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to see where there was any error committed. ' an examination of the entire record that the The main proposition argued under this head manner in which this instruction was given by counsel for plaintiff in error is that there to the jury was perfectly satisfactory to all was no proof that the defendant was a parties concerned, and the error was not wholesale liquor dealer. The record certain preserved nor presented to the trial court ly (ontains proof. The weight of the evi. for review by the motion for new trial. It dence was for the jury. The evidence be- is well settled by il long line of decisions, ing competent, it was for the jury to de- in states having statutes similar to ours, termine whether or not it was sufficient. that it is error for the court to instruct the
The statements made by the defendant of jury orally in a criminal case, some of the the amount of liquor sold by him, which
him, which states holding that the rule prescribed by are claimed to have been extrajudicial and the statute is mandatory, and not directory. . therefore insufficient upon which to buse al And, in California, it has been held that, conviction, are only a part of the evidence where the jury was orally instructed by the introduced. While it is true that a convic- court in explanation of a charge already tion can never be had upon extrajudicial ex- given in writing, the defendant neither conpressions alone, yet such evidence is com- senting nor objecting to the oral explanation, petent, and, taken together with other com- such method of instructing the jury was petent evidence, may be sufficient upon which error. a jury may base a verdict of guilty. The We see no error in the instruction as girauthorities (ited by counsel upon this proj)-- en. The only error consists in the instrucosition are, therefore, not in point here, be- tion not having been reduced to writing because, in the cases cited, or most of them, fore it was given. It has been repeatedly the verdict was based entirely and alone held by this court that only those questions upon the extrajudicial statements or ex- raised and preserved in the motion for new pressions made by the defendant. Such is trial will be considered by this court on not the case here.
review. Therefore, while error exists, it is Much of the testimony that was objected not a reversible one, nor is it one which we to was competent for the purpose of proving think affects the substantial rights of the the motive of the defendant, and while
defendant. This question has been passed perhaps some of it was not competent for
upon by this court in the case of Frank Swagany other purpose, yet the motive in this gart v. Territory, 6 Okl. 344, 50 Pac. 96, in case was a material question, and one which
which, after reviewing the entire subject, the government had a right to establish. Be
the court declined to reverse the judgment, sides all this, the defendant, when upon the
holding that, though error appeared, the witness stand, testified in his own behalf,
question not having been presented to the and there made statements from which we
trial court in the notion for new trial, and think the jury could well conclude that he had been a wholesale liquor dealer at the i it not being one which affected the substantime charged as the date of the offense for : tial rights of the defendant, the error was which he was being tried.
not one which should work a reversal of the The remaining errors complained of arise
judgment. upon the instructions given by the court.
Ilaving carefully examined the entire recAfter a careful examination of these instruc- orel, and perceiving no material error theretions, we think they were as favorable to in, the judgment of the trial court is afthe defendant as he could ask. We find firmed. It is ordered that the judgment of no error in them.
the district court be carried into execution. There is one remaining proposition which we deem it proper to notice. After the case HAINER, J., who tried the case below, had been given to the jury. they returned not sitting All the other Justices concur. into court for further instructions, and, after ring. receiving the necessary information from the jury, the court, in the presence of the lefendant and his counsel, dictated to the sten
(17 Okl. 571) ographer one further instruction for the GUTIIRIE LAUNDRY CO. . NORTHERN jury, at the time ordering the instruction re
ASSTRINCE CO. OF LONDOX. durell to writing. No objection was made or
(Supreme Court of Oklahoma. Sept. 7, 1906.) exception taken to this manner of instructing
IXSTRASCE FIRE INSURANCE the jury, but it is now claimed that, inasmuch
(OVERED BY POLICY. as the statute provides that all instruc
In an action on a policy on a “2-story tions shall be in writing, this method of basement und brick building, with metal roof, giving an instruction, under the circum
and its additions adjoining and communicating, stances, was material error. Tad the defend
inciuding foundations. occupied as a steam
laundry," it appeared that a steam pipe 21/2 ant at the time objected to the instruction inches in diameter conveying the power for the being given in this manner, we have no
engine situated in the main building, a partially doubt that the court would have handed to
completed platform and overhead arch between
the buildings, and a sidewalk along the side, the jury the instruction
properly pre- were the only connections between the main pared and written out. It would seen from building and the boiler house situated about four
feet distant therefrom. Held, that the policy in- From an order overruling motion for new cluded the boiler house.
trial, the plaintiff in error has appealed. [Ed. Note.-For cases in point, see Cent. Dig. vol. 28, Insurance, $ 341.)
The principle question raised in this appeal
is whether the boiler house was, in view of (Syllabus by the Court.)
the evidence, covered by the policy of insurError from District Court, Logan County ; ance sued upon. Precedents involving simibefore Justice Jno. II. Burford.
lar questions are at hand. In the case of Action by the Guthrie Laundry Company
Pettit et al. v. State Ins. Co. (Minn.) 43 N. against the Northern Assurance Company of W. 378, the property described in the policy London. Judgment for defendant, and plain
was "grain in St. Anthony elevator building tiff brings error. Reversed.
while contained in the frame, iron
clad, metal roof building, occupied for the Ilunt and Chappell, for plaintiff in error. storage and handling of grain, and known IIoward and Fulton, for defendant in error.
as the St. Anthony elevator.” It appeared
that the entire property was known as the PANCOAST, J. This was an action St. Anthony elevator, and consisted of an enbrought in the district court of Logan coun- gine house, with adjacent elevator containing ty by the Guthrie Laundry Company against all the elevating machinery in the establishthe Northern Assurance Company of London, ment, and also an addition designated as "Anto recover upon a policy of insurance, for nex A," in distinction from the building first loss by fire to property alleged to have been described, which was called the “main elecovered by such policy at the time of the vator,” or “main elevator building.” “Annex fire. A stipulation in the policy as to the
A" and the main elevator building were about property covered is as follows: "One thou- three hundred feet apart, being connected sand dollars on their two-story basement | by two galleries supported by trestles, through and brick building, with metal roof, and its which ran a belt conveying on its surface additions adjoining and communicating, in- grain from the main elevator building into cluding foundations, occupied as a steam
the "Annex A." The objection being .urged laundry. * * *" The laundry was in the that the grain located in "Annex A” was not process of construction at the time the policy
included in the policy, the two being separate was written, also at the time of the fire, and and distinct buildings, it was "Held that the consisted of a main building 51 by 100 feet in grain in Annex A was included in the policy size and in the rear of that, about four feet of insurance, describing it as being in the distant, a boiler room 22 by 33 in its dimen
* and the language used sions. A 212 inch steam pipe ran from the
describing the elevator was a frame, ironclad, boiler house to an engine in the center of the
metal-roof building, occupied for the storage main building, being the means by which the
and handling of grain.' Held, equally appower was transmitted from the boiler to plicable to the whole or either division of the other machinery employed in operating
the elevator, and that if there is doubt or the laundry. The boiler house was joined or
uncertainty as to the meaning of the policy, connected with the main building by means
it must be resolved in favor of the assured." of framework of beams designated as 2 by 6's The case of Marsh v. Concord Mutual Fire in the testimony, for an overhead archway,
Ins. Co., 71 N. II. 253, 51 Atl. 898, cited in the and also by a partially completed platform
brief of plaintiff in error, is almost parallel and sidewalk at the bottom; it being the
to the one at bar. It involved the interpretaintention to roof the archway over with brick,
tion of an insurance policy written "on and there store material for use in the laun- frame, metal-roof building and all additions dry work. The framework was constructed thereto adjoining and communicating * * * and in position for the platform or sidewalk
occupied by the assured as a pail shop;" and running from the east door of the main build
construing this clause of the policy, Walker, ing to the east door of the boiler house. J., comments upon the evidence adduced at Each structure had its separate walls, and
the trial as follows: "The plaintiff was a there was no connection between the two,
pail manufacturer. He owned one large other than the steam pipe, and the frame
building and two small ones located a few work above mentioned. Liability for the loss
feet away. All the buildings were used by of the boiler room was denied on the ground
him in the prosecution of his manufacturing it was not covered by the clause in the policy, business, and constituted his manufacturing above quoted. At the trial, after plaintiff plant. Each was a necessary part of the below had rested its case, the assurance com- whole, which was 'occupied' by the assured pany demurred to that portion relating to as a pail shop or manufactory. The frame the damage done to the boiler house, for the mill building was not used independently of foregoing reason, which demurrer was sus- the small buildings and without the additiontained by the court, and the jury were in- al buildings it did not constitute the pail structed to confine their deliberations to the
shop. In view of the dependent uses of all evidence of damage done the main building. the buildings in the manufacturing of pails, To this the plaintiff below excepted. Ver- the word 'additions' was not an inappropridict was for the plaintitf below for $20. . ate designation of the two smaller ones, and for the same reason the qualifying words, Mut. Ins. Co. of Minn., 22 X W. 6), 'adjoining and communicating,' though per- is in point, and we quote from the opinion haps unnecessary, were evidently intended to in that case: “One of the questions in the designate such additional buildings as were case is whether the policy covered a warenecessary appurtenances to the main build- house standing near the elevator. The proping in the manufacture of pails. They were erty insured is described in the policy as a adjoining and communicating because they 'steam power elevator building, and addiwere within a few feet of and next to the tions, with porches and platforms attached.' mill building and because their common use The warehouse stood within 212 feet of the in the business made it necessary that some elevator building, and was of about the communication or connection should exist be
same size as the elevator. The two were tween them and the mill building. The word fastened together by strips of board, about *communicating alone does not convey a def- 20 in number, nailed upon each building. inite meaning. The context, purposes and The further fact is shown that the only circumstances in view of which it is used
means of entrance to the warehouse was by must be resorted to to determine its signifi- a window which was reached by a ladder, cance in a particular case. The fact that or by cleats nailed on the side of the buildthere was a movable bridge between the ing. The court below considered that the mill building and the dry house, as well as
warehouse was covered by the policy. We the fact that steam pipes made physical con- concur in this construction. It was used as nection between all the buildings is evidence
a part of the elevator, and was so connected of some weight, though perhaps not alone
with it, that in view especially of this use, sufficient, that the parties' intention when the
it must be considered as having been intendcontract was made was as above indicated.
ed by the parties to be included in the desigBut any doubt that might remain upon the
nation 'elevator building and additions.'” evidence thus far discussed is removed by
Other authorities to the same effect are: the consideration that if the dryhouse and
Gross et al. v. Milwaukee Mech. Ins. Co. the boiler house are not the adjoining and
(Wis.) 66 N. W. 712; Carpenter v. Allemania communicating additions intended, this lan
Fire Ins. Co., 156 Pa. 37, 26 Atl. 781; guage can be given no force or significance,
Phoenix Ins. Co. v. Martin (Miss.) 16 So. for there were no other buildings or additions
417; Hannan v. Williamsburgh City F. Ins. to which it could refer. It is unreasonable
Co., 81 Mich. 556, 45 N. W. 1120, 9 L. R. A. to assume, except from necessity, that lan
127; Mausel v. Fire Ass'n of Phila., 60 N. guage used by parties in a written contract
Y. Supp. 181; Liebenstein v. Baltic Fire Ins. was not intended to express an intelligent
Co., 45 Ill. 301. The reasoning of the cases idea, or that they employed language having
cited, to which many more might be added, no application or reference to the subject
applies aptly to the facts in this case, Counse! matter of the contract.” Again, in the case
for defendant in error elaborates with great of Home Mutual Ins. Co. of Cal. v. Roe (Wis.)
minuteness his contention that the words reported in 36 N. W. 594, it appeared that
“adjoining and communicating” apply only the policy covered a planing mill "and ad
to those structures actually touching or conditions," and that the shaft from the engine
tiguous to the building first designated, but room furnished the motive power to the
from the authorities cited and others we mill, and that the shavings from the mill
have investigated, we are led to the conwere carried by machinery to the engine
clusion that the adjudicated cases wherein house; that these were the only connections
the application of language of similar import between the two buildings, there being a
is determined do not uphold him in such reroadway between; yet, in holding that the policy included the engine room and engine,
finement of construction. It conclusively ap
pears that the boiler house contained the onthe court say: "Here it conclusively appears
ly motive power for propelling any of the that the engine in the engine room was the
machinery in either of the buildings, and only motive power for propelling any of the
was an integral part of the complete laundry. machinery in either of the buildings. The
an essential to its proper conduct and operaengine was used for no other purpose. It
tion, and so associated and connected with is claimed that the engine room cannot be
it that what we conceive to be the true construed to mean an 'addition to the plan
interpretation of the policy cannot fail to ing mill building, because it does not join di- include the boiler house within the terms rectly upon the same; but, as we have seen, thereof, and particularly within the general they were both essential to the completion of description of the property as "occupied as a the mill. Thus the two buildings were not steam laundry." As before stated, the moonly connected, but the machinery insepar- tive power originated in the boiler house; able, while the whole continued to be a plan- was conveyed therefrom through a pipe 212 ing mill. The words 'planing mill building' inches in diameter to an engine stationed in would seem to be broad enough to include the center of the main building, an archway the engine room."
overhead had been completed so far as the A case decided by the Supreme Court of framework was concerned; and a platform Minnesota (Cargill et al. v. Millers' & Mfrs.' and sidewalk connecting the two portions of
the business were in the final process of construction. In our opinion, each of the two buildings was an inseparable part of the whole, and the iwo, as an entirety, was the subject matter of the contract, intended to be covered by the policy, and in the contemplation of the parties is the location of the “laundry” therein referred to. The court below very properly assumed the responsibility of determining the meaning of the policy, but it would seem from the authorities licreinbefore referred to that the conclusion reached was not the correct one. The language of the policy, in our opinion, is broad enough to include, not only the main building, but the boiler house as well, and for that reason it was error to sustain the demurrer of the assurance company to the evidence relating to the destruction or clamage of the boiler house in question. Properly construed, the language of the clause above set out must be held to include the boiler house,
Ilaving reached the conclusion, that crror was committed in this respect, it is unnecessary to discuss other assignments of error. For the reasons given, the judgment of the (ourt below is reversed.
BURFORD, C. J., who tried the case below, and BIRWELL, J., not sitting. All the other Justices concurring.
said property, and that a special city tax was illegally levied against said property, the same being a part of the taxes, interest, and expenses for which said property was sold, does not, upon demurrer, stata facts sufficient to raise such questions. It is necessary in such case to show wherein the tax was illegal, or the costs and expenses were illegally charged against the property.
[Ed. Yote.--For cases in point, sce Cent. Dig. vol. 39, Pleading, SS 12-2814.] 4. TAXATION-GROUND FOR AvoidiyG DEED.
A banking corporation, authorized under the laws of the territory of Oklahoma, may not engage in real estate spe:ulations not authorized by its charter, but where, as in this case, a bank is one of the grantors in a chain of title derived from a tax sale of real estate, such fact is not sufficient to avoid the tax deed. (Syllabus by the Court.)
Error from District Court, Logan County ; before Justice Jno. II. Burford.
Action by M. W. Jones against Ananias Carnes. Judgment for defendant, and plaintiff brings error. Affirmed.
This is an action of ejectment to recover possession of lots 1 and 2, in block 81, in the city of Guthrie, 0. T. The petition in this case, so far as necessary to be set out in order to show the rights of the parties herein, is in words and figures following, to wit:
"In the District Court of Logan County, 0. T. M. M. Jones v. Ananias Carnes. Petition. The above-named plaintiff, M. M. Jones, complains of the above-named defendant, Analias (arnes, and for cause of action states: That she, the said plaintiff is the owner in fee simple of the following-described real property situated in Logan county, 0. T., to wit: Lots numbered one (1) and two (2) in block number eighty-four (81) in the city of Guthrie, Logan county, 0. T., and in that part of said city of Guthrie commonly known ils Guthrie I'roper,' same being part and Darrel of the cast one-half of section eight 18), in township sixteen (16) north, of range tivo (2) west of the Indian Meridian. That prior to and on November 5, 1895, the date the pretended tax deed hereinafter mentioned was issued, Benj. F. Blubaugh was the owner of lot one (1) in block eighty-four (84), Guthrie l'roper, part and parcel of above-described real property, and had a right to redeem said property. That prior to and on November 5, 1$9.), the date the pretended tax deed hereinafter mentioned was issued, George B. Blubaugh was the owner of lot two (2) in block eighty-four (81) Guthrie Proper, part and parcel of above described real property, and had a right to redeem said real property. That the plaintiff has since purchased all the right, title, and interest of the said Benjamin F. Blubaugh and the said George B. Blubaugh in and to the above-described real property, and now has the same right, title, and interest that the said Benjamin F. Blubaugh and the said George B. Blubaugh then had. That the defendant, Ananias Carnes, now is, and for a long time prior hereto has been, Wrongfully in possession of said real property, and to the exclusion of
(17 Ok. 470)
JONES v. CIRXES. (Supreme Court of Oklahoma. Sept. 7, 1906.) 1. EJECTMENT-PLEADING-DEMURRER.
Where, in an action of ejectment, the plaintiff sees lit, in setting forth the statutory reYuirements of a cause of action, in addition thereto, to set out the title and source of title of each of the parties, and a demurrer is filed to such pleading upon consideration of such demurrer all of the facts pleased will be considered in determining its sufficiency. ... TAXATION--TAX DEED-RECITALS--REQUISITES.
Under the requirements of the statutes of Oklahoma (Wilson's Rev. & Ann. St. 1903, $ 6037) a county treasurer, on behalf of the county, may not become the purchaser of real property at tax sale, except in the absence of other bidders offering the amount due thereon, and such facts must be made to appear in a tax deell, where such deed is based upon a tax sale to the county. Ireld that, where a tax deed recited, "Whereas, at the pace aforesaid, neither of said parcels, tracts, or lots of property could he sold for the amount of taxes and charges thereon, and each of them was severally and in clue course as aforesaid offered for sale and bid off by the county treasurer of said county for the whole amount of taxes, such allegation is a sufficient compliance with the requirements of the statute liberally construed ; such (onstruction being directed by the statute.
TEd. Note-For cases in point. see Cent. Dig. vol. 1.), Taxation, $S 1.510–1513.) 3. PLEADIN-CovcLUSIONS.
A petition which sets forth in general terms the fact that ilegal interest, penalties, costs, and expenses were chargeri against real property sold for taxes, and that the deer was void be cause separate school taxes were assessed against
plaintiff. That said defendant is so in pos- unto the said defendant for that 'a special tax session of said real property and claiming to (city),' was levied and charged against said be the owner thereof adversely to this plain- real property, for the year 1892 and said tiff under and by virtue of a certain written 'special tax (city),' made a part of the taxes instrument bearing date of November 5, 1995, for which said real property purports to purporting to have been executed by Joseph have been sold. That, before the filing of Stiles, Treasurer of Logan county, 0. T., on this suit, the plaintiff, through her duly aubehalf of Oklahoma Territory and purporting thorized agent, tendered to the defendant all to convey said real property unto the Bank taxes, interest, penalties, costs, expenses, and of Indian Territory. That, at a subsequent charges against said real property, and asked time, to wit, November 11, 1897, the Bank for possession and a quitclaim deed from deof Indian Territory executed a written instru- fendant to plaintiff, which said tender was ment, quitclaiming all its rights, title, and refused, and possession denied, and quitclaim interest in and to the said real property, and deed not given, and plaintiff now tenders in purported to convey some right, title, and in- open court all taxes, interests, penalties, costs, terest in and to the said real property unto charges, and expenses chargeable against said the defendant herein. That the defendant real property which may be due and owing has the same pretended title as held by the to said defendant. Wherefore plaintiff prays Said Bank of Indian Territory, and none that the pretended title of the defendant be other. True and certified copies of said writ- set aside and canceled ; that the plaintiff be ten instruments, together with all indorse- given the possession of said real property ; for ments thereon, are hereto attached, marked such other further and general relief as may Exhibits A and B, respectively, and made a be just, and for the cost of this action, part hereof. That said written instrument [Signed] Vintoyne and Jones, Attys. for marke Exhibit A purports to be a tax deed. Plaintiff'." That said written instrument is illegal and
Exhibit A: void, and of no legal effect, and conveys to
“(15) All of lot numbered one (1), in Said defendant no right, title, or interest in
block numbered eighty-four (8+), in that or to said real property. That said written
portion of the city of Guthrie formerly known instrument is void on its face, and of no legal
as 'Guthrie Proper,' according to the recordeffect, and conveys no right, title, or interest
ed' plat thereof. (16) All of lot numbered in or to said real property unto said defend
two (2), in block numbered eighty-four (84), iunt. for that said written instrument recites
in that portion of the city of Guthrie formthat, at a tax sale held in Logan county, said
erly known as 'Guthrie Proper,' according to real property was 'offered for sale and bid
the recorded plat thereof. Each of said lots off by the county treasurer of said county,'
or parcels of land being situated in the and does not recite that there were no other bidders for said real property, and does not
county of Logan, in the territory of Okla
homa, was severally subject to taxation for recite that the said real property was bid in for the county in the absence of other
the year A. D. 1892. And whereas, the taxes
assessed upon each of said several tracts, bidders, and does not recite that it was bid
parcels, and lots of real property, respectivein for the use and benefit of Logan county.
ly, for the year aforesaid, remained due and That said written instrument is void on its
unpaid and were returned delinquent at the face and of no legal effect in that said written
date of the sale hereinafter mentioned, for instrument recites that the certificates of tax sale were made to, and in the name of, the
nonpayment of taxes, costs, and charges for
the year 1892; and whereas, the treasurer treasurer of Logan county, and does not recite that said certificates of purchase were
of said Logan county did, on the 7th day of made to and in the name of Logan county.
September. A. D. 1893, by virtue of the That said written instrument is void and il
authority in him vested by law, at the sale legal and of no legal effect for that interest,
begun and publicly held on the first Monday penalties, costs, and expenses were attached
in September, A. D. 1893, expose to public to, and charged against, said real property be
sale at the county seat of said county, at fore the taxes for the year 1892 were delin
the treasurer's office in said county, in subquent, said taxes, together with said interest,
stantial conformity with all the requisitions penalties, costs, and expenses being the taxes
of the statute in such case made and providfor which said real property purports to
ed, offering separately each of the said have been sold. That said written instru- several parcels, tracts, and lots, as in the ment is void and illegal and of no legal
regular course of said sale it was reached effect, and conveys no right, title, or interest
in its turn, at public auction, the real propin or to said real property unto the said erty above described, for the payment of the defendant for that a separate school tax was taxes, interest, and costs then due and relevied and charged against said real prop- maining unpaid upon each of the said parcels, erty for the year 1892, for which said tax tracts and lots of real estate, respectively ; said real property purports to have been sold. and whereas, at the place aforesaid, neither That said written instrument is voidl and il- of the said parcels, tracts, or lots of property legal and of no legal effect, and conveys no could be sold for the amount of taxes and right, title, or interest in or to said property charges thereon, and each of them was sev