and says the court erred in overruling said motion.

Assuming, but not deciding, that the evidence adduced on the hearing of the application to appoint is properly before us for review on the motion to vacate the appointment, the appointment was properly made, and for that reason the court did not err in refusing to vacate it. Relying on Wilson's St. Okl. 1903, § 4441, which reads: "A re

*

*

of land (describing it) located in the Morris Oil Field in Okmulgee county given to secure the same. Said note, dated September 16, 1907, is for $35,000, payable in one year by the Meridian Oil & Gas Company to the Brown Oil & Gas Company. The mortgage contains the following: "It is further agreed that the said Meridian Oil Company, the maker, shall deliver to the Brown Oil & Gas Company fifty per cent. of the oil produced by it, that is, the Meridian Oil Com-ceiver may be appointed by the Supreme pany, in tanks on the land, herein described as reserved by the Meridian Oil Company or the proceeds of said fifty per cent at the option of the said Meridian Oil Company, and the same, or its proceeds, shall be applied by the said Brown Oil & Gas Company as a credit on this $35,000.00 note." The petition, after reciting the foregoing facts, further alleges the balance due on the note to be $27,000, condition broken, and that defendant has failed to deliver to plaintiff 50 per cent. of said oil or its proceeds; that of said proceeds defendant has taken a large portion and applied it to improving the mortgaged land in drilling oil wells thereon and equipping the same. Said note and mortgage are filed as exhibits to the petition, which prays for a temporary order restraining defendant from removing any of its fixtures or other property from off the premises and that the mortgage be foreclosed.

On November 16, 1908, after answer filed, in effect, a general denial, on motion of plaintiff alleging in substance that defendant had failed to pay over to the Brown Oil & Gas Company 50 per cent. of the proceeds derived from the sale of the oil from off the premises, that they were otherwise appropriating the proceeds derived therefrom, the insolvency of defendant, and irreparable injury, plaintiff prayed for and a receiver was appointed and qualified. In support of the application, it was shown that prior to the maturity of the note $11,000 has been paid thereon from time to time, the last payment being made on April 1, 1908, at which time there was due $7,000 and only $3,200 paid; that 11 oil wells had been drilled by defendant on the premises from which oil had been run during the months of April, May, June, and July, 1908, and four more runs made since this suit; that there are 3,500 barrels of oil tanked on the land; that it cost $4,500 to sink a well, and that the total expenditure in so doing was $27,000; that the property was yielding 100 barrels per day a year prior to the hearing, and at that time was yielding 150 barrels per day, and that the property and equipment was in excellent condition. There was no attempt to prove the alleged insolvency of defendant, or that the land was insufficient to pay the mortgage debt. On November 20, 1908, defendant moved the court to vacate the order appointing said receiver, which, no further showing being made on either side, the court

Court, the district court, or any judge of
either, or in the absence of said judges from
the county, by the probate judge:
Second. In an action by a mortgagee for the
foreclosure of his mortgage and sale of the
mortgaged property, where it appears that
the mortgaged property is in danger of be-
ing lost, removed or materially injured, or
that the condition of the mortgage has not
been performed, and that the property is
probably insufficient to discharge the mort-
gage debt.
* Sixth. In all other cases
where receivers have heretofore been appoint-
ed by the usage of the courts of equity”—
plaintiff contends that the removal of the
oil from off the demised premises and its
sale by defendant without applying 50 per
cent. of the proceeds in reduction of the
mortgage debt was of itself sufficient to in-
voke the discretion of the court to make the
appointment. We think so, too, provided the
lien of the mortgage extended to said per
cent. of the oil produced or its proceeds. If
it did under the statute a receiver should
have been appointed, otherwise not. That
the intention appears on the face of the mort-
gage to create a lien on the land in esse and
an equitable lien upon 50 per cent. of the
oil not in esse, but as soon as the same might
come in esse, as security for the payment of
the mortgage debt, we think is clear.

