right in respect to the subject of the same adverse to that of the party in whose favor the judgment or decree was entered, the petition in error will ordinarily be dismissed. The construction is to be on the entire stat- I review does not and cannot affect any claim of ute, and where one part is susceptible of two constructions, and the language of another part is clear and definite, and is consistent with one of such constructions and opposed to the other, that construction which will render all sections of the statute harmonious must be adopted. Alexander v. Worthington, 5 Md. 471; Lee v. Roberts, 3 Okl. 106, 41 Pac. 595; Ratliff v. Fleener, 43 Okl. 652, 143 Pac. 1051. Section 7378, Rev. L. 1910, in providing for an estimate for the county levy, requires the estimate to be itemized so as to show the amount estimated to be necessary for roads and bridges. Section 6 of article 2, c. 173, S. L. 1915, provides: "All moneys received by the board of county commissioners for road and bridge purposes shall be paid out only on order of said board, for the purchase of tools, machinery and equipment, or for work done on the state road system, or for tile and tiling, or for bridges and culverts throughout the county." Another well-settled rule of construction of statutes is that each section of the statute is to be understood and must be construed with due regard to the context. We find section 433 in article 1 of chapter 10 relating to cities and towns. Applying the settled rules of construction to the three sections of the statute mentioned, we must conclude that section 433 applies to road taxes levied by the town, or for town purposes, and that the last two named sections refer to the county levy for county purposes. Under this construction there is no conflict between these sections. Their objects are different, and the language of each is therefore restricted to its own object or subject. The case of Incorporated Town of Valliant v. Mills, 28 Okl. 811, 116 Pac. 190, relied upon by plaintiff in error, is not in point and not controlling here. In that case Mr. Justice Kane, speaking for the court said: "The question before this court is what disposition must be made of the funds collected from the taxation assessed by such incorporated towns for streets and highway purposes." Section 433 of the statutes above referred to has no application to the funds assessed by the county for county purposes. The judgment of the lower court is affirmed. All the Justices concur. (a) Where a party as plaintiff, claiming to be the sole heir of an intestate, brings an action as such heir for the recovery of and to remove a cloud of purported, but forged, conveyances from such property, and accordingly recovers judgment against the parties claiming under such conveyances, who, although not in fact privies in respect to any right, title, or interest held by the plaintiff's sister, defend in part upon the grounds that the plaintiff's sister, who the property, if any, cannot be affected by such is not a party and whose rights in respect to adjudication, is the sole heir of such intestate, and where, after some of such defendants bring the case to this court for review, they admit in effect that such conveyances were forged, and that they never had any right, title, or interest in or to such property, the issue between the parties affected by the judgment is not concrete and real, but is abstract, and the petition in error will therefore be dismissed. (b) Parties admittedly having no right, title, or interest in or to the subject-matter in litigation are not entitled to have an adjudication of court upon the grounds that the judgment is the issues in the trial court reviewed in this void as against a person who was never a party to the case, and whose rights, if any, cannot be affected by the adjudication. Turner, J., dissenting. Error from District Court, Creek County; Wade S. Stanfield, Judge. Action by Nancy Atkins, by her guardian, Micco T. Harjo, against H. U. Bartlett, A. A. Hammer, the Gypsy Oil Company, William S. Murphy, Wilber M. Norris, W. H. Walton, and Ellis H. Hammet to recover real property and remove cloud from title of same. Judgment for plaintiff, and H. U. Bartlett, A. A. Hammer, and the Gypsy Oil Company bring error. Petition in error dismissed. Poe, Hindman & Lundy and L. M. Poe, all of Tulsa, E. C. Hanford, of Seattle, Wash., and C. B. Stuart, of Oklahoma City, for plaintiffs in error. N. B. Maxey and Matcolm E. Rosser, both of Muskogee, for defendants in error. THACKER, J. Nancy Atkins, the defendant in error, an incompetent person, by her guardian, Micco T. Harjo, on July 23, 1913, commenced this action against H. U. Bartlett, A. A. Hammer, and Gypsy Oil Company, plaintiffs in error, and against William S. Murphy, Wilber M. Norris, W. W. Walton, and Ellis H. Hammet, defendants in error, for the recovery of and to remove the cloud of certain purported, but forged, conveyances from the following described "allotted" real property