onial Trust Company, a corporation, plaintiff in error, sued F. N. Counrod, administrator of the estate of Elizzie Davis, deceased, and others, defendants in error, the object of which was to foreclose a real estate mortgage executed by her. The petition substantially states that on May 12, 1909, one Lizzie Davis made, executed, and delivered to one Leander Lane her promissory note for $1,500, payble May 12, 1912, with interest, and secured the same by a mortgage on certain real estate therein described; that on May 10, 1910, Lizzie Davis died and the defendant F. N. Counrod qualified as her administrator; that said Lizzie Davis was otherwise known as Lizzie Martin and as Lizzie Redmon; that on June 12, 1909, Lizzie Davis conveyed the mortgaged land by warranty deed to the defendant C. F. Buzzi who, together with his wife and Leoria L. Twist, Frank S. Foster, John F. Hayden, the Waldron-Elliott Company, and R. H. Denton claimed some interest in the land, alleged to be inferior to that of plaintiff's mortgage. The petition further states that on May 17, 1910, Leander Lane, for a valuable consideration, sold and by indorsement transferred and conveyed the note and mortgage sought to be foreclosed to plaintiff; that said mortgage is due and payable by reason of condition broken, and prays that the same be foreclosed. The note and mortgage are filed as exhibits to the petition and are signed "Elizzie Davis."

On November 10, 1912, Leoria L. Twist answered, and, after general denial, admitted the corporate existence of plaintiff, the execution, delivery, and assignment of the note and mortgage sought to be foreclosed by Elizzie Davis to plaintiff, as stated, but alleged that the mortgage was without consideration, and for that reason had no effect against her; that since the execution and delivery thereof, Elizzie Davis, to whom the land was allotted as Elizzie Redmon, sold and conveyed the mortgaged premises by warranty deed, dated June 12, 1909, a copy of which she files as an exhibit, signed by her "Elizzie Davis, née Martin," to C. F. Buzzi, who took possession and thereafter joined with his wife in a mortgage of the land to her, dated August 7, 1909, payable one year after date, for $2,000, and which, by way of cross-petition, she set up, alleged condition broken, prayed that the same be declared a

Davis conveyed said land by warranty deed to Buzzi, the husband, which they file as an exhibit, and that he and his wife joined in a mortgage thereof to Leoria L. Twist for $2,000, payable one year after date; that the same was due and unpaid, as stated by Leoria. They further alleged that Buzzi, on January 6, 1912, for value, conveyed to R. H. Denton by warranty deed, the land in controversy.

On October 12, 1912, John A. Hayden answered, and, after a general denial, admitted the execution of the note and mortgage sought to be foreclosed by Elizzie Davis, but says, for the reason the same were without consideration, the mortgage is void as to him. By way of cross-petition, he further alleged that he was the owner of the land and in possession; that plaintiff and the other defendants claim some interest therein adverse to his title, and prayed that same be removed as a cloud. Later, by answer to the answer and cross-petitions of Twist and the Buzzis, he alleges the deed from Elizzie Davis to C. F. Buzzi of June 12, 1909, was a forgery, but the same was unverified.

On October 19, 1912, F. N. Counrod, as administrator of the estate of Elizzie Davis, answered and, after general denial, admitted the execution of the note and mortgage sought to be foreclosed, but stated that the same were without consideration; also, that the mortgage executed by Buzzi and his wife to Leoria L. Twist was void for the reason that the deed from Elizzie Davis to Buzzi was a forgery and conveyed to them no title to the land. He further alleged that the claim of the Waldron-Elliott Company on the lands was void for the same reason, and prayed that the note and mortgage sought to be foreclosed and the note and mortgage executed by Buzzi to Leoria L. Twist be canceled and set aside, and that the Waldron-Elliott Company's claim against the land be declared void, and for general relief. The answer was unverified.

