the soil, gathered during a single year." One of the cardinal rules for the interpretation of statutes, where the language is dubious, is to discover the intent of the law-making power. It seems to us that the reason and spirit of the law was to authorize the association to insure not only the growing crops specifically enumerated in the act, but all other annual crops produced in Oklahoma, and this is particularly true of one of the staple products of this country. To hold otherwise would be, in our opinion, contrary to reason and common sense, and where the reason ceases, the law ought to cease. We therefore hold that the words "other crops" include growing cotton, and hence the plaintiff was authorized to insure the defendant's cotton against loss by hail, and to take a note for the premium. It follows that the petition stated facts sufficient to constitute a cause of action, and the court erred in sustaining the demurrer thereto.

The judgment of the probate court is reversed, and the cause remanded, with directions to overrule the demurrer to the plaintiff's petition. All the Justices concurring.

(17 Okl. 48)

STATE MUT. INS. CO. v. ROARK. SAME V. BORCHERS. SAME v. STRICKLAND. SAME v. HANCOCK. SAME v. FLETCHER. (Supreme Court of Oklahoma. Sept. 4, 1906.) Error from Probate Court, Washita County; Richard Billups, Judge.

Actions by the State Mutual Insurance Company against D. Roark, C. A. Borchers, T. G. Strickland, J. L. Hancock, and M. E. Fletcher. From judgments sustaining denurrers to the petition, plaintiff brings error. Reversed.

Massingale & Shean and J. A. Duff, for plaintiff in error. James W. Smith and T. A. Edwards, for defendant in error.

HAINER, J. The same question is involved in these cases as was the subject of controversy in the case of State Mutual Insurance Company v. E. O. Clevenger (cause No. 1,852) 87 Pac. 583, and by agreement of counsel the same briefs were to be considered in each of these cases. Upon the authority of State Mutual Insurance Company v. Clevenger (No. 1,852) supra, the judgment of the probate court in each of these cases is reversed, and the cause remanded, with directions to overrule the demurrer to the plaintiff's petition. All the Justices concurring.

(17 Okl. 131)

WILLIAM J. LEMP BREWING CO. v. GUION et ux.

(Supreme Court of Oklahoma. Sept. 5, 1906.) FRAUDULENT CONVEYANCES-ACTION TO SET ASIDE EVIDENCE.

"In an action to set aside the title to real astate upon the ground of fraudulent convey

ance, the fraud must be distinctly pleaded, and clearly and satisfactorily proven, and will not be applied from doubtful circumstances which only awaken suspicion."

[Ed. Note.-For cases in point, see Cent. Dig. vol. 24, Fraudulent Conveyances, & 867.] (Syllabus by the Court.)

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

Action by the William J. Lemp Brewing Company against Davis Guion and Fannie Guion. Judgment for defendants, and plain-. tiff brings error. Affirmed.

Wm. Wallace, for plaintiff in error. Frame & Marsh, for defendants in error.

GILLETTE, J. This action was commenced in the court below for the purpose of subjecting certain real estate, the legal title to which was in the defendant Fannie Guion, to the satisfaction of a judgment against Davis Guion, and in favor of the plaintiff. The defendants Davis Guion and Fannie Guion are husband and wife. The property was purchased on the 17th of March, 1903, at which time Davis Guion was indebted to the plaintiff in the sum of $751.57. In February, 1904, Davis Guion confessed judgment for the amount of said debt, and upon the return of an execution "no property found" this action followed. The property when purchased was deeded to Fannie Guion. The transaction of the purchase was conducted by her husband Davis Guion. A dwelling house was afterwards built on the property, and Davis Guion negotiated for the lumber and with carpenters for its construction, and since its construction in June, 1903, the property has been occupied by the defendants as a homestead. The plaintiff in his petition alleges that the property was purchased and the title placed in the name of Fannie Guion for the purpose of hindering, delaying, and defrauding the creditors of Davis Guion, and particularly this plaintiff, and was so placed in her name without consideration being paid therefor by her. The defendants answered separately, Davis Guion by a general denial, and Fannie Guion by an answer denying the allegations of the petition and pleading title in herself, and the occupation of the property as a homestead. Upon the issue so made up the case was tried to the court without a jury.

