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timony is admissible as between the original parties for the
purpose of showing the true intent and meaning of the parties.
First Nat. Bank of Ada v. Womack ..,
13. Examination of Experts-Physicians-Personal Injuries. A phy
sician's testimony that certain ligaments were ruptured held not
incompetent, where it was based on his personal examination and
knowledge of the injuries received by plaintiff. Muskogee Elec.
Traction Co. v. Bryant.....
14. Same. A physician's testimony based on the fact that plaintiff was
a fleshy woman held not objectionable on the ground that there
was no evidence that she was fleshy where she was present at the
trial and the jury could see her. Idem...
EXCEPTIONS-See "Appeal and Error," 1-6; "Trial," 6.
EXCHANGE OF PROPERTY:
Rescission of Contract-Fraud-Sufficiency of Evidence. Evidence, in
an action to rescind, for fraud in procuring same, a written con-
tract of exchange of properties, held to sustain findings for de
fendant. Coley v. Dore..
EXECUTION-See "Homstead" ; "Indians," 2.
1. Enforcement of Judgment—Sufficiency of Service. Where, in a suit
to enjoin enforcement of a judgment, it appears that, though
the return is incomplete, the service was good, the return may
be considered as amended and relief denied. M. Rumely Co.
2. Same-Service on Corporation. Under Rev. Laws 1910, sec. 4881, the
enforcement of a judgment rendered without service on officer
or agent of a corporation pursuant to sec. 4715, or appearance
being made, will be enjoined. Idem. .
EXEMPLARY DAMAGES-See “Carriers" ; "Damages."
EXEMPTIONS- See “Homestead" ; "Indians," 2; "Taxation."
EXPERTS---See “Appeal and Error," 37; “Evidence,' 13, 14.
FEDERALSee "United States."
FINDINGS-See "Appeal and Error." 25-31 ; "Justices of the Peace." 5.
FIRE INSURANCE-See "Insurance."
FOREIGN CONTRACTS-See "Courts."
FORFEITURES AND PENALTIES-See “Usury."
FRAUD-See "Carriers"; "Exchange of Property"; "Judgment,” 3;
“Landlord and Tenant" ; "Trial,” 7, 8; “Vendor and Purchaser."
1. Defense-Credulity of Defrauded Party. One cannot take advan-
tage of the fact that another has too confidently relied on the
truthfulness of his statement. Stevens v. Reilly ....
2. Same-Action Against Real Estate Brokers for Damages. In a pur-
chaser's action against real estate agents for damages from
fraudulent representations as to the price asked by the owner, de-
fendants could not set up that plaintiff was cheated and de-
frauded as the result of his own negligence and credulity in
failing to make further inquiry as to the price. Idem ......
3. Same. In an action for damages from fraudulent representations.
it is no defense that plaintiff, by using ordinary care and dili-
gence, might have discovered the fraud. Idem. ...
4. Same-Amount of Recovery. In a purchaser's action against a real
estate broker for damages from fraudulent representations as
to the price asked by the owner, held that plaintiff was entitled
to recover the excess pocketed by defendant, less the usual com-
mission for making the sale. Idem...
5. Evidence-Sufficiency-Instructions. In action for fraud and de-
ceit by which value of corporate stock of plaintiff was destroyed.
where there was evidence of promises and representations by
defendants on which he relied and which were untrue. per-
emptory instruction for defendants was error. Harbison v. White
FRAU'DS, STATUTE OF:
Operation of Oral Contracts-Part Performance. The provisions of the
statute of frauds have no application where the agreement has
been completely performed as to the part thereof which comes
within the statute, and the part remaining to be performed is
merely, a payment of the money, the promise to do which is not
required to be in writing. Robertson v. Howerton....
1. Fraud of Creditors-Proof. That a conveyance was made by the
judgment defendant on the day on which suit was brought
against him in another state held not to show fraudulent intent,
entitling the judgment creditor to a decree setting aside the con-
veyance. Oliver v. Morford....
2 Remedies of Creditor-Attachment. Conveyance of property with
intent to defraud may be treated as a nullity and property at:
tached as if no conveyance had been made. Wells v. Guaranty
FREIGHT RATES—See "C'arriers."
Unlawful Dealing in Futures-Sufficiency of Evidence. Evidence held
to establish clearly and unmistakably that the transactions in-
volved in the contract upon which recovery was sought con-
stituted "dealing in futures" such as are denounced by the
statutes of the state. Coffe & Carkener v. Wilhite...
GARSISHMENT-See "Appeal and Error,” 9.
GUARANTY-See “Bills and Notes," 7.
GUARDIAN AND WARI)-See “Cancellation of Instruments"; "In-
1. Liability of Guardian-Negligence Collections. Where a ward's
moneys are lost through the guardian's failure to use reason
able care to collect same, the guardian is liable. Dunleavy v.
2. Same. A guardian is liable not only for that part of the estate
coming into his hands, but for such part thereof as he might
have obtained with ordinary diligence. Idem. ....
3. Final Report of Guardian-Approval—Conclusiveness. The county
court's approval of the final report of a guardian is ordinarily
conclusive and impervious to collateral attack as to all matters
included in the report. Idem. ...
4. Same-Negligence in Collections. A county court's order approving
finał report of guardian is not an adjudication of the question
of the guardian's negligence in failing to collect assets, unless
the matter is covered by the report. Idem. .
5. Same-Scope of Approval. A county court's order approving final
report of guardian cannot be extended by mere intendment to
matters not actually or necessarily embraced in the report and
determined by the order. Idem ...
