. (Additional Syllabus by Editorial Staff.) Section 4732, Revised Laws 1910, known as the Lis Pendens Statute, was enacted for 3. CoUNTIES 1-DEEDS 84-"COUNTY" the express purpose of preventing one from AND "RECORDING DISTRICT" DISTINGUISHED. buying real property during the pendency of an action involving the title to the same. This section is applicable to the case at bar. The plaintiff was concluded by the judgment in the original action. His grantor conveyed him nothing by her deed, because she had nothing to convey. The amended petition does not state a cause of action, and the judgment of the trial court should be affirmed. PER CURIAM. Adopted in whole. (60 Okl. 53) WHITEHEAD v. GALLOWAY et al. (No. 4214.) (Supreme Court of Oklahoma. Dec. 21, 1915.) (Syllabus by the Court.) 1. DEEDS 84 VENDOR AND PURCHASER 231-REGISTRATION OF TITLE-VALIDITY AND EFFECT. Prior to the 21st day of June, 1906, the Southern judicial district of the United States A "county" is distinguished from a "recording district," in that it is a political subdivision of the state, established for the more convenient administration of the government therewelfare and protection of the public within its of, and is vested with powers necessary to the boundaries, while a "recording district" is not a governmental or political division and has no such powers as has a county. Cent. Dig. § 1; Dec. Dig. 1; Deeds, Cent. [Ed. Note.-For other cases, see Counties, Dig. §§ 222-224; Dec. Dig. 84. For other definitions, see Words and Phrases, First and Second Series, County.] Commissioners' Opinion, Division No. 5. Error from District Court, Carter County; S. H. Russell, Judge. Action by James E. Whitehead against James O. Galloway and others. Judgment for the defendants, and the plaintiff brings Affirmed. error. James E. Whitehead, of McAlester, pro se. Court for the Indian Territory was an organ-H. A. Ledbetter, of Ardmore, for defendants ized judicial district with a judge, clerk, and in error. other court officers and had been divided into recording districts. On that day the President approved an act of Congress creating a new recording district to be known as the Twenty-ed Ninth recording district, with Duncan as the place fixed for holding court and maintaining the clerk and ex officio recorder's office. Held, that the creating act of Congress ipso facto established the recording district, and that no subsequent organization was necessary, and, that after that date a deed to land in that district, even before the clerk and ex officio recorder's office had been opened in the district for the transaction of business, should properly have been filed in the recorder's office at Duncan in the newly established district, and not in the office of the old district in which the land thereby conveyed had formerly been located. [Ed. Note.-For other cases, see Deeds, Cent. 2. DEEDS 84-VENDOR AND PURCHASER EFFECT. A new recording district known as the Twenty-Ninth recording district was, on the 21st day of June, 1906, by an act of Congress approved on that day, created in the established and organized Southern judicial district of the United States Court for the Indian Territory out of territory formerly comprised within what was known as Twentieth recording district. A deputy clerk and ex officio recorder was not appointed and qualified until the 30th of June of that year, and did not open his office for the transaction of business until the 7th of the following July. On the 27th of June, 1906, W. procured a deed to land then located in the newly created Twenty-Ninth district but formerly located in the old Twentieth district, and on the 28th day of June filed the same for record in the office of the ex officio recorder at Ryan in the old Twentieth recording district. Held, that such registration did not convey constructive notice of W.'s deed to subsequent purchasers of the land, for value and without notice. [Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 222-224; Dec. Dig. 84; Vendor and Purchaser, Cent. Dig. §§ 43, 55, 487, 513-539; Dec. Dig. 231.] WILSON, C. Plaintiff in error commençhis action in the lower court against the defendants in error to recover possession of certain land in Carter county, Okl., alleging, substantially, in his petition that on June 27, 1906, by deed of that date, he derived his title from one Wilburn Adams, a Choctaw Indian whose restrictions on the alienation of said land had been removed; that his deed thereto had been duly and legally recorded; that since said date he has been the owner of and entitled to the possession of said land; that thereafter his grantor, Wilburn Adams. deeded said land to the defendant in error James O. Galloway; that Galloway and wife thereafter deeded the land to defendant in error Winfield S. Pressgrove, who later mortgaged it to the Travelers' Insurance Company