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upon the record; that in such transaction he der the authorities that a person cannot ac(Kee) was the third person referred to in the knowledge the execution of an instrument of statute above quoted; that, therefore, he this kind made to himself, and we think they had parted with his money to Ewing, relying are equally clear that an officer of a bank, upon a clear record, which was clear only be- who is a stockholder therein, may not take cause of the laches of the Union Trust Com- an acknowledgment of such an instrument pány; and he urges as the law of this prop- made to secure a debt made payable to the osition that when one of two innocent persons bank; and, if so taken and acknowledged, must suffer because of the fraud of another, the instrument would not be entitled to recit shall be the one who placed it within the ord, and such record, if made, would not give power of such other to do the wrong. This to it the force and effect of a recorded instruargument can have no application to the debt ment. But that is not this case. The note of Kee secured by the deed, as the note to se- and mortgage was made to the plaintiff in cure which the deed was given was made in error, O. B. Kee, and this action was brought November, 1901, for an obligation due to one by Kee to enforce the same. There is nothWells, who thereafter sold the same to plain- ing on the face of the mortgage to indicate tiff in error, and afterwards on the 10th day either that the bank had any interest in the of March, 1902, Ewing gave a quitclaim deed mortgage, or that Cafky had any interest in to secure the payment thereof, to the property the bank, or in the debt secured by the mortin question. As this deed was not recorded gage. The instrument was fair upon its face, by Kee for nearly a month after its execu- and, as such, was entitled to record when pretion, and 15 days after the recording of the sented to the register of deeds for that purtrust company's mortgage, it was at the time pose. It was found by the referee that the of bringing this suit clearly an inferior lien National Exchange Bank of Weatherford was to that of the trust company's mortgage. The interested in this note and mortgage, which obligation of Ewing to Wells was not exe- finding is justified from the evidence; but cuted upon the faith of a clear title to the the nature and extent of its interest is not real estate of Ewing; hence the rule invoked found by the referee, nor does the evidence by the plaintiff in error could not be relied disclose the same. May the validity of this upon, if at all, to protect the transaction. At mortgage as against the interests of the Union the time the Trust Company's mortgage was Trust Company be impeached, because the recorded, Kee, so far as the deed was con- National Exchange Bank was interested in cerned, and the trust company, were both it, and 0. H. Cafky, its cashier, and one of guilty of laches in the recording of their its stockholders, took the acknowledgment of securities. The trust company's mortgage Ewing and wife to the execution of the same? was recorded first, and it clearly thereafter We are unable to find any case that goes took precedence as a conveyance.

to this extent. It would seem that the inWith reference to the mortgage of the terest of the Exchange Bank in the note and plaintiff in error to the land in question, we mortgage, i. e., what interest it had in it. have had much more trouble to reach a con- should be disclosed before attempting to declusion. It was taken as a security for a termine 0. H. Cafky's power to take the acdirect obligation from Ewing and wife to knowledgment of its execution. But the more Kee upon the property in question when the serious question presented is its status after record was silent as to the obligation from record, being fair on its face, the property of Ewing to the trust company, and there 0. B. Kee. There are many authorities which are equities in favor of its enforcement in go to the extent of holding that if the note preference to the mortgage of the trust com- was the property of the bank, and for conpany for this reason: The mortgage of the venience was taken in the name of 0. B. Kee, plaintiff in error was recorded on the 28th of Cafky's interest would be such as to have disNovember, the day following its execution qualified him from taking the acknowledgand delivery, and four months prior to the ment, and the record of the instrument for recording of the mortgage to the Union Trust this reason void; and this, we think, is the Company, which clearly gave it precedence, weight of the authorities. There are, howif the same was entitled to record at that ever, many well-reasoned authorities the time. It is urged, however, by the defendant other way, notably the Supreme Court of the in error, that it was not entitled to record, state of Missouri, which court, in Stevens. v. and did not, because of being recorded, ac- Hampton, 46 Mo. 408, says: “When a require a superior right of enforcement over corded instrument shows on its face that the the mortgage of defendant in error, because acknowledgment was taken by a party in inof the fact that the National Bank of Weath- terest, it is improperly recorded, and is not erford had some interest therein, and 0. H. constructive notice; but when it is fair upon Cafky, cashier of said bank, and stockholder its face, it is the duty of the register to retherein, took the acknowledgment of Ewing ceive and record it, and its record operates as and wife to its execution. Our statute re- notice, notwithstanding there may be some quires the due acknowledgment of the execu- hidden defect." The rule here laid down has tion of a written instrument affecting real es- special force in this territory at this time, tate before the same is entitled to record, and because of the determination of this court in may be properly recorded, and it is clear un- Watts v. First National Bank, 8 Okl. 645, 58 Pac. 782, in which this court declares the upheld. This court in its former opinion deMissouri rule laid down in Stevens v. Hamp- cided that the questions and answers emton, supra, to be the just, reasonable, and cor- braced in the application for an indemnity rect rule in this class of cases; and, when the bond for W. T. Phillips, a clerk in the bank, same is applied to the facts in this case, it were mere representations, and not absolute leaves no question but that the plaintiff in warranties, and that, Phillips having emerror, Kee, under his mortgage of November bezzled the funds of the bank, the surety 27, 1901, had a first lien upon the premises company was liable. The facts are that involved, to the extent of such mortgage. Phillips was short with the bank at the time