Mr. Pomeroy in his work on Equity Juris-
prudence (volume 3 [3d Ed.] § 1235), says, in
substance, that the doctrine of equitable lien
may be stated in its most general form to be
that every express executory agreement in
writing, whereby the contracting party insuf-
ficiently indicates an intention to make some
particular property, real or personal, or fund
therein described or identified, a security for
a debt or other obligation, creates an equi-
table lien upon the property so indicated,
and that said lien is enforceable in equity
in the hands of the contractor. He further
states in section 1236 in substance that the
doctrine is carried still farther, and applies
to property not in esse at the time of the
contract, and says: "It is well settled that
an agreement to charge or to assign or to
give security upon or to affect property not
yet in existence, or in the ownership of the
party making the contract, or property to be
acquired by him in the future.
* does
constitute an equitable lien upon the proper-
ty so existing or acquired at a subsequent
time, which is enforced in the same manner

*

real as well as personal estate of which he is the owner or possessor, and that equity will establish and enforce such charge or claim, not only against the party who stipulated to give it * * *"-citing Legard v. Hodges, 1 Ves. Jr. 477; Roundell v. Breary. 2 Vern. 482; Power v. Bailey, 1 Ball & Beat. 49; Gardner v. Townsend, Coop. Eq. Cas. 303; Wellesley v. Wellesley, 4 Myl. & Cr. 561, and overruled the demurrer. Willetts et al. v. Brown et al., 42 Hun (N. Y.) 140, was a suit to foreclose a lien. The trial court held the allegations of the complaint insufficient to constitute a cause of action, and dismissed the case. The complaint substantially states that plaintiffs were the owners of and had a right to operate and mine for oil on certain premises (describing them), and on another parcel were entitled to one-eighth of the oil which might be produced thereon by other parties as royalty; that they were in possession of the first tract, and had drilled five wells thereon which were productive and which had produced considerable oil; that there was connected therewith and used with developing the property engines, derricks, drills, and tanks for storing the oil; that by a certain instrument in writing filed with their complaint plaintiffs sold and transferred all their interest in said property, together with said machinery and in the royalty aforesaid, to defendant Kerwin, who agreed to pay therefor $32,000, all but $7,000 of which had been paid; that Kerwin entered into possession, operated the wells, and produced large quantities of oil; that plaintiffs claimed a lien, among other things, on the oil which had been produced or which might be produced as security for the purchase money by virtue of the terms of said contract of sale, which, among other things, provided, after providing that all said machinery should remain on the premises until all payments were made, that: "It is further agreed by and between the parties hereto that in case of failure on the part of said Kerwin to make the payments herein at the time they shall respectively fall due, for the period of ten days, then, after such failure to meet such payment, all oil produced upon the said premises shall thereafter be run into the lines to the credit of Isaac Willetts as a security for such payments." The court in passing, in effect, held that said stipulation in effect reserved to plaintiff an equitable lien on said oil as security for the debt, and reversed and remanded the cause with cost to abide the event; citing Husted v. Ingram, 75 N. Y. 251; Hale v. Omaha Nat. Bank, 49 N. Y. 626; 3 Pomeroy's Eqt. Juris. § 1235. See, also, 19 Am. & Eng. Ency. of L. 15, and cases there cited.

