(202 P.) gages were treated by the Doyles and will icker. He thereafter assigned it to T. T. be considered here as one loan of $600 draw-Gaddy. ing 10 per cent. interest and to run for a period of seven years. On June 21, 1916, a little more than four months after obtaining this loan, the Doyles sold 40 acres of the land to the plaintiff in error. The deed by which they conveyed the land was drawn by Anicker and was one of the usual forms of a warranty deed containing this clause: "To have and to hold the said described premises unto the said William J. Anicker, his heirs, successors and assigns forever free, clear and discharged of and from all former grants, charges, taxes, judgments, mortgages and other liens and incumbrances of whatsoever nature, except such as may appear of record on the above-described land upon the date of execution hereof." Plaintiff in error contends that under this clause in the deed he was to assume only two-thirds of the mortgage, the proportion that 40 acres bear to the 60-acre tract covered by the mortgage, and cites the following authorities to support this contention: Dillivan v. German Savings Bank (Iowa) 124 N. W. 350; Mills v. Kelley, 62 N. J. Eq. 213, 50 Atl. 144; Briscoe v. Power, 47 Ill. 447; Monarch Coal & Mining Co. v. Hand, 197 Ill. 288, 64 N. E. 381; Stephens v. Clay, 17 Colo. 489, 30 Pac. 43, 46, 31 Am. St. Rep. 328; Conover v. Brown, 29 N. J. Eq. 510. [2] The trial court found in favor of the Doyles, and we think there is evidence reasonably tending to support the findings of the trial court. The plaintiff in error offered in evidence a receipt which reads as follows: or Plaintiff in error contends that the last sentence on said receipt, "He assumes claims nothing on bal.," is conclusive that Anicker was not claiming any part of the 20 acres or assuming anything on the 20 acres. There is some question as to when that last sentence was written in the receipt, and The clause is susceptible of being construed the Doyles denied they had signed any reaccording to the contentions of each of the ceipt at the time they executed the deed. parties, without doing violence to the lan- They testified that they only signed the deed. guage used. Therefore it became a question The original receipt has been attached to of "what was the agreement of the parties the case-made. Counsel for plaintiff in erat the time they made their deal?" Parol ror insist that this court examine the receipt evidence was admissible to prove their agree- to determine the genuineness of the execument. tion by the Doyles. Counsel for the Doyles urge this court to examine the receipt to determine when the last sentence was written. The plaintiff in error in his brief says: "It is the opinion of counsel for plaintiff in error that after all the genuineness of that receipt is the decisive point in this case. If it stands at all, it stands as the expression in writing of the agreement between these parties, binding on both sides. It means what it says, and its meaning is plain. If it is accepted by this court as genuine, we submit that only one result is possible, and that is a reversal of the judgment of the lower court. Its genuine Plaintiff in error next insists this clause creates a presumption that Anicker was to pay only two-thirds of the mortgage indebtedness and cites a number of authorities to support this contention. We have examined these authorities, but none of them hold that evidence may not be offered to rebut this presumption. The Doyles testified that they were selling the land to Anicker for $1,100; that $600 was deducted on account of the mortgage which Anicker was to pay; that Anicker deducted $60 as a year's interest and paid them $440. Anicker admits the payment of $440 and no more, but he claims he was paying that amount for their equity subject to twothirds of the mortgage. Anicker admits that he had a conversation with plaintiff Gaddy before Gaddy purchased the note from the Waddell Investment Company. He and Gaddy officed together, and he recommended to Gaddy that Gaddy purchase the note and mortgage on this land. The interest coupon falling due February 1, 1917, for $34.50 was paid by Anicker to the Waddell Investment Company and by it assigned to W. J. An ness was sworn to not only by Anicker but by a disinterested witness. It was admitted by the lower court. It bears the thumb print of Eddie Doyle. That thumb print, as well as the signature of Gertie Doyle, appears upon the deed, admitted to be genuine; and if this court has any doubt as to the genuineness of the receipt, we request that the original instruments, the deed and receipt, be examined offered a forged receipt, we neither deserve nor and the signatures compared. If we have ask a reversal. If our receipt is genuine, we are entitled to a decision. We do not believe that counsel for the Doyles will even