by executing two mortgages thereon; and that one of said mortgages was afterwards assigned to the Atkinson, Warren & Henley Company. The defendants in error urged as their defense that they were purchasers of said land in good faith, for value, without notice of plaintiff's deed; that plaintiff was never in possession of said land; and that the deed on which plaintiff relies was not recorded in the Twenty-Ninth recording district of the Southern judicial district of the Indian Territory in which said land was situated at the time he acquired his title thereto. The plaintiff, however, contended that his deed was on record in the Twentieth recording district of said judicial district, and that at the time he purchased said land and placed his deed on record the land was located in the Twentieth recording district. The case went to trial in the lower court on an agreed statement of facts, which was, in substance, as follows: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "That the land in controversy was allotted to Wilburn Adams on the 5th day of April, 1904, as a part of his surplus allotment, and that patents were issued and recorded in compliance with law. That on December 8, 1905, the restrictions on the alienation thereof were removed by the Secretary of the Interior. That on June 27, 1906, Wilburn Adams made and delivered to the plaintiff his warranty deed to said lands, and that said deed was filed for record in the office of the Twentieth recording district at Ryan, Ind. T., on the 28th day of June, 1906. That on November 16, 1906, James O. Galloway procured a deed to said land from said Wilburn Adams and his wife, and recorded the same on the 22d day of November, 1906, in the office of the Twenty-Ninth recording district at Duncan, Ind. T. That on December 24, 1906, said Galloway and his wife deeded said land to Winfield S. Pressgrove and his wife, who recorded the deed in the office of the Twenty-Ninth recording district. That afterwards said Pressgrove and his wife gave two mortgages on said land to the Travelers' Insurance Company, which later assigned one of the mortgages to the defendant in error the Atkinson, Warren & Henley Company, again comes up for consideration on plaintiff in error's motion for a rehearing. While we are satisfied that our conclusions reached in the former opinion were correct, yet the brief in support of the motion for a rehearing convinces us that our reasoning was, in part, faulty, and we therefore withdraw that opinion, and submit this one in lieu thereof. [1, 2] The question for this court to determine is: What was the legal effect of the filing for record in the office of the ex officio recorder in the Twentieth recording district of plaintiff's deed to the land in controversy after the Twenty-Ninth recording district had been established by act of Congress but before the deputy who was to have charge of the office in that district had been appointed and the office in the new district actually opened for business; the land conveyed being located in the new district? If the plaintiff's deed was properly filed in and that said mortgages and assignment were recorded in the Twenty-Ninth recording district. the Twentieth (Ryan) district, the plaintiff That on June 21, 1906, the President of the should have recovered; but, if it should have United States approved an act of Congress been filed in the newly created Twenty-Ninth which was as follows: "That in addition to the can. places now provided by law for holding courts (Duncan) district, the judgment of the lower in the Southern judicial district of Indian Ter-court was right and should be affirmed. ritory court shall be held in the town of Duncan, Plaintiff in error argues very ably in his and all laws regulating the holding of the court of the Indian Territory shall be applicable to brief that the facts of this case are analosaid court hereby created in said town of Dun- gous to those of a case where land theretoThat the territory next hereinafter de- fore embraced within a certain county had scribed shall be known as recording district been conveyed after an act had been passed number twenty-nine (then describes territory within which the land in controversy is located), transferring it into a newly established counand the place of recording and holding court in ty, but before the new county had been said district shall be Duncan.' That prior to actually organized, and that, although the the passage of the above-mentioned act of Congress the lands involved in this action were sit-act creating the Twenty-Ninth recording disuated in the Twentieth recording district of the trict had been passed by Congress and apIndian Territory, commonly known as the 'Ryan proved by the President, his deed was propdistrict,' and that said lands were included in the above-mentioned act of Congress and consti- erly filed in the recording office at Ryan in tuted a part of the Twenty-Ninth recording dis- the Twentieth district, and constructive notrict. That on the 30th day of June, 1906, C. tice of his title to the land in controversy M. Campbell, who was then clerk of the United thereby given to the defendants, for the reaStates Court for the Southern Judicial District of the Indian Territory, appointed and des- son that the Twenty-Ninth recording dis ignated C. N. Jackson as deputy clerk, whose trict had not been organized at the time the appointment was on the same day approved by deed was filed in the office at Ryan, by the the judge of said court. That on the same day he took the oath of office and filed his official appointment and qualification of an ex officio bond as deputy clerk of the court. That said recorder for such recording district and an C. N. Jackson's appointment was the first and office opened for business therein in which only appointment ever made as deputy clerk and such deed could have been filed at the time ex officio recorder for the Twenty-Ninth recording district. That said Jackson arrived at Dun- it was in fact filed in the Ryan office in the can and opened his office on the 7th day of July, Twentieth district. 1906, and that prior to said 7th day of July, 1906, no office had been maintained in the Twenty-Ninth recording district of the Indian Territory. That from the time said Winfield S. Pressgrove took the conveyance to said land on December 24, 1906, he has been in actual possession of the same. That if plaintiff recovers he shall be entitled to $60 a year for five years, or $300, as rents for the years plaintiff has been withheld from the possession of the land, as against the defendant Winfield S. Pressgrove." Upon the trial of the case the court below rendered judgment for the defendants and against the plaintiff, from which judgment, and from the order of the court overruling his motion for a new trial, plaintiff appeals the case to this court. The judgment in this case was once affirm The case sustaining plaintiff in error's contention which is most nearly in point is that of Lumpkin v. Muncey, reported in 66 Tex. 311, 17 S. W. 732. The Texas case above referred to is not in point, however, for the reason that the establishment of the TwentyNinth recording district in the Southern judicial district of the Indian Territory was not the establishment of such a governmen tal subdivision as a county which could not exist in fact until its governmental machinery had been created and set in operation by some other method than the creative act of the Legislature which designated the territory to be contained therein and authorized its organization. was the recording of a deed to lands located within its territorial boundaries which had been executed after such a recording district had been established by act of Congress. It was very similar to a district court judicial district in the state of Oklahoma. Such a judicial district does not have to be organized. It is not a political subdivision and has no powers. The court which sits within it has to be organized, but the district, itself, does not, for it is not a political entity of any character. county is created in whole or in part of things which should have been done therein lands originally comprised within the limits of an old county, and subsequent to the formation of a new county a deed is executed to lands therein which were formerly within the old county, the recording of such deed in the old county is not effective as against a subsequent purchaser, in good faith, without notice of the former deed. Astor v. Wells, 4 Wheat. 466, 4 L. Ed. 616; Green v. Green, 103 Cal. 108, 37 Pac. 188; Garrison v. Haydon, 1 J. J. Marsh. (Ky.) 222, 19 Am. Dec. 70. It is likewise true, as contended by plaintiff, that acts of the Legislature which create new counties do no more than to provide for their organization, and until the new county is actually organized the territory to be incorporated therein remains subject to the jurisdiction of the old county from which it was carved. O'Shea v. Twohig, 9 Tex. 336. At the time the congressional act creating the Twenty-Ninth recording district (June 21, 1906, c. 3504, 34 Stat. at Large, 343) was approved by the President, the Southern judicial district of the United States Court for the Indian Territory had been created and had a judge, clerk, and other officers of the court, and had been subdivided into record Plaintiff, however, fails to observe the dis-ing districts, and the act referred to created tinction between a county and a recording district as such districts existed in the Indian Territory prior to statehood. the new recording district and designated Duncan as the town therein at which the sessions of the federal court should be held in that district and at