles E. Davis and others were garnishees. Judgment for plaintiff as to Davis, and he brings error. Reversed and remanded.

This was an action commenced in the district court of Custer county by E. A. Lilly against W. W. Smith to recover the sum of $140, with interest and costs, alleged to be due on a promissory note executed on July 22, 1904. On the same day the plaintiff filed an affidavit in garnishment, alleging that he had good reason to believe that Charles E. Davis, the plaintiff in error, and W. P. Fowler and C. O. Fowler, defendants in error, were indebted to said Smith, and asked that garnishment summons duly issue, which was accordingly done, and served upon each of the above parties. The garnishees each filed an answer under oath, stating that they were indebted to the defendant W. W. Smith in no manner or sum whatever. To these answers of the garnishees, reply was filed by E. A. Lilly, in which he stated the nature of the claim of the defendant Smith against each of the said garnishees. Service was had upon the defendant W. W. Smith by publication. However, subsequently, and during the trial before the referee, the defendant appeared and filed an answer, in which he confessed judgment for the amount sued for, and stated that the garnishee Davis was indebted to him for more than the amount claimed in the plaintiff's petition.

When the cause came on for hearing, the court was of the opinion that the pleadings involved a matter of accounting, and the cause was sent, by agreement of the attorneys for all parties, to a referee, to hear the evidence, and make his findings of fact and conclusions of law separately, and report the same to the court. Accordingly the cause was sent to a referee, and, when the case was called for trial before the referee, the plaintiff in error objected to the introduction of any testimony as against the garnishee Charles E. Davis, for the reason that neither the said Charles E. Davis nor his attorneys were served with written notice that the plaintiff elected to take issue on the answer of the garnishee. This objection was overruled, to which rul

ing an exception was duly saved. The referee, after hearing all the evidence adduced at the trial, reported his findings of fact and conclusions of law thereon, and thereafter the court confirmed and approved the findings of fact and conclusions of law, and rendered the following judgment: "The above cause came on for hearing on this 27th day of September, 1905, the same being a regular term day of said court, upon the motion of plaintiff to confirm the report of the referee, except as to the taxation of costs, and as to this the plaintiff moved that the costs involved in the garnishee proceedings be taxed to Chas. E. Davis, garnishee defendant, and upon the objections to the findings of fact and conclusions of law filed by Chas. E. Davis, and it appearing to the court that each of said parties have entered their general appearance in this cause, and are represented by counsel, except W. P. Fowler, who is not present either in person or by attorney, but who has entered his general appearance herein, and the court having heard the report of the referee, confirms and adopts the findings of fact and the conclusions of law, and judginent is given accordingly, and said findings of fact and conclusions of law, and the report of said referee, are hereby referred to and made a part of this judgment. That the garnishee defendants the First National Bank and W. P. Fowler are hereby discharged, and that all costs due them be paid by the plaintiff. It is therefore ordered and adjudged that the plaintiff. E. A. Lilly, have and recover of the defendant W. W. Smith and Chas. E. Davis, garnishee defendant, the sum of $156.56 and the referee's fee taxed at $115.30, and costs paid by E. A. Lilly to the amount of $30.85, and the district court costs, taxed at $28.00; making a total of three hundred and thirty and 71/100 dollars ($330.71), and that Geo. T. Webster, assignee of the defendant, W. W. Smith, and intervener herein, have and recover of said Chas. E. Davis, garnishee defendant, the sum of four hundred seven and 04/100 dollars ($407.04), and that execution issue therefor against said Chas. E. Davis, garnishee defendant, to all of which rulings of the court the garnishee defendant, Chas. E. Davis, excepts, and is hereby given ninety days within which to make and serve his case-made for the Supreme Court, with ten days given to the defendant in which to suggest amendments thereto, same to be settled and signed upon five days' notice in writing by either party of the time and place of the settlement thereof." The defendant W. W. Smith and the intervener, George T. Webster, excepted to that part of the judgment in reference to the taxation of costs. From this judgment From this judgment the garnishee, Charles E. Davis, appeals; and the defendant W. W. Smith and the intervener, George T. Webster, file a crosspetition, assigning error in reference to the taxation of costs.

Harkins & Jones, for plaintiff in error. Geo. T. Webster, J. W. Lawton, J. C. Cald-` well, Ione Webster, and Harkins & Jones, for defendants in error.

HAINER, J. (after stating the facts). Numerous errors are assigned and argued by counsel for plaintiff in error, but we are of the opinion that it is only necessary to consider one of them, as that disposes of this appeal. It is contended by the plaintiff in error that the court erred in not dis

charging him on his answer, and the petition of the plaintiff, since the plaintiff failed to serve the statutory notice that he elected to take issue on the garnishee answer. It appears from the record that no notice was served by the plaintiff upon the garnishee or his counsel, in writing or otherwise, within 20 days, as provided by the statute; that the plaintiff elected to take issue on his

answer.

Section 4382 of Wilson's Rev. & Ann. St. 1903 provides as follows: "The answer of the garnishee shall in all cases be conclusive of the truth of the facts therein stated, unless the plaintiff shall within 20 days serve upon the garnishee a notice in writing that he elects to take issue on his answer; in which case the issue shall stand for trial as a civil action, in which the affidavit on the

part of the plaintiff shall be deemed the petition, and the garnishee's affidavit the answer thereto." Section 4379 provides that where the garnishee files his answer, under oath, within the time required by statute, that he is not indebted in any manner to the defendant, and that he has no real or personal property, effects, or credits belonging to the defendant in his possession or under ment shall be deemed discontinued, and the his control, that the proceeding in garnishplaintiff shall pay the garnishee $2 for his costs, unless within 20 days thereafter, the plaintiff serve notice on such garnishee that he elects to take issue on his garnishee answer, and will maintain him to be liable as garnishee; in which case the issue shall stand for trial as a civil action, in which the affidavit on the part of the plaintiff shall be deemed the petition, and the garnishee's affidavit the answer thereto. These provisions of our statute are plain, specific, and mandatory. But it is argued by the defendants in error that these provisions of the statute were waived, because counsel for the garnishee consented to the appointment of a referee. This contention is clearly untenable. In an action of this kind two distinct and different issues are presented. One between the plaintiff and defendant, and the other between the plaintiff and the garnishee. Hence, the appointment of a referee to hear and determine the issues involved in this case, and to report his findings of fact and conclusions of law thereon, with the consent of the parties, did not waive any

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