specific things existing and owned by the con- | party may by express agreement create a tracting party at the date of the contract." charge or claim in the nature of a lien on Of this lien, in volume 5, § 105, he says: "Receivers may be appointed in suits to enforce equitable liens under circumstances similar to those in which they may be appointed in foreclosing mortgages." In Knott v. Manufacturing Co., 30 W. Va. 794, 5 S. E. 268, the court said: "The form or peculiar nature of the agreement which shall create a lien is not very material, for equity looks rather at the final intent and purpose than at the form; and if the intent appears to give, or to charge, or pledge property, real or personal, as security for an obligation, and the property is so described that the principal thing intended to be given or charged can be sufficiently identified, the lien follows. Wayt v. Carwithen, 21 W. Va. 516." Samuel Pinch v. Ed Anthony et al., 8 Allen (Mass.) 536, was a suit in equity to enforce an equitable lien on a certain tract of land. The bill in substance stated that plaintiff was a skilled miner and was induced by certain persons to leave his then employment for the purpose of conducting mining operations on certain other lands, describing them; that those persons, after executing to him a mortgage on the mineral rights in said lands for $1,500 for his services and moneys agreed to be paid him, conveyed the land to Samuel Coit, who, for a like consideration, executed to him another mortgage on said mineral rights for $5,000; that afterwards one Anthony purchased the premises for himself and other defendants, and, after receiving a deed therefor, entered into a certain agreement with plaintiff in substance that whereas said defendants were joint owners of said property, the title to which was in said Anthony, and whereas it was proposed to either sell said lands or to form a joint-stock company for the purpose of mining the same, and whereas said parties had agreed in consideration of services to be rendered by plaintiff that plaintiff shall have an interest in the proceeds of said land, or that the same shall be sold or if a joint-stock company shall be formed then that he shall have a certain amount of stock in the company, that theretofore in consideration of said agreement it was agreed, among other things, between said parties and plaintiff that out of the proceeds of said lands, if the same were sold, the sum of $6,500 should be paid plaintiff. The bill further alleges that plaintiff entered the service of said defendants, that mining operations on the land had been abandoned, and that he was entitled to a lien on the land in the sum of $6,500 and interest from date of the agreement, and asked that the land be sold and proceeds applied to the payment of his claim. On general denial the case was reversed for the determination of the whole court. In passing, the court, in effect, held that the bill set out a case which clearly entitled plaintiff to equitable relief, and said: "The rule is perfectly well settled that a

We are therefore of opinion that the stipulation in the mortgage under discussion reserved to plaintiff an equitable lien on

50 per cent. of the oil produced, or its pro- | 841, 98 Pac. 937; Summer et al. v. Sherwood, ceeds as security for the mortgage debt, and, 105 Pac. 642. And in the case of John v. as plaintiff in addition thereto was entitled Paullin et al., 106 Pac. 838, it was held that, to a mortgage lien on the land to satisfy after the statutory time for appeal has elapssaid debt, that the same may be enforced ed, a judgment cannot be reviewed even if together in this action. And, as plaintiff was all the parties stipulate that the appellate by virtue of said equitable lien jointly in- court may do so. terested in the oil sought to be impounded, a receiver therefor was properly appointed on the first ground mentioned in Wilson's St. § 4441, which provides that the same may be done "in an action between

The action not having been begun within the statutory time, this court acquires no jurisdiction thereof, and the proceeding in er, ror is accordingly dismissed.

TURNER, KANE, HAYES, and WIL LIAMS, JJ., concur.

partners or others jointly owning or interested in any property or fund, on the application of plaintiff, or of any party whose right to or interest in the property or fund, or the proceeds thereof, is probable, and where it is shown that the property or fund FRANK H. HARRAH & CO. v. FIRST NAT. is in danger of being lost, removed or materially injured."

Finding no error in the action of the court in making the order and in refusing to set it aside when made, the judgment is affirmed. All the Justices concur.

(26 Okl. 855)

PALMER-GREGORY CHIROPRACTIC
COLLEGE v. HART.

(Supreme Court of Oklahoma. July 12, 1910.)

(Syllabus by the Court.) APPEAL AND Error (§ 356*)-Delay-DISMIS

SAL.

Where more than one year has intervened between the rendition of the judgment or final order sought to be reviewed and the filing of the petition in error in the Supreme Court, this court is without jurisdiction to review the judgment of the trial court.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 356.*]

BANK OF TONKAWA.

(26 Okl. 620)

(Supreme Court of Oklahoma. July 12, 1910.)

(Syllabus by the Court.)

TRIAL ( 170*)-DIRECTING VERDICT.

Where under the pleadings the plaintiff is entitled to recover unless a certain affirmative defense therein pleaded is sustained, no evidence being produced reasonably tending to support such defense, a verdict should be directed in favor of the plaintiff.

[Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 390-394; Dec. Dig. § 170.*]

Error from Kay County Court; Claude Duval, Judge.

Action by Frank H. Harrah & Co. against the First National Bank of Tonkawa. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

On the 19th day of March, 1908, plaintiff in error as plaintiff commenced its action in the county court of Kay county against the defendant in error as defendant, to reError from Superior Court, Oklahoma cover the sum of $216.40 for money had and County; A. N. Munden, Judge.

Action by the Palmer-Gregory Chiropractic College against Charlotte D. Hart. From a judgment sustaining a demurrer to the petition, plaintiff brings error. Dismissed.

L. D. Mitchell and Everest, Smith & Campbell, for plaintiff in error. W. A. Staley and W. M. Engart, for defendant in error.

DUNN, C. J. This case presents error from the superior court of Oklahoma county. The final judgment of the district court in which a demurrer to the petition is sustained was entered January 8, 1909. A petition in error was filed in this court April 11. 1910; the same being more than three months over a year from the date of the Judgment. The result of the delay in the commencement of the proceedings in error is that this court is without jurisdiction to entertain the case. Doorley v. Buford & George Mfg. Co., 5 Okl. 594, 49 Pac. 936; Ryland et al. v. W. H. Coyle et al.. 7 Okl. 226, 54 Pac. 456; Hebeison v. Hatchell, 17 Okl. 260, 87 Pac. 643; Strange et al. v. Crimson, 22 Okl.

received.

Plaintiff in part alleged that between the 21st day of September, 1907, and the 16th day of November, 1907, inclusive, the plaintiff deposited in the said First National Bank of Tonkawa the sum of $1,401.36, and has from the 21st day of September, 1907, to the 22d day of November, inclusive, checked out of said bank the sum of $1,084.94, and that there is a balance due plaintiff by said defendant of $216.40, for which plaintiff has made demand, but which the defendant refuses to pay. Attached to the petition as a part thereof is an itemized statement showing the various deposits and checks drawn against said account by the plaintiff and balance due thereon of $216.40.

Defendant answered in part as follows: "Said defendant for a second and further de fense without admitting any of the allegations, statements, and averments, expressly denied in said first defense, and still adhering to said general denial, says: That during all the times hereinafter mentioned said plaintiff conducted a brokerage business in

the same as if herein set out in full. That said F. S. Stewart, at the time said draft was drawn, was the agent of plaintiff, and in charge of its said business in the town of Tonkawa, Okl., which was conducted in the name of the Tonkawa Commission Company, and that at the time said draft was drawn said F. S. Stewart, as the agent of plaintiff, was duly authorized by plaintiff to draw said draft, and that same was drawn on account of and in connection with the business of plaintiff in the town of Tonkawa, Okl. That thereafter and in the regular course of business and banking said draft was duly presented to plaintiff for payment, and was by said plaintiff wrongfully dishonored, and payment refused on the 31st day of October, 1907, and that no part or portion thereof has ever been paid by plaintiff. That defendant is the owner and holder of said draft and that there is due thereon the sum of $216.40, with interest at 7 per cent. per annum from the date thereof. Wherefore defendant prays for judgment against said plaintiff in the sum of $216.40, with interest thereon from October 31, 1907, at 7 per cent. per annum, and that said judgment be applied in payment of any judgment that plaintiff may recover against defendant, and for costs."

