title to real estate, and in no way affected | plaintiff in this cause be correct, and the the title that Brady may have acquired under his deed. If, in fact, Mack Francis was an adult at the time he deeded the lands to Brady, the county court of Wagoner county did not have jurisdiction over the lands in controversy, for the reason the title to the lands had passed from Francis to Brady, and the county court could not decree the sale of lands which did not belong to the estate of Francis, and for the additional reason that, if Francis was in fact a minor on the date the county court appointed a guardian over him and his estate, under section 3339, Revised Laws of 1910, which

reads as follows:

guardian sell through mistake the lands of other persons than his ward, title to the lands would pass, and the parties whose land had been sold through mistake would not be permitted to question the validity of the sale. No authorities have been cited which sustain the contention of the plaintiff in this cause that the court erred in permitting the defendant Brady to establish by evidence the correct age of Mack Francis. The record does show that he was 10 years of age on April 6, 1899, on the date of his enrollment. It was competent to permit the defendant Brady to establish as near as possible the date that he was born between April 6, 1888,

"The power of a guardian appointed by court and April 6, 1889, or, that is, the birth date is suspended only:

"First. By order of the court. "Second. If the appointment was made solely because of the ward's minority, by his obtaining majority.

"Third. The guardianship over the person only of the ward, by the marriage of the ward"

-the court and guardian were divested of whatever authority and jurisdiction they ever had over the estate and person of Mack Francis.

Counsel for the plaintiff appear to have overlooked the fact that the decree of sale only purported to decree the sale of lands belonging to Mack Francis as a minor, and if Mack Francis had attained his majority prior to the decree of the sale, confirmation, execution, and delivery of guardian's deed, the court was without jurisdiction, and its orders and decrees are absolute nullities. Counsel for the plaintiff attempted to answer this contention by arguing that the statute under which the sale was made required the guardian to give "notice to the next of kin and all persons interested in the estate," and they assume that, on account of the statutes requiring his notice, the whole world is a party to this proceeding and are bound by the decree.

some time during the year prior to April 6th, the date on which he was enrolled. This

court has sustained the defendant Brady's contention as to the right to establish the birth date by parol testimony in numerous decisions and in the case of Gilgrease v. McCullough, 249 U. S. 178, 39 Sup. Ct. 198, 63 L. Ed. 547, the Supreme Court of the United

States announce the same rule.

[3] We have examined the testimony, and believe that the verdict of the jury in determining that Mack Francis was 21 years of age on the date of November 8, 1909, when he executed the deed to defendant Brady, is supported by the evidence, and that there was no error in the judgment of the trial court in approving the verdict upon that issue. The plaintiff complains of the action of the court in submitting the cause to a jury. In our opinion this action was in effect and in substance one for the recovery of specific real property, and that the defendant Brady was entitled to have the issue as to the age of Mack Francis submitted to a jury, and that the action of the court in doing so was not error. Gill v. Fixico, 77 Okl. 151, 187 Pac 474.

We conclude that the judgment of the court in favor of Brady against Strawn was The defendant, Brady, was not interested correct, but we are of the opinion that the in the estate of Mack Francis, for if his court erred in submitting the issues as to deed conveyed the title to the lands to him the rights of Annie Harris to the jury. The they were no longer a part of the estate of undisputed evidence shows that she is enFrancis and the only object of the notice re-titled to a dower interest in the lands in conquired by the statute is to give the next of troversy. It is insisted on behalf of the dekin of the ward, who are interested in his general welfare, a chance to appear and show cause why the order of sale should not be made. The proceeding is in no way an adverse action between various parties wherein they may appear and have adjudicated the title to real estate; in fact, all that the court orders to be sold is the interest of the ward in the property, whatever that interest may be. If the ward has no interest in the lands decreed to be sold, the purchaser at the sale obtains none.

fendant Brady that the cross-petition in error and cross-appeal of Annie Harris should be dismisssed for want of jurisdiction for the reason that her cross-petition in error was not filed within six months of the date of the order overruling the motion for a new trial. With this contention of counsel for the defendant Brady we cannot agree. It is true that a proceeding in error in this court under the statute must be commenced within six months from the date of the rendition of the final judgment or order in order to vest [2] If the contention of counsel for the this court with jurisdiction to review the

(202 P.)

judgment or order sought to be reviewed, brings the entire case and all parties to the but this court in numerous decisions has an- action to this court, and when the record is nounced the rule that all parties whose in- properly filed in this court as to all the parterest will be affected by a reversal of the ties that would be affected by a modification judgment or order must be made parties to or reversal of the judgment or order appealed the appeal. Southwest Surety Insurance Co. from, this court has jurisdiction over them, v. Hall, 40 Okl. 447, 139 Pac. 305; Michael and the court has jurisdiction to determine v. Isom, 43 Okl. 708, 143 Pac. 1053; Syfert the respective rights of any of the parties to v. Murphy, 45 Okl. 137, 144 Pac. 1022; Kolp the action. This rule has much to commend v. Parsons, 50 Okl. 372, 150 Pac. 1043. it; in fact, it simplifies procedure on appeal, and vests the court with the jurisdiction to safeguard the interest of litigants that might otherwise suffer substantial injury by invoking a more technical rule. Why have all parties whose interest may be affected parties to the appeal, if the court is powerless to protect their rights?

[4] By the act of Legislature passed in 1917 (chapter 219, Session Laws of 1917, p. 403) the issuance and service of summons in error were abolished, and the appellant is only required to give notice in open court at the time of the rendition of judgment or within 10 days thereafter of his intention to appeal, and upon the giving of such notice all parties to the action in the trial court of record become parties to the appeal in the Supreme Court, and upon the filing of the record by case-made or transcript and a petition in error by the appellant, this court is vested with jurisdiction of all of the parties to the action, and the court is vested with jurisdiction to determine the respective rights of the parties, and where the same are directed to the attention of the court there is no good or valid reason presented why the court should not properly safeguard the rights of the respective parties in the action. We know of no statute or rule in this court requiring the defendant in error to file a cross-petition within six months from the date of the rendition of the judgment; in fact, it would be a matter of impossibility, in many cases where the appellant avails himself of the full six months' time in which to file his appeal, for a defendant in error to file his petition upon the same record within the six months, and it is more in keeping with reason and justice if the cross-petition is filed within a reasonable time after the filing of the record in the appellate court, and before the cause is submitted for consideration, to hold that the same is filed in time to be considered by the court. the case of Feder v. Field, 117 Ind. 386, 20 N. E. 129, it was held:

In

"Under its operation one appeal brings to the appellate court the entire controversy. By the one appeal as much can be accomplished as by two distinct appeals."

In the case of Gaines v. Merryman, 95 Va. 660, 29 S. E. 738, the Supreme Court of Appeals of Virginia held:

"The appeal, when allowed, brings before the court for review the entire record, and the statute quoted does not impose or authorize any limitation upon the operation of the appeal."

In this state, under the statute as to all parties to the action that appeared as parties in the trial court giving notice of appeal by any one of the parties automatically

In the case at bar it appears that the trial court did not properly protect the interest of the defendant Annie Harris. The undisputed evidence shows that Annie Harris is a full-blood Creek Indian, and on the date of the death of William Francis, deceased, in the year 1905, she was left as his surviving spouse, and is entitled to a dower interest in the lands in controversy; that the deeds introduced in evidence, executed by her, were never approved as required by law, and are absolutely void. It was the duty of the trial court to appoint commissioners, and have her dower interest in the lands in controversy assigned to her. It is admitted that the receiver appointed for the lands in controversy sold an oil and gas lease for the sum of $55,-. 000, and as this cause in part must be reversed and remanded to the district court, in order that the dower interest of Annie Harris may be assigned to her, we deem it advisable to establish a rule to be followed in assigning the same to her with regard to the funds arising from the sale of the oil and gas lease.

In the case of Barnes et al. v. Keys et al., 36 Okl. 6, 127 Pac. 261, 45 L. R. A. (N. S.) 178, Ann. Cas. 1915A, 515, this court speaking through Commissioner Rosser announced the rule as follows:

"Where the owners of a life estate and the owners of the remainder join in an oil and gas mining lease, and the lessee develops the lease and produces oil, the life tenants are entitled either to have the royalties invested and to receive the income therefrom, or to receive such a proportion of the royalty as will amount to the present value of an annuity for the life terest on the royalties at 6 per cent." expectancy of the life tenant equal to the in

The Supreme Court of the United States in the case of Gabe E. Parker et al. v. Tootie Riley, a Minor, 250 U. S. 66, 39 Sup. Ct. 405, 63 L. Ed. 847, held:

allottee after March 4, 1906, must be deemed to be entitled, upon the latter's decease following the Act of May 27, 1908 (35 Stat. at L. 312, c. 199), to the exclusive use, as against

