(190 P.) So we see ownership of the draft was made an issue in the pleadings, and it is disclosed by the record that upon that issue the testimony was sharply in conflict. In the case of Morrison & Co. v. Farmers' & Merchants' Bank, of Los Angeles, Cal., 9 Okl. 697, 60 Pac. 273, the Supreme Court of the Territory of Oklahoma, announced the rule applicable to the facts of this case, which has been followed by this court in numerous cases, and is thus stated in the syllabus of the Morrison Case: back; that his firm had an understanding in good faith, but in the collection of same actwith the Alamo National Bank that if the ed on behalf of its codefendants, Flory & money should be held up at Oklahoma City Albers." their account would be charged back; that the Alamo National Bank was assisting his firm in having this money released, but in the event it was not released the bank would not lose, but his firm would; that the item was not charged back because his firm had sufficient funds in the bank to cover the amount of the draft; that if his firm did not have more than enough to take care of this draft the bank would have charged the item back; that the Alamo National Bank was acting as agent in collecting the draft; that their account was credited at the time he took the draft and express receipt to the bank and deposited it, which was probably the same day the Alamo National Bank received the telegraphic guaranty from the Farmers' National Bank; that the account of his firm was credited with the amount of this draft by the Alamo National Bank because of the bank guaranty, that it deposited the draft and express receipt; and that the shipment was made open. "The court should have granted interpleader's motion for a peremptory instruction, and should have entered judgment, awarding the money in the hands of the garnishee to the interpleader. "It is the contention of the plaintiff in error that the fact that the Alamo National Bank credited the draft in question to the account of Flory & Albers as a cash item, subject to the check of the latter after it had received telegram from the Farmers' National Bank guaranteeing payment of that draft, and the fact that the Dawson Produce Company paid the draft to the Farmers' National Bank, entitles the Alamo National Bank to the proceeds, notwithstanding that Flory & Albers may have intended to protect the Alamo National Bank in the event that the draft was not paid." We cannot agree with this contention of counsel. The Produce Company in its answer to the plea of intervention of the bank alleged: "That the defendant Alamo National Bank at no time purchased the draft and express receipt named and set out in said interplea, but at all times handled the same as any other exchange passing to said bank by its customers, and that it is not the holder thereof for value "5. Defenses available between the acceptor and drawer of a bill of exchange, are not available in an action by the payee against the acceptor, if the payee is a bona fide holder for value, and the burden of overcoming the preholder for value is on the acceptor, who seeks sumption that the payee is not a bona fide to set up such defenses against the payee. "6. Where a bank purchases a bill of exchange from the drawer before maturity, and gives the drawer credit on his deposit account in the bank for the face value of the bill, such transaction only creates the relation of debtor and creditor, and does not constitute the bank a purchaser or holder for value; but if the deposit is drawn or checked out before the bill is accepted, the bank then becomes a purchaser for value. "7. In order to establish the fact that a bank which is the payee and holder of a bill of exchange is not a purchaser for value, it is not sufficient to show that when the bank took the bill it simply gave the drawer credit on his deposit account for the face value of the bill, and it must be further shown that the amount of the deposit at that time had not been paid * * prior to acceptance of the bill." Forbes v. National Bank of Enid, 21 Okl. 206, 95 Pac. 785; Wood v. Stickle et al., 36 Okl. 592, 126 Pac.' 1082; State National Bank of Oklahoma City v. Wood, 43 Okl. 251, 142 Pac. 1002; Marsh Mill & Grain Co. v. Guaranty State Bank of Ardmore, 171 Pac. 1122, L. R. A. 1918D, 704. Plaintiff in error's remaining assignments are: "(2) The court erred in his instruction to the jury; (3) the court erred in refusing to give requested instructions to the jury; (4) the court erred in not discharging garnishment." There is no merit in the third proposition. We have examined the instructions refused, which are four in number, and all of which were, in effect, a peremptory instruction to find for the plaintiff in error, and the court did not err in refusing the same for the reason that an issue of fact was joined, upon which the testimony was sharply in conflict. We have likewise examined the instructions given, and are of the opinion that the instructions as a whole fairly submitted the questions of law applicable to the facts and the sole issue as to the ownership of the money in the hands of the garnishee. Un- the date of sale, one-fourth of the purchase der these circumstances it is the universal | price, and the balance within 15 days thereholding of this