ing that section, did not intend to do a use- | sufficient, since it advises him of the particuless thing, but intended the statute to be en- lar diseases the treatment of which he is forced in accordance with an interpretation charged with having undertaken, especially based upon the ordinary understanding of the as plaintiff in error did not seek to have words used, both by laymen and physicians. these charges made more definite and certain. In that view of the case we are clearly of [5] The plaintiff in error complains of the the opinion that the words "incurable dis- admission in evidence by the trial court of an ease" in the section of the statute in question advertisement which is admitted to have been apply to the state of the disease which a published by plaintiff in error. Plaintiff in patient may have at the time the treatment error says that he was not charged with makof it is undertaken by the physician, and ing grossly improbable statements, calculated that, if a physician undertakes to treat a to mislead the public, in advertising his busipatient who is suffering from a disease which ness. While this is true, we do not think the has in its progress reached an incurable state court erred in the admission of this advertiseaccording to the then general state of knowl- ment, since it tended in some degree to throw edge of the medical profession, and accepts light upon a question properly before the a fee from the patient upon the assurance court; i. e., whether or not plaintiff in error that he can effect a permanent cure of such gave assurances of effecting permanent cures disease, he would be guilty of unprofession- of incurable diseases. al conduct as defined in that section of our statute. [6] Plaintiff further complains that the trial court in its findings in this cause found plaintiff in error guilty of a charge upon which the trial court, upon the objection of plaintiff in error, had excluded all evidence. The record seems to bear out the contention of plaintiff in error in this particular. While this is error, yet, as we have concluded that the judgment of the trial court was right, the fact that he may have included in his findings a conclusion which was not supported by the evidence, since he did make findings that are supported by the evidence and which sustain the judgment, we will not disturb the judgment of the court therefor. [7] Plaintiff in error further contends that the findings of the court are not supported by sufficient evidence. We have examined the record upon the propositions complained of by plaintiff in error, and we find sufficient evidence to sustain the findings of the court as to the incurable nature of the diseases undertaken to be treated by plaintiff in error, as to his assurances of effecting a permanent cure, and as to his accepting a fee therefor. It is urged by plaintiff in error that the written guaranty which was introduced in evidence, and which is as follows: "Absolute Guarantee. Okl., [4] Plaintiff in error complains of irregularity and error in the proceedings before the state board of medical examiners and in the trial before the district court. He particularly complains of the sufficiency of the complaint filed before the state board. It is practically held unanimously by all the courts that such boards, in proceedings similar to the one at bar, do not act judicially, and are not judicial bodies, but that their action is merely administrative. It is also held that it is within the police power of the state to grant powers such as are sought to be exercised in this case to such boards as a part of the administrative arm of the government, and to provide for summary proceedings to be taken by such boards in cases similar to the one at bar. It is also held that it is not necessary in a trial under such a complaint that the proceedings shall be conducted with that degree of exactness which is required in trials before ordinary tribunals of justice, and that a complaint filed before a state board of health for the purpose of revoking the license of a physician is sufficient if it informs the accused not only of the nature of the wrong charged, but of the particular instances of its alleged perpetration. Munk v. Frink, 81 Neb. 631, 116 N. W. 525, 17 L. R. A. (N. S.) 439; Meffert v. Packer, 66 Kan. 710, 72 Pac. 247, 1 L. R. A. (N. S.) 811, affirmed, 195 U. S. 625, 25 Sup. Ct. 790, 49 L. Ed. 350; State Medical Board v. McCrary, 95 Ark. 511, 130 S. W. 544, 30 L. R. A. (N. S.) 783, Ann. Cas. 1912A, 631; State Board of Health v. Roy, 22 R. I. 538, 48 Atl. 802; State v. Chapman, 34 Minn. 387, 26 N. W. 123; State v. Feller, 34 Minn. 391, 26 N. W. 125. In view of the fact that the controversy is narrowed down to the one charge that plain--is not a guaranty of a cure, but only a tiff in error accepted a fee for the treatment guaranty to refund the fee in the event