It follows that the judgment of the court tle application was made by J. W. McNeal, below should be reversed, and the plaintiff in the president of the bank, to the surety comerror, under his mortgage of November 27, pany, for bond for him, and the answers 1901, held to have a first lien on the premises given by McNeal were to the effect that involved, and the defendant in error Union Phillips had kept his accounts correctly and Trust Company should be held to have a sec- made proper settlements for all cash and ond interest lien thereon, equal to its mort- securities intrusted to his care; that his gage interest under its mortgage of July 5, books and accounts were last inspected and 1901, and that the plaintiff in error have a examined on November 15, 1899, and were third interest in the premises to the extent of at that time in every respect correct, and the obligation secured by the deed of Ewing proper securities on hand to balance. Mr. and wife to plaintiff, of March 10, 1902; that Moxeal believed the statements to be true said cause be reversed, and remanded to the when he made them, but the truth was that court below for the purpose of judgment in Phillips had not kept his accounts correctly, accordance with this opinion. All the Jus- and he did not have on hand the proper tices concurring, except IRWIN. J., who pre- securities with which to make settlements. sided in the court below, not sitting.

It is insisted that good faith on the part of
McNeal was immaterial, and that because

these answers were incorrect the bank can(17 Okl. 397)

not recover. This question was necessarily FIDELITY & DEPOSIT CO. OF MARY

involved in the other decision. In a case of LANI V. GUTHRIE NAT. BANK.

this kind, when statements are made in an(Supreme Court of Oklahoma. Sept. 6, 1906.) )

swer to questions propounded by a surety INSURANCE-INDENNITY COMPANY REPRE

company, and they fall within the class SENTATIONS, WIIAT ARE. Where the president of a bank applies to

known as "representations," absolute cora bonding company to make a bond indemnify- rectness is not required in every instance. ing the bank against defalcations by one of its If it were, they would be warranties, and not employés, and such bank presicient answers certain questions in writing at the request

representations. In the case of Rice et al. v. of the bonding company regarding the former Fidelity & Deposit Company of Maryland, conduct of such employé, such questions and 103 Fed. 430, 43 C. C. A. 270, the Circuit answers will ordinarily be construed to be

Court of Appeals for the Eighth Circuit, in representations, and not warranties; but such answers must be given in good faith, as any

which participated Justices Caldwell, Sanmaterial false representations will relieve the born, and Thayer, said: "In insurance a bonding company from liability.

representation is a statement by the appli(Syllabus by the Court.)

cant to the insurer regarding a fact mateAppeal from District Court, Logan County ; rial to the proposed insurance, and it must before Justice John II. Burfordl.

be, not only false, but fraudulent, to defeat Action by the Guthrie National Bank

the policy.” And again, on page 132 of 103 against the Fidelity & Deposit Company of Fed., and page 275 of 43 C. C. A., in the Maryland. Judgment for plaintiff, and de- same opinion, appears the following lanfendant appeals. Affirmed.