court that the verdict of the after, and receiving from the Superintendent jury will not be disturbed on appeal. The for the Five Civilized Tribes a final receipt, judgment is therefore affirmed. for the final payment thereof, this final receipt being designated as a "certificate of OWEN, C. J., and KANE, RAINEY, HAR- purchase." Thereafter the county assessor RISON, and BAILEY, JJ., concur. (78 Okl. 268) ROSE v. STALCUP, County Treasurer. (No. 10924.) of Haskell county placed the lands so purchased on the assessment rolls of said county for the year 1918, at the amount so paid by the purchaser. The purchaser paid the first half of the taxes for the year 1918 under protest, and commenced action in the district court of Haskell county to recover the amount so paid. The judgment of the dis (Supreme Court of Oklahoma. June 1, 1920.) trict court was that the lands so purchased (Syllabus by the Court.) Taxation 181-Purchaser of surface of segregated Indian land held properly assessable in the following year. were liable for taxes for the year 1918. Section 2, art. 1, c. 107, Session Laws 1915, p. 142, provides: The single question involved in this appeal is whether the surface of segregated coal and asphalt lands, upon which the full payment has been made and the final receipt or certifOn the 28th day of October, 1917, pursu-icate of purchase has been issued to the purant to the Acts of Congress, approved February chaser prior to January 1, 1918, was sub-, 19, 1912 (37 Stat. L. 67), as amended by the ject to taxes for the year 1918. Acts of Congress, approved August 24, 1912 (37 Stat. L. 518-531), providing for the sale of the surface of the segregated coal and asphalt lands of the Choctaw and Chickasaw Tribes of Indians, under rules and regulations to be prescribed by the Secretary of the Interior, R. was the successful bidder for certain tracts of land offered for sale, under the rules and regulations prescribed. On the date of sale, 25 per cent. of the amount of the bid for the respective tracts was paid, and within 15 days thereafter the balance of the 75 per cent. was paid and a certificate of purchase was issued by the Superintendent for the Five Civilized Tribes, which certificate entitled the purchaser to the immediate possession of the tracts of land so purchased. Held, that the lands were properly placed upon the assessment rolls for the year 1918, for taxation, notwithstanding the patent was not issued until some time after the 1st of January, 1918. "All taxable property shall be listed and assessed each year at its fair cash value, estimated at the price it would bring at a fair voluntary sale, in the name of the owner thereof on the first day of January of each year, as soon as practicable on or after the fifteenth day of January, including all property owned on the first day of January of that year. If any real estate shall become taxable during the time between the period for assessing real estate, the county assessor shall assess same for taxation and place the same upon the tax rolls." This was the statute in force on January 1, 1918. Was plaintiff, on that date, the owner, within the meaning of this statute, of the lands involved in this action? The cause was submitted to the trial court upon an Error from District Court, Haskell County; agreed statement of facts, the fifth paragraph E. F. Lester, Judge. of the same being as follows: Action by Sam Rose against R. E. Stalcup, as treasurer of Haskell County. Judgment for defendant, and plaintiff appeals. firmed. E. O. Clark, of Stigler, for plaintiff in error. Duke Frederick, Co. Atty., and Fred H. Fannin, both of Stigler, for defendant in error. "That thereafter, under and pursuant to said Acts of Congress and said rules and regnlations prescribed by the Secretary of the InAf-terior, a sale of the surface of the segregated coal and asphalt lands, including the lands described in plaintiff's petition, was advertised to be held at Stigler, in Haskell county, state of Oklahoma, on the 28th day of October, 1917. That the plaintiff, Sam Rose, and the persons from whom he purchased were present at said sale, and were the highest bidders for the rePITCHFORD, J. This is an appeal from a spective tracts of land described in plaintiff's judgment of the district court of Haskell petition; that at the conclusion of the bidding county. The appeal involves, in substance, on each tract of land at said sale the successthe following facts: On the 28th day of Octo-ful bidder was given a statement, a blank copy of which is hereto attached, marked 'Exhibit B,' ber, 1917, Sam Rose purchased at a public and made a part of this agreed statement of land sale, held at Stigler, Okl., under rules facts. That, thereafter and on the same day and regulations prescribed by the Secretary the successful bidder presented himself accordof the Interior, certain segregated lands of ing to custom to a representative of the cashier the Choctaw and Chickasaw Indians, situated of the Commissioner for the Five Civilized in Haskell county, Okl., paying therefor, on Tribes, and deposited 25 per cent. of the amount (190 P.) of the bid for the respective tracts of land and received therefor a receipt, a copy of which is hereto attached, marked 'Exhibit C,' and made a part of this agreed statement