"A child born to an enrolled full-blood Creek

the other heirs, of the entire homestead while | subject to revestment in the vendor upon failshe lives (but not beyond April 26, 1931), in- ure to pay purchase money, and the property cluding the interest or income which may be is subject to being repossessed by the vendor obtained during that period by properly invest- upon failure to pay, and is not a sale upon coning all the royalties collected and accruing un-dition, nor is it an "executory contract" of der an oil and gas lease, leaving the principal, sale, and where title is reserved in the vendor, like the homestead, to go to the heirs in general and is to vest in the vendee only upon the hapon determination of her special right, in view pening of a condition provided in contract of of the proviso in the Act of May 27, 1908, § 9, sale. Garrison v. Latham, 23 Okl. 599, 103 that, if any such allottee shall die leaving issue Pac. 609. born since March 4, 1906, the homestead of the allottee shall be inalienable for the use and support of such issue during life until April 26, 1931, unless restrictions against alienation are removed by the Secretary of the Interior."

[5] In the Parker Case, supra, the court approved the doctrine announced in the case of Barnes et al. v. Keys et al., supra, so we conclude, in the case at bar, that in assigning the dower interest of Annie Harris, the court should decree that she is entitled to the income from one-third of the funds re ceived on the sale of the oil and gas lease upon the lands in controversy, or decree that she be paid an amount equal to the value of an annuity arising from the investment of one-third of said funds during her life expectancy. Her interest should be settled for in the funds arising from the sale of the oil and gas lease the same as if the land had been sold.

The judgment herein, in so far as it determines the rights between the plaintiff George W. Strawn and the defendant A. C. Brady, is affirmed; but, in so far as it denies the dower interest of the defendant Annie Harris, the same is reversed and remanded to the district court, with directions to proceed in accordance with the views herein expressed.

HARRISON, C. J., and McNEILL, JOHNSON, ELTING, and MILLER, JJ., concur.

(82 Okl. 197)

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Conditional Sale; Executory Contract.]

2. Sales 472(1)-Verbal conditional contracts and unrecorded written contracts are void as to buyer's creditors or innocent purchasers.

All conditional contracts of sale of personal property, if verbal, are void as to creditors of the vendee. or innocent purchasers, or, if in writing, are void as to creditors of the vendee or innocent purchasers for value, if not placed of record in compliance with section 6745 of the Revised Laws of 1910, State of Oklahoma.

Cowles' suit was for the enforcement of a labor lien against the defendant, and afterwards the Guaranty State Bank of Drumright filed an interplea in said cause, seeking to foreclose a chattel mortgage on 200 feet

TAGUE v. GUARANTY STATE BANK OF of 154-inch pipe and 1,000 feet of 10-inch DRUMRIGHT et al. (No. 10174.)

(Supreme Court of Oklahoma. June 7, 1921. Rehearing Denied July 5, 1921.)

(Syllabus by the Court.)

1. Sales 459-Contract held a "conditional sale"; "executory contract of sale."

pipe, of the value of $3,713, given the bank by the Logan Oil & Gas Company. The bank appears with the Logan Oil & Gas Company, a corporation, and E. J. Cowles, in this appeal as defendants in error.

Afterwards Chas. L. Tague filed an interplea in the same suit, setting up a claim to An owner delivered to an oil and gas comthe same property asked for by the first inpany casing and pipe under a contract of sale, terpleader under a claim of being the owner and a portion of the consideration being paid and entitled to the possession of the same, therefor and deferred payments being evidenced he having turned the same over to the Logan by note or notes, and it being agreed that the Oil & Gas Company, under a sale to them in title was to remain in the vendor until the con-writing which he attached to his interplea sideration was paid in full, there being no evidence showing the contract to be in the nature of a bailment, rental, or lease, or a mere contract to sell, held, that same constitutes a "conditional sale" and title vests in the vendee at time of transaction; such title, however, is

as Exhibit A, setting out the sale of certain pipe to the said Logan Oil & Gas Company, for the sum of $8,000, the said gas company having executed, by S. D. Logan, notes to the said Tague, covering the said consideration

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(202 P.)

ror. The transaction was not a sale but a bail

of $8,000, less $500 paid in cash at the time, held the transaction to be a conditional sale, of the sale. The notes were delivered to as distinguished from a sale on a condition or Tague, and the bill of sale delivered to the an executory agreement for sale, and in this Logan Gil & Gas Company, and the pipe committed, as we contend, his fundamental erwas delivered to the said Logan Oil & ment with an option to buy, that is, a sale on Gas Company by the said Tague. It was a condition or an executory agreement to sell, alleged, further, that the title to said pipe in none of which the title would pass until the was to remain in the interpleader, Chas. L. conditions under which it was to pass should Tague, until the full purchase price, evidenc- have been met." ed by said notes, was paid to the said Chas. L. Tague; also alleged the interests of the The defendant in error agrees, in his brief, other interpleader, the Guaranty State Bank that the pivotal question in the case is whethof Drumright; also alleged that the said er the transaction between the plaintiff in Guaranty State Bank of Drumright had ac error and the Logan Oil & Gas Company, reltual notice of the contract between the saidative to the sale and delivery of the pipe, interpleader, Tague, and the Logan Oil & was a conditional sale, or was it a sale upon Gas Company.

Oklahoma cases discuss this distinction: Garrison v. Latham, 23 Okl. 599, 103 Pac. 609; Carpenter v. Mead, 60 Okl. 127, 153 Pac. 658; Brooks v. Tyner et al., 38 Okl. 271, 132 Pac. 683; Oklahoma Moline Plow Co. v. Smith, 41 Okl. 498, 139 Pac. 285; U. S. Supply Co. v. Andrews, 176 Pac. 967.

condition and in the nature of a bailment. The said Chas. L Tague, interpleader, aft- [1, 2] The distinction between these two erwards filed an amended interplea in which kinds of contracts as to the sale of personal he sought to plead an oral contract as having property is a very narrow one. It appears, been entered into by and between C. L. Tague however, that under the laws of this state and S. D. Logan, for the Logan Oil & Gas the distinction is recognized. The following Company, whereby it was agreed that the title to the pipe should not pass to the said Logan Oil & Gas Company until the purchase price was fully paid, contending that Tague let the oil company have the property under a bailment, and that the contract was not a contract of sale but merely an executory contract of sale, and that the notes and the bill of sale was turned to John H. Perry, cashier of the First National Bank of Drumright, to hold in escrow, and when the Logan Oil & Gas Company paid the notes to John H. Perry then he was to deliver the bill of sale to the oil and gas company, and setting out the other allegations as set out in the first interplea.

To these interpleas the Guaranty State Bank of Drumright filed answers, denying the allegations of the interplea, and the is sue thus joined between the two interpleaders was tried before the Hon. James B. Cullison, sitting as presiding judge; a jury having been waived. On the 5th day of March, 1918, the court rendered judgment in favor of the Guaranty State Bank, decree ing that the said bank had valid and subsisting lien on the property covered by their mortgage and foreclosing the same, and de creeing that Chas. L. Tague take nothing in said cause.

Tague has appealed the case to this court and will be hereafter designated as plaintiff in error, and the Guaranty State Bank of Drumright will hereafter be designated as the defendant in error, as the issue is between these two parties.

The question involved in this case is set out and declared by the plaintiff in error in his brief, on page 36:

"As has already been stated, the pivotal question in the case is whether the transaction alleged by the plaintiff in error, and which is not disputed by the evidence, amounts to a conditional sale or a sale on condition. The court

The distinction between a conditional sale and a sale upon condition or an executory contract of sale is that in the conditional sale the title to the property and the right to possession passes to the vendee at the time of the transaction. Even though it may specify that the title is reserved in the vendor, and is upon condition that the title does not pass until the agreed purchase price is paid, the same constitutes a conditional sale; and in the event that the purchase money is not paid, and as between the vendor and vendee, the vendor can reclaim the property and title revest in the vendor, and in its nature is what is sometimes in the law of real property called a fee conditional, and, the con. dition not being complied with, title revests in the seller.

In an executory contract of sale or a sale upon a condition, the title does not vest at the time of the transaction, but only vests upon the happening of a future condition, and the vendee in that case does not hold the title of the property, but, if in possession, his holding is similar to a bailment, lease, or rental. Such last-described contracts do not have to be placed of record in compliance with section 6745, R. L. 1910, and hereinafter quoted, in order to protect the vendor.

We think we are safe in saying, in all cases of sale of personal property where the property is delivered to the vendee and the purchase price is agreed upon and part of the purchase price paid, or none of the price paid, but to be paid in the future, which contract of payment may be evidenced by note or may rest in parole, and it being agreed

that the title to the property does not pass the property in controversy herein, to secure until the full purchase price is paid, that an indebtedness of $4,800. The same was such transaction constitutes a conditional duly witnessed and was filed in the office of sale. In all such contracts the title passes the county clerk of Garfield county, Okl., on to the vendee at the time of the transaction the 28th day of May, 1917. Said chattel and delivery of the property to vendee, but mortgage was executed on the 10th day of in case of default in the payment title revests May, 1917.

in the vendor; he being entitled to repos- The, record discloses that some time after sess the property, and as against innocent the execution of this mortgage and filing of purchasers and creditors of the vendee such the same the plaintiff in error secured from a contract must be placed of record in com- Perry, the cashier of the First National Bank pliance with section 6745, R. L. 1910. See of Drumright, the contract of sale that the Garrison v. Latham, 23 Okl. 599, 103 Pac. 609. plaintiff in error had executed to the Logan We have examined the record in this case, Oil & Gas Company, and went before a noand there is nothing in the evidence to show tary public and acknowledged the same and that the transaction between the plaintiff in had the same filed of record. It appears to error herein and the oil and gas company have been filed July 12, 1917, in Creek counwas anything but a conditional sale. The ty, and after the mortgage to defendant in allegations as to the nature of said transac- error was executed and filed. tion, as set forth in the first interplea by the plaintiff in error, are as follows: Paragraph 3 of the first interplea of the plaintiff in er

ror:

"Interpleader further states that under the terms and by the conditions of said contract it is agreed that the title of said property was to be and remain in said Chas. L. Tague, this interpleader, until the full price for which said notes were executed and delivered was paid and discharged."\

The record furthermore shows that John W. Perry, at the request of the attorney for the plaintiff in error, inserted in the contract the clause providing for the reservation of title, and that this was done by Perry about the time that plaintiff in error procured the contract from Perry and acknowledged and filed the same.

Section 6745, R. L. 1910, State of Oklahoma, reads as follows:

Any

"Conditional Sale Must be Recorded. instrument in writing, or promissory note, evidencing the conditional sale of personal property, which retains the title to the same in the vendor until the purchase price is paid in full,

The contract attached to said first interplea, and marked Exhibit A sets out the following: "That the title to the within-described prop-shall be void as against innocent purchasers, erty is to be and remain in the undersigned until the full purchase price for which notes are executed and delivered is paid and discharged in full, belonging to him and now in his possession at the place last aforesaid."

or the creditors of the vendee, unless the orighave been deposited in the office of the register inal instrument, or a true copy thereof, shall of deeds in and for the county wherein the property shall be kept; and when so deposited, it shall be subject to the law applicable to the al, verbal sale of personal property, reserving filing of chattel mortgages; and any conditionto the vendor any title in the property sold, shall be void as to creditors and innocent purchasers for value."

The plaintiff in his second amended interplea and in the sixth paragraph thereof sets out, in substance, the same allegations as in the first interplea and relative to the reservation of title. The evidence of Tague and the evidence of John H. Perry, who was present and wrote the contract as it was orig- This provision defines the nature of the inally drawn, only testified to a contract contract that it is necessary to place of recamounting to a conditional sale, the same as ord, and describes such contract to be one alleged in the interpleas. There is nothing where payment of the purchase money is about a bailment testified to in the record deferred and title is retained in the vendor nor shown in the pleadings. No such a state until the purchase price is paid in full. The of facts is shown in the record as constitutes contract so defined in said provision is identia sale upon condition or an executory con- cal with the contract in the instant case and tract of sale, or that the arrangement be- as is shown by the pleadings and proofs. tween the plaintiff in error and the Logan Hence this recordation act is held to apply Oil & Gas Company would constitute a bail- to the kind of a contract that is set out in ment, lease, or rental. This only appears the instant case.

in the discussion by the attorneys; and, to If, however, the contract is held to be one repeat, there is nothing in the pleadings, and, what is more important, in the evidence, sustaining the contention that it was a sale upon condition.

where, in contemplation of law, the title does not pass from the vendor and vest in the vendee, but the nature of the vendee's right is that of a bailment, lease, or rental, and The interplea of the defendant in error title not passing until the happening of the shows that the Logan Oil & Gas Company, by condition upon which the vesting of the title S. B. Logan, executed a chattel mortgage to depends to all such contracts this recordation the Guaranty State Bank of Drumright on provision does not apply.