rights that the plaintiff in error had under the provisions of our statute as a garnishee. The objection, therefore, by counsel for plaintiff in error to the introduction of any testimony ought to have been sustained, and, when the fact was called to the attention of the court that no notice was given as the statute requires that the defendant elected to take issue on the answer of the garnishee, the plaintiff in error should have been discharged as such garnishee.

In 20 Cyc. 1097, the general doctrine is thus clearly and forcibly stated: "The law indulges no presumption that the garnishee is liable, and his liability must be made affirmatively to appear in order to justify a judgment against him; and the uncontradicted answer or disclosure of the garnishee upon which no issue has been taken is presumed to be absolutely true, and, where such answer or disclosure shows no liability on his part, he is entitled to a discharge." And, again, the findings of the referee and the judgment of the court were clearly beyond the issues presented by the petition, and the answer of the garnishee. Section 4388 of Wilson's Rev. & Ann. St. 1903 provides that the garnishee is only liable for the amount claimed in the plaintiff's petition, and as disclosed in his affidavit upon which the garnishment summons is based. In this case the plaintiff only claimed judgment against the defendant for $140, together with interest and costs.

In Gille v. Emmons (Kan. Sup.) 48 Pac. 569, 62 Am. St. Rep. 609, the Supreme Court of Kansas has decided that: "A judgment, which is entirely outside of the issues in the case, and upon a matter not submitted to the court for its determination, is a nullity, and may be vacated and set aside at any time upon motion of the defendant." And since the garnishee, the plaintiff in error, answered that he was not indebted to the defendant in any manner, and the plaintiff failed to give the statutory notice that he elected to take issue on the answer, the conclusiveness of the facts therein stated would not be questioned in any subsequent proceeding, and therefore the findings of fact and conclusions of law thereon by the referee were entirely outside of the issues, and hence a nullity. It follows that the garnishee, the plaintiff in error, should have been discharged upon his answer, and that the court erred in rendering judgment against him.

The judgment of the district court is reversed, and the cause remanded, with directions to set aside and vacate the judgment, in so far as it affects the rights of the garnishee Davis, and to enter judgment discharging him with all costs.

IRWIN, J., having presided in the court below, not sitting. All the other Justices concurring.

The grantee of such corporation giving his note and mortgage to the corporation as a part payment of the purchase price of real estate conveyed, and who thereafter goes into possession of such property, which at the time of conveyance was vacant and unimproved, may, without eviction, defend against an action to recover judgment on such notes and foreclose such mortgage, where the action is brought by the corporation or its assignee with notice, on the ground of want of consideration. (Syllabus by the Court.)

Error from District Court, Kay County; before Justice Bayard T. Hainer.

Action by J. T. Lafferty against Elias Evans. Judgment for defendant, and plaintiff brings error. Affirmed.

This is an action commenced in the district court of Kay county, Okl., by the plaintiff in error, J. T. Lafferty, against the defendant in error to recover the amount due upon two certain promissory notes, bearing date on the 24th day of September, 1901, given for the aggregate sum of $200, and to foreclose a mortgage given by the said Elias Evans and his wife, Maggie Evans, to secure the payment of the said notes. It appears from the record that at the time the notes and mortgage were given a certain corporation, the Ponca City Land & Improvement Company, claiming to be the owners and possessed of the title to lot 22, in block 42, in the townsite of Hartman, a (legal) subdivision of the city of Ponca City, in said county and territory, sold and conveyed to said Elias Evans and Maggie Evans by its warranty deed the premises above described, to wit, lot 22, in block 42, in the townsite of Hartman, a legal subdivision of the city of Ponca City, in said Kay county, Okl., and as a part of the purchase price of said premises took back from the said Evans and wife the notes and mortgage now sought to be enforced in this action. The Ponca City Land & Improvement Company subsequently assigned and transferred the notes and mortgage to the plaintiff, who, at the date of said deed by the corporation to Evans, was and still is one of the officers, to wit, the secretary thereof. The answer of the defendants alleges. that the notes and mortgage were procured by false and fraudulent representation and statements made to him, Evans, by the Pon-ca City Land & Improvement Company at. the time said notes and mortgages were executed; that there was a total failure of consideration for the same, because the said l'en