of facts. That within 15 days from that date the plaintiff and the persons from whom he purchased the lands described in the petition deposited the balance of the 75 per cent. of his bid upon said land, and received therefor a receipt for final payment, a blank copy of which receipt is hereto attached, marked 'Exhibit D,' and made a part of this agreed statement of facts." While the rules and regulations so prescribed reserved the right to reject any and all bids, there was a further provision that immediately after any sale, schedules of the successful bidders should be prepared and submitted to the Secretary of the Interior, or such officer as he might designate for consideration and approval, such approval to be subject to the condition that the Secretary of the Interior might by formal order set aside and vacate any proposed sale for failure of the prospective purchaser to pay any part of the purchase price or the interest thereon when the same becomes due, or for any other good reason. Also, in such case, by formal order, to forfeit to the Choctaw and Chickasaw Nations any and all of the purchase money paid as a guaranty of good faith. As we understand the regulations prescribed, the authority was given to the Superintendent for the Five Civilized Tribes to approve the sale, and by reference to "Exhibit D," we find the same is designated as "Certificate of Purchase, Surface of Segregated Coal and Asphalt Lands." In this exhibit we find that the purchaser is entitled to the immediate use and possession of the surface of the lands purchased, but that no drilling or mining fo minerals thereon, including oil and gas, shall be permitted, nor merchantable timber thereon disposed of, or any stone or sand removed therefrom until the full purchase price has been paid. It is the contention of the purchaser that the sales were not approved by the Secretary of the Interior until some time in February, 1918, and that no certificate of purchase was ever issued by the Secretary of the Interior. The failure of the Secretary of the Interior to issue the certificates of purchase convinces us that the Superintendent for the Five Civilized Tribes was the officer designated to approve the sale; consequently, there was no necessity for a certificate to be issued by the Secretary of the Interior. The purchaser had fully performed every requirement to entitle him to a patent prior to the 1st day of January, 1918, while the patent was not issued until after the 4th day of February, 1918, but when the same was finally issued, it related back to the date of the original purchase. Section 21 of the rules and regulations prescribed by the Secretary of the Interior provides: "As soon as full payment is made for any tract of the land purchased under these regulations, a deed shall be issued, conveying said land to the purchaser without any reservations, except in the case of the segregated coal and asphalt land where the coal and asphalt are reserved." In 37 Cyc. 792, it is said: "While ordinarily the owner of property for the purpose of taxation is the person having the legal title or estate, an equitable estate or interest in land is subject to taxation, if within the terms of the statute imposing the tax. The lands in controversy were entered upon the tax rolls at the exact amount paid by the purchaser. Either the money then in possession of the government was held in trust for the purchaser and liable to be assessed for taxes, or the purchaser was entitled to a patent. In other words, on the 1st day of January, the purchaser had complied fully with every requirement to entitle him to a patent; that is, the full purchase price had been paid, possession of the lands had been taken by the purchaser, or he was entitled to the possession. The rule is more fully stated in Copp v. State, 69 W. Va. 439, 71 S. E. 580, 35 L. R. A. (N. S.) 670, as follows: "The general rule obtaining as to the right of a state to tax property which has been granted or sold by the United States government, and the title thereto or a lien thereon retained in favor of the public, has been well stated by Mr. Justice Elliott, in State v. Itasca Lumber Co., 100 Minn. 355, 111 N. W. 276, as follows: Usually the possession of the legal title by the United States government determines both the With respect to the public domain, there is one exfact and the right of ownership. ception to this general rule, which is as well settled as the rule itself. When Congress has prescribed the conditions upon which portions of that domain may be alienated, and provided that, upon the performance of the conditions, the United States shall issue a patent to the purchaser, and all the conditions are complied with, it only remains for the United States the legal title in trust for the purchaser. When to issue the patent, and in the meantime it holds the government has no longer any right or interest in the property which would justify it in withholding the patent, and the purchaser is in possession, the latter will be treated as the beneficial owner. This exception rests upon the principle that he who has the right to property and is not excluded from its enjoyment, shall not be permitted to use the legal title of the government to escape his just share of taxation. But before the