the of an incurable disease with the assurance that he could effect a permanent cure, we are of the opinion that the paragraph of the complaint which charges plaintiff in error with 66 191-. "I, R. W. Freeman, M. D., party of the first part, do hereby agree to refund all moneys paid to me by H. S. Hawkins, party of the second part, should he fail to receive a complete cure by my treatment. R. W. Freeman. "I, H. S. Hawkins, party of the second part, do hereby agree to follow the directions given by R. W. Freeman, M. D., party of the first part, through a period of time sufficient as deemed by him to effect a complete cure. Should I fail to follow the directions as given by him, then I agree that this agreement becomes null and void. H. S. Hawkins." treatment prove unsuccessful. We consider this contract to be a mere subterfuge, and have no doubt that it was drawn for the very purpose of protecting plaintiff in error in a contract shows that it holds out to the pa-ed, was set apart by the government of the Unittient an assurance of a permanent cure. And, aside from this contract, the record contains evidence of assurances made by plaintiff in error of effecting a permanent cure to his patients orally. This evidence was perfectly competent, since this action is not based upon the contract above quoted, and oral evidence tending to prove or disprove the matter at issue was admissible. Louis Cox, a Seminole citizen, died on July 4, 1901, before selecting his allotment. His surviving widow was a Creek, and she and their two children were duly enrolled as Creek citizens. Held, under the act of Congress, known as the Supplemental Seminole Treaty, passed and approved June 2, 1900, c. 610 (31 U. S. Stat. L. 250), the allotment in the Seminole Nation set apart by the government as the distributive share of the said Louis Cox did not descend to his said widow or children, for the reason that under the terms of the act above referred to his allotment could descend to his heirs only who were Seminole citizens. [Ed. Note.-For other cases, see Indians, Cent. Dig. § 49; Dec. Dig. 18.] Commissioners' Opinion, Division No. 4. Error from District Court, Seminole County; Tom D. McKeown, Judge. Action by Annie Wadsworth and others against George C. Crump and others. Judgment for defendants, and plaintiffs bring er ror. Affirmed. J. S. Severson, of Broken Arrow, for plaintiffs in error. Davis & Patterson, of Wewoka, for defendants in error. MATHEWS, C. This action was instituted by plaintiffs in the district court of Seminole county and submitted to the court upon the following agreed statement of facts: "Agreed Statement of Facts. "The plaintiffs appearing by their attorney, J. S. Severson, and the defendants appearing by their attorney, B. F. Davis, waive a jury in said cause, and agree that the court may determine the issues thereof on the following agreed statement of facts, to wit: (1) That the land in controversy was set apart by the government of the United States as the distributive share of Louis Cox, who appears on the final rolls of the Seminole Tribe of Indians as a member of said tribe, opposite roll No. 1721. (2) That the said Louis Cox died intestate on July 4th, 1901, and before selecting his allotment, and before the said allotment, being the land above describ ed States as his distributive share of the communal property of said Seminole Tribe of Indians. (3) That at the time of his death he was lawfully married to one Annie Cox, now Annie Wadsworth, one of the plaintiffs herein, his two daughters, Maggie Cox, who is now and as issue of said marriage he was survived by plaintiff Maggie Beamore, and Nancy Cox, who is now the plaintiff Nancy Alexander; that his said wife and two daughters, the plaintiffs herein, are members of the Creek Tribe of Indians, and duly enrolled opposite Creek Indian roll Nos. 7555, 7556, and 7557, respectively; that no conveyance has ever been made by said plaintiffs to any one. (4) It is further stipulated that the only Seminole relative surviving Louis Cox was one Lucy Wildcat, whose name appears upon the approved Seminole roll opposite roll No. 400, and under whom the defendants claim title by virtue of divers conveyances." The court found the issues against the plaintiff and for the defendant, and that under the Seminole Agreement (31 Stat. L. 250), relative to descent and distribution of said nation in force at the demise of the said Louis Cox, deceased, whose allotment is in controversy in this case, no one but citizens of the Seminole Nation could inherit a Seminole citizen's allotment from the allottee. The only question here presented is whether or not the plaintiffs in error, who are the legal widow and the only two surviving children of the decedent, Louis Cox, a duly enrolled citizen of the Seminole Nation, his said widow being a duly enrolled Creek citizen and their said