Upon the trial an admission of the defendants was first offered and received in evidence as follows: "It is admitted by the defendants in this case that the purchase price. for the lots in controversy was paid in two payments by Davis Guion to Hollis Gillmore, the same being lots 7 and 8 in block 12, Keith's addition to the city of El Reno; that at said time he was acting as agent for his wife, Fannie Guion, and made payment for the same out of money belonging to her." And afterwards the testimony of Hollis Gillmore was introduced to the effect that he sold the lots in question to defendant Davis

Guion, he paying him the money therefor. The testimony of J. P. Peterson shows that he built a residence on the lots, and being asked whether he built it for Davis Guion, answered: "I can't hardly say whether I made the contract with him or not. He said he did not have any money of his own." He was then asked to state the transaction and answered: "Well, we had a verbal contract. We never had a written contract. The way I understood it was this: He had no money, but his wife had a litle money, and wanted to build a house; that was the way I understood it, and I went to work on the house." He made the verbal contract with Mr. Guion for $850 to build the house, and that he, Guion, delivered him the money when the work was completed. His further testimony was to the effect that Guion and his family moved into the house when it was completed. J. R. Smiley testified that he was the manager of the S. M. Gloyd Lumber Company; that he was not with the company at the time of the purchase of lumber for the house. He was then asked if he had the account of Davis Guion with the Gloyd Lumber Company, to which he answered: "Yes, sir: we have the account for his house; the account of Mr. Peterson"; that Davis Guion paid him the money on the account. He stated he did not know what was done with the lumber represented by the account; that the transaction was not made through him, but he collected the money on the bill. No other testimony was offered to sustain the charge of fraud contained in the petition. At the close of the testimony a demurrer thereto was interposed by the defendant and sustained by the court, and the case comes to this court predicated upon error in the sustaining of such demurrer.

It is a principle as old as English jurisprudence that fraud must not only be distinctly alleged, but must be clearly and satisfactorily proven, to entitle a party, seeking relief on account of the fraud charged, to a judgment finding that the fraudulent transaction complained of was entered into and consummated to his detriment. The evidence offered in this case manifestly falls far short of establishing such facts. The presumption indulged in by counsel for plaintiff in error. that, because defendant Davis Guion paid over the money which satisfied the price of the lots and material and labor in construct. ing the house, there is a conclusive presump. tion that he was using his own money and putting the title in his wife to defraud his creditors, cannot be entertained. The only The only evidence in the case touching the question as to whose money paid for this property shows that it was the money of Fannie Guion. The record is silent as to when, or how, or where she got it, and, in the absence of proof, the presumption is she came by it honestly, and wholly disconnected from the fraudulent transaction here charged. We are of the opinion that there was no er

ror in the order of the court below sustaining the demurrer.

The judgment of the trial court is therefore affirmed, with costs. All the Justices concurring excepting IRWIN, J., who presided in the court below, not sitting.

(17 Okl. 256)

HARRISON BANK v. PORTER. (Supreme Court of Oklahoma. Sept. 5, 1906.) REPLEVIN-EVIDENCE-SUFFICIENCY.

In an action of replevin. when the evidence does not reasonably support the verdict, the judgment rendered thereon will be set aside. [Ed. Note.-For cases in point, see Cent. Dig. vol. 42. Replevin, §§ 292-295.] (Syllabus by the Court.)

Error from District Court, Garfield County; before Justice James K. Beauchamp.

Action by the Harrison Bank against J. A. Porter. Judgment for defendant and plaintiff brings error. Reversed.

Manatt & Sturgis, for plaintiff in error. Roberts & Curran, for defendant in error.

BURWELL, J. This is an action in replevin commenced by the Harrison Bank: against J. A. Porter, to recover the possession of two horses.

The plaintiff bases its right to possession under the terms of a chattel mortgage executed by one G. J. Dahlke to it on two horses, described in the mortgage as follows: "One bay horse six years old, weight 1,200 pounds, branded 'C' on left jaw, valued at $100. One bay horse, six years old, weight 1,200 pounds, valued at $125." The mortgage also represents the property as being located in Kiowa county, and immediately after its execution it was filed with the register of deeds of that county. J. G. Hill, the cashier of the bank, testified that there was still due and unpaid on the debt, secured by the mortgage, the sum of $140.72; that when the mortgage was executed the horses described therein were in Kiowa county, and were hitched just a short distance from the bank; that he saw the horses, and that the horses in controversy were the horses mortgaged to the bank. The defendant claims under a purchase from the mortgagor. G. J. Dahlke. The horses at the time the defendant purchased them were located in Garfield county, and neither the original mortgage or a copy thereof was filed in that county; but it is not contended that it should have been if the property was in Kiowa county at the time the mortgage was given. He paid Dahlke $190 for the horses, and without any knowledge of plaintiff's mortgage. The defense interposed was that the horses in controversy are not the same horses included in the mortgage. This presents an issue of fact. Against the positive evidence of Mr. Hill, the cashier of the plaintiff bank, that they are the same horses, the defendant offered the testimony of certain witnesses who

testified that the horses were older than the ages stated in the mortgage.