contend that the receipt is a forgery. That it was all written as a continuous writing, with no laying down of the pen, we do not claim. That last provision was written with the pen at least thrust into different ink. It may have been written after an interval of time during which there had been discussion between the parties. But it was written before signature, which is the important thing." This receipt was undoubtedly taken by Anicker as additional proof that he had paid the $440 for the land. We do not think the last sentence decides anything in this case. It is contradictory. "He assumes or claims nothing on bal." In defining these words, Bouvier says: "Assume; to take to or upon one's self. "Claim; a challenge of the ownership of a thing which is wrongfully withheld from the possession of the claimant." Certainly Anicker could not claim any more than the 40 acres conveyed to him by the deed. The receipt does not mention any incumbrance on the land. Without the last sentence added to it, the receipt is merely an acknowledgment of the payment of a sum of money for whatever equity or interest the Doyles had in a certain 40 acres of land. There is not even a suggestion that any more than the 40-acre tract of land was under consideration, and we cannot read something into the receipt that is not there. Conceding the last line of the receipt was written before it was signed by the Doyles, it would be unjust to them to permit Anicker to place his own interpretation on a meaningless sentence which he had written. A. C. Markley and Wilkinson & Scott, all of McAlester, for defendants in error. MCNEILL, J. This is an appeal from the Judgment of the district court of Pittsburg [3] The second question argued by counsel county, sustaining a demurrer to plaintiff's for plaintiff: "The judgment was excessive petition. The petition is very short, recites in in amount." He claims that if he did as-substance that on the 18th day of January, sume the $600 mortgage, he did not assume 1918, the plaintiff sold and conveyed to dethe second mortgage of $167. Under his own fendants by deed his undivided one-fourth evidence he paid $95 to plaintiff Gaddy on interest in and to certain lands; a copy of this second mortgage; he therefore admits he the deed being attached to the petition and assumed part of it. As we have heretofore marked "Exhibit A." It is further alleged called attention to the fact that this second that the defendants promised to pay the sum mortgage was only a part of the interest on of $1,250 on delivery of the deed, and after the principal mortgage, the second conten- the delivery of the deed defendant gave tion of plaintiff in error is without merit. plaintiff a check for payment of said land in the sum of $1,250, and said plaintiff accepted the check in payment of the land, not knowing or noticing that the same had written on the same the words, "Check to be cashed when Mrs. J. B. Nale executed the deed." [1] This action was to recover a money judgment, and under the law either party would have been entitled to a trial by jury. The jury having been waived, the court tried both the facts and the law. The same rule in regard to the sufficiency of the evidence applies as if the case had been tried to a jury. There being evidence reasonably tending to support the judgment of the trial court, its judgment will not be reversed on appeal. The judgment of the trial court is hereby affirmed. It is further alleged that the check was presented for payment and payment refused. It is further alleged, plaintiff made due and legal demand upon defendants for the consideration, but payment has been refused. It is further alleged on the 25th day of January the defendants caused the deed to be placed on record, and have since conveyed and sold the land to a third party, and reHARRISON, C. J., and KANE, JOHNSON, ceived a consideration therefor; the exact and KENNAMER, JJ., concur. amount being unknown to plaintiff. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (202 P.) [1, 2] The demurrer was a general demur- 12. Executors and administrators 543-Aots rer, attacking the petition for the reason it of "executor de son tort" validated by grant did not state facts sufficient to constitute a of letters testamentary. cause of action. In determining this question there are two well-known propositions of law to guide the court, to wit: "On a demurrer to a petition as defective, in that it does not state facts sufficient to constitute a cause of action, the petition must be liberally construed, and all its allegations taken as true for the purpose of the demurrer." Jackson v. Moore, 79 Okl. 59, 191 Pac. 590. "Where a pleading states any facts upon which a pleader is entitled to any relief under the law, a general demurrer to the same should be overruled." Schreiner v. City Nat. Bank, 76 Okl. 76, 183 Pac. 905. When