two children being also enrolled as Creek citizens, the said Louis Cox having died before his allotment was made, can inherit the land allotted to the said Louis Cox out of the lands of the Seminole Nation. The decision in the case rests upon the construction of an act of Congress known as the Supplemental Seminole Treaty, passed and approved the 2d day of June, 1900 (31 U. S. Stat. L. 250), in reference to the enrollment of members of the Seminole Tribe of Indians and the descent and distribution of their property under certain conditions, which, omitting the introductory and concluding parts, consists of two sections as follows: "First. That the Commission to the Five Civilized Tribes, in making the rolls of Seminole Citizens, pursuant to the act of Congress apand ninety-eight, shall place on said rolls the proved June twenty-eighth, eighteen hundred names of all children born to Seminole citizens up to and including the thirty-first day of December, eighteen hundred ninety-nine, and the names of all Seminole citizens then living; and the rolls so made, when approved by the Secretary of the Interior, as provided in said act of Congress, shall constitute the final rolls of Seminole citizens upon which the allotment of lands and distribution of money and other property be longing to the Seminole Indians shall be made, and to no other persons. "Second. If any member of the Seminole Tribe of Indians shall die after the thirty-first day of December, eighteen hundred and ninetynine, the lands, money, and other property to which he would be entitled if living shall de scend to his heirs who are Seminole citizens, according to the laws of descent and distribu For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes tion of the state of Arkansas, and be allotted and distributed to them accordingly; provided that in all cases where such property would descend to the parents under said laws the same shall first go to the mother instead of the father, and then to the brothers and sisters, and their heirs, instead of the father." Defendants contend that these two sections have already received a settled construction by this court in the cases of Bruner et al. v. Sanders et al., 26 Okl. 673, 110 Pac. 730, and Heliker-Jarvis Seminole Co. v. Lincoln et al., 33 Okl. 425, 126 Pac. 723, while the plaintiffs contend that the question as to whether or not the children of a Creek woman, they being also Creek allottees, are prohibited from inheriting the allotted lands of their father, he being a Seminole citizen, was not decided in the above two cases. In the case of Bruner v. Sanders, supra, the facts were on all fours with the case at bar, with the one exception that the allottee received his allotment before his death, while in the case at bar the allottee died before the allotment was made. The court in that case laid down the law of this case. It might perhaps be said that the law laid down in that case was dictum as far as it covers the point involved in the case at bar, which is perhaps true; but, even though it be dictum, an examination of the statute construed leads us to conclude that it is a correct statement of the law. In that case, the court had under consideration the construction of the statute now under consideration here, and used the following language: "The trial court took the view of this statute that it is not a general statute of descent and distribution, but a special statute, applicable only to the property of enrolled members of the Seminole Tribe of Indians who die subsequent to the 31st day of December, 1899, whose property, if lands, had not been allotted to the Indian, or, if other property, had not been distributed to him at the time of his death. In this construction of the statute by the trial court we concur." From the syllabus of that case we take this excerpt: "Section 2 of the Act of Congress approved June 2, 1900, entitled 'An act to ratify an agreement between the Commission to the Five Civ. ilized Tribes and the Seminole Tribe of Indians' (Act June 2, 1900, c. 610, 31 Stat. 250), controls the descent of land to which a duly enrolled member of the Seminole Tribe of Indians who died after the 31st day of December, 1899, before receiving his allotment, is entitled." This court, in the case of Bruner v. Sanders, supra, having correctly decided, we think, that the act of Congress, approved June 2, 1900 (chapter 610, 31 Stat. 250), applies to the facts presented in the case at bar, the question next for determination is whether or not this statute excluded the children of a Seminole citizen by a Creek woman, who were also enrolled as Creeks, from inheriting his allotted lands. The act under consideration says that such property "shall descend to his heirs who are Seminole citizens." Who are Seminole citizens as here designated? Section 1 of the act set out above provides for the enrollment