The mortgage was executed on the 7th day of May, 1903, and the trial in the court below occurred on the 8th day of December, 1904, or a year and seven months later. Hence, according to the mortgage, the horses were, at the time of the trial, eight years and seven months old. Dahlke and his family lived in Garfield county, but he left there in the spring of 1902 and went to Kiowa county, where he was staying at the time the mortgage was executed by him, returning to Garfield county about harvest time of the same year.

The witnesses for the defendant testified, in substance, as follows: G. S. Fowler stated that he was a neighbor of Dahlke, and that he could not say for certain whether or not he ever saw the team in question until after Dahlke returned from Kiowa county. M. M. Galloway testified that he had been in the horse and mule business at Enid for about seven years; that he had done hardly anything for the last 25 years except examine horses and mules; that he had examined the horses in question two or three days prior to the trial; that one would be 8 years old in the spring following, and that the other one was about 11 or 12 years old; but that one cannot tell the exact age of a horse after it gets a "smooth mouth" which occurs at about 9 years old, except in cases where the horses are raised on a range, in which event the mouth gets smooth younger. Mathew Sherman testified that he was a farmer, that he had examined the horses, and that they were about 9 and 10 years old, respectively; that the younger horse was branded "C" on the left jaw; that the younger horse would be 9 the following spring, but that he would not be willing to say that he could tell positively as to a horse's age within a year. A. B. Wolsworth testified that he had handled horses on the farm all his life; that he had examined the horses in question; that one of the horses, in his opinion, was about 11 or 12 years old, and the other one about 9; that a horse usually gets a smooth mouth about 9, but as the younger horse's mouth was not entirely smooth, it might be 8; that after a horse gets a smooth mouth one must rely largely upon the general appearance of the horse in determining his age. Charles Crane testified that he had handled horses all of his life; that he had seen the horses in controversy, and that he thought the one horse was about 9 years old, and the other one two or three years older; that a horse's mouth becomes smooth at about 12 or 14, after which time there is no certainty as to a horse's age, and even before that one may miss the age a year or two. Is this evidence sufficient to defeat a recovery by the mortgagee? We think not. And while it is a general rule of this court that a verdict will not be set aside if there is any evidence reasonably tending to support it, still, if from an ex

amination of the entire evidence, it appears that the verdict is obviously wrong, and ought to have been for the other party, this court will not permit itself to be bound by such verdict, especially where the evidence on the one side is positive and direct, while that on the other side is not only opinion evidence, but shows from the admissions of the witnesses themselves that it is uncertain and unreliable as to the correctness of the opinions given.

As to the horse that was unbranded, the evidence may be sufficient to sustain the verdict; the same cannot be said as to the other horse. One witness places it at 8 years old the following spring; another at nine the following spring, and two place its age at 9. This horse also had the brand "C" on his left jaw. The testimony of these witnesses also clearly show that they cannot tell to a certainty within one or two years of a horse's age. The only other discrepancy between the description in the mortgage and the horse is, the mortgage recites that the horse, at the time the mortgage was given, weighed 1,100 pounds, while there was some opinion evidence tending to show that the horse at the time of the trial, which was a year and seven months later, weighed 1,200 pounds. Even if this were true, that would not excuse the defendant from investigating. We know from common knowledge that a horse of that size, during a period of 19 months might vary 100 in weight, and the record of Kiowa county was constructive notice to all. This is a case where each of the parties evidently acted in good faith, and loss must fall upon one. The evidence did not reasonably tend to support the verdict as to the horse that was branded, and therefore the judgment of the lower court is hereby reversed, at the cost of the appellee, and a new trial granted.

The case is remanded, with direction to proceed in conformity herewith. All of the Justices concurring, except GARBER, J., who was a witness in the court below, not sitting.

(17 Okl. 177)

MARTIN et al. v. GASSERT. (Supreme Court of Oklahoma. Sept. 5, 1906.) 1. APPEAL REVIEW QUESTIONS OF FACT SUFFICIENCY OF EVIDENCE.

Where a case is brought to this court for review, and it is sought to reverse the judgment of the district court on a question of fact, and on the grounds that the evidence in the court below did not reasonably tend to support the judgment of the court, the case-made must contain the positive averment, by way of recital, that it contains all the evidence submitted or introduced on the trial of the case, and such recital cannot be supplied by the certificate of counsel, or of the stenographer, or the certificate of the trial judge, and, where such casemade does not contain such recital in positive terms, this court will not review any question depending entirely upon the facts for its determination.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2916, 2917.]

