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Argument for Appellants.

HALSELL v. RENFROW.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF OKLA

HOMA.

No. 254. Submitted April 20, 1906.-Decided May 14, 1906.

Where the court of first instance in a Territory sees the witnesses the full court deals with its findings as it would with the verdict of a jury, and does not go beyond questions of admissibility of evidence, and whether there was any evidence to sustain the conclusion reached, and this court goes no further unless in an unusual case.

A judgment for defendant in an action for specific performance based on a finding of fact, among others, that defendant has conveyed the property to an innocent purchaser for value cannot be reversed, as specific performance is impossible where the party to the contract has conveyed the property to one who is free from equities.

Under the Oklahoma statute in regard to conveyance of real estate the contract to be valid must be in writing and subscribed by the parties thereto, and this is not met by a payment of a would-be purchaser to one claiming to be the agent of the owner but not authorized as such under the Oklahoma statute, nor in this case can such payment or a deposit of the deed in bank to be taken up under certain conditions be regarded as part performance on the part of the owner.

THE facts are stated in the opinion.

Mr. Jean H. Everest and Mr. Henry H. Howard for appellants:

A contract binding under the statute of frauds may be gathered from letters, telegrams and writings. Beckwith v. Talbot, 95 U. S. 289; Ryan v. United States, 136 U. S. 68; Bibb v. Allen, 149 U. S. 481.

The contract is presumptive evidence of a consideration, and the burden of showing a want of consideration is upon the party seeking to avoid it. Ok, Statutes of 1893, § 815.

There is no such thing as a specialty or distinction between that and a simple contract under our law, and no statute of frauds requiring the consideration to be expressed in any casc

where the contract is required to be in writing; in view of which the true consideration may be shown by parol where the contract is sought to be avoided under the statute of frauds as well as in any other case. Kickland v. Menasha Woodenware Co., 31 N. W. Rep. 471; Williams v. Robinson, 40 Am. Rep. 352; Gass v. Hawkins, Thompson, Tenn. Cas. 238; Whitby v. Whitby, 36 Tennessee, 473; Thornburg v. Maston, 88 N. Car. 293.

The statute requiring the authority of the agent to be in writing refers to the agent of the vendor, and not of the vendee. And the agent of the purchaser may make a good contract within the statute of frauds without disclosing his principal, and the true relation may be shown by parol. Tewksbury v. Howard, 37 N. E. Rep. 355; Roehl v. Haumasser, 15 N. E. Rep. 345; 2 Parsons on Con., 7th ed., p. 680.

The plaintiffs took possession of the land under the contract and subsequently committed acts which would amount to trespass unless their possession was rightful. Under such circumstances the court should have allowed parol evidence to show the real circumstances. The defendant knew of and did not. object to these acts. Allen v. Moore, 70 Pac. Rep. 682; Lawson on Contracts, § 475; Overstreet v. Rice, 96 Am. Dec. 279; Ryan v. Nevins, 90 Am. Dec. 696.

The defendant Edwards, was not an innocent purchaser, and not being such he should have been required to convey to the plaintiffs. Union Pacific R. R. Co. v. McAlpine, 129 U. S. 305; Day v. Cohn, 4 Pac. Rep. 511; Willis v. Wozencraft, 22 California, 617; Calanchima v. Braustetter, 24 Pac. Rep. 149.

Mr. John W. Shartel, Mr. James R. Keaton and Mr. Frank Wells for appellees:

The findings of a judge in an equity case, or the verdict of a jury, are conclusive in Oklahoma if there is testimony to support them. Ellison v. Beannabia, 4 Oklahoma, 352. The civil procedure of Oklahoma, both original and appellate, is governed by civil code, which code was literally borrowed from

202 U. S.

Argument for Appellees.

the State of Kansas in 1893 and was received with the settled construction in that State to the same effect. Eckert v. Rule, 51 Kansas, 703; Medill v. Snyder, 61 Kansas, 15; Railway Co. v. Hildebrand, 52 Kansas, 284.

This rule being firmly established in Oklahoma and being the only rule that is reasonable under the Code of Civil Practice adopted there, it follows that this court in reviewing the decisions of that court acts only in the place of that court and can no more weigh the testimony than it could, and that this court should follow the rule of the court appealed from. Sanford v. Sanford, 139 U. S. 642.

Specific performance is a matter of discretion and the ruling of the trial court and the Supreme Court of the Territory should not be interfered with, unless there has been an abuse of discretion. 26 Am. & Eng. Ency. of Law, 2d ed., 62; McCabe v. Matthews, 155 U. S. 550.

There was no written contract between the parties as required by the statute of frauds. It is based on nine different writings and they are disconnected and contain no references to each other and cannot be connected by verbal evidence. Reed on Statute of Frauds, §§ 344, 352; Tice v. Freeman, 15 N. W. Rep. 674; Devine v. Warner, 56 Atl. Rep. 563.

Receipts of payments on a parol contract for the sale of lands are not sufficient to take it out of the statute of frauds. Williams v. Morris, 95 U. S. 444; Fox v. Easter (Okla.), 62 Pac. Rep. 283.