land can be taxed by the state as the property of the beneficial owner, a perfect equitable title must be vested, and the consideration fully paid to the United States.'" Continuing on the following page is cited Cass County v. Morrison, 28 Minn. 257, 9 N. W. 761, the controversy there being as to the taxability of certain lands embraced [ money being substituted for the warrant and within a grant made by the United States to relating back to the original location. the Northern Pacific Railroad Company, and It is well settled that land purchased of the subsequently sold by the railroad to the de- United States and paid for, though not patfendant. In holding that the lands were tax-ented, is subject for taxation. able, in the hands of the defendant, notwithstanding no patent had ever issued therefor, Berry, J., said: "From the concessions of the parties, it appears that, except as respects the payment of the cost mentioned, everything has been done required by the terms of the grant to entitle the company to a complete, perfect, and absolute title in fee to the lands in controversy, and to entitle it to receive the proper evidence of such title from the United States. In other words, the company has earned and paid for the lands by complying with the conditions of the grant, and if a formal conveyance be necessary to vest it with the legal title, it is, nevertheless, in the fullest sense, the equitable owner of the land, and the legal title is held by the United States as a naked trustee solely and simply for the company's use and benefit. This is so, irrespective of any notion of the grant in præsenti and its effect in conferring title in præsenti. "Nor does the fact that the issuance of the patent is delayed by the government after the purchaser has entered on the land, for the purpose of making an investigation concerning the entry, exempt the land from taxation, especially when, at the time of the investigation, the equitable title is in the purchaser, and the patent finally issues upon the original purchase and entry." In Morris et al. v. Board of Commissioners of Love County, 177 Pac. 900, the syllabus reads: "Where nontaxable Indian lands become taxable on alienation, a vendee, who takes possession of such lands under an executory contract of sale, has the equitable title thereto and is the owner thereof for the purpose of taxation." In Wheeler v. Merriman, 30 Minn. 379, 15 N. W. 667, we have the following: "The facts disclosed by the record are these: One White purchased the land of the United States on the 2d of October, 1857, by locating upon it a military bounty land warrant. The issue of a patent upon this location was suspended on account of a caveat being filed in the General Land Office against the warrant by the owner thereof, on the ground that the assignment was forged, and on that ground the warrant was canceled in November, 1864. * * The plaintiff, who was the grantee of White, the locator, in July, 1880, paid to the United States $100 in lieu of the canceled warrant, and, the substitution being thus made, a patent issued to White upon his original location of October 2, 1857. Had this location -been canceled and the land reverted to the United States and by them been sold to another purchaser, an entirely different question would have arisen. But in this case the location was never canceled, but merely the issue of a patent sus * ** The en try was finally approved, and the patent when issued, related back to the original location." In Witherspoon v. Duncan, 21 Ark. 240, appeal to the Supreme Court of the United States, reported in 4 Wall. 210, 18 L. Ed. 339, Mr. Justice Davis said: "It does not appear from the record why the patent was so long delayed; but the claim was finally approved on the original proofs, and the patent, when issued, related back to the original entry. The lands were therefore under the laws of the state properly chargeable with taxes from the date of the first entry. In Bowls v. Oklahoma City et al., 24 Okl. 579, 104 Pac. 902, 24 L. R. A. (N. S.) 1299, by an act of Congress, the United States granted to Oklahoma City a tract of land for the benefit and use of the city's free schools. The act provided for the platting of the land, and that when a sale thereof had been made and purchase money all paid, patents should issue. On December 24, 1894, Bowls and the city entered into a contract of sale for some of the land, and, pursuant to the agreement, Bowls paid $25, and agreed to pay the sum of $32, thereon before one year from said date, and the further sum of $75 on or before December 24, 1912. It was there held that "A vendee of realty in possession under an executory contract of sale at the date of the assessment is the real owner for the purpose of taxation, and that too, whether prior to said sale the same was subject to taxation in the hands of his vendor or not." In Miller v. Corey, 15 Iowa, 166, cited in Bowls v. Oklahoma City et al., supra, the court said: "By the terms of the contract the vendee had a right to the possession of this land before these taxes were assessed, and this right, according to the finding of the court below, he exercised and enjoyed from and after the time thus fixed. As a rule, the party deriving the sole profit from the use of the land, in