2. SAME--ASSIGNMENTS OF ERROR.

Where the appellant fails to assign as error the overruling of the motion for a new trial in the petition in error, no question is properly presented to this court to review error alleged to have occurred during the progress of the trial in the court below.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error. § 2979.]

(Syllabus by the Court.)

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

Action by Charles Gassert against C. W. Martin and Ida F. Martin. Judgment for plaintiff, and defendants bring error. Affirmed.

This was an action brought by the defendant in error on three promissory notes and for the foreclosure of a real estate mortgage. Said notes being given as a part consideration for the purchase of a stock of merchandise located in the town of Morrison, Noble county, Okl. The defendants in the court below claim that the plaintiff in that court, at the time of said transaction, represcnted to them that the said goods were narked at the wholesale cost price, and were of the reasonable value of $1,736. It is also claimed that said misrepresentations were false as to the marking of said goods, and as to the value thereof, and were known to be false by the plaintiff at the time the same were made, and the defendants set up as a defense fraud and misrepresentation. It is also alleged that defendants, on discovering said fraud, offered to return to said plaintiff said goods, and demanded a return of the consideration. All of which the plaintiff in the court below refused. On the trial of the cause in the court below, the defendants admitted the execution of the notes, but pleaded in defense fraud and deceit and want of consideration. The court held the burden of proof was on the defendants to establish their proof as set forth in their answer as a defense to the notes in question. Thereupon the plaintiffs in error introduced their evidence to prove the allegations of said answer, to which said evidence the defendant in error at the close thereof interposed a demurrer, the cause having been tried to the jury, which demurrer was by the court sustained. The jury was discharged, and judgment rendered against the plaintiffs in error. Motion for a new trial was filed in due time, overruled, and exceptions saved, and the case is brought here for review.

Doyle & Cress, for plaintiffs in error. Wrightsman & Diggs, for defendant in error.

IRWIN, J. (after stating the facts). The counsel for plaintiffs in error in their assignments of error urge for a reversal of this

(1) The district court committed error of law in the trial of the case by excluding competent testimony which was offered by plaintiffs in error, rejected, and exceptions reserved. (2) Error of the court in sus

taining said demurrer of the plaintiff to the evidence of the defendants below, plaintiffs in error here, to which the plaintiffs in error excepted. (3) For the reason that the decision of the court is contrary to the evidence. (4) For the reason that the decision of the court is contrary to the law. (5) For errors of law occuring at the trial, and duly excepted to at the time. (6) That the court committed error in withdrawing said cause from the consideration of the jury, to which plaintiffs in error at the time duly excepted.

The questions presented on appeal to this court involve a consideration of all the evidence; the questions being as to the rightfulness of the judgment of the trial court in sustaining the demurrer to the evidence of the plaintiffs in error and in rendering judgment against them. These assignments of error, we think, cannot be considered by this court, for the reason that the questions presented on this appeal involve a consideration of all the evidence, and there is nowhere in the case-made the recital that it contains all the evidence introduced on the trial of the case. At page 156 of the case-made there is found a certificate of the stenographer which states this fact. At page 169 is found a similar certificate made by the attorneys for the plaintiff in error, and at page 172 the statement is included in the certificate of the trial judge that the record contains all the evidence in the case. But the repeated holdings of the Kansas Supreme Court, both before and after our adoption of their statute, are to the effect that such certificates are not sufficient, and that such statements must be In the nature of a positive recital in the casemade itself, and that this defect cannot be supplied by. any certificate, either of the attorneys, the stenographer, or the trial judge. In the case of Bartlett v. Feeney, 11 Kan. 594, 602, cited by Judge Valentine in the case of Eddy v. Weaver (Kan. Sup.) 15 Pac. 492-496, it was held that under the circumstances of that case the statement of a fact, which was not inserted in the case-made nor entered in the proceedings of the court, but which was merely certified to by the judge. at the time of settling and signing the case, would not be considered by the Supreme Court. In the case of Hill v. First Nat. Pank, 22 Pac. 324, the Supreme Court of Kansas says: "In order to have the question of whether the evidence supports the finding and judgment examined, the case-made should show that it contains all the evidence. A statement to that effect in the certificate of the district judge settling the case is insufficient." In the case of Ryan v. Madden et al., reported in 26 Pac., at page 680, the Supreme Court of Kansas say, in the body of the opinion: "We also find there is considerable testimony in the record which follows the certificate of the stenographer. A statement is included in the certificate of the judge who settled the case to the effect that the case contains all the evidence that was