the town of Tonkawa, Kay county, Okl., in | Co., the plaintiff, and the Tonkawa Comthe name of the Tonkawa Commission Com- mission Company were one and the same. pany, and that said plaintiff and the said That heretofore and, to wit, on the 26th day Tonkawa Commission Company were one and of October, 1907, said plaintiff by and the same. That during all the times here- through its agent, F. S. Stewart, drew a inafter mentioned F. S. Stewart was the sight draft on plaintiff in favor of defendagent of plaintiff and the Tonkawa Commis- ant bank in the sum of $216.40, which was sion Company, and had charge of the business duly delivered to said defendant bank and of plaintiff in the town of Tonkawa. That for which said defendant bank paid said said F. S. Stewart, as the agent of said plaintiff the said sum of $216.40. A copy of plaintiff, deposited in the defendant bank, said draft is hereto attached, marked 'Exto the credit of plaintiff, proceeds derived | hibit A,' and made a part of this petition from such business, and said F. S. Stewart, as the agent of said plaintiff, was duly authorized to draw drafts on said plaintiff in connection with the business conducted in said town of Tonkawa, and that said authorization was known to this defendant. Defendant further says that said F. S. Stewart, as the agent of this plaintiff, at divers and sundry times drew drafts on said plaintiff through defendant's bank, all of which were duly honored and paid by said plaintiff, and that the custom and manner of conducting said business by plaintiff in the said town of Tonkawa was for said F. S. Stewart, as its agent, to deposit money in the defendant bank, and draw drafts thereon through defendant bank. Defendant further answering says that heretofore and, to wit, on the 26th day of October, 1907, said F. S. Stewart, as the agent of plaintiff, and having been duly authorized by plaintiff so to do, drew draft on plaintiff, as its agent, in favor of defendant in the sum of $216.40, and that said draft was drawn for and on account of the business transacted by said F. S. Stewart, as the agent of plaintiff in said town of Tonkawa. That defendant paid to said plaintiff the said sum of $216.40 and charged same to the account of plaintiff. Defendant, further answering, says that at the time said draft was drawn said F. S. Stewart, as the agent of plaintiff, was duly authorized to draw said draft, and that plaintiff expressly agreed to pay the same, and that the authority and agreement were well known to defendant before said draft was paid. A true and correct copy of said draft is hereto attached, marked 'Exhibit A, and made a part hereof, the same as if herein set out in full. Defendant further says that said plaintiff has not allowed said defendant credit for said draft, and that it is not listed as a charge against the account of plaintiff, in its said petition, and that said amount is not contained in any of the checks listed in plaintiff's petition. Now comes said defendant, and for a third defense by way of counterclaim to plaintiff's petition, still adhering to its first and second defenses, and without in any manner qualifying same, says: That during all the times hereinafter mentioned plaintiff conducted a general brokerage business in Tonkawa, Kay county,

Okl., in the name of the Tonkawa Commission Company, and that Frank Harrah &

.....

Exhibit A to said answer, being the draft in question, is as follows: "Tonkawa, Okla., Oct. 26th, No. The First National Bank of Tonkawa, pay to the order of the First National Bank ($216.40) two hundred and sixteen 40/100 dollars. [Signed] TonTo Frank kawa Com. Co., F. S. Stewart. Harrah & Co., Oklahoma City, Okla."

To this answer of the defendant the plaintiff filed a reply (9), which reply, omitting caption, was as follows: "Comes now the plaintiff, Frank Harrah & Co., and for its reply to defendant's answer and counterclaim alleges and states: Plaintiff denies under oath of its president each and every allegation of new matter alleged and contained in defendant's said answer and counterclaim."

At the close of the evidence the plaintiff moved the court to direct a verdict in its favor, which was overruled and exceptions saved.

The evidence will hereafter be set

out in the opinion as far as necessary. Tetirick & Curran, for plaintiff in error. Moss & Turner, for defendant in error.

(Supreme Court of Oklahoma. July 12, 1910.) shall set out in totidem verbis in his brief

2 APPEAL AND Error (§ 758*)-REVIEW-OB-mony, he should set out in his brief the full