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. v. Bledsoe.
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.
FEDERAL--See "United States."
FINDINGS See "Appeal and Error." 25-31; "Justices of the Peace.” 5.
FIRE INSURANCE-See "Insurance."
FORECLOSURE-See "Mortgages."
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 FRAUDS, 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 State Bank.
FREIGHT RATES-See "Carriers."
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..
GARNISHMENT See "Appeal and Error," 9.
GUARANTY-See "Bills and Notes," 7.
GUARDIAN AND WARD-See "Cancellation of Instruments"; "In- fants."
1. Liability of Guardian-Negligence-Collections.
moneys are lost through the guardian's failure to use reason able care to collect same, the guardian is liable. Dunleavy v. Mayfield.
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 final 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 runs 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.
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 levy and sale under execution. Idem...
3. Alienation by Wife Alone-Right. Since under Const., art. 12, secs. 1, 2, the wife alone cannot 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; "Marriage."
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.
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...
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