introduced on the trial; but such statement was improperly included in the certificate, and is ineffectual to accomplish the purposes intended"-citing Eddy v. Weaver, 37 Kan. 540, 15 Pac. 492; Hill v. Bank, 42 Kan. 364, 22 Pac. 324. Continuing, the court in the pinion says: "The first recital in the casemade, to the effect that the case includes the evidence offered by each party before they rested, necessarily excludes that which was afterwards introduced. This was evidently deemed to be insufficient by the plaintiff in error, as he attempted to supplement it by the certificate of the official stenographer, and later by another certificate of the judge. We conclude that the record fails to properly show that all the evidence is preserved, and hence, under the authorities cited, we cannot say that the verdict is without support."

We have carefully examined this casemade, and we find, except as contained in the certificate of the attorneys, the stenographer, and the trial judge, that it contains no statement to the effect that it contains all the evidence introduced on the trial. Now, we take it that the reason that the certificate of the trial judge is not sufficient to cure this defect is based upon the fact that it is no part of the duty of the trial judge to supply any of the facts contained in the recitals necessary in the case-made. IIis only duty is to see that the facts stated and the recitals made in the case-made are correct, His only duty is to certify that the matters and things alleged in the case-made are correctly stated. It is no part of his duty to go beyond this certificate and insert statements of facts not contained in the case-made at the time the same is presented and served upon the opposite counsel. Now, when a case-made is served upon opposing counsel and examined by them, it is a matter entirely immaterial to them whether it contains all or only a part of the evidence. They might accept service of it, knowing that it did not contain the allegation that all the evidence taken at the trial was included therein, and when the same has been presented to the opposing counsel, and served upon them, then the only purpose in presenting it to the court is that he may certify that the things therein contained are correctly stated, and it is no part of his duty to insert in that certificate that it does, or does not, contain all the evidence taken at the trial, unless the case-made, as prepared and served upon the opposite counsel, contains that statement.

Such seems to be the conclusion reached by the Kansas Supreme Court in the case of Brown v. Johnson, 14 Kan. 377, where the court says: "The signature of a judge to a case-made or bill of exceptions, imports the truthfulness of the preceding statements in such case or bill--nothing more: and we must look to those statements to see whether ell the testimony is preserved or not." And

in the case of Eddy v. Weaver (Kan. Sup.) 15 Pac. 492-497, it is said: "Where a case, when it is served upon the adverse party, does not purport to contain all the evidence, he has no further interest in the matter than to know that what the case does contain is correct. Usually, in such cases, it is a matter of entire indifference to him as to how much or how little of the evidence is contained in the case; and, if what is contained in the case is correct, he has no need to suggest any amendments to the case with regard to the evidence, although the case may not contain one-half, or, indeed, any, of the evidence. Usually, when a party making a case for the Supreme Court desires that it shall be shown that the case contains all the evidence, the case itself, as served upon the adverse party should contain a statement to that effect, so as to give the adverse party an opportunity to suggest amendments, if he thinks the statement untrue, either by striking out the statement, or by inserting such other evidence as he may believe has been omitted, and thereby make the case speak the truth. It is the case itself, and not the certificate of the judge, which would show whether all the evidence introduced on the trial is contained in the case or not. All that the judge, in settling a case for the Supreme Court, can properly do in the absence of the parties, and all that he need do in any case, is to examine both the case as it has been made and served, and the amendments thereto as suggested by the adverse party, and then to allow all of each, so far as the same are correct, and so far as the amendments have relation to the case as made and served, and also to correct any erroneous statements made in either the case c the amendments, so that the case, when settled, shall speak the truth. And, when the case is thus settled, all that the judge need further to do is to indicate the same in some manner upon the case and sign his name thereto. Nothing else is necessary to be done."

Now in this case, we think it cannot be contended that, at the time of the inserting of this statement in the certificate of the trial judge attached to the case-made, all the parties were actually or constructively present when the case-made was signed, and that such statement in the certificate would be binding upon them for that reason. By referring to the dates contained in this case-made, it will be found that the time for serving the case-made expired in October, 1905; that the case-made was served on the 19th day of August, 1905, but that it was not signed by the judge, or his certificate attached thereto, until the 5th day of February, 1906. So it would not be presumed, after this lapse of time, that counsel were present at the time of the signing and attaching of this certificate. And in the case of Dodd v. Abram. 27 Kan. 69, the Supreme Court of Kansas