we admit the allegations of the petition that the plaintiff sold the land to the defendants, and executed the deed therefor, and defendants have failed to pay for the same, and they have accepted the deed, filed the same of record, and then sold the property, the petition stated a cause of action. We know of no rule of law that will permit a party to purchase the property of another and accept a deed and sell the property to a third party, and then refuse to pay for the same. The defendant attempted to argue certain defenses; these are not avail able at this time, but are defenses that must be pleaded and proved. For the reasons stated, the judgment of the trial court is reversed and remanded, with directions to reinstate the petition and overrule the demurrer. Where a person takes charge of the property of the deceased, and proceeds to administer upon the same, he becomes what is term ed an "executor de son tort," and if thereaftrule is, and especially where said party is er he is appointed administrator, the general an heir, that the subsequent grant of letters testamentary relate back to the death of the intestate, and makes valid the acts of the "ex ecutor de son tort." [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Executor de Son Tort.] 3. Executors and administrators 543Grant of letters relate back to death of intestate. The general rule is that grant of letters of administration relates back to the date of the death of intestate, and legalizes all intermediate acts of the administrator, and such administrator cannot by suit, in the absence of fraud, avoid acts done by him, or recover property transferred by him after such death, and before his appointment, nor, if he has received the purchase price, thereafter recover the value of said property transferred by him before such appointment. 4. Executors and administrators 544-Payment of decedent's debts properly set off in statutory action for alienation of property. In an action by an administrator to recover double the value of certain property alienated by defendant as provided in section 6324, R. L. 1910, when the evidence discloses that the property was delivered to the defendant by the HARRISON, C. J., and PITCHFORD, ELT- administrator before being appointed, and deING, and KENNAMER, JJ., concur. (84 Okl. 107) SHAWNEE NAT. BANK v. VAN ZANT. (No. 11088.) (Supreme Court of Oklahoma. Oct. 11, 1921. Rehearing Denied Dec. 13, 1921.) (Syllabus by the Court.) 1. Appeal and error 564 (3)-District judge assigned to outside county cannot after expiration of assignment extend time for serving case-made. fendant sold the property and delivered the proceeds to the plaintiff, which was used by her in the payment of debts of the deceased, held, error to refuse a requested instruction to the effect that the defendant was entitled to plead as an offset the amount of such proceeds used in paying the legitimate debts against said estate. 5. Alienation of decedent's property. Quære: Whether an executor de son tort, who takes charge of an estate and delivers the property to a third person for the purpose of sale, and the third party sells such property and delivers the proceeds to the executor de son tort, who in turn applies the money to the payment of debts against said estate, wheth er said acts constituted an embezzlement or alienation of the property within the meaning of section 6324, R. L. 1910, is not decided. 6. Executors and administrators 154-Administrator entitled to possession of personalty from decedent's death. A district judge, who has been assigned by order of the Chief Justice to hold court in a county outside of the district in which he is elected, has no authority, after the expiration of the time fixed in the order assigning him to hold court in said county, to grant an extension of time in which to prepare and serve case-made, in a case tried before him while lawfully holding court in such county, and although the regular judge in said district has certified his disqualifications to try said case on the merits, he may grant an extension of time in which to prepare and serve case-made. of administration. Under the law of this state, the administrator is entitled to possession of the personal property from the date of the death of the deceased until it is disposed of in the course For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 543 (Okl. 7. Executors and administrators Bank paying checks of widow prior to her the appeal without writing an opinion. DeThis court overruled the motion to dismiss appointment as administratrix not liable to fendant in error made application to refile her after appointment for sums so paid. In an action by an administrator against a again considered by this court and denied, the motion to dismiss, and the same was bank where it is alleged that the plaintiff prior without writing an opinion. to the time of being appointed administratrix error again presents the motion to dismiss Defendant in received $12,000 life insurance in her own the appeal for the reason the order of exten name and turned the same over to the bank with the agreement that the bank should pay the secured debts against the estate out of said funds, and the evidence disclosed that said funds were deposited to the credit of the plaintiff, and she issued checks payable to third parties in payment of claims against said estate, and paid certain debts that were not secured, held, the bank would not be liable for unsecured debts paid by plaintiff by check upon the bank to third persons. 