of the Seminole citizens and says that in making out this roll the names of all of the citizens living on the 31st day of December, 1899, and all the children born to Seminole citizens up to that date, shall constitute the final rolls of Seminole citizens. In section 21 of the Original Curtis Act (Act Cong. June 28, 1898, c. 517, 30 Stat. 502), which provided for the enrollment of the citizens of the Five Civilized Tribes, which included the Seminole Nation, there is a provision which reads as follows: "The rolls so made, when approved by the Secretary of the Interior, shall be final, and the persons whose names are found thereon, with their descendants thereafter born to them, with such persons as may intermarry according to tribal laws, shall alone constitute the several tribes which they represent." From the reading of these two sections last above set out it plainly appears that neither the widow of decedent, Louis Cox, nor their two children, can be denominated "Seminole citizens." The widow undoubtedly is not so included because she is of the Creek blood and a citizen of that tribe, and the two children are excluded because they were born before December 31, 1899, and were not enrolled as Seminole citizens, and thus do not come within the provisions defining Seminole citizens. born after December 31, 1899, that even then It does not follow, if the children had been they could have inherited the allotment in controversy. The defendants have presented the additional proposition here that, according to the custom of the Seminole Nation, the blood of the mother determined the tribe to which her offspring belonged, and the fact that the children, plaintiffs here, were not enrolled as Seminole citizens was not due to any neglect of the parents of the said children or of the Commission to have said children enrolled on the Seminole roll, but the law and the custom of the Seminole Tribe were that the children were of the blood of the mother and members of that tribe to which the mother belonged. While we do not find it necessary to pass upon this proposition, and will leave it, as far as this opinion is concerned, an open question, yet we will say that as far as our investigation has lead us, we are of the opinion that this last proposition is a correct statement of the law so far as it applies to facts as presented in the case at bar. The judgment should be affirmed. UNION COAL CO. et al. v. WOOLEY. (No. 4122.) (Supreme Court of Oklahoma. Nov. 30, 1915. Rehearing Denied Jan. 11, 1916.) (Syllabus by the Court.) 1. PLEADING 367-MOTION TO MAKE DEFINITE AND CERTAIN-REQUISITES. A motion to make a pleading more definite and certain must point out wherein the pleading is indefinite and uncertain, and, if it fails to do so, it is not error to overrule it. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 64, 1173-1193; Dec. Dig. 367.] --- 2. APPEAL AND ERROR 960 DISCRETIONARY RULING-PLEADING-MOTION TO MAKE CERTAIN. A motion of this kind is addressed largely to the discretion of the trial court, and a ruling thereon will not be reversed except for an abuse of such discretion. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3825, 3832-3834; Dec. Dig. 960.] 3. CORPORATIONS 545-INSOLVENCY - DIRECTORS RIGHT TO PREFER CREDITOR. A director of an insolvent corporation is a trustee for the creditors of such corporation, and will not be allowed to prefer an antecedent unsecured debt of other creditors of such corporation who would lose the entire amount due them, if such preference is allowed to stand. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2170-2175; Dec. Dig. 545.] 4. CORPORATIONS 547-INSOLVENCY-PREFERENCE OF DEBTS OF DIRECTORS-JURISDICTION IN EQUITY. erty of another, for full value, and without fraud, the property will pass to the purchasing corporation free from the claims of creditors of the selling corporation. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2354, 2361-2367; Dec. Dig. 590.] 8. CORPORATIONS 545, 590-SALE OF PROPERTY TRUST FUND-RIGHTS OF CREDITORS -DUTY OF PURCHASING CORPORATION. In such case the money paid for the property of the selling corporation passes to its directors, and they hold it as a trust fund for the payment of creditors, and the residue, if any, for the stockholders, and the purchasing corporation is not bound to see to the proper application of the purchase money by the directors of the selling corporation. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2170-2175, 2354, 2361-2367; Dec. Dig. 545, 590.] 9. CORPORATIONS 590-SALE OF PROPERTY -NOTICE OF INSOLVENCY-EFFECT. Notice to the purchasing corporation in such case that the selling corporation is insolvent is not notice that the directors intend to misapply the purchase money. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2354, 2361-2367; Dec. Dig. 590.] Commissioners' Opinion, Division No. 2. Error to District Court, Pittsburg County; Preslie B. Cole, Judge. Action by Tom Wooley against the Union Coal Company, a corporation, and others. Judgment for plaintiff, and defendants bring error. Affirmed in part and reversed in part. This was an action by the defendant in error, plaintiff below, against the plaintiffs in error, defendants below, to hold the defendants liable to the payment of a judgment for $5,697.12 recovered by him against the Adamson Coal & Mining Company. The find Where the directors of an insolvent corporation, upon the sale of its entire property, received a large sum of money, some of which they used to pay debts of the corporation, but paid themselves about $8,000 for sums they claimed to be due them from the corporation, but paid nothing to the plaintiff, a court of equity has jurisdiction of an action to charge such direc-ings of fact by the trial court clearly state tors as trustees, and this remedy is not abolished by the statute defining the obligations and liabilities of directors. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 2178-2181; Dec. Dig. 547.] 5. CORPORATIONS 547-INSOLVENCY-PREFERENCE OF DEBT DUE DIRECTORS-PERSONAL JUDGMENT. Where in such case the directors receive the purchase price of the property of the insolvent corporation in cash, and mingle it with their own funds, it is not error to render a personal judgment against them in favor of a creditor of the corporation who has received nothing on his debt. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2178-2181; Dec. Dig. 547.] 6. CORPORATIONS 547-ACTION FOR TORT "CREDITOR." Where a party has an action for a tort pending against a corporation, which is afterwards reduced to judgment, he is a creditor of such corporation before the actual rendition of the judgment. Rev. Laws 1910, § 2893. [Ed. Note.-For other cases, see Corporations, Cent. Dig. §§ 2178-2181; Dec. Dig. 547. For other definitions, see Words and Phrases, First and Second Series, Creditor.] 7. CORPORATIONS 590-SALE OF PROPERTY -RIGHT OF CREDITORS. Where there is neither a consolidation nor a merger, and one corporation buys all the prop the questions raised, and are as follows: "That on May 7, 1909, plaintiff filed suit in the district court in and for Pittsburg county, at McAlester, for the sum of $20,000, against the Adamson Coal & Mining Company; thereafter on or about the 14th day of April, 1910, said plaintiff recovered judgment in said court against the Adamson Coal & Mining Company in the sum of $5,687.12, and that on or about the 4th day of August, 1909, the Adamson Coal & Mining Company sold all its property and assets to the Union Coal Company, and that said Adamson Coal & Mining Company ceased to do business, having disposed of all its property. "That the consideration paid by the Union Coal Company for the property of the Adamson Coal & Mining Company was $28,900. Out of this sum the Union Coal Company retained $12,783.04, and paid the same to various creditors of the Adamson Coal & Mining Company, and said Union Coal Company turned over and paid to the Adamson Coal & Mining Company Out of this sum the the sum of $16,116.96. stockholders of said Adamson Coal & Mining Company, Peter Adamson, Jr., Maudie Adamson, and A. Z. Rudd appropriated to their own use and benefit about $8,000 of said sum. "The court further finds that at the time said sale was made by the Adamson Coal & Mining Company of its assets and property to the Union Coal Company, and for about three years prior thereto, said Adamson Coal & Mining Company was insolvent and in a failing condition, and the same was known to the Union Coal Company at For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the time it bought the assets and property of the Adamson Coal & Mining Company. "The court further finds that the Union Coal Company knew of the claim of plaintiff against the Adamson Coal & Mining Company at the time it bought the property of said Adamson Coal & Mining Company, and that it knew said suit was pending and knew of the claims and demands of the plaintiff against the Adamson Coal & Mining Company." There was judgment for the plaintiff below against both defendants, and from this judgment the defendants below bring the case to this court by petition in error and case-made. Hurley, Mason & Senior, Fred A. Fulghum, W. J. Gregg, and Carl C. Magee, all of Tulsa, for plaintiffs in error Adamson and Rudd. Wright & Boyd, of McAlester, for plaintiff in error Union Coal Co. Geo. W. Sutton, of Muskogee, and W. N. Redwine, of McAlester, for defendant in error. DEVEREUX, C. (after stating the facts as above). Separate petitions in error and assignments of error are filed on behalf of the Adamsons and Rudd and the Union Coal Company, and, as they present different questions, we will first consider those filed on behalf of the Adamsons and Rudd. chasers, leaving