which the recorder should maintain his office. The very instant the Twenty-Ninth recording district was created by act of Congress, it was, by operation of law, supplied with an officer, the clerk of the court of the Southern judicial district of the United States Court for the Indian Territory, and the act creating it designated the place at which the duties of the recorder should be perland therein situated which were executed formed, to wit, at Duncan, and deeds to after its creation should have been recorded at Duncan, because the federal statutes prescribing where such deeds should be recorded expressly said so. Certain acts of Congress created "recording districts" in the Indian Territory, for recording purposes, in lieu of counties, and the particular act of Congress approved June 21, 1906, creating the Twenty-Ninth district, was set out in the agreed statement of facts in this case in the court below and is, in part, quoted above. [3] A "county" is a political subdivision of the state, established for the more convenient administration of the government thereof, and is invested with such powers as are necessary to be exercised for the welfare, advantage, and protection of the public within its boundaries. 7 R. C. L. tit. Counties, § 2. A "county" is a governmental subdivision; a quasi corporation; an intangible entity having powers. A mere statutory authorization for the organization of a county does not create a county. A county cannot exist without having first been organized. Until it has been organized it has not attained the dignity of even a quasi public corporation. It is not an intangible entity. It is not a county, and that is the reason why territory authorized by legislative enactment to be carved from an existing county and a new county created therefrom remains under the jurisdiction of the mother county until its quasi municipal organization has been, in fact, effected, and that is the reason why a deed to land within such a proposed new county, executed after the Legislature has authorized its creation but before its organization as a quasi municipal subdivision of the state, must, if filed for record before the county organization is effected, be filed in the old county. Such was not the case, however, with a recording district in the Indian Territory. A recording district was not a governmental or political subdivision. It was not a quasi public corporation. It was not a political or governmental entity of any character. It had no "powers" as a county has, and no organization was necessary for the purpose for which it was established by Congress. It was simply a territorial area, The act of Congress approved June 21, the boundaries of which were established by 1906, defined the boundaries of recording Congress and within which certain things district No. 29, and no further organization should or must be done, and one of the thereof was necessary. The statutes in force By the act of Congress of February 19, 1903, chapter 27 of Mansfield's Digest of the Statutes of Arkansas was extended in force in the Indian Territory in so far as the same was applicable and not inconsistent with the laws of Congress. Fed. Stat. Anno. vol. 10, 130, Act Feb. 19, 1903, c. 707, 32 Stat. at L. 841. Section 671 of Mansfield's Digest, in force in the Indian Territory at the time, provided that no deed should be valid as against a subsequent purchaser of the land thereby conveyed, unless the same was recorded in the county where the land was situated, unless the subsequent purchaser had notice of such deed. replevin by A. to recover the stock of goods from the attaching officer as the owner thereof is not a ratification of the act of the agent in taking a bill of sale of such goods to himself and disposing or attempting to dispose of the same as his own. Agent, Cent. Dig. §§ 474-489; Dec. Dig. in the Indian Territory at that time express-him by a writ of attachment at the suit of a ly provided that deeds should be recorded creditor of such agent, held, that an action in in the district in which the land thereby conveyed was situated at the place of holding court (32 Stat. at Large, 841), and as at the time the plaintiff's deed to the land in controversy was executed and delivered the land was located in the Duncan district, which had been established by the act of Congress approved June 21, 1906, said deed should properly have been recorded at the Duncan office in the Twenty-Ninth recording district, and its being recorded in the Ryan office in the Twentieth recording district was not a compliance with the statute then in force governing the recording of such in-claiming under a pre-existing debt of the agent, struments. Of course, the fact that the clerk of the court was delayed in providing the district with a resident deputy and ex officio record 2. PRINCIPAL AND AGENT 137 OWNERSHIP OF CHATTELS. An owner of chattels is not estopped from that his agent has taken a bill of sale of the asserting his right thereto by reason of the fact same, and has held himself (the agent) out as the owner thereof against an attaching creditor where such creditor has parted with nothing of value, and has not been led to change his position to his prejudice upon the faith of such claim of ownership by the agent. [Ed. Note. For other cases, see Principal and 137.] 