8. Homestead 146 Surviving wife may mortgage her interest during minority of children. The surviving wife may mortgage her interest in the homestead, although the mortgagee or purchaser at the mortgage sale would have no right to possession of any part of the homestead during the minority of any of the children. sion made by the regular judge to make and to dismiss. The opinion was rendered in Counsel for defendant in error insists that the case of Cain v. King, 49 Okl. 596, 153 Pac. 1133, overruled the case of Rogers Appeal from District Court, Pottawatomie v. Bass & Harbour, supra. In this counsel County; James I. Phelps, Judge. Action by Sarah F. Van Zant, administratrix of the estate of R. E. L. Van Zant, deceased, against the Shawnee National Bank, Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instruc tions. Abernathy & Howell, of Shawnee, for plaintiff in error. Goode & Dierker, of Shawnee, for defendant in error. MCNEILL, J. This is an appeal by the Shawnee National Bank from a judgment rendered against it in the district court of Pottawatomie county in favor of Sarah F. Van Zant, administrator of the estate of R. E. L. Van Zant, deceased. The defendant in error filed a motion to dismiss the appeal for the reason the regular judge of the tenth judicial district had certified his disqualifications to try the case upon its merits, and James I. Phelps, one of the regular judges of the Thirteenth judicial district, was assigned to hold court in said district, and tried the above-entitled case, and at the time of overruling the motion for new trial extended the time in which to make and serve case-made. The case made was not prepared and served within the time allowed by the trial judge, and an application was made to the regular judge For an extension of time in which to serve the case-made, and several extensions were granted by the regular judge, and the casemade served within the extension made by the regular judge. is in error, and a reading of the facts in the case disclosed that it does not overrule the case, but supports the rule announced in the case of Rogers v. Bass & Harbour. The the case was pending in the county court, record in the case of Cain v. King discloses and was tried before a judge pro tempore stitution provides for the election of a judge or special judge. Article 7, § 12, of the Concase when the regular judge is disqualified. pro tempore in the county court to try the The judge pro tempore tried the case, and on August 21st granted an extension of time of 40 days in rendered judgment and which to prepare and serve case-made and 10 days to suggest amendments, the same to be signed and settled on 5 days' notice. The case-made was not prepared and served within said time, but within the time, to wit, on September 26, 1913, the regular county judge extended the time to make and serve case-made, to and exclusive of October 15, 1913, and the case-made was served October 11, 1913, and was signed and settled November 12, 1913. The defendant in error filed a motion to dismiss the appeal for the reason the same was signed and settled after the time allowed in the original order, and that the judge pro tempore after said date was without jurisdiction to sign and settle the case-made. It was contended that the office of the judge pro tempore expired 15 days after October 15, 10 days of which was granted to defendant in error to suggest amendments and 5 days for plaintiff in error to give notice of signing and settling, which would make the time expire October 31, 1913, and, if not signed and settled on that date, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (202 P.) the court was without jurisdiction. The case was not signed and settled until November 12, 1913, and in support of the motion to dismiss the parties relied upon the case of City of Shawnee v. State Pub. Co., 33 Okl. 363, 125 Pac. 462, 42 L. R. A. (N. S.) 619, and cases following that decision, where this court had announced the rule as follows: or rendered judgment, and if he fixes the time to make and serve case-made, he has no power thereafter to extend the time to make and serve a case-made, and when he attempts to do so his act is