On October 24, 1912, the Waldron-Elliott Company answered, admitting the death of Elizzie Davis; that Counrod was her administrator; that Elizzie Davis, Elizzie Martin, and Elizzie Redmon was one and the same person; that she conveyed the land in question to Buzzi as alleged; admitted the execution of the note and mortgage sought to

Thereafter, Buzzi and his wife answered, and after general denial, admitted that Elizzie Redmon was the owner of the allotment; alleged she and Elizzie Davis, née Martin, were one and the same person; admitted that she, on May 12, 1909, executed the note and mortgage sought to be foreclosed to Leander Lane and its assignment to plaintiff,

signed to plaintiff for value; denied that plaintiff was a bona fide holder thereof, and every other allegation in the petition. For further answer and cross-petition, they set up a lien upon the land in virtue of a judgment in their favor rendered and entered in the district court of Tulsa county on April 24, 1911, against C. L. Buzzi for $700, which, the owner of the land at that time; that they are the owners of the judgment, and prayed that the same be declared a prior lien upon the land and foreclosed. Denton and Foster defaulted. After issue joined by replies all around, there was trial to a jury, after one Parmenter had been substituted as party plaintiff for the Colonial Trust Company, on the issues raised by the cross-petitions of Buzzi and his wife, Leoria L. Twist, and Waldron-Elliott Company, and at the close of the evidence, on demurrer thereto by Hayden, a judgment was rendered and entered by the court that they take nothing by their suit; to reverse which they bring the case here, making the Colonial Trust Company, or Parmenter, and Counrod and Hayden parties defendant in error. How Hayden obtained his interest in the land does not appear; nor does it appear that any judgment was rendered or entered for or against the plaintiff, Colonial Trust Company or Parmenter, its substitute. And, although Leoria L. Twist, by way of crosspetition, set up and relied upon a deed to the land in question and alleged that the same was executed and delivered by Elizzie Davis to Buzzi, as the foundation of the lien of her mortgage of $2,000 from the Buzzis to her which she also set up and sought to have declared the prior lien upon the land, and the Waldron-Elliott Company also relied upon said deed as the foundation of their judgment lien; and although no one but Hayden and Counrod, as administrator of Elizzie, alleged that said deed was a forgery, and their answers were unverified, when a certified copy of said deed was offered in evidence by the cross-petitioners, the court excluded it, holding, in effect, that the execution of the deed by Elizzie Davis was in issue, and that the burden of proof to show that it was not a forgery was upon those offering it. And when they failed to sustain the burden by their proof, the court, on demurrer to the evidence, sustained it and decreed that they take nothing by their suit. [1, 2] The court was wrong. The execution of the deed by the allottee Elizzie Davis was not in issue, but was admitted as alleged for the reason that, neither the answer of Hayden nor of Counrod was verified. The statute (Rev. Laws 1910, § 4759) provides:

"In all actions, allegations of the execution

of written instruments and indorsements thereon, or the existence of a corporation or partnership, or of any appointment of authority, or the correctness of any account duly verified by the affidavit of the party, his agent or attorney, shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent, or attorney."

Which is plain and unambiguous and means what it says, which is, that "in all actions," which include actions upon crosspetitions as here, "allegations of the execution of written instruments shall be taken as true unless the denial of the same

*

agent, or attorney." Of course, denial of "the same" means denial of the execution; and verified by the affidavit of "the party" means the party making the denial. It is unnecessary to cite authority in support of so obvious a construction. However, in Commonwealth Nat. Bank of Dallas, Tex., v. Baughman, 27 Okl. 175, 111 Pac. 332, construing this section, in the syllabus we said: "In an action on a note by the assignee under a written indorsement executed before maturity indorsed on a note, where a copy of the note and the indorsement thereon is attached to plaintiff's petition as an exhibit, and the original note and indorsement is introduced in evidence, and the answer of defendant is not verified by his affidavit, the execution of the note and the indorsement is admitted; and it is error to instruct the jury, under such circumstances, that the burden is upon plaintiff to establish the execution of the note and of the indorsement before maturity."

It will not do to say that, for the reason it was not the best evidence, the court did right in excluding the certified copy of the deed offered in evidence; the absence of the original being unaccounted for. This, for the reason that the evidence was not objected to on that ground; the objection reads:

"We object as incompetent, irrelevant, and immaterial, for the reason that the title is not established to the property in controversy; the instrument appears to be executed by one Eliza Davis, née Martin, and not by the holder of the title; she never was the owner of any title in this property."

Besides, if evidence of the deed further than said admission of the execution was necessary, as it sufficiently appeared by subsequent evidence that the original was not in the possession or under control of the parties offering it, the court should have let it in pursuant to Rev. Laws 1910, § 5115, which reads:

"The books and records required by law to be kept by any county judge, county clerk, county treasurer, register of deeds, clerk of the district court, justice of the peace, police judge, or other public officers, may be received in evidence in any court; and when any such record is of a paper, document, or instrument authorized to be recorded, and the original thereof is not in the possession or under the control of the party desiring to use the same, such record shall have the same effect as the original; but no public officer herein named, or other custodian of public records, shall be compelled to attend any court, officer, or tribunal sitting more than one mile from his office with any record or records belonging to his office or in his custody as such officer."

