PER CURIAM. Adopted in whole.

(32 Okl. 421)

JOHNSON v. MYERS et al. (Supreme Court of Oklahoma.

1912.)

(Syllabus by the Court.)

March 19,

1. PLEADING (§ 418*) - WAIVER OF OBJECTIONS-DEMURRER.

A demurrer to an answer in an ejectment suit was sustained, and later judgment rendered for plaintiff for want of answer. This judgment was set aside because defendant was entitled to a second trial in an ejectment action as a matter of right. Plaintiff then filed a reply to the answer, announced ready for trial, stipulated with defendant at the beginning of the trial as to common source of title, and objected to the filing of an amended answer upon the ground that it was inconsistent with the original answer and would change the issues. Held, that plaintiff waived the benefit of the judgment on the demurrer, and that the answer should be treated as if the demurrer had not been filed.

rer was sustained on November 9, 1908. On November 21, 1908, judgment was rendered in favor of the plaintiff for the possession of the property, and this judgment was set aside December 18, 1908. On January 23, 1909, plaintiff filed a reply to the answer. On February 19, 1909, the suit was dismissed for want of prosecution, and on the 20th of February, 1909, it was reinstated. The case was heard March 30, 1909, taken under rendered advisement, and judgment was May 25, 1909. It was agreed at the beginning of the trial that on June 3, 1891, Thomas Jackson was the owner of the lot sued for. The plaintiff claims under chain of conveyances from Jackson, and defendants claim under a tax deed from the county treasurer of Oklahoma county. Judgment was rendered for the defendants, and plaintiff has appealed to this court. He assigns three errors, as follows: "(1) That the court erred in not sustaining plaintiff's objection to the introduction of any evidence by defendants, and in not rendering judgment for plaintiff. (2) In not holding the tax deed to W. H. Bailey, under which defendants claimed, void on its face, and not sufficient to

A deed from a person out of possession of real property, and who has not been in possession within a year, and who has not within that time taken the rents and profits, is void as against persons in possession.

[Ed. Note.-For other cases, see Champerty and Maintenance, Cent. Dig. §§ 54-110; Dec. Dig. § 7.*]

3. TRIAL (§ 387*) - DECISION ON COURT'S

OWN MOTION.

A court may of its own motion decide a case upon any point raised by the pleadings and the evidence.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 903-907; Dec. Dig. § 387.*]

Commissioners' Opinion, Division No. 2. Error from District Court, Oklahoma County; Geo. W. Clark, Judge.

Action by Jesse W. Johnson, administrator of the estate of E. H. Johnson, against Kate Myers and another. Judgment for defendants, and plaintiff brings error. Affirmed.

Everest, Smith & Campbell and Russell G. Lowe, all of Oklahoma City, for plaintiff in error. C. W. Stringer, of Oklahoma City, for defendants in error.

ROSSER, C. This was an action by Jesse W. Johnson as administrator of the estate of E. H. Johnson, deceased, against Kate Myers and J. M. Myers, to recover lots 35 and 36 in block 65 in Oklahoma City. The suit was filed January 11, 1906. Defendants answered on the 24th of January, 1906. On the 16th of February, 1906, plaintiff filed a demurrer to the answer. On the 15th of November, 1906, the demurrer was stricken from the files. October 5, 1908, leave was

[1] It appears that the trial court sustained the demurrer to the answer originally filed by the defendants. The answer was a general denial of the plaintiff's cause of action, followed by the allegation that defendants held under the tax deed. It is difficult

to understand the theory upon which a general demurrer to the answer was sustained, in view of the fact that it contained a general denial and would have been a good answer as against a general demurrer, even though it had admitted that defendants had no title. The attorneys for plaintiff overlooked or forgot that the demurrer to the answer had been sustained, and after the first judgment for plaintiff was set aside and a new trial granted, plaintiff, on the 23d of January, 1909, filed a reply to the answer to which a demurrer had already been sustained. It would be unfair not to state, in this connection, that counsel now representing plaintiff did not represent him in the proceedings below. Both parties went to trial upon the petition, answer, and reply, and the trial began before any suggestion was made that a demurrer to the answer had been sustained.

It appears that the first judgment was a judgment on the demurrer and for want of an answer, and this judgment was afterwards set aside. When the parties discovered in the course of the trial that the demurrer had been sustained, the defendants asked leave to refile the answer. The court permitted the answer to be refiled, and the

trial proceeded upon the petition and refiled answer and reply.