"The crucial distinction between a Lawrence & IIuston and Chas. R. Miller, representation and a warranty is that the one for appellant. Dale & Pierer, for appellee. is not, and the other is, a part of the contract

between the parties, and that the truth of BURWELL, J. This is the second time the one is not, and the truth of the other that this case has reached this court. On is, a condition precedent to a recovery upon the original trial in the district court judg. the policy or bond to which they relate." ment was rendered in favor of the surety See, also, Moulor v. An. Life Ins. Co., 111 (ompany. On appeal the judgment was re- U. S. 335, 4 Sup. Ct. 466, 28 L. Ed. 447. versed and a new trial granted. Guthrie Na- This case is squarely in point. In answering tional Bank v. Fidelity & Deposit Company, the questions propounded by the surety com14 Okl. 636, 79 Pac. 102. On the second trial pany to McNeal he was bound to answer judgment was given in favor of the Guthrie them in good faith, and the company had a National Bank for $4,186.96, and the surety right to rely upon his knowing all of those company again appeals to this court.

facts which, in his position and relations, We have read the briefs of the respective with the bank and Phillips, a proper disparties, and are familiar with the record. charge of his own duties would have reasonThe judgment of the lower court should be ably discovered. The questions were asked McNeal because of the position he held and took the money from him, in a wineroom in the opportunities he had for observing Phil- a saloon in the city of Lawton. Fisher was lips. The record of the bank had been check- tried separately from the other defendants. ed over, and every reasonable precaution The jury found him guilty, and he was taken to discover any errors in the bank sentenced to a term of three years in the books. Nothing had occurred to arouse the Territorial Penitentiary. On the trial. Maud bank's suspicions. McNeal believed Phillips

Jarvis testified that Fisher told her at two to be honest, and, while the shortage might different times that Reiser had $300 or $100 have been discovered by an investigation

on him, and proposed that they get it. made in a particular manner, in all of the

also testified to other damaging circumcircumstances of this case such unusual in- stances against Fisher, some of which were vestigation could hardly have been expected.

corroborated by other witnesses. She also We concede that the answers to all of the

testified that just immediately before she questions were not literally correct, but the

took the money, Dick Coleman told her to surety company was seeking to find out what go down to the wineroom where Reiser was Phillips' employer knew about him, and did

and get the money, or he would get it himnot intend to make the bank warrant the

self; that she went to the wineroom and absolute truthfulness of such answers.

found Reiser and Fisher there, but that It is unnecessary to discuss at length every

Fisher went to another part of the saloon, question in the case. If the view of appellant

and began playing cards; that she took the had been adopted, we could not have render

money and hid it in one of the beds up ed our former opinion.

stairs, and that Dick Coleman, who was un

If we now adhere to our former opinion, this judgment should

der the bell at the time, took the money, and be affirmed, at the cost of appellant. It is

it was subsequently divided between her and so ordered. All of the Justices concurring,

Coleman. Fisher never received any of the

money. The evidence further showed that except BURFORD, C. J., who presided at the trial below, not sitting.

Fisher was with Reiser more or less during the evening and night of the larceny, and that Reiser was pretty drunk. Taking the

evidence altogether, we are not prepared to (17 Okl. 155) FISIIER v. TERRITORY.

say that it does not support the verdict,

and, although the defendant urges its insuffi(Supreme Court of Oklahoma. Sept. 6, 19906.)

ciency, it is not necessary to decide that CRIMINAL LAW - ACCOMPLICE - CORROBORATION OF_WIIEN SUFFICIENT-INSTRUCTION.