corporate debts unpaid, such persons take the property charged with a trust in favor of creditors, which a court of equity will enforce. In Drury v. Cross, 7 Wall. 299, 19 L. Ed. 40, it appeared that a corporation had conveyed its property so as to protect its directors against liability as indorsers for it, and in condemning the transaction the court says: "The transaction which this case discloses canduct of the directors of this railroad corporanot be sustained by a court of equity. The contion was very discreditable and without authority of law. It was their duty to administer the important matters committed to their charge, for the mutual benefit of all parties interested, and in securing an advantage to themselves, not common to the other creditors, they were guilty of a plain breach of trust." In Sutton Mfg. Co. v. Hutchinson, 63 Fed. 496, 11 C. C. A. 320, in which the decision was rendered by Circuit Justice Harlan, it is held that, when a private corporation is dissolved or becomes insolvent, and determines to discontinue the prosecution of its business, its property is thereafter affected by an equitable lien or trust for the benefit of creditors, and that the duty in such case of [1, 2] Their first assignment of error is that preserving it for creditors rests upon the the court erred in overruling a motion to directors or officers to whom has been commake the petition more definite and certain.mitted the authority to control or manage its affairs, who, if not technically trustees, hold the corporate assets in a fiduciary relation to creditors. This motion is as follows: "To require the plaintiff to make his allegations of fact which constitute his cause of action against these defendants more definite and certain." It was not error to overrule this motion, because it did not point out wherein the petition was indefinite and uncertain (Grimes v. Cullison, 3 Okl. 268, 41 Pac. 355, Cockrell v. Schmitt, 20 Okl. 207, 94 Pac. 521, 129 Am. St. Rep. 737, and Kuchler v. Weaver, 23 Okl. 420, 100 Pac. 915, 18 Ann. Cas. 462), and also a motion of this character is largely addressed to the discretion of the court, and a ruling thereon will not be reversed, except for an abuse of such discretion (Ft. Smith & Western R. Co. v. Ketis, 26 Okl. 696, 110 Pac. 661). [3-5] These plaintiffs in error. also filed a demurrer on the grounds: (1) That the petition does not state facts sufficient to constitute a cause of action; (2) that the joinder of parties defendant is defective; and (3) because several causes of action are improperly joined. The questions raised by the demurrer are disposed of in our decision on the main question presented, which is whether a director of an insolvent corporation can prefer his debts to the prejudice of other creditors, and this depends on whether a director is a trustee for creditors. This question has never been expressly decided in this state, and, looking to other jurisdictions, the authorities are hopelessly in conflict. In Curran v. Arkansas, 15 How. 304, 14 L. Ed. 705, it is held that the assets of an insolvent corporation are a fund for the pay ment of its debts, and, if they have gone in In 10 Cyc. 803, it is said: "The assets of an insolvent corporation being a trust fund for creditors, which necessarily means for all creditors, the directors in charge for the creditors, and cannot so deal with them of such assets stand in the position of trustees as to prefer themselves as creditors, for any past indebtedness of the corporation in favor of such directors, unless at the time when such past indebtedness was created it was agreed that they should be so preferred." On page 805 it is said: contrary and regrettable doctrine obtains that "In two or three American jurisdictions the the directors may use the knowledge which they possess of its impending insolvency, so as to prefer or secure themselves as its creditors, to the disadvantage and postponement of its general creditors." In Olney v. Conanicut Land Co., 16 R. I. 597, 18 Atl. 181, 5 L. R. A. 361, 27 Am. St. Rep. 767, it is held that the directors of an insolvent corporation are by virtue of their position debarred from preferring debts of the corporation due to themselves, and in the opinion it is said: ciary relation of directors to stockholders, however they may differ in the use of terms to describe it. This relation has led logically to the conclusion that, in case of insolvency, the assets of the corporation being no longer held for the benefit of stockholders, but for the benefit of creditors, the directors owe to the creditors the duty of a trustee. This duty is clearly stated by Clifford, J., in Bradley v. Converse, 4 Cliff. 375: in equity as held in trust for the payment of the 'Assets of an incorporated company are regarded debts of the corporation, and courts of equity "Indeed, no cases that we know of deny a fidu |