ca City Land & Improvement Company did not have and could not procure any title whatever to said premises; and further alleged that one Marie Eugenie Excoffier at the time of the said conveyance by the said corporation to him then held and had, and still has and holds, the full and perfect title to said premises by a direct chain of title. from the government of the United States to her. The answer further alleges that the Ponca City Land & Improvement Company was a corporation organized under the laws of the state of Kansas for the sole and only purpose and with the sole and only power of buying and selling real estate in the territory of Oklahoma, and that under its articles of incorporation and charter it had no power or authority to do any business in the state of Kansas, or anywhere else, except in the territory of Oklahoma; that at no time since the organization of the territory of Oklahoma could any corporation be legally created or incorporated under its laws for the purpose of buying, selling, owning, or acquiring title to real estate; that J. W. Lynch, Burton S. Barnes, C. B. Barnes, and J. W. Dalton, who are and have been continuously since September, 1893, citizens and residents of the territory of Oklahoma, caused the corporation, the Ponco City Land & Improvement Company, to be created and incorporated under the laws of the state of Kansas, with the design and purpose of evading, circumventing, and defrauding the laws of the territory of Oklahoma; that the said Ponca City Land & Improvement Company has not now and never did have any power or authority to hold, bargain for, or acquire title to any real estate in the territory of Oklahoma; that the said Lynch, Burton S. Barnes, C. B. Barnes, and J. W. Dalton, together with the plaintiff herein, J. T. Lafferty, constituted the said corporation, and were the officers and stockholders thereof; and that the true chain of title to said premises came from the United States to Daniel F. Stiles,

from Daniel F. Stiles to Burton S. Barnes

and John W. Dalton, and from Burton S. Barnes and John W. Dalton to Marie Eugenie Excoffier. There is nothing in the record showing any title in the Ponca City Land & Improvement Company at the time said company executed the conveyance to Evans, or at any time, but it does appear that the deed from Barnes and Dalton to Mrs. Excoffier was of record at the time the company attempted to convey the property to Evans. Hackney & Lafferty, for plaintiff in error. J. F. King, for defendant in error.

GILLETTE, J. (after stating the facts). Only a single proposition is presented for determination in this case, and that the right of a grantee in a conveyance of real estate while in the possession of th estate conveyed to question the right of his grantor in an action by his grantor to foreclose a mortgage upon the estate conveyed for the satisfaction 87 P.-20

of a promissory note given for the purchase price. Under the common law this could not be done, and the English rule has been adopted by the Supreme Court of the United States, and applied to all causes arising within the federal jurisdiction. It has also been adopted as the rule in many of the states of the Union. Peters v. Bowman, 98 U. S. 56, 25 L. Ed. 91; Noonan v. Lee, 67 U. S. 499, 17 L. Ed. 278: Patton et al. v. Taylor et al., 48 U. S. 132. 12 L. Ed. 637: Abbott v. Allen. 2 John. Ch. (N. Y.) 519, 7 Am. Dec. 554; Corning v. Smith, 6 N. Y. 82; Banks v. Walker (N. Y.) 2 Sands (N. Y.) 345: Black v. Thompson (Ind. Sup.) 36 N. E. 643; Adams v. Fry (Fla.) 10 South. 559; Sunderland v. Bell (Kan.) 17 Pac. 600. This rule seems to be placed upon the theory that where a grantee by reason of his grantor's conveyance and warranty has entered into the possession of the real estate conveyed, and there has been no eviction, he cannot set up a failure of his grantor's title for the purpose of questioning his own liability upon a note and mortgage given for a part of the purchase price; and this apparently upon the theory that he may never be evicted, but may continue to hold and enjoy the possession delivered to him, and must pay his obligation by force of which he went into possession, and rely for his relief, if an eviction does occur, upon the covenants of his conveyance. If there are no covenants of seisin or warranty, he is without relief.

The editor of the Am. & Eng. Ene. of Law, under the title "Failure of Consideration." says (volume 6. p. 789): "The entire failure of consideration has the same effect as its original and total absence, and therefore the contract is void, and no rights can issue out of it." And he follows this declaration with what he terms the "older rule" touching failure of title to real property: "Consonant with the principle that mutual promises are valid considerations, each for the other, it was held in the earlier cases that where a promissory note was given for the purchase price of land conveyed by deed containing covenants of warranty and seisin, and the title to the land failed, the covenants in the deed formed a sufficient consideration for the note, and that the purchaser could not plead failure of title as a defense, but must pay the note, and for his relief resort to a cross-action upon the covenants"-citing many authorities in support thereof; and follows this with what he terms a "modern rule," as follows: "But this rule, savoring more of superflous refinement than of practical wisdom. has now happily passed away, and it is the modern practice, where there has been a total failure of title, to allow this to be set up in defense to an action upon the note as a total failure of consideration"-citing many cases in support of the same, among them Cook v. Mix, 11 Conn. 432, in which Bissell, J., said: "We do not assent to the proposition that the covenant in the deed formed any part of the con

sideration for the note. What, it may be asked, is to be understood by a total failure of consideration? It is very obvious that when the party does not get that which by the terms of the contract he was to receive, and for which his note is given, the consideration of the note fails and fails wholly. *** On a sale of personal property there is always an implied warranty of title. But it turns out that the vendor has no title. Was it ever supposed that he could recover the purchase money, and turn the vendee over to his remedy on the warranty? And is there any well-founded distinction between a sale of real estate with covenants, and a sale of personal property with warranty? We suppose not. And we suppose it to be perfectly well settled that, where a total failure of consideration is shown, it is an answer to the action." If, as here argued by Bissell, J., the covenants of a deed are not the consideration contemplated in a conveyance of real estate, but such consideration is in fact the title to the real estate conveyed, which having failed authorizes a defense to a promissory note given for a part of the purchase money, then under our procedure, which recognizes as a defense the plea of want of consideration, such plea is a good defense to the promissory note sued on in this case; and, if it is a good defense to the note, why not to a mortgage given to secure it?

An answer to this question is found in some apparently well-considered cases, which in effect hold that the note and mortgage are one contract, and is one transaction, and must be considered together, and the covenants of warranty in the mortgage cannot be disputed by the person giving the same. Trope v. Kerns (Colo.) 20 Pac. 82. But this rule, we think, ought to be limited to cases where the consideration for the note and mortgage is something other than a conveyance of the property mortgaged at the time the mortgage is given, for in such case the giving of the deed and the execution of the note and mortgage may be said to be one transaction; and, if the title conveyed by the deed fails the covenant in the mortgage fails as a result of the wrongful and void obligation of the grantor in the deed, and he has no right to take advantage of his own wrong to recover something for nothing. And we think that in such a case, where it may be clearly and satisfactorily shown that the title of the grantor has failed, it is unjust to deny to the mortgagor the right to plead want of consideration because of the failure of the title, and compel him to rely upon the covenants of warranty in the deed, in a separate action brought to recover thereon; for such rule requires two actions to settle what ought to be settled in one, and necessitates legal steps to satisfy separate judgments, for it must be conceded that, if the title conveyed by the mortgage has failed, the judgment must be satisfied by execution ultimately, and the person suffering from such execu

tion may have a worthless warranty for compensation. This, we think, is the status of this case. The action was brought by the plaintiff, J. F. Lafferty, to recover upon a note and mortgage assigned to him by the Ponca City Land & Improvement Company. He was not an innocent purchaser of the note, but took the same burdened with the obligation of that company to its grantor, Elias Evans; and on the trial of the case it was shown that the property conveyed was a vacant unimproved lot which Evans went into the possession of after the deed was executed. If the deed conveyed no title, he was and is a trespasser thereon upon the rights of whoever owns the premises by a true lega! title, and it was shown that one Marie Eugenie Excoffier had received the conveyance thereof from the assumed grantors of the Ponca City Land & Improvement Company prior to the time that any pretended title vested in the company.

It is further shown that such company was acting as a corporation under a charter from the state of Kansas, but that state has not in such charter granted said corporation the power to do any business whatever in the state of Kansas. Its powers and authority as such corporation were authorized to be exercised in the territory of Oklahoma only, and by the charter it was granted powers in Oklahoma which were denied it by the laws of Oklahoma and of the United States. It was held by this court in the case of John T. Hyatt v. Ponca City Land & Improvement Co., 14 Okl. 189, 78 Pac. 185, 68 L. R. A. 810, that such company did not by force of its charter possess the powers pretended to be conferred upon it either in the state of Kansas or the territory of Oklahoma, which were "to own, sell, lease, rent, exchange and improve lands, town lots and other real estate. and buildings and improvements thereon in Oklahoma territory." The right to exercise its corporate powers having been denied it in this territory for want of corporate capacity, how can it be said to possess, nevertheless, the power to convey real estate and warrant the title? If it had no existence as a corporation, its pretended acts as such were a mere nullity, and its attempted conveyance and warranty to Evans an assumption of a power to act and contract which could not be enforced. It was a fiction in law as well as in fact. There must be two parties to a contract, and in the pretended conveyance to the defendant there was only one, and that one the defendant. There was therefore neither a conveyance nor a contract of warranty as a consideration for the note and mortgage sought to be foreclosed in this case, in consequence of a want of capacity on the part of the Ponca City Land & Improvement Company to make and enter into an agreement to that effect. Its attempt to do so, and thereby obtain the note and mortgage sued on, was a fraud upon the rights of the defendant, and not enforceable as an agreement or

The judgment of the lower court is there. fore affirmed, with costs. All of the Justices concurring, except HAINER, J., who presided in the court below, not sitting.

(17 Okl. 56)

TUCKER v. TERRITORY. (Supreme Court of Oklahoma. Sept. 4, 1906.) 1. FORGERY-INDICTMENT-SUFFICIENCY.

Where an indictment for knowingly, unlawfully, and feloniously selling, exchanging, and delivering for a consideration a forged and counterfeited check, the allegation of the indictment that the consideration for the selling, exchanging, and delivering of said check was $25 in money, and of the value of $25, is sufficiently proven, where the evidence shows that the consideration paid was $25 in money, without the further proof that the value of the consideration was $25, as the law will presume, in the absence of any showing to the contrary, that the payment of $25 in money is lawful money of the United States.

2. WITNESSES - IMPEACHMENT - CONTRADICTORY STATEMENTS.

Where it is sought to discredit or impeach a witness in a criminal case by showing that he has made statements out of court contrary to and inconsistent with his testimony given on the trial, statements made by third parties in the presence of the witness are not competent for this purpose, unless shown to have been authorized by the witness, and it is not error to exclude proof of such statements by such third parties.

[Ed. Note-For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 1247, 1248.]

3. CRIMINAL LAW INSTRUCTIONS - ALIBI. An instruction which states to the jury that a defense of alibi, to be entitled to consideration must be such as to show that at the very time of the commission of the crime charged, if any was committed, the accused was at another place, so far away and under such circumstances that he could not, with ordinary exertion, have reached the place where the crime was committed, so as to have participated in the commission thereof, if a crime was in fact committed, and when the concluding part of such instruction tells the jury that they should consider the whole of the evidence in the case, both that given by the defendant and that given by the territory, and the evidence given touching the question of alibi, as well as that relating to other facts in the case, and if, from all the evidence in the case, the jury entertain any reasonable doubt of the guilt of the defendant, they should acquit him, is not one which places the burden of proof upon the defendant, and is not erroneous.

[Ed. Note. For cases in point, sec vol. 14. Cent. Dig. Criminal Law, §§ 1833-1837, 1852.] Burford, C. J., dissenting. (Syllabus by the Court.)

Error from District Court, Woods County; before Justice J. L. Pancoast.

Sabin Tucker was convicted of forgery, and brings error. Affirmed.

On the 16th day of December, 1903, the grand jury of Woods county returned into court an indictment charging Sabin Tucker with having sold, exchanged, and delivered to Pearl Mitchell and W. H. Scott, for a

value of $25, a forged and counterfeited check. To this indictment the defendant filed his demurrer, which was by the court overruled, to which ruling of the court the defendant excepted. The case then came on for trial by a jury, and evidence was introduced by the territory and the defendant. The court instructed the jury, and they retired to deliberate on a verdict, and after being out about 28 hours came into court and asked for further instructions. Thereupon the court gave them two other instructions. The jury afterwards returned into court their verdict finding the defendant guilty as charged. On December 12, 1904, the defendant filed his motion for a new trial, which, on being argued and considered by the court, on December 23, 1904, was overruled. To this the defendant excepted. The court then passed sentence on the defendant, to which the defendant excepted, now excepts, and brings the case here for review.

Cowgill & Dunn, for plaintiff in error. P. C. Simons, Atty. Gen.. and Don C. Smith, Asst. Atty. Gen., for the Territory.

The

IRWIN, J. (after stating the facts). first assignment of error relied upon by plaintiff in error to reverse this case is that the proof fails to sustain the allegations of the indictment as to the value of the consideration charged in the indictment. The indictment charges that the consideration for the selling, exchanging, and delivering of the forged check to Pearl Mitchell was $25 in money, and of the value of $25. The evidence of Pearl Mitchell is that she paid the defendant for said check $25 in money. We think that this proof is sufficient to sustain the allegations of the indictment, as the words of the indictment and the evidence in support thereof should be taken and construed according to the ordinary understanding and accepted meaning of the language used: and, in the absence of any proof to the contrary, the statement that the consideration was $25 in money would be presumed to be lawful United States money, and we think that this evidence fully sustains the allegations of the indictment, and it is not necessary to add the further proof that $25 in money is of the value of $25.