the absence of some stipulation, should pay the accruing taxes." In Boone v. Porter, 45 Okl. 615, 146 Pac. 584, this court, in deciding the question of who was the owner of the land in that case, within the meaning of the tax laws at assessing time, held that the plaintiff was the owner, and, as its reason therefor, said: "This for the reason that he was a vendee in possession under an executory contract of sale at the time of their assessment." In Bowls v. Oklahoma City et al., 24 Okl. 579, 104 Pac. 902, 24 L. R. A. (N. S.) 1299, we held such an owner to be the real one (190 P.) The judgment of the trial court is there- purchased from the original owners, O. B. fore affirmed. HARRISON, V. C. J., and KANE, JOHNSON, MCNEILL, and RAMSEY, JJ., concur. (79 Okl. 82) TULSA FUEL & MFG. CO. v. GILCHRIST Goldrick, Ray Collins, and Donald P. Oak. The defendant's purchase was prior to that of the oil lease by the Lynna Oil Company. There seems to have been some agreement or understanding between the defendant and the original owners of the oil lease that either party had the right to drill wells upon the leasehold estate, and in case the owners of the oil rights drilled a well producing gas, the owners of the gas rights might take it over, and if the owners of the gas rights (Supreme Court of Oklahoma. May 18, 1920.) drilled a well producing oil, the owners of the (Syllabus by the Court.) 1. Appeal and error 1001 (1)—Judgment on verdict supported by evidence will not be reversed. Where the evidence in the case reasonably tends to support the verdict of the jury, and the trial court has entered judgment thereon, such judgment will not be reversed on the ground of the insufficiency of the evidence. 2. Contracts 322 (5)-Evidence supporting verdict for partial recovery for drilling oil and gas well. Evidence examined, and held sufficient to support the verdict returned by the jury. (Additional Syllabus by Editorial Staff.) 3. Contracts 4-"Implied contract" defined. An "implied contract" is a contract implied in fact, or, in the proper sense, one which arises where the intention of the parties is not expressed, but an agreement in fact, creating an obligation, is implied or presumed from their acts, or where there are circumstances which, according to the ordinary course of dealing and the common understanding of men, show a mutual intent to contract. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Implied Contract.] oil rights might take the same over, the party so taking the well to pay the expense of drilling. The Lynna Oil Company purchased the oil lease December 15, 1915. There is no positive evidence showing that the defendant knew of the change in the ownership of the oil lease. The Gilchrist Drilling Company, the plaintiff, was composed of W. O. Goldrick and F. N. Gilchrist. W. O. Goldrick was the father of O. V. Goldrick, one of the original owners of the lease, and had been acting as superintendent for his son, O. B. Goldrick, Collins, and Oak. On or about January 1, 1916, the plaintiff commenced and prosecuted to completion to the depth of 1,275 feet a test well for gas and oil. The well proved to be dry, and was ac cordingly plugged. The plaintiff, after com pletion of the well, sent a bill for the work to the Lynna Oil Company and also to the defendant. The former paid one-half of the bill and refused to pay the balance, claiming that the defendant was liable therefor. The defendant refused to acknowledge its liability, and the plaintiff commenced this action in the district court for Tulsa county against the defendant, demanding judgment for the sum of $541.87. Judgment was re Error from District Court, Tulsa Coun- turned in favor of the plaintiff for $440.50. ty; N. E. McNeill, Judge. Action by the Gilchrist Drilling Company against the Tulsa Fuel & Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed. The grounds relied on for reversal of the judgment of the trial court were: First, the verdict of the jury was contrary to the evidence introduced in said cause and wholly unsupported thereby; second, that the verdict of the jury and judgment of the court Shell S. Bassett, of Tulsa, for plaintiff in thereon were contrary to law. error. The jury at the time the cause was subEdward P. Marshall, of Tulsa, for defend-mitted to them answered certain interrogaant in error. tories as follows: First. "Was there an express or implied contract between the plain PITCHFORD, J. The plaintiff in error tiff and the defendant, the Tulsa Fuel & Manwas defendant below; the defendant in er- ufacturing Company?" to which the jury unanror was plaintiff below. Hereafter the par-imously answered, "Yes." Second. "Did ties will be referred to respectively as they the Tulsa Fuel & Manufacturing Company appeared in the trial court. know that the plaintiff was drilling a well The Lynna Oil Company was the owner of for it, or did it have knowledge of facts or an oil lease, and the defendant was the own-circumstances sufficient to apprise it of that er of a gas lease on the west half of the fact?" to which question the jury unanimoussouthwest quarter of section 30, township 23ly answered, “Yes.” north, range 14 east. These leases had been The facts and circumstances connected For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |