trial court, and will be reversed only for an, leased and let unto defendant Lonnie Mcabuse thereof, and proceeds to argue that the court abused its discretion in granting the motion in this case.

[1] It is apparent from the record that there was substantial dispute upon some of the material facts in the case, and it follows, we think, that there is a question for the jury. Upon the other appeal, if we did not state that the question was one for the jury, we very plainly intimated so when we said: "The record in this case discloses that there was evidence which, if believed, would establish that the bank was not a holder in good faith without knowledge of any defect in the note, and by granting the motion for judgment non obstante the trial court substituted his judgment of the weight of this evidence for that of the jury. If he believed that the evidence was insufficient to sustain the verdict, he could have granted a new trial.

[2] We think it is plain from this statement that the trial court was justified in granting a new trial, and it cannot now be successfully argued that he abused his discretion in so doing.

The order appealed from is therefore af

firmed.

Cann the land in question for agricultural purposes for a term of one year, beginning January 1, 1914. That, under the terms of said lease, McCann agreed to pay as rent therefor $350 as follows: $175 on October 15, 1914, and $175 on November 15, 1914. That he had paid upon said rental the sum of $18.33, leaving a balance due of $331.67, which he failed and refused to pay. That McCann had, without consent of plaintiff, sublet a portion of said land to defendants Frank Jones, Kelly Jones, Lee Jones, Steve Stevenson, and P. S. Stevenson. That defendants were gathering and removing the crops from said land without paying the rent as agreed, and prayed for an order of attachment, which was duly issued, and the sheriff took possession of the property. The Stevensons answered and, after general denial, alleged that on or about January 1, 1914, they took possession of about 45 acres of said land as tenants of plaintiff and defendant McCann, with the knowledge and consent of plaintiff, and with the express agreement that they were to pay McCann as rent thereon one-third of the corn and one-fourth of Wherefore

ELLIS, C. J., and HOLCOMB and MOR- the cotton grown on said land. RIS, JJ., concur.

they prayed that the attachment be dissolved and plaintiff's action dismissed. For reply, plaintiff filed a general denial. McCann, Lee Jones, Kelly Jones, and Frank Jones filed no answer, but joined with defendants Steve Stevenson and P. S. Stevenson in a motion to

dissolve the attachment, which motion was

withdrawn before trial. The cause was tried to a jury and resulted in a verdict against McCann for $300.52, and in favor of the Stevensons, discharging the attachment, and judgment was entered accordingly. No judgment was entered against defendants Frank Jones, Kelly Jones, and Lee Jones, and they appear to have dropped out of the case.

From said judgment plaintiff prosecutes this appeal against the Stevensons, alleging

Error from County Court, Okmulgee Coun- several grounds for reversal. But, from the ty; Mark L. Bozarth, Judge.

Suit by William Lunsford against Lonnie McCann and others. Judgment against defendant McCann and in favor of the other defendants, and plaintiff brings error. Affirmed.

view we take of the case, it is unnecessary to consider any of them. This, for the reason that the judgment was right, in that defend. ants in error Steve Stevenson and P. S. Stevenson, being sublessees of the original lessee, McCann, are not liable for the rents

Merwine & Newhouse, of Okmulgee, for agreed to be paid by said lