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to see where there was any error committed. The main proposition argued under this head by counsel for plaintiff in error is that there was no proof that the defendant was a wholesale liquor dealer. The record certainly contains proof. The weight of the evidence was for the jury. The evidence being competent, it was for the jury to determine whether or not it was sufficient. The statements made by the defendant of the amount of liquor sold by him, which are claimed to have been extrajudicial and therefore insufficient upon which to base a conviction, are only a part of the evidence introduced. While it is true that a conviction can never be had upon extrajudicial expressions alone, yet such evidence is competent, and, taken together with other competent evidence, may be sufficient upon which a jury may base a verdict of guilty. The authorities cited by counsel upon this prop osition are, therefore, not in point here, because, in the cases cited, or most of them, the verdict was based entirely and alone upon the extrajudicial statements or expressions made by the defendant. Such is not the case here.

Much of the testimony that was objected to was competent for the purpose of proving the motive of the defendant, and while perhaps some of it was not competent for any other purpose, yet the motive in this case was a material question, and one which the government had a right to establish. Besides all this, the defendant, when upon the witness stand, testified in his own behalf, and there made statements from which we think the jury could well conclude that he had been a wholesale liquor dealer at the time charged as the date of the offense for which he was being tried.

The remaining errors complained of arise upon the instructions given by the court. After a careful examination of these instructions, we think they were as favorable to the defendant as he could ask. We find no error in them.

There is one remaining proposition which we deem it proper to notice. After the case had been given to the jury, they returned into court for further instructions, and, after receiving the necessary information from the jury, the court, in the presence of the defendant and his counsel, dictated to the stenographer one further instruction for the jury, at the time ordering the instruction reduced to writing. No objection was made or exception taken to this manner of instructing the jury, but it is now claimed that, inasmuch as the statute provides that all instructions shall be in writing, this method of giving an instruction, under the circumstances, was material error. Had the defendant at the time objected to the instruction being given in this manner, we have no doubt that the court would have handed to the jury the instruction properly prepared and written out. It would seem from

an examination of the entire record that the manner in which this instruction was given to the jury was perfectly satisfactory to all parties concerned, and the error was not preserved nor presented to the trial court for review by the motion for new trial. It is well settled by a long line of decisions, in states having statutes similar to ours, that it is error for the court to instruct the jury orally in a criminal case, some of the states holding that the rule prescribed by the statute is mandatory, and not directory. And, in California, it has been held that, where the jury was orally instructed by the court in explanation of a charge already given in writing, the defendant neither consenting nor objecting to the oral explanation, such method of instructing the jury was

error.

We see no error in the instruction as giv

The only error consists in the instruction not having been reduced to writing before it was given. It has been repeatedly held by this court that only those questions raised and preserved in the motion for new trial will be considered by this court on review. Therefore, while error exists, it is not a reversible one, nor is it one which we think affects the substantial rights of the defendant. This question has been passed upon by this court in the case of Frank Swaggart v. Territory, 6 Okl. 344, 50 Pac. 96, in which, after reviewing the entire subject, the court declined to reverse the judgment, holding that, although error appeared, the question not having been presented to the trial court in the motion for new trial, and it not being one which affected the substantial rights of the defendant, the error was not one which should work a reversal of the judgment.

Having carefully examined the entire record, and perceiving no material error therein. the judgment of the trial court is affirmed. It is ordered that the judgment of the district court be carried into execution.

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feet distant therefrom. Held, that the policy inIcluded the boiler house.

[Ed. Note. For cases in point, see Cent. Dig. vol. 28, Insurance, § 341.j

(Syllabus by the Court.)

Error from District Court, Logan County; before Justice Jno. II. Burford.

Action by the Guthrie Laundry Company against the Northern Assurance Company of London. Judgment for defendant, and plaintiff brings error. Reversed.

IIunt and Chappell, for plaintiff in error. Howard and Fulton, for defendant in error.

PANCOAST, J. This was an action brought in the district court of Logan county by the Guthrie Laundry Company against the Northern Assurance Company of London, to recover upon a policy of insurance, for loss by fire to property alleged to have been covered by such policy at the time of the fire. A stipulation in the policy as to the property covered is as follows: "One thousand dollars on their two-story basement and brick building, with metal roof, and its additions adjoining and communicating, including foundations, occupied as a steam laundry. **** The laundry was in the process of construction at the time the policy was written, also at the time of the fire, and consisted of a main building 51 by 100 feet in size and in the rear of that, about four feet distant, a boiler room 22 by 33 in its dimensions. A 21⁄2 inch steam pipe ran from the boiler house to an engine in the center of the main building, being the means by which the power was transmitted from the boiler to the other machinery employed in operating the laundry. The boiler house was joined or connected with the main building by means of framework of beams designated as 2 by 6's in the testimony, for an overhead archway, and also by a partially completed platform and sidewalk at the bottom; it being the intention to roof the archway over with brick, and there store material for use in the laundry work. The framework was constructed and in position for the platform or sidewalk running from the east door of the main building to the east door of the boiler house. Each structure had its separate walls, and there was no connection between the two, other than the steam pipe, and the framework above mentioned. Liability for the loss of the boiler room was denied on the ground it was not covered by the clause in the policy, above quoted. At the trial, after plaintiff below had rested its case, the assurance company demurred to that portion relating to the damage done to the boiler house, for the foregoing reason, which demurrer was sustained by the court, and the jury were instructed to confine their deliberations to the evidence of damage done the main building. To this the plaintiff below excepted. Verdict was for the plaintiff below for $20.

From an order overruling motion for new trial, the plaintiff in error has appealed.

* * *

The principle question raised in this appeal is whether the boiler house was, in view of the evidence, covered by the policy of insurance sued upon. Precedents involving similar questions are at hand. In the case of Pettit et al. v. State Ins. Co. (Minn.) 43 N. W. 378, the property described in the policy was "grain in St. Anthony elevator building while contained in the frame, ironclad, metal roof building, occupied for the storage and handling of grain, and known as the St. Anthony elevator." It appeared that the entire property was known as the St. Anthony elevator, and consisted of an engine house, with adjacent elevator containing all the elevating machinery in the establishment, and also an addition designated as "Annex A," in distinction from the building first described, which was called the "main elevator," or "main elevator building." "Annex A" and the main elevator building were about three hundred feet apart, being connected by two galleries supported by trestles, through which ran a belt conveying on its surface grain from the main elevator building into the "Annex A." The objection being ⚫urged that the grain located in "Annex A" was not included in the policy, the two being separate and distinct buildings, it was "Held that the grain in Annex A was included in the policy of insurance, describing it as being in the elevator * * * and the language used describing the elevator 'as a frame, ironclad, metal-roof building, occupied for the storage and handling of grain.' Held, equally applicable to the whole or either division of the elevator, and that if there is doubt or uncertainty as to the meaning of the policy, it must be resolved in favor of the assured." The case of Marsh v. Concord Mutual Fire Ins. Co., 71 N. II. 253, 51 Atl. 898, cited in the brief of plaintiff in error, is almost parallel to the one at bar. It involved the interpretation of an insurance policy written "on frame, metal-roof building and all additions thereto adjoining and communicating * * * occupied by the assured as a pail shop;" and construing this clause of the policy, Walker, J., comments upon the evidence adduced at the trial as follows: "The plaintiff was a pail manufacturer. He owned one large building and two small ones located a few feet away. All the buildings were used by him in the prosecution of his manufacturing business, and constituted his manufacturing plant. Each was a necessary part of the whole, which was 'occupied' by the assured as a pail shop or manufactory. The frame mill building was not used independently of the small buildings and without the additional buildings it did not constitute the pail shop. In view of the dependent uses of all the buildings in the manufacturing of pails, the word 'additions' was not an inappropriate designation of the two smaller ones, and

for the same reason the qualifying words, 'adjoining and communicating,' though perhaps unnecessary, were evidently intended to designate such additional buildings as were necessary appurtenances to the main building in the manufacture of pails. They were adjoining and communicating because they were within a few feet of and next to the mill building and because their common use in the business made it necessary that some communication or connection should exist between them and the mill building. The word 'communicating' alone does not convey a definite meaning. The context, purposes and circumstances in view of which it is used must be resorted to to determine its significance in a particular case. The fact that there was a movable bridge between the mill building and the dryhouse, as well as the fact that steam pipes made physical connection between all the buildings is evidence of some weight, though perhaps not alone sufficient, that the parties' intention when the contract was made was as above indicated. But any doubt that might remain upon the evidence thus far discussed is removed by the consideration that if the dryhouse and the boiler house are not the adjoining and communicating additions intended, this language can be given no force or significance, for there were no other buildings or additions to which it could refer. It is unreasonable to assume, except from necessity, that language used by parties in a written contract was not intended to express an intelligent idea, or that they employed language having no application or reference to the subjectmatter of the contract." Again, in the case of Home Mutual Ins. Co. of Cal. v. Roe (Wis.) reported in 36 N. W. 594, it appeared that the policy covered a planing mill "and additions," and that the shaft from the engine room furnished the motive power to the mill, and that the shavings from the mill were carried by machinery to the engine house; that these were the only connections between the two buildings, there being a roadway between; yet, in holding that the policy included the engine room and engine, the court say: "IIere it conclusively appears that the engine in the engine room was the only motive power for propelling any of the machinery in either of the buildings. The engine was used for no other purpose. is claimed that the engine room cannot be construed to mean an ‘addition' to the planing mill building, because it does not join directly upon the same; but, as we have seen, they were both essential to the completion of the mill. Thus the two buildings were not only connected, but the machinery inseparable, while the whole continued to be a planing mill. The words 'planing mill building' would seem to be broad enough to include the engine room."

It

A case decided by the Supreme Court of Minnesota (Cargill et al. v. Millers' & Mfrs.'

Mut. Ins. Co. of Minn., 22 N. W. 6), is in point, and we quote from the opinion in that case: "One of the questions in the case is whether the policy covered a warehouse standing near the elevator. The property insured is described in the policy as a 'steam power elevator building, and additions, with porches and platforms attached.' The warehouse stood within 2 feet of the elevator building, and was of about the same size as the elevator. The two were fastened together by strips of board, about 20 in number, nailed upon each building. The further fact is shown that the only means of entrance to the warehouse was by a window which was reached by a ladder, or by cleats nailed on the side of the building. The court below considered that the warehouse was covered by the policy. We concur in this construction. It was used as a part of the elevator, and was so connected with it, that in view especially of this use, it must be considered as having been intended by the parties to be included in the designation 'elevator building and additions.'" Other authorities to the same effect are: Gross et al. v. Milwaukee Mech. Ins. Co. (Wis.) 66 N. W. 712; Carpenter v. Allemania Fire Ins. Co., 156 Pa. 37, 26 Atl. 781; Phoenix Ins. Co. v. Martin (Miss.) 16 So. 417; Hannan v. Williamsburgh City F. Ins. Co., 81 Mich. 556, 45 N. W. 1120, 9 L. R. A. 127; Mausel v. Fire Ass'n of Phila.. 60 N. Y. Supp. 181; Liebenstein v. Baltic Fire Ins. Co., 45 Ill. 301. The reasoning of the cases cited, to which many more might be added, applies aptly to the facts in this case. Counsel for defendant in error elaborates with great minuteness his contention that the words. "adjoining and communicating" apply only to those structures actually touching or contiguous to the building first designated, but from the authorities cited and others we have investigated, we are led to the conclusion that the adjudicated cases wherein the application of language of similar import is determined do not uphold him in such refinement of construction. It conclusively appears that the boiler house contained the only motive power for propelling any of the machinery in either of the buildings, and was an integral part of the complete laundry. an essential to its proper conduct and operation, and so associated and connected with it that what we conceive to be the true interpretation of the policy cannot fail to include the boiler house within the terms thereof, and particularly within the general description of the property as "occupied as a steam laundry." As before stated, the motive power originated in the boiler house; was conveyed therefrom through a pipe 21⁄2 inches in diameter to an engine stationed in the center of the main building, an archway overhead had been completed so far as the framework was concerned; and a platform 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 two, as an entirety, was the subject-matter of the contract, intended to be covered by the policy, and in the contemplation of the parties as 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 hereinbefore 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 damage of the boiler house in question. Properly construed, the language of the clause above set out must be held to include the boiler house.

Having reached the conclusion, that error was committed in this respect, it is unnecessary to discuss other assignments of error. For the reasons given, the judgment of the court below is reversed.

BURFORD, C. J., who tried the case below, and BURWELL, J.. not sitting. All the other Justices concurring.

(17 Ok. 470)

JONES v. CARNES. (Supreme Court of Oklahoma. Sept. 7, 1906.) 1. EJECTMENT-PLEADING-DEMURRER.

Where, in an action of ejectment, the plaintiff sees fit, in setting forth the statutory requirements 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 pleaded will be considered in determining its sufficiency.

TAXATION-TAX DEED-RECITALS--REQUI

SITES.

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 deed, where such deed is based upon a tax sale to the county. Held that, where a tax deed recited. "Whereas, at the place aforesaid, neither of said parcels, tracts, or lots of property could be sold for the amount of taxes and charges thereon, and each of them was severally and in due 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 construction being directed by the statute.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 45. Taxation, §§ 1510-1513.] 3. PLEADING-CONCLUSIONS.

A petition which sets forth in general terms the fact that illegal interest, penalties, costs. and expenses were charged against real property sold for taxes, and that the deed was void because separate school taxes were assessed against

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, state 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. Note. For cases in point, sce Cent. Dig. vol. 39, Pleading, §§ 12-2816.]

4. TAXATION-GROUND FOR AVOIDING DEED.

A banking corporation. authorized under the laws of the territory of Oklahoma, may not engage in real estate speculations 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. M. 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 84, in the city of Guthrie, O. 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, O. T. M. M. Jones v. Ananias Carnes. Petition. The above-named plaintiff, M. M. Jones, complains of the above-named defendant, Ananias Carnes, 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, O. T.. to wit: Lots numbered one (1) and two (2) in block number eighty-four (84) in the city of Guthrie, Logan county, O. T., and in that part of said city of Guthrie commonly known as Guthrie Proper,' same being part and parcel of the east one-half of section eight (8), in township sixteen (16) north, of range two (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 Proper, part and parcel of above-described real property, and had a right to redeem said property. That prior to and on November 5, 1895, the date the pretended tax deed hereinafter mentioned was issued, George B. Blubaugh was the owner of lot two (2) in block eighty-four (84) 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

plaintiff. That said defendant is so in possession of said real property and claiming to be the owner thereof adversely to this plaintiff under and by virtue of a certain written instrument bearing date of November 5, 1895, purporting to have been executed by Joseph Stiles, Treasurer of Logan county, O. T., on behalf of Oklahoma Territory and purporting to convey said real property unto the Bank of Indian Territory. That, at a subsequent time, to wit, November 11, 1897, the Bank of Indian Territory executed a written instrument. quitclaiming all its rights, title, and interest in and to the said real property, and purported to convey some right, title, and interest in and to the said real property unto the defendant herein. That the defendant has the same pretended title as held by the said Bank of Indian Territory, and none other. True and certified copies of said written instruments, together with all indorsements thereon, are hereto attached, marked Exhibits A and B, respectively, and made a part hereof. That said written instrument marked Exhibit A purports to be a tax deed. That said written instrument is illegal and void, and of no legal effect, and conveys to said defendant no right, title, or interest in or to said real property. That said written instrument is void on its face, and of no legal effect, and conveys no right, title, or interest in or to said real property unto said defendant. for that said written instrument recites that, at a tax sale held in Logan county, said real property was 'offered for sale and bid off by the county treasurer of said county,' and does not recite that there were no other bidders for said real property, and does not recite that the said real property was bid in for the county in the absence of other bidders, and does not recite that it was bid in for the use and benefit of Logan county. That said written instrument is void on its face and of no legal effect in that said written instrument recites that the certificates of tax sale were made to, and in the name of, the treasurer of Logan county, and does not recite that said certificates of purchase were made to and in the name of Logan county. That said written instrument is void and illegal and of no legal effect for that interest. penalties, costs, and expenses were attached to, and charged against, said real property before the taxes for the year 1892 were delinquent, said taxes, together with said interest, penalties, costs, and expenses being the taxes for which said real property purports to have been sold. That said written instrument is void and illegal and of no legal effect, and conveys no right, title, or interest in or to said real property unto the said defendant for that a separate school tax was levied and charged against said real property for the year 1892, for which said tax said real property purports to have been sold. That said written instrument is void and illegal and of no legal effect, and conveys no right, title, or interest in or to said property

unto the said defendant for that 'a special tax (city),' was levied and charged against said real property. for the year 1892 and said 'special tax (city),' made a part of the taxes for which said real property purports to have been sold. That, before the filing of this suit, the plaintiff, through her duly authorized agent, tendered to the defendant all taxes, interest, penalties, costs, expenses, and charges against said real property, and asked for possession and a quitclaim deed from defendant to plaintiff, which said tender was refused, and possession denied, and quitclaim deed not given, and plaintiff now tenders in open court all taxes, interests, penalties, costs, charges, and expenses chargeable against said real property which may be due and owing to said defendant. Wherefore plaintiff prays that the pretended title of the defendant be set aside and canceled; that the plaintiff be given the possession of said real property; for such other further and general relief as may be just, and for the cost of this action. [Signed] Mintoyne and Jones, Attys. for Plaintiff."

Exhibit A:

"(15) All of lot numbered one (1), in block numbered eighty-four (84), in that portion of the city of Guthrie formerly known as 'Guthrie Proper,' according to the recorded' plat thereof. (16) All of lot numbered two (2), in block numbered eighty-four (84), in that portion of the city of Guthrie formerly known as 'Guthrie Proper,' according to the recorded plat thereof. Each of said lots or parcels of land being situated in the county of Logan, in the territory of Oklahoma, was severally subject to taxation for the year A. D. 1892. And whereas, the taxes assessed upon each of said several tracts, parcels, and lots of real property, respectively, for the year aforesaid, remained due and unpaid and were returned delinquent at the date of the sale hereinafter mentioned, for nonpayment of taxes, costs, and charges for the year 1892; and whereas, the treasurer of said Logan county did, on the 7th day of September. A. D. 1893, by virtue of the authority in him vested by law, at the sale begun and publicly held on the first Monday in September, A. D. 1893, expose to public sale at the county seat of said county, at the treasurer's office in said county, in substantial conformity with all the requisitions of the statute in such case made and provided, offering separately each of the said several parcels, tracts, and lots, as in the regular course of said sale it was reached in its turn, at public auction, the real property above described, for the payment of the taxes, interest, and costs then due and remaining unpaid upon each of the said parcels, tracts and lots of real estate, respectively; and whereas, at the place aforesaid, neither of the said parcels, tracts, or lots of property could be sold for the amount of taxes and charges thereon, and each of them was sev

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