point, as there is at least one other question Where one is on trial for a felony, and

presented by the record which will reverse an accomplice testifies against him, he is an- the case. titled to have the court instruct the jury that On the trial, the court gave the following "a conviction cannot be had upon the testimony of an accomplice, unless he be corroborat

instructions: “The jury are instructed that ed by such other evidence as tends to connect

a conviction cannot be had in this case upthe defendant with the commission of the of- on the testimony of an accomplice, unless fense, and the corroboration is not sufficient if the testimony of such accomplice is corroboit merely show the commission of the offense or the circumstances thereof”; and where the

rated by other evidence, tending to connect trial court, upon request, refuses to include

the defendant with the offense committed; in his instructions a statement that the cor- and the corroboration is not sufficient if it roboration is insufficient if it merely show the circumstances of the crime, or words of

merely shows the commission of the offense. like meaning, such refusal constitutes reversi

The corroborating testimony, to be sufficient ble error, for which a new trial will be granted, as such, must be proof of such facts and cir

[Ed. Note.--For cases in point, see vol. 14, cumstances, or proof of such facts, or proof Cent. Dig. Criminal Law, $$ 1859-1863.] of such circumstances, which, standing (Syllabus by the Court.)

alone, tend to connect the defendant with

the crime. By the word 'accomplice,' as Error from District Court, Comanche Coun

here used, is meant a person who has party; before Justice Frank E. Gillette.

ticipated in the commission of the offense P. F. Fisher was convicted of larceny, and

charged; and the court instructs the jury brings error. Reversed.

that the witness Maud Jarvis, upon her J. A. Baker, for plaintiff in error. P. C. own testimony, is and was an accomplice Simons, Atty. Gen., and Don C. Smith, Asst. in the commission of the crime charged in Atty. Gen., for the Territory.

the indictment in this case, and that her

testimony must be corroborated; that is, BURWELL, J. The defendant, F. F. Fish- that the jury must find, from the evidence er, was indicted with Dick Coleman and introduced in the case, that her testimony Herman Bertram for the crime of larceny has been corroborated, to the extent that from the person. It is the theory of the corroboration has been by this instruction reprosecution that there was a conspiracy be- quired, before the jury can be justified in tween these defendants and one Maud Jarvis, finding the defendant guilty, if her testia common prostitute at the time, to steal mony is relied upon in reaching a conclumoney from the person of one G. L. Reiser, sion of guilt." To the giving of this inand that, pursuant to such conspiracy, Reiser struction, the defendant duly excepted. His was gotten drunk, and that Maud Jarvis | counsel requested the following instruction, which was denied, and an exception saved: the garnishee a notice in writing that he elects “The court instructs you, gentlemen of the

to take issue on his answer. jury, that Maud Jarvis or Maud Anderson [Ed. Note.--For cases in point, see vol. 24,

Cent. Dig. Garnishment, $ 275.] [her name having been changed by subsequent marriage), is an accomplice in this case, if

2. SAME,JUDGMENT.

Where a garnishee has answered that he you find that any offense has been committed,

is not indebted to the defendant in any manner, and that a conviction cannot be had upon her and the plaintiff fails to give the statutory testimony, unless she be corroborated by such notice that he elects to take issue on such other evidence as tends to connect the de

answer, it is error to render judgment against

the garnishee. fendant, Fisher, with the commission of

[Ed. Note. For cases in point, see vol. 24, the offense; and the corroboration is not

Cent. Dig. Garnishment, $$ 351, 352.] sufficient if it merely shows the commission

(Syllabus by the Court.) of the offense or the circumstances thereof." The instruction contained other provisions

Error from District Court, Custer Counwhich were not justified by the evidence; | ty ; before Justice C. F. Irwin. and the instruction, as requested, was prop- Action by E. A. Lilly against W. W. erly refused.

Smith. Charles E. Davis and others were The defendant complains that the expres- garnishees. Judgment for plaintiff as sion "or the circumstances thereof” is omit- | Davis, and he brings error. Reversed and ted from the instruction given, and that, remanded. by reason of such omission, the defendant

This was an action commenced in the diswas prejudiced. Section 5209 of the Statutes

trict court of Custer county by E. A. Lilly of Oklahoma of 1893 provides: "A convic

against W. W. Smith to recover the sum tion cannot be had upon the testimony of

of $140, with interest and costs, alleged to an accomplice unless he be corroborated by

be due on a promissory note executed on such other evidence as tends to connect the

July 22, 1904. On the same day the plaintiff defendant with the commission of the offense,

filed an affidavit in garnishment, alleging and the corroboration is not sufficient if it

that he had good reason to believe that merely show the commission of the offense

Charles E. Davis, the plaintiff in error, and or the circumstances thereof." It will be

W. P. Fowler and C. O. Fowler, defendseen that the part of the instruction quoted

ants in error, were indebted to said Smith, above, and which was denied by the court,

and asked that garnishment summons duly was based squarely upon this section of the

issue, which was accordingly done, and servStatutes, and, if given, would have advised

ed upon each of the above parties. The the jury that proof of the circumstances of

garnishees each filed an answer under oath, a crime is not a sufficient corroboration of

stating that they were indebted to the dean accomplice to authorize a conviction, while

fendant W. W. Smith in no manner or sum the instruction given by the court nowhere

whatever. To these answers of the garcontained such a statement. The Legislature,

nishees, reply was filed by E. A. Lilly, in in its wisdom, declared in positive terms that

which he stated the nature of the claim of a corroboration of an accomplice, which mere

the defendant Smith against each of the said ly shows the commission of a crime, or the

garnishees. Service was had upon the decircumstances thereof, is not sufficient. The

fendant W. W. Smith by publication. Howdefendant was entitled to have the jury ad

ever, subsequently, and during the trial vised of this rule of the law; and, having

before the referee, the defendant appeared been denied this safeguard, it is possible

and filed an answer, in which he confessed that the jury may have given to the evidence

judgment for the amount sued for, and stated of the accomplice, Maud Jarvis, greater

that the garnishee Davis was indebted to weight than it otherwise would have received.

him for more than the amount claimed in Taylor v. Commonwealth (Ky.) 8 S. W. 461.

the plaintiff's petition. See, also, footnote to case of Stone v. State

When the cause came on for hearing, the (Ga.) 98 Am. St. Rep. 145. Other errors are as

court was of the opinion that the pleadings signed, but it is unnecessary to discuss them.

involved a matter of accounting, and the For the reasons stated, the judgment of

cause was sent, by agreement of the attorthe lower · court is hereby reversed, and a

neys for all parties, to a referee, to hear new trial granted, at the cost of the terri

the evidence, and make his findings of fact tory. All of the Justices concurring, except

and conclusions of law separately, and reGILLETTE, J., who presided at the trial

port the same to the court. Accordingly below, not sitting.

the cause was sent to a referee, and, when the case was called for trial before the

referee, the plaintiff in error objected to (17 Okl. 579)

the introduction of any testimony as against DAVIS v. LILLY et al.

the garnishee Charles E. Davis, for the (Supreme Court of Oklahoma. Sept. 7, 1906.)

reason that neither the said Charles E. 1. GARNISTIMENT CONCLUSIVENESS OF AN- Davis nor his attorneys were served with SWER.

written notice that the plaintiff elected to The answer of a garnishee is conclusive of the truth of the facts therein stated, unless

take issue on the answer of the garnishee. the plaintiff shall, within 20 days, serve upon This objection was overruled, to which ruling an exception was duly saved. The ref- Harkins & Jones, for plaintiff in error. eree, after hearing all the evidence adduced Geo. T. Webster, J. W. Lawton, J. C. Cald-' at the trial, reported his findings of fact well, Ione Webster, and Harkins & Jones, and conclusions of law thereon, and there. for defendants in error. after the court confirmed and approved the findings of fact and conclusions of law,

HAINER. J. (after stating the facts). and rendered the following judgment: "The

Numerous errors are assigned and argued above cause came on for hearing on this

by counsel for plaintiff in error, but we are 27th day of September, 1905, the same being of the opinion that it is only necessary to a regular term day of said court, upon the

consider one of them, as that disposes of motion of plaintiff to confirm the report this appeal. It is contended by the plaintiff of the referee, except as to the taxation of

in error that the court erred in not discosts, and as to this the plaintiff moved

charging him on his answer, and the pethat the costs involved in the garnishee

tition of the plaintiff, since the plaintiff failed proceedings be taxed to Chas. E. Davis, to serve the statutory notice that he elected garnishee defendant, and upon the objec

upon the objec- to take issue on the garnishee answer. It tions to the findings of fact and conclusions

appears from the record that no notice was of law filed by Chas. E. Davis, and it appear- served by the plaintiff upon the garnishee ing to the court that each of said parties

or his counsel, in writing or otherwise, withhave entered their general appearance in

in 20 days, as provided by the statute; that this cause, and are represented by counsel,

the plaintiff elected to take issue on his except W. P. Fowler, who is not present

answer. either in person or by attorney, but who

Section 1382 of Wilson's Rev. & Ann. St. has entered his general appearance herein, and the court having heard the report of the

1903 provides as follows: "The answer of

the garnishee shall in all cases be conclusive referee, confirms and adopts the findings

of the truth of the facts therein stated, unof fact and the conclusions of law, and judy

less the plaintiff shall within 20 days serve inent is given accordingly, and said findings

upon the garnishee a notice in writing that of fact and conclusions of law, and the

he elects to take issue on his answer; in report of said referee, are hereby referred to and made a part of this judgment. That

which case the issue shall stand for trial

as a civil action, in which the affidavit on the the garnishee defendants the First National

part of the plaintiff shall be deemed the Bank and W. P. Fowler are hereby discharged, and that all costs due them be paid by petition, and the garnishee's affidavit the the plaintiff. It is therefore ordered and

answer thereto.” Section 4379 provides that

where the garnishee files his answer, under adjudged that the plaintiff, E. A. Lilly,

oath, within the time required by statute, have and recover of the defendant W. W. Smith and Chas. E. Davis, garnishee de

that he is not indebted in any manner to the

defendant, and that he has no real or perfendant, the sum of $156.56 and the referee's fee taxed at $115.30, and costs paid by E. A.

sonal property, effects, or credits belonging

to the defendant in his possession or under Lilly to the amount of $30.85, and the district court costs, taxed at $28.00; making

his control, that the proceeding in garnish

ment shall be deemed discontinued, and the a total of three hundred and thirty and 71/100 dollars ($330.71), and that Geo. T. plaintiff shall pay the garnishee $2 for his Webster, assignee of the defendant, W. W.

costs, unless within 20 days thereafter, the Smith, and intervener herein, have and re

plaintiff serve notice on such garnishee that cover of said Chas. E. Davis, garnishee de

he elects to take issue on his garnishee anfendant, the sum of four hundred seren and

swer, and will maintain him to be liable as 04/100 dollars ($407.04), and that execution garnishee; in which case the issue shall issue therefor against said Chas. E. Davis, gar

stand for trial as a civil action, in which nishee defendant, to all of which rulings of the the affidavit on the part of the plaintiff court the garnishee defendant, Chas. E. Davis, shall be deemed the petition, and the garexcepts, and is hereby given ninety days with

nishee's affidavit the answer thereto. These in which to make and serve his case-made provisions of our statute are plain, specific, for the Supreme Court, with ten days given and mandatory. But it is argued by the deto the defendant in which to suggest amend- fendants in error that these provisions of ments thereto, same to be settled and signed the statute were waived, because counsel for upon five days' notice in writing by either the garnishee consented to the appointment party of the time and place of the settlement of a referee. This contention is clearly unthereof." The defendant W. W. Smith and tenable. In an action of this kind two disthe intervener, George T. Webster, excepted tinct and different issues are presented. One to that part of the judgment in reference between the plaintiff and defendant, and to the taxation of costs. From this judgment the other between the plaintiff and the garthe garnishee, Charles E. Davis, appeals; | nishee.

nishee. Hence, the appointment of a referee and the defendant W. W. Smith and the in- to hear and determine the issues involved in tervener, George T. Webster, file a cross- this case, and to report his findings of fact petition, assigning error in reference to the and conclusions of law .thereon, with the taxation of costs.

consent of the parties, did not waive any

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