The telegrams do not name the purchasers and this cannot be supplied by parol proof. Grafton v. Cummings, 99 U. S. 100; Breckenridge v. Crocker, 21 Pac. Rep. 179; Lewis v. Wood, 26 N. E. Rep. 862.

The telegrams are also insufficient as a contract for the reason that they do not describe in any way the land. Ferguson v. Blackwell (Okla.), 58 Pac. Rep. 647; Preston v. Preston, 95 . U. S. 200.

The deed executed by Renfrow to Halsell cannot be considered as a memorandum under the statute of frauds for the VOL. CCII-19

Argument for Appellees.

202 U. S.

reason that it was never delivered and was not executed in accordance with the contract appellants are attempting to enforce. Day v. Lacasse, 27 Atl. Rep. 124; Steel v. Fife, 48 Iowa, 99; Parker v. Parker, 67 Massachusetts, 409; Comer v. Baldwin, 16 Minnesota, 172; Johnson v. Brooks, 31 Mississippi, 17; Weir v. Batdorf, 24 Nebraska, 83; Cagger v. Lansing, 43 N. Y. 550, reversing judgment, 57 Barb. 421; Allebach v. Godshalk, 116 Pa. St. 329; Morrow v. Moore, 57 Atl. Rep. 81.

The obligation, if any, created by the writings was not binding upon the appellants and, therefore, the contract was invalid for want of mutuality. Rutland Marble Co. v. Ripley, 10 Wall. 339. Unless the contract binds all the parties, it will be enforced against none of them. 22 Am. & Eng. Ency. of Law, 1019; American Cotton Oil Co. v. Kirk, 68 Fed. Rep. 791; M., K. & T. Railway Co. v. Bagley, 56 Pac. Rep. 759.

The rule as to innocent purchaser is not limited to the prudent and wary one, but includes the bona fide one without notice. 2 Sugden on Vendors, p. 551.

By the fraudulent alteration of the check the whole contract becomes unenforceable even if the documents were otherwise sufficient to constitute a written contract.

The fact that the alleged contract is embraced in numerous documents brings it under the rule that the material alteration of one of them forfeits all rights under all of them. No attempt was made to explain this alteration, and the fact of a material alteration in the contract is presumed to be fraudulent until the contrary is made to appear by the party making the alteration. Dietz v. Harder, 72 Indiana, 203; Eckert v. Pickle, 59 Iowa, 545; Davis v. Eppler, 38 Kansas, 639; Phænix Ins. Co. v. Kerny, 100 Kentucky, 97; Owen v. Hall, 70 Maryland, 96. The fact that appellants admit their fraudulent conduct in making this alteration does not advance their case, because an instrument once altered cannot be restored. Robinson v. Reed, 46 Iowa, 219; Shepherd v. Whetstone, 51 Iowa, 457; Botton v. Edwards, 2 Dana (Ky.), 106; Citizens' Natl. Bank v. Richmond, 121 Massachusetts, 110; Warpole v. Ellison, 4 Hus

ton (Del.), 322; Lock v. Walker, 2 Arkansas, 4; Fulner v. Seitz, 68 Pa. St. 237.

It must be assumed for the purpose of this case that the alteration was fraudulently made. Burwell v. Orr, 84 Illinois, 464; Inglish v. Breneman, 9 Arkansas, 902; Eckert v. Louis, 84 Indiana, 895; Pyle v. Oustatt, 92 Illinois, 209; Wilson v. Harris, 55 Iowa, 507; Warder et al. v. Willyard, 49 N. W. Rep. 300. See also Croswell v. Lebree, 81 Maine, 44; Citizens' Natl. Bk. v. Williams, 174 Pa. St. 66; Shepherd v. Whetstone, 51 Iowa, 457; Hays v. Wagoner, 89 Illinois, 390; 2 Cyc. 182, 224; Crawford v. Hazeltree, 117 Indiana, 63; Walton Plow Co. v. Campbell, 37 Nebraska, 883; Vogel v. Repper, 34 Illinois, 100.

By refusing the deed the appellants refused the only performance possible and cannot now claim specific performance. Scannell v. Am. Soda Fountain Co., 68 S. W. Rep. 890; Oliver Mining Co. v. Clark, 68 N. W. Rep. 23; Mills v. Van Vorhis, 23 Barb. 125.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is an action for the specific performance of an alleged agreement to convey land, brought by the plaintiffs in error against the defendants in error. The case was tried before a judge of the Supreme Court, and all the issues were found for the defendants. It then was taken before the full court upon a transcript of the evidence and proceedings, and the judgment for the defendants was affirmed. 14 Oklahoma, 674. Thereupon it was brought here by appeal.

It is assumed by the parties that the statement of facts prefixed to the opinion in the record is not the finding required by the act of April 7, 1874, c. 80, § 2, 18 Stat., Part 3, 27, and we assume for purposes of decision that under the act of May 2, 1890, c. 182, § 9, 26 Stat. 81, 86, no such finding of facts was necessary. See Oklahoma City v. McMaster, 196 U. S. 529; De la Rama v. De la Rama, 201 U. S. 303. But when, as here, the court of first instance saw the witnesses, the full court of