3. TRIAL 252-REFUSAL OF INSTRUCTIONS. er, and with the necessary records and quar-Agent, Cent. Dig. §§ 387-389, 4722; Dec. Dig. ters, was an inconvenience to the plaintiff in error, but that fact could not justify him in concluding that the district had not been organized and that the land included in his deed and in controversy in this action continued to remain a part of the Twentieth recording district. We conclude that the act of Congress approved June 21, 1906, ipso facto created and established the Twenty-Ninth recording district of the Southern judicial district of the United States Court for the Indian Territory; that instruments conveying the title to land within the boundaries of that district executed after that date should have been filed in the office of the recorder at Duncan; and that the act of the plaintiff in error in filing his deed to the land in controversy in the office of the recorder at Ryan in the Twentieth recording district was not such an act as conveyed to or charged the defendants in error with notice of plaintiff in error's deed to the land in controversy. Finding no error in the case, we therefore recommend that the judgment appealed from be affirmed, and that the opinion heretofore filed in this case be withdrawn, and this opinion substituted therefor. PER CURIAM. Adopted in whole. (54 Okl. 55) BOUQUOT et al. v. AWAD. (No. 4946.) (Supreme Court of Oklahoma. Dec. 14, 1915.) (Syllabus by the Court.) 1. PRINCIPAL AND AGENT 169-UNAUTHORIZED ACTS OF AGENT - RATIFICATION - REPLEVIN. Where A. intrusts an agent with a deed to his real estate, with the name of the grantee in blank, authorizing him to sell such land for cash or to trade it for other real estate, and the agent causes the name of B. to be filled in the deed, delivers the deed to B., takes in consideration therefor a bill of sale to himself of a stock of goods, goes into possession thereof, and sells and disposes of such goods as his own without the knowledge of A. until the stock is taken from Instructions given and refused examined, and the action of the trial court in giving and refusing such instructions held to be free from reversible error. Dig. 88 505, 596-612; Dec. Dig. 252.] 4. JUDGMENT 951- RENDITION - PROOF- A precedent for a journal entry of a judgment signed by the judge and filed in the cause held not competent evidence of the rendition of the judgment. [Ed. Note.-For other cases, see Judgment, Cent. Dig. 88 1808-1812; Dec. Dig. 951.] Some time in the year 1910 the defendant in error, hereinafter called the plaintiff, being the owner of 160 acres of land in Ellis county, executed a warranty deed conveying said land, leaving blank the name of the grantee therein, and delivered the same to one Chas. Awad, sometimes known as Chas. Messey, with authority to sell the said land for cash for the sum of $1,200 or $1,500, or to trade the same for other land nearer Oklahoma City, and with authority to fill in the name of the grantee in the blank left for that purpose when a sale or trade was consummated. The plaintiff then left the state of Oklahoma, and some time thereafter Chas. Awad, or Messey, traded the said land to one Frank Beers for a stock of secondhand furniture, hardware, and other goods situated in the city of Woodward, Okl., caused Beers' name to be filled in the blank in the deed, delivered the deed to Beers, and took a bill of sale to the stock of goods to himself. This appears to have been done about December 5, 1910. Thereafter Chas. Awad, or Messey, took possession of the stock of goods and conducted the business in his own Awad, whom he was paying and has paid the sum of $2 per day for six days during which time the said Chas. Awad was prevented from rendering service by reason of the attachment of defendants. Plaintiff testified at the trial that he knew nothing of the trade made by Chas. Awad for the stock of goods until he arrived at Woodward in response to a telegram from Chas. Awad, and that he then tried to rescind the trade without avail, and, after finding such rescission could not be made, he brought this action of replevin to take the stock of goods from the possession of the sheriff in whose hands they were when he arrived at Woodward. name. Some time before December 24, 1910, | ber, 1910, he had in his employ one Chas. this Chas. Awad, or Messey, under the name of Charlie Owad, advertised an auction sale of the stock of goods to be held on December 24th. Thereupon the defendant the Howard Mercantile Company, a corporation, being the owner and holder of three notes executed by Chas. Owad to the Howard Mercantile Company, dated respectively May 27, October 30, December 24, 1909, and maturing respectively December 1, 1909, February 1, 1910, and December 1, 1910, began suit in the district court of Woodward county against said Chas. Owad, and caused a writ of attachment to be issued in said suit and levied upon the stock of goods above mentioned. Chas. Owad then telegraphed to [1] Under the first heading of the brief the plaintiff to come to Woodward; and in of defendants embracing their first, second, response to such telegram the plaintiff came third, fourth, and fifth assignments of error, to Woodward, and then learned for the first counsel for defendants argue at some length time that Chas. Owad had delivered plain- and with considerable ingenuity that the tiff's warranty deed to the land to Beers in plaintiff by bringing this action of replevin exchange for the stock of goods, to which thereby ratified the 'trade made by Chas. he had received a bill of sale in his (Chas. Awad in its entirety; not only that he ratiOwad's) own name. Plaintiff then endeavor-fied the delivery of the deed and the conveyed to get Beers to agree to a rescission and deed him back the land in Ellis county and take back the stock of goods. This Beers refused to do, and thereupon plaintiff brought suit against John J. Bouquot, plaintiff in error, in which suit the other plaintiffs in error, hereinafter styled the defendants, eventually became parties, and caused a writ of replevin to issue to recover possession of the stock of goods held by the defendants, and also sought in such suit to recover damages for the detention of the stock of goods and for loss of profits by reason of the prevention of the sale advertised for December 24, 1910. At the trial plaintiff recovered judgment awarding him possession of the stock of goods and the sum of $1 as damages. In due time the defendants filed a motion for new trial, which being overruled, they excepted, and bring this appeal. Hoover & Swindall, of Woodward, for plaintiffs in error. Chas. R. Alexander, of Woodward, for defendant in error. RUMMONS, C. (after stating the facts as above). Counsel for defendants in their brief assign 23 grounds of error as cause for a reversal of the judgment of the trial court. These assignments are grouped under 12 heads. We will consider these assignments as nearly in the order presented as we can in determining this case. Plaintiff in his petition alleges that on the 24th day of December, 1910, he had the goods and chattels which he seeks to recover in a certain store building, and was preparing and had been preparing to make a special sale thereof, as a Christmas sale, at public auction, and that he was prevented from holding said sale because of the attachment of defendants. He also alleges that on said 24th day of Decem153 P.-70 ance of the land to Beers, but also ratified the act of Beers and Chas. Awad in giving and taking a bill of sale to the stock of goods in the name of Chas. Awad and the taking possession by said Chas. Awad of said stock of goods and selling and disposing of the same for his own benefit. Counsel also seek to show by the allegations of the petition of plaintiff above referred to, which they claim are wholly inconsistent with his testimony that he ratified in toto all the actions of Chas. Awad in the premises. We cannot agree to the soundness of the contention of defendants. Plaintiff by seeking to recover possession of the stock of goods as the owner thereof unquestionably ratified the conveyance of the land to Beers, which question is not involved in this case; but it cannot be said that he thereby ratified the act of his agent, Chas. Awad, in taking the stock of goods in his own name and disposing of it or attempting to dispose of it as his own property. The very fact that he brought this replevin suit seeking to recover possession of this stock of goods as the owner thereof, and his ratification rests solely upon that fact, refutes any claim that he thereby intended a ratification of the act of Chas. Awad in taking for himself this stock of goods; for, if he ratified the transaction in its entirety and intended for Chas. Awad to have the stock of goods for his own, his replevin action would be without foundation, and he would have no claim or right to recover therein. It is apparent from the evidence in the record, which does not seem to be disputed, that Chas. Awad made the trade in violation of his instructions, and undertook to cheat and defraud his principal out of the stock of goods. He never acquired any title to the stock of goods by his wrongful acts, but during the whole transaction |