And section 1170, which reads:

"All instruments affecting real estate, and executed and acknowledged in substantial compliance herewith, shall be received in evidence in all courts without further proof of their execution; and in all cases where copies or other instruments might lawfully be used in evidence, copies of the same, duly certified from the records by the register of deeds, may be received in evidence; and, if the same need not be recorded to be valid for the purpose for which such evidence is offered, a copy duly verified by oath or affidavit of any person knowing the same to be a true copy, may be received in evidence."

to the land in question, in which his wife did not join. He refused to testify that he had been placed in jail, or that he had been threatened with prosecution for stealing the horse, but only stated that he authorized the payment of $100 for the horse to the party who owned it, and that he did not steal it, but had just ridden it away because it belonged to a cousin of his. He testified upon the witness stand that he was satisfied with the

part of the purchase price at various times after the execution of the deed. Upon this testimony we think there was no sufficient evidence to authorize the court to cancel the deed upon the ground of duress.

[2] Upon the second proposition there was some conflict as to where Scott Tiger was living prior to his marriage. He, himself, testified that he had never lived upon the land in question, which had been allotted to him as a Creek freedman, but that it was occupied by his father and mother, but that since he had been a little boy he had lived with another party upon a different tract of land. It appeared that he had been married before reaching the age of majority, and that while he was gone to Missouri his wife and her mother and father, some three or four days prior to the execution of his deed, moved a tent onto the land in question and lived there in the tent until some days after the defendant's deed was executed, and that Tiger and his wife, a short time after the execution of his deed, went to another town and there executed a deed or contract to their joint plaintiffs, in which the wife had joined. Although there is some evidence of the wife's intention to impress a status upon this land so that Scott Tiger could not sell it without her consent, there is very little, if any, evidence to establish that she moved on the land with the intention of creating a permanent home for the family. However this may be, we think it was not -within her power to impress the land in question with the homestead character. She and Tiger were living together, and he was only temporarily absent. It does appear that they were separated at the time of the trial, but at the time in question this separation had not taken place. There is no evidence that Scott Tiger gave his consent or approval to her moving onto the land prior to the time he had conveyed it away. He did not go upon the land and occupy it according to his own testimony until after the deed had been executed and delivered. The title to the land was in him.

Section 1, of article 12 of the Constitution provides as follows:

"The homestead of any family in this state not within any city, town or village, shall consist of not more than 160 acres of land, which may be in one or more parcels, to be selected by the owner."

homestead shall be located upon his land, and impress his land with that character. We find no error in the record, and the judgment should be affirmed.

PER CURIAM. Adopted in whole.

(59 Okl. 132) (No. 7328.) (Supreme Court of Oklahoma. June 13, 1916.)

HATFIELD v. HATFIELD.

(Syllabus by the Court.)

1. DIVORCE245(2)-ALIMONY-JUDGMENT

MODIFICATION.

Upon a motion and notice to modify a judgment decreeing alimony, made after the expiration of the term at which such judgment is rendered, where it appears that the original journal entry of judgment was submitted to the court in the presence of the counsel for both sides, there discussed, and its terms finally settled and signed by the court, such court is not justified in modifying such judgment upon the ground that the order did not express the proper intention at the time, according to his recollection, and

in contradiction to the records then made.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. § 693; Dec. Dig. 245(2).] 2. JUDGMENT 303 - MODIFICATION - "IRREGULARITY."

An "irregularity," within the meaning of subdivision 3 of section 5267, Rev. Laws 1910, is some departure from the prescribed procedure in the trial, or in the determination of the action, not evidenced by a ruling or an order.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 594, 595; Dec. Dig. 303.

For other definitions, see Words and Phrases, First and Second Series, Irregularity.]

Commissioners' Opinion, Division No. 2. Error from District Court, Garfield County; Jas. W. Steen, Judge.

Motion by L. G. Hatfield to modify a decree adjudging alimony to Maggie J. Hatfield. Motion granted, and Maggie J. Hatfield brings error. Reversed and remanded, with directions.

Hills & Manatt, of Enid, for plaintiff in error. F. E. Chappell, of Enid, for defendant in error.

GALBRAITH, C. This appeal is from the order of the trial judge modifying a decree allowing alimony to the divorced wife, made upon notice and motion presented after the adjournment of the term at which the decree was made. It appears from the record that on the 17th day of May, 1913, in an action