6. Guardian's Sale-Order Setting Aside_Notice-Resale. Under sec.
6388, Rev. Laws 1910, where a purchaser at a guardian's sale
refuses to comply with the terms thereof, the county court may.
after the required notice, order a resale of the property; and
where. pursuant to the provisions of said statute, the court sets
aside an order confirming the sale of a ward's property, all per
sons thereafter dealing with said property are chargeable with
notice thereof. Coleman v. Sweeney ..
7. Actions—Judgment. In an action against several minor defendants
who defended by their legal guardian, who was also their guar-
dian ad litem. there being no evidence to support any judgment
against one of said defendants, a judgment against the legal
guardian and guardian ad litem of all of the defendants will
be reversed. Folsom v. Mullen....
HARMLESS ERROR-See "Appeal and Error," 39-47.
HEIRS See “Descent and Distribution."
1. Operation of Automobile-Duty of Driver. One who operates an
automobile on a highway owes to other travelers the duty of con-
trolling and driving it carefully so as to avoid causing needless
injury, and in the performance of that duty is bound to take all
the precautions which reasonable care requires under all the cir-
cumstances. White v. Rukes.
2. Same - Care Required — Matters Determinative. The owners of
automobiles have the same rights on highways as those riding
horseback or traveling by other vehicles, but must use this means
of locomotion with due regard for the rights of others; and the
speed of the machine, its size, appearance, its manner of move-
ment, the danger of operating it upon the highway, and the like,
will be taken into consideration in determining the degree of
care required of the operator of the automobile. Idem. .....
3. Same_Negligence-Liability. Where the driver of an automobile
needlessly or recklessly rus his machine into the horse of a
rider, upon a public highway, and thereby injures the horse, he
will be held liable for the injury. Idem.
1. Exemption-Town Property. To entitle one to claim a homestead in
a town as exempt from levy and sale under execution, the prop-
erty so claimed must be owned and occupied as a homestead, or
have been impressed with the homestead character and no other
homestead acquired. Watson v. Manning ....
2. Same. One who owns three adjoining lots, upon one of which is a
building formerly occupied and used by him as a residence and
store, and who built and occupied as a residence a house on an-
other of said lots, and for several years rented out the first build-
ing occupied by him as a home, which at the time that an execu-
tion is levied thereon is occupied as a home and store by his
tenant, cannot successfully claim that said property so occupied
by his tenant is a part of his homestead and exempt from lery and
sale under execution.
5. Alienation by Wife Alone-Right. Since under Const., art. 12, secs.
1, 2, the wife alone canrot alienate the homestead by an express
contract, she cannot do so by parol declarations or silence, or
any positive act or failure to act. Cherokee Nat. Bank v. Riley.
4. Judicial Sale—Purchase by Wife-Estoppel. Under Rev. Laws
1910, secs. 3342, 3343, and Const., art. 12, secs. 1, 2, where the
wife at sheriff's sale buys in homestead property, sold to satisfy
her husband's individual debt, to which the homestead could not
be subjected, and accepts and records a deed from the sheriff, she
is not estopped to subsequently assert a homestead claim in the
property : the sale to her being void and the deed conveying no
title to her. Idem..
HUSBAND AND WIFE-See “Divorce"; "Homestead"; "Indians," 9;
HYPOTHETICAL CASES–See "Moot Questions."
IMPROVEMENTS-See “Counties" ; "Mechanics' Liens."
INDIANS–See "Cancellation of Instruments"; "Divorce"; "Taxation."
1. Allotments-Restrictions on Alienation. The policy of Congress in
regard to restrictions upon alienation of allotments has been to
protect Indians against their own improvidence, whether shown
by acts of commission or omission, contracts or torts. Choctaw
Lumber Co. v. Coleman....
2. Same-Execution-Exemption. The prohibition contained in sec.
15 of the Act of July 1, 1902, chap. 1362, 32 Stat. 642, as to af-
fecting or incumbering allotments made under this act by deeds.
debts or obligations contracted prior to the termination of the
period of restriction on alienation, applies to a judgment entered
against an allottee and his heirs, whether based on a tort or on
a contract. Idem. ....
3. Restrictions on Alienation-Extension by Statute-Patents. Act
Congress March 3, 1903, sec. 8, authorizing issuance of patents to
allottees at certain date, did not, in absence of actual issuance
of patents, the time having been extended, abrogate restriction
of Act Congress July 1, 1898, on alienation of land before patent.
Scott v. Quimby
4. Same-Removal of Restrictions. Act Congress April 21, 1904. re-
moving restrictions on alienation of allottees, is limited to adopt.
ed citizens not of any degree of Indian blood. Idem. ...
5. Restrictions on Alienation-Parol Evidence of Status. Parol evi-
dence may be received to show that one enrolled by Dawes Com-
mission as "adopted" possesses quantum of Indian blood, and is
entitled to protection of acts restricting alienation notwithstand-
ing such enrollment. Idem. .....
6. Deeds-Subsequently Acquired Allotment - Specific Performance.
A warranty deed from a restricted full-blood Choctaw Indian
conveying land theretofore selected as the allotment of her de
ceased mother, held not, by operation of law, on the then selec-
tion being cancelled, to convey an equitable title to after-allotted
land, concerning which the grantor should be required to specific-
ally perform. Mullen v. Pickens..
7. Devolution of Estate What Law Governs. Where an Indian minor
dies after statehood, the devolution of the estate is governed by
the laws of the State of Oklahoma. Aldridge v. Whitten...
8. Same-Evidence-Instructions. Where an Indian minor dies in Oc-
tober, 1908, leaving a father and mother surviving, and in 1910
the mother and sister gave plaintiff the lease on which he relied,
and there was no evidence of the father's death, an instruction
to find for plaintiff was erroneous. Idem..