When the plaintiff replied to the answer, and went to trial upon the issues as made up, he waived the demurrer and the former ruling thereon, and cannot now take advantage of the fact that the demurrer to the answer had been sustained. 31 Cyc. 733, and authorities cited. See especially Updegraff v. Marked Tree Lbr. Co., 83 Ark. 154, 103 S. W. 606; C., R. I. & P. R. Co. v. Frazier, 66 Kan. 422, 71 Pac. 831; Illinois Life Ass'n v. Wells, 200 Ill. 445, 65 N. E. 1072; Citizens' Bank v. Bolen, 121 Ind. 301, 23 N. E. 146; Gregory v. Bowlsby, 126 Iowa, 588, 102 N. W. 517; Bank of Havelock v. W. U. Tel. Co., 141 Fed. 522, 72 C. C. A. 580, 4 L. R. A. (N. S.) 181, 5 Ann. Cas. 515.

In the case of Quimby v. Boyd, 8 Colo. 194, 6 Pac. 462, the defendant filed an answer setting up new matter, and the plaintiff failed to file a replication, as required by the statute. It was contended that defendants were entitled to judgment by default as to the

new matter. The court said: "In this state of the pleadings, unless the omission to file a replication was capable of being waived, and was waived, there was no issue for a jury to try, and the result of the trial must be regarded as of no legal significance whatever. The defendants were entitled to judgment upon their answer, as held by Judge Hallett in Newman v. Newton, 3 Colo. L. R. 193 [14 Fed. 634]. No such judgment was asked, however; but the defendants went to trial just as if the issues were properly made up. We will say further, in this connection, that a critical examination of the entire record leads inevitably to one of two conclusions, to wit: That the fact that no replication had

been filed to the answer must have been over

looked by defendant's counsel, or that they must have sought to take advantage of the default without calling the attention of the court and of the opposite counsel to this specific fact. Otherwise why was not a motion for judgment upon the pleadings interposed in the first instance, instead of voluntarily going into trial upon the merits?" See, also, Holt v. Holt, 23 Okl. 639, 102 Pac. 187; Allison v. Bryan, 26 Okl. 520, 109 Pac. 934, 30 L. R. A. (N. S.) 146, 136 Am. St. Rep. 988. In this case the plaintiff voluntarily went to trial and at the beginning of the trial entered into a stipulation as to the common source of title. He also objected to an amendment to the answer being filed upon the ground that it was inconsistent with the original answer, and changed the issues in He cannot be heard to say there was no issue to try. The cases cited are nearly all cases where there was a failure to file reply to an answer setting up new matter, but it is not believed there is any difference in principle. In this case, as in those, the party having treated the case as if the issues were made up is estopped to deny that

the case.

The second proposition urged by the plaintiff is that the tax deed under which defendants claimed possession was void. Before discussing this question, the question of whether or not the plaintiff was entitled to recover upon his own showing should be passed upon. If plaintiff has no title he can assert as against the defendants, then it makes no difference whether the defendants had a valid title or not.

[2] It appears from the evidence that plaintiff received his deed, under which he claims title, on the 15th day of November, 1904. At that time the defendants were in possession, receiving the rents and profits, and had been in possession for six or seven years. It appears that at the time they went into possession Thomas Jackson, the person who owned the land, prior to the time it was sold for taxes, and who deeded the land to Ella Jackson Brown, plaintiff's immediate grantor, asked and obtained permission from the defendants to remove his improvements from the lots, and that he did move the im

provements off, and made no further claim to the lots, and that, at the time the deed was made from Ella Jackson Brown to plaintiff, defendants were in possession claiming to be the owners. The deed from Ella Jackson Brown to plaintiff was void as against the defendants because it was made in violation of section 2026 of the Statutes of Oklahoma, 1893 (Wilson's Rev. & Ann. St. 1903, § 2112, Comp. Laws 1909, § 2215); Huston v. Scott, 20 Okl. 142, 94 Pac. 512, 35 L. R. A. (N. S.) 721; Larney v. Aldridge, 122 Pac. 151, not yet officially reported. In Powers v. Van Dyke, 27 Okl. 27, 111 Pac. 939, the syllabus is as follows: "St. Okla. 1893, § 2026 (Wilson's Rev. & Ann. St. 1903, § 2112; Comp. Laws 1909, § 2215), making a misdemeanor the buying or selling of any pretended right or title to land where the grantor or those by whom he claims have not been in possession or taken the rents and profits thereof for the space of one year before such conveyance is declaratory of the common law, and a conveyance of land made in contravention thereof by the rightful owner, as against the person holding adversely, is void." And this syllabus is quoted with approval in Martin v. Cox, 122 Pac. 511, not yet officially reported, and that case expressly holds that the adverse possession which will render a deed void need not be by color of title.