situated in Creek county, to wit: The S. W. 4 of the N. W. 4 of section 4, and the S. W. 4 of the N. E. 4 and lot 2 of section 5, and also lot 4 of section 4, township 18 north, range 7 east. The plaintiff, claiming to be the mother and sole heir of the allottee, who was enroll 1033; Muskogee Gas & Elec. Co. v. Haskell, 38 Okl. 358, 132 Pac. 1098, Ann. Cas. 1915A, 190; Harman v. Burt, 20 Okl. 509, 94 Pac. 528. Parties having no right, title, or interest in or to the subject-matter in litigation, as in the instant case, are not entitled as a matter of right to have an adjudication of the issues in the trial court reviewed in this court upon the grounds that the judgment is void as against a person who was never a party to the case, and whose rights, if any, cannot be affected by the adjudication. The appeal in this case is dismissed. All the Justices concurring, except TURNER, J., dissenting. ZEHR et ux. v. MAY. (No. 8760.) (Supreme Court of Oklahoma. Dec. 4, 1917.) (Syllabus by the Court.) ed as Thomas Atkins, and whose mother's Trading Co. v. Ralls, 42 Okl. 759, 142 Pac. name was entered upon the rolls as Minnie Atkins, recovered judgment and decree in June, 1914, and the defendants Bartlett, Hammer, and the Gypsy Oil Company, although now admitting in effect that such conveyances were forged, and that they never had any right, title, or interest in or to this property, have brought this case to this court for review, because, as they say, the judgment purports to adjudicate Nancy Atkins' claim of right and title not only against themselves, but against her sister, Minnie Atkins, who, as all the parties agree, has never been a party to this case, and that the judgment and decree is void as to her. In view of the admission of the plaintiffs in error that they now claim no right, title, or interest in or to the property in question, and in view of the further fact, admitted by all parties to this case, that no right, title, or interest of Minnie Atkins, nor of any one claiming under her, is or could be affected by the judgment of the trial court or by any decision or judgment of this court in this case, because neither Minnie Atkins nor any one claiming under her has been or is a party to the same, the defendants in error insist that the petition in error should be dismissed because there is now no concrete and real, but only an abstract, issue, between the plaintiffs in error and the defendants in error, or between either of them, presented to this court for decision, or, in other words, that it now appears that the adjudication we are asked to review effectively adjudicates nothing except that one party, as against other parties who now admit they never had any right, title, nor interest in or to the property involved, is entitled to recover such property and to have a cancellation of admittedly forged deeds and conveyances predicated thereon. The fact that she recovered upon the theory that she and her sister Minnie is the mother and sole heir at law of the original owner of the same establishes her relation and right as such as against such other parties to this case, and as against no one else. 1. HOMESTEAD 96-HOMESTEAD RIGHT UNPAID PURCHASE MONEY. No homestead right can be acquired or asserted in land upon which the purchase money is unpaid, either in whole or in part, as against the party to whom such purchase money is due. 2. SUBROGATION 23(6)-VENDOR'S LIEN. Money paid for land by a third person directly to the grantor for the grantee, at the grantee's request, is generally considered purchase money as against the homestead right of the grantee, and entitles the person so advancing the purchase money to be subrogated to all the rights of the grantor as regards the vendor's lien. 3. SALE HOMESTEAD CONSTITUTIONAL OF Under section 2, art. 12, of the Constitution, the homestead of the family is not exempt from forced sale for the payment of the purchase money, or a part of the purchase money, for such homestead. Error from District Court, Alfalfa County; J. C. Robberts, Judge. Action by George W. May against Joseph Zehr and wife. Judgment for plaintiff, and defendants bring error. Affirmed. A. R. Carpenter, of Cherokee, for plaintiffs in error. Titus & Talbot, of Cherokee, for defendant in error. The judgment and decree brought here RAINEY, J. The facts necessary to a defor review does not, in effect, adjudicate termination of this case are substantially any question as against any person or per- as follows: In September, 1915, the plainsons who are not parties to this case nor tiffs in error, Joseph Zehr and Anna Zehr, against their privies nor in any manner fix husband and wife, were occupying a quarter the status of the relation between Nancy section of school land as their homestead. Atkins and the allottee so as to be binding Joseph Zehr was the lessee of said tract of upon any one who is not a party nor privy; land, and as such owned the improvements but, as a result of the admissions of all par- thereon, and had the preference right to purties to this case, it appears that all concrete chase the same, but had no other title to it. and real issues between the parties affected This land was ordered sold as provided by by that judgment and decree have been elimi- law, on September 10, 1915, at which time nated, so that nothing remains to be consid- Joseph Zehr was indebted to the state of ered or decided which could affect the right, | Oklahoma in the sum of $679.90, for rent of title, or interest of any adverse claimant of the land, and for the payment of which the the property in question. See Canadian state had a lien against the land and the second party of the sum of $2,600. That there Improvements placed thereon by Zehr. Zehra total payment to said first parties by said did not have the money to pay the rent, nor to make the initial payment of 5 per cent. on the purchase price in the event he purchased the land, and on the day of the sale, approached defendant in error, George W. May, plaintiff below, and asked May if he intended to bid on the land. It was not clear, and in fact there is a conflict in the evidence, as to whether or not May informed Zehr he intended bidding on the land. May testified that he informed Zehr that he did not intend to bid on the land, if Zehr did. Zehr testified that he went to May, and asked him if he were going to bid on the land, and that May replied he (May) did not know. During this conversation, which was just a short time before the sale, Zehr informed May that if he (Zehr) bought the land he would convey it and his improvements to him (May), provided they could agree upon the price. After some negotiations May agreed to purchase the land from Zehr for $500 above the appraised value of the land and the improvements. It does not appear from the evidence that any effort was made to keep others from bidding on the land, except that Zehr went to a Mr. Hinkle and asked him if he were going to bid on the land, and that Hinkle replied that he was not, if Zehr want ed it himself. After the land was bid in by "In witness whereof said parties have hereunto "Parties of the First Part. "Party of the Second Part." Zehr agreed to have his wife, Anna Zehr, sign the above contract, but this she refused to do. Upon her failure to sign the contract, and when they both refused to comply with the terms thereof, or to return the money advanced, May instituted the present action, alleging the above facts, and asked for a specific performance of the contract, or in the alternative that he be decreed to have a lien on the land for the purchase price, so paid by him. The defendants filed a denial. and the defendant Anna Zehr filed an additional answer, in which she asserted a homestead interest in the property and the invalidity of the contract, for the reason that the same was not signed by her. The case was tried to the court, without a jury, and on the issues presented the court made the following findings of fact: "And the court finds that the land involved in this action, to wit, the southwest quarter of section thirty-six (36), township twenty-eight (28) north, of range twelve (12) W. I. M., Alfalfa county, Oklahoma, was the homestead of the defendants, and that by reason thereof the contract set out in plaintiff's petition was and is void as not signed by the wife of Joseph Zehr. And the court further finds that the money so advanced by plaintiff on the 10th day of September, 1915, being the amount sued for in this action, was used by the defendant Joseph Zehr in payment of the amount due the state of Oklahoma, as alleged and set out in plaintiff's petition, and that by reason thereof plaintiff is entitled to be subrogated to the lien held by the state for the sums so paid." Judgment was then rendered for the plaintiff for the sum of $999.73, and said sum was adjudged to be a lien against the land, subject to the lien of the state for the unpaid purchase price. And it was further ordered that, in the event the defendants did not pay the judgment within eight months, an execution issue against said land, and that the same be sold, subject to the lien of the state, applied in the payment of the costs of suit and sale, and to the payment of the judgment of the plaintiff, with interest, and that the residue be brought into court to be disposed of as the court should order. From this judgment Joseph Zehr and his wife appealed to this court. While the question has been raised in some cases as to whether or not mere possession without title is sufficient to support the homestead right, the courts generally adhere to the view that such possession is sufficient to give the party in possession the homestead right against all the world but the true owner, and the Zehrs would therefore have a homestead right in the land, which they were holding and occupying as lessees, but under the terms of the act providing for the leasing of the public lands, this right expired at the expiration of the lease, or when the land was sold by the state. Section 7171, Rev. Laws of Oklahoma 1910. Therefore, when this land was sold by the state, on September 10, 1915, all the homestead rights of the lessees, Joseph Zehr and Anna Zehr, his wife, expired; but, since he was the purchaser at said sale, he became the equitable owner of the land, and a new homestead right in favor of him and his wife immediately attached thereto, subject to the lien of the state, given by section 7152, Rev. Laws of Oklahoma 1910, which reads as follows: "The state shall have first lien upon all lands sold under this article together with all improvements and appurtenances thereunto belonging, until all payments, both principal and interest, are made thereon. * * [1] The question then arises: Was May entitled to a lien for the money advanced by him and used by Zehr in the purchase of the land from the state? It is well settled that no homestead right can be acquired or asserted in land upon which the purchase money is unpaid, either in whole or in part, as against the party to whom such purchase money is due. Brown v. Ennis, 69 Ark. 123, 61 S. W. 379, 86 Am. St. Rep. 171; Wilhelm v. Locklar, 46 Fla. 575, 35 South. 6, 110 Am. St. Rep. 111; Strohecker v. Irvine, 76 Ga. 639, 2 Am. St. Rep. 62. In such cases, although the land may be impressed with the homestead character, it remains subordinate to the lien for the unpaid purchase price, and in the event of a default in the payment of said purchase price, the same may be sold and the proceeds thereof applied in satisfaction of the judgment for the purchase money. Austin v. Underwood, 37 Ill. 438, 87 Am. Dec. 254; Magee v. Magee, 51 Ill. 500, 99 Am. Dec. 571; Steger v. Traveling Men's Building, etc., Ass'n, 208 Ill. 236, 70 N. E. 236, 100 Am. St. Rep. 225. [2] Does this rule apply where the money is advanced or loaned by a third person? The general rule is stated in 13 Ruling Case Law, paragraph 67, as follows. "Money paid for land by a third person direct | considered purchase money as against the homestead right of the grantee and entitles the perrogated to all the rights of the grantor as reson so advancing the purchase money to be subgards the vendor's lien." While there are a few decisions to the effect that the person who furnishes the money to the purchaser to enable him to pay the seller for the homestead is not entitled to a lien for the money advanced, the rule is inequitable, and is, in our opinion, clearly against the weight of authority. In 86 Am. St. Rep., page 180, in the notes to the case of Brown v. Ennis, 69 Ark. 123, 61 S. W. 379, there is a collection of numerous authorities on the question under consideration, from which the general rule is deduced as above stated. See, also, Austin v. Underwood, 37 Ill. 438, 87 Am. Dec. 254; Magee v. Magee, 51 Ill. 500, 99 Am. Dec. 571. But, even where the general rule obtains, the mere fact that money was borrowed and used to satisfy an indebtedness secured by the homestead does not entitle the party furnishing the money to be subrogated to such claim, and where one loans money to a derstanding or agreement that the money is purchaser of land without any distinct unto be used in the purchase of the homestead or the erection of improvements thereon, the transaction does not create a lien against such homestead. The distinction recognized by most of the courts is stated in the case of Carey v. Boyle, 53 Wis. 574, 11 N. W. 47, wherein the court said: "It must be understood that the extension of this equity to a third person is strictly confined to those who furnish or advance the purchase money to the purchaser in such manner that they can be said either to have paid it to the vendor personally, or caused it to be paid on behalf or for the benefit of the purchaser, and to this extent they become parties to the transaction. It must not be a general loan, to be used by the purchaser to pay the consideration of the purchase, or to be used for any other ple fact that the money can be traced into the purpose at his pleasure. In such case, the simland as having been paid by the purchaser to the vendor, as the whole or part of the purchase money, gives the person who loaned it no such right." Neither will the mere fact that borrowed money is subsequently invested in the homestead give the lender any lien on the premises. The case of Magee v. Magee, 51 Ill. 500, 99 Am. Dec. 571, is similar to the case at bar, in that, at the time the money was advanced by the third person to the vendee, the vendee had not secured a deed from the vendor, and the money was borrowed for the purpose of taking up the payments due the vendor by the vendee. The vendee promised to execute a mortgage, which he never did, and the court held that the money advanced by the third party was purchase money, and that no homestead right could be asserted to prevent the sale of the property in payment of the debt. [3] Section 2, art. 12, of our Constitution, "Where a husband and wife are occupying a LIMERICK v. JEFFERSON LIFE INS. CO. certain piece of land as their homestead, but without having any title thereto, and N. loans (No. 6003.) to the husband a certain sum of money with (Supreme Court of Oklahoma. Jan. 8, 1918.) (Syllabus by the Court.) 374(2)-THEORY OF CASE BELOW-FINDINGS OF FACT-DETERMINATION. the understanding and agreement that said money should be used in purchasing said land, and that the husband shall then give his note and 1. APPEAL AND ERROR 171(1, 2)-TRIAL mortgage on the land to N. for such money, and such money is so used, and the land is purchased therewith, and then the husband executes the note and mortgage as agreed, but the wife does not join in the execution of either, nor does she give her consent thereto, and she has no interest in the land except as the wife of her husband and as an occupant with him of the land, held, that the loaning of the money, the purchasing of the land, and the giving of the note and mortgage, are not separate and independent transactions, but are parts and portions of one single and entire transaction; that they were all done in and about the purchase of said land, and to accomplish that purpose; that the obligation to repay the money is an 'obligation contracted for the purchase of said premises,' within the meaning of section 9 of article 15 of the Constitution, and therefore that there is no homestead exemption law as against the enforcement of such obligation." The court further observed that the rule is just the same as if no exemption law had ever been adopted. Where the parties to a cause present it to the trial court as one of purely equitable cognizance, they will not be allowed to change their theory in the Supreme Court, and the answers of the jury to certain special interrogatories, submitted to them by the trial court by request of the respective parties, returned into court in the form of "findings of fact," will be treated on appeal, as they were treated below, as merely advisory to the trial court. In such cases it is not only the right, but the duty, of the trial court to finally determine all questions of fact as well as of law. 2. APPEAL AND ERROR 1012(1)—QUESTION OF FACT-FINDING OF TRIAL COURT-FRAUD. Where fraud is relied upon as a basis for equitable relief, and the trial court, after hearing the evidence, finds that fraud has not been established, this court will not disturb such finding, unless it is clearly against the weight of the evidence. 3. BILLS AND NOTES 520-JUDGMENT-SUF FICIENCY OF EVIDENCE. Unquestionably the $270, being 5 per cent. Record examined, and held, that the judgof the appraised value of the land, exclusivement of the trial court is sufficiently supported by the evidence. of the improvements, was a part of the pur- 4. FRAUD 11(2) — VALUE - EXPRESSION OF chase price of the land, and we also think that the delinquent rent in the sum of $679. 90 was purchase money within the spirit, if not within the strict meaning, of the term. The law required the payment of this delinquent rent before Zehr was permitted to buy the land, and it was absolutely necessary for this money to be paid before he and his wife could acquire any homestead right whatever in the land when the same was sold by the state. If the land had been purchased by some other person, the amount of the delinquent rent, under the law, would have been deducted by the state from the appraised value of the improvements in making settlement with Zehr. It seems to us that the money required under the law to be paid in order to consummate the purchase of the land, under the circumstances of this case, falls clearly within the spirit of the law. It would be highly inequitable to permit Zehr and his wife to enjoy the land in controversy as a homestead as against the just claim of May, whose money procured the land for them. The money was furnished by May with the distinct understanding that the same was to be used in part payment of the purchase price, and the money was so OPINION. Whenever property of any kind depends for its value upon a contingency which may never occur, or developments which may never be made, opinion as to its value must necessarily be more or less of a speculative character; and fallacious it may prove, or whatever the injury no action will lie for its expression, however a reliance upon it may produce. Error from District Court, Oklahoma County; W. R. Taylor, Judge. Suit by the Jefferson Life Insurance Company against Della Limerick, with cross-petition by defendant. Judgment for plaintiff, denying the cross-petition, and defendant brings error. Affirmed. J. S. Jenkins, A. E. Jenkins, and J. Will Laws, all of Oklahoma City, and H. Y. Thompson, of Britton, for plaintiff in error. Everest & Campbell, of Oklahoma City, for defendant in error. KANE, J. This was a suit upon a promissory note and to foreclose a mortgage given to secure the payment of the same, commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below. Hereafter the parties will be designated as "plaintiff" and "defendant," |