a nullity. McGuire v. McGuire, 78 Okl. 164, 189 Pac. 193; Bradley v. Farmers' State Bank, 45 Okl. 763, 147 Pac. 302. Second. A district judge, assigned to an"Where no time has been fixed either by order of court or by notice given by the parties other district outside of his own to hold within the time for serving a case and sug-court, is without jurisdiction, after the order gesting amendments thereto for settling a case, has expired assigning him to said district, the authority or term of a judge pro tempore to sign an order extending the time to serve ceases upon the expiration of the time fixed for suggesting amendments, and a case-made settled by him after that time is a nullity." a case-made. First State Bank of Mountain Park v. School District No. 65, Tillman Co., supra. Third. Although the regular judge is disThat was the only question before the qualified and has so certified his disqualificourt in the case of Cain v. King, supra; the cations to try the case upon the merits, he former holdings of this court on that ques- may make a legal order, extending the time tion were overruled. The rule announced in to make, prepare, and serve case-made. the case of Cain v. King, stated in the sylla-Rogers v. Bass & Harbour, supra. bus, was as follows: Fourth. A special judge or judge pro tempore, or district judge, who has been assigned outside of his district to hold court, may, in a case tried before him, at any time within six months from the date of the judgment "A judge pro tempore may, in a case tried before him, at any time within six months from the date of the judgment appealed from, sign and settle same where served within the time fixed by statute or any lawful order of ex-appealed from, sign and settle the same when tension." served within the time fixed by statute or any lawful order or extension. Cain v. King, supra. The motion to dismiss is therefore overruled. The appeal involves three separate and distinct propositions, based upon separate and distinct causes of action, all united in summarized as follows: This authorized the judge pro tempore to sign and settle the case-made any time within six months after the judgment, provided, however, of course, that the case-made was served within the time fixed by the order of the judge pro tempore who tried the case, or the extensions granted by the regular judge. Whether the regular judge in the case of one petition, and will be considered sepaCain v. King was disqualified does not ap-rately. A brief statement of the facts may be pear from the record, but the only provision for electing a temporary judge is when the county judge is disqualified. The facts disclosed that the regular county judge signed the order extending the time in which to prepare the case-made, and this court refused to dismiss the appeal. Justice Hardy wrote the opinion of Rogers v. Bass & Harbour Co., also wrote the opinion in the case of Cain v. King, and also wrote the opinion in the case of First State Bank of Mountain Park v. School District No. 65, Tillman Co., 63 Okl. 233, 164 Pac. 102, wherein the court stated as follows: "A district judge, who has been assigned by order of the Chief Justice to hold court in a county outside of the district in which he is elected, has no authority, after the expiration of the time fixed in the order assigning him to hold court in said county, to grant an extension of time in which to prepare and serve case-made, in a case tried before him while lawfully holding court in such county." [1] There is no conflict in these decisions. This court is committed to the following principles of law, to wit: First. After a special judge or judge pro tempore has overruled a motion for new trial, R. E. L. Van Zant died in December, 1913, leaving his wife, Sarah F. Van Zant, and several minor children. He owned several thousand dollars worth of personal property, consisting of live stock, farm machinery, also a farm situated in Pottawatomie county, which was occupied by him and family as a homestead, together with the crops grown upon said land that year. The deceased was The indebtedness indebted about $20,000. consisted of a $5,000 note payable to H. T. Douglas and assigned by him to W. B. Reed, signed by R. E. L. Van Zant and Sarah F. Van Zant and secured by a first mortgage upon the farm. In addition there were three notes, one for $7,000, one for $3,615, and one for $1,000, and all signed by Mr. and Mrs. Van Zant, payable to the bank herein, and secured by a second mortgage on the farm. The $3,615 note was also secured by a chattel mortgage upon certain personal property. In addition there was approximately $2,500 due other parties than the bank, and part of said indebtedness was secured by chattel mortgages. In addition thereto there were certain notes held by the bank secured by chattel mortgages, and two small unsecured notes. |