[3] Plaintiff contends that this case was not tried upon this theory in the court below, and for that reason this question should not be considered as in the case at this time. It would seem that this question was not urged at the trial, but that when the case of Huston v. Scott, 20 Okl. 142, 94 Pac. 512, 35 L. R. A. (N. S.) 721, was brought to the attention of the court while he had the case under advisement, he decided it upon this theory. This was not error. This question

bond and hold the goods. This was permitted, and the goods returned to Berry upon the execution of the bond sued on, signed by Berry and his codefendants. The bond is as follows:

As it appears the plaintiff has no title he can assert as against the defendants, it is not necessary to decide the question of the validity of the tax deed under which defend

ants hold.

The judgment should be affirmed.

PER CURIAM. Adopted in whole.

(32 Okl. 446)

BERRY et al. v. WHITE SEWING
MACH. CO.

(Supreme Court of Oklahoma. March 19, 1912.)

(Syllabus by the Court.) ESTOPPEL (§ 18*)-REDELIVERY BOND-ACTIONS-DEFENSES.

The obligors in a redelivery bond, given in an attachment proceeding, cannot set up as a defense in a suit thereon irregularity of the sheriff in making the levy, inventory, or appraisement, in contradiction of the recitals in the undertaking, where the property was released and restored to the attachment debtor. [Ed. Note. For other cases, see Estoppel, Cent. Dig. § 24; Dec. Dig. § 18.*]

Commissioners' Opinion, Division No. 2. Error from Washita County Court; L. R. Shean, Judge.

Action by the White Sewing Machine Company against A. D. Berry and others. Judgment for plaintiff, and defendants bring error. Affirmed.

W. J. Knott, of Cordell, for plaintiffs in error. Burnette & Beets, of Cordell, for defendant in error.

BREWER, C. This is a suit on a redelivery or forthcoming bond. It was begun May 7, 1909, in the county court of Washita county by the White Sewing Machine Company, defendants in error, as plaintiffs, against A. D. Berry, C. E. Gaunt, and H. F. Rhodes, plaintiffs in error, as defendants below, to recover judgment on a certain redelivery bond. Hereafter we will refer to the parties as they were called in the trial court.

It appears that on June 10, 1908, the plaintiffs sued defendant Berry, and caused a writ of attachment to issue. On the 11th of June, 1908, the sheriff levied the writ on a general stock of merchandise belonging to Berry; that while the sheriff was waiting for the arrival of appraisers defendant Ber

"Redelivery Bond in Attachment Proceedings County Court.

"State of Oklahoma, Washita County-ss.: "Whereas, in an action pending before J. L. Tolbert, district judge, in the county of Washita and state of Oklahoma, wherein White Sewing Machine Co. is plaintiff and A. D. Berry defendant, an order of attachment was issued by the said district judge and delivered to sheriff of said county; and whereas, in execution of said order of attachment, the said has taken into his possession certain goods and chattels as the personal goods and chattels of the said A. D. Berry, an inventory of which goods and chattels hereto attached, which goods and chattels have been appraised at $525: Now, therefore, we, A. D. Berry, as principal, and C. E. Gaunt and H. F. Rhodes, as sureties, do hereby bind ourselves unto the plaintiff aforesaid in the sum of $1,050, conditioned that the said goods and chattels so taken possession of by the said sheriff in execution of said order of attachment shall be properly kept and taken care of, and that said goods and chattels, or so much thereof as may be required to be sold on execution to satisfy any judgment which may be recovered against the said A. D. Berry in the action aforesaid, shall be delivered to the said officer on demand, or if said described property be not so delivered then that the said security will pay to the plaintiff aforesaid the appraised value of said property, not exceeding the amount of judgment which may be recovered, as aforesaid, and costs of suit. Witness our hands this 11th day of June. A. D. 1908. A. D. Berry. C. E. Gaunt. H. F. Rhodes.

"Taken and approved by me this 11th day of June, A. D. 1908. W. R. Griffin, Sheriff, by M. B. Sellers, Dept."

After the execution, delivery, and approval of the bond, same was returned, with writ of attachment, and filed. The attachment suit proceeded to judgment, and the attachment was sustained, and an order of sale of the attached property, under execution, issued. The property was not delivered to the sheriff for sale. This suit was brought on the bond. The cause was tried by the court, without a jury, after issue joined.

The court made findings of fact, which are summarized as follows: That the original suit in which the bond was given had been duly instituted against Berry, and summons served. That writ of attachment was issued and levied on the general stock of merchan

by the sheriff in making the levy, which are without merit. They were all waived by giving the bond."

In the case of Crisman v. Matthews, 1 Scam. (Ill.) 148, 26 Am. Dec. 417, discussing the question, it is said: "On the second point, I am clearly of opinion that the defendant was estopped from denying the admissions made in the condition of the bond, or of controverting their existence. The bond recites the issuing of the attachment, and its coming into the hands of the sheriff; that it was duly levied on the property of Mordecai, and covenants to restore it, to answer such judgment as the circuit court might render against Mordecai. Can it be, after the admission of the defendants of these facts, verified by the most solemn legal forms known to the law, that they shall be permitted to deny them, and seek to avoid their force and effect by a resort to some informal or insufficient acts of the sheriff in the manner of the levy or the return of the process?" The court holds that the sureties were estopped.

In California: "The recitals in an under'taking, given to procure the release of property attached under a writ of attachment, are conclusive against the obligor therein, whether the undertaking is a statutory or common-law bond." Bailey v. Etna Indem. Co., 5 Cal. App. 740, 91 Pac. 416; Shinn on Attachment, vol. 1, p. 551; Pearre v. Folb et al., 123 N. C. 239, 31 $. E. 475; Klippel v. Orpenstien, 8 Colo. App. 187, 45 Pac. 224; McCormick v. National Surety Co., 134 Cal.

510, 66 Pac. 741.

There is one further objection raised by defendants: That the court erred in overruling their motion to dismiss the action, on the ground that the original judgment in the attachment suit had not become final, because a motion was pending in that case to reform the judgment. The record fails to sustain this contention. The judgment offered in evidence purports to be final; an execution and order of sale were issued on it and returned nulla bona. The record fails to show

(32 Okl. 616)

BLUNK v. WAUGH et al. (Supreme Court of Oklahoma. March 12, 1912. Rehearing Denied April 9, 1912.)

(Syllabus by the Court.)

1. INTOXICATING LIQUORS (§ 328*)-RECOVERY OF POSSESSION-EVIDENCE.

In an action by one individual against another individual to recover the possession of intoxicating liquors, it is not necessary for the plaintiff to affirmatively show that the defendant did not secure possession of the liquors under the provisions of section 7, art. 3, of chapter 69 of the Session Laws of the state, 1907 and 1908.

[Ed. Note.-For other cases, see Intoxicating Liquors, Cent. Dig. § 466; Dec. Dig. § 328.*] 2. INTOXICATING LIQUORS (§§ 327, 328*) COMMERCE (§ 40*)-OFFENSES AGAINST LIQUOR LAWS-INTERSTATE COMMERCE-RECOVERY OF POSSESSION.

was en

One Blunk, doing business under the name "Oklahoma Distributing Company," gaged in the business of receiving large consignments of intoxicating liquors, consigned to him as consignee by a brewery in another state. These consignments were intended for distribution to a number of individuals whose names were written upon the respective parcels. Blunk's business was to pay the freight, receive the shipments, and deliver the several parcels to the various persons whose names were written thereon. Held:

(a) That this business is in violation of the laws of the state of Oklahoma (Comp. Laws 1909, § 4180).

(b) That this business is not protected by the Constitution and laws of the United States regulating interstate commerce in intoxicating liquors.

(c) That the courts will not entertain an action of replevin to enable Blunk to recover such intoxicating liquors from a trespasser, where it is shown by his pleadings in the case that the purpose of his attempted recovery is to engage in a business in violation of the laws of the state.

Liquors, Cent. Dig. §§ 467-473, 466; Dec. Dig. [Ed. Note. For other cases, see Intoxicating §§ 327, 328;* Commerce, Cent. Dig. §§ 29, 30; Dec. Dig. § 40.*]

Commissioners' Opinion, Division No. 1. Error from Superior Court, Oklahoma County; A. N. Munden, Judge.

Action in replevin by D. M. Blunk against From an order B. J. Waugh and another. sustaining a motion to quash the writ of replevin, plaintiff brings error. Affirmed.

Giddings & Giddings, of Oklahoma City, for plaintiff in error. Charles West, Atty. Gen., amicus curiæ.

AMES, C. D. M. Blunk, the plaintiff, brought an action of replevin, in the superior court of Oklahoma county, against B. J. Waugh and John Queenan, the defendants, to recover the possession of 105 casks of beer. He alleged that he was the special owner of the beer, because it had been ship

pany, which was the name under which he was doing business, from St. Louis, Mo., and that his purpose was to deliver it to