The second assignment of errors is that the court erred in excluding proof of the statements made at the preliminary examination by one Antrobus, who was at that examination acting as the attorney for the defendant. The statement alleged to have been made by Antrobus at that time was that, when the justice before whom the examination was pending announced that the case would be dismissed for the reason that the prosecuting witness Scott was not certain as to the identity of the defendant, Antrobus then stated, "Mr. Scott ought to state this to people, and to the neighbors and friends

of the boy for his vindication," and that Mr. Scott be called upon then and there to substantiate the statement that he had said that he had the wrong man, but would try to find the right one. It is claimed by counsel for plaintiff in error that as, at the time of the statement by Antrobus, Scott made the answer, "There has been enough said," he thereby accepted the statement of Antrobus, and made it his own, and, for the purpose of affecting the credibility of the witness Scott, they had a right to prove both the statements by Antrobus and the statement of Kinchelow, the justice before whom the examination was held. Now we take the rule to be that, where it is sought to discredit or impeach a witness in a criminal case by showing that he has made statements out of court contrary to and inconsistent with his testimony on the trial, he can only be impeached as to statements material to the issue in question, and to statements made by himself, or others for him. We do not think the rule should be extended so far as to admit of the impeachment of a witness by showing statements made by third parties, even in his presence, unless he in some way authorized such statements. Now the only purpose of this testimony, as to the statements of Antrobus and Kinchelow, was to discredit or impeach the testimony of the witnesses Scott and Mitchell. An examination of the record will show that the court repeatedly stated to counsel for defendant during the trial, and during the cross-examination of the witnesses for the prosecution, that he would permit them to cross-examine as to any statement made by Scott, or made by Pearl Mitchell, but that he would exclude any statement made by third parties that were not shown to be authorized by the witness Scott, or the witness Mitchell, and in this statement we think the court stated the true proposition of law. The record in this case will show, on page 65, that the court did permit the question addressed to the witness Scott on cross-examination, as to what was said by Antrobus, wherein substantially the same statement, which counsel for plaintiff in error cite as being rejected. was included in the question, and permitted the same to be answered. An examination of the record at this place will show that the court permitted sufficient of the statement of both Antrobus and Kinchelow to go to the jury to illustrate and make clear the meaning of the answers of the witness Scott, and we think this was all the latitude counsel for defendant were entitled to, as the statement of Antrobus and Kinchelow would be competent for no other purpose than to make clear the meaning and intention of any statement made by the witness sought to be impeached. and this we think was clearly covered by the examination, and we think the court was clearly right in excluding the statement of third parties not

authorized by the witness to be proven for the purpose of impeachment.

The third assignment of error is that the court refused defendant the right to lay a foundation for impeachment in the cross-examination of the witness Pearl Mitchell, and this error is said to be shown by the record, at page 28. A reference to that page of the record will show that the foundation sought to be laid for the impeachment of the witness Pearl Mitchell was inquiries concerning statements made at the trial by Antrobus, and by Justice Kinchelow, and refers to the same subject discussed in this opinion in reference to the witness Scott. There is no showing made, and no evidence that tends to show, that these statements of Antrobus and Kinchelow were in any way authorized by the witness Mitchell, and for this reason they were not proper foundation upon which to base an impeachment.

The fourth assignment of error is that the court erred in giving instruction No. 7, which relates to the proof of good character. Counsel for defendant take from that instruction a part thereof, and quote the same in their brief, and insist that the instruction is erroneous. The part they particularly complain of is that the court instructs the jury that in criminal trials, where evidence is not conclusive in its nature, previous good character on the part of the accused, if proven, is entitled to weight in considering his innocence. The part they complain of is "if proven," but we think the instruction, taken as a whole, which is the only proper way to view an instruction, is a true statement of the law, as the court in that instruction tells the jury that the evidence of previous good character should be taken and considered by the jury in connection with all all the other evidence, facts, and surroundings in the case, and, unless the evidence of guilt is so convincing that it precludes all reasonable doubt, that the jury should acquit, if the evidence of good character, when taken in connection with all the other evidence, raises a reasonable doubt of his guilt. We think this is as liberal to the defendant as he had a right to ask, and is in accordance with sound reason and good law.

The fifth assignment of error is that the court erred in giving the eighth instruction. The eighth instruction is as follows: "You are further instructed that one of the defenses interposed in this case by the defendant is what is known in the law as an 'alibi'; that is, that the defendant was at another place at the time of the commission of the crime, if a crime was committed. The defense of alibi, to be entitled to consideration, must be such as to show that at the very time of the commission of the crime charged, if any was committed, the accused was at another place, so far away, and under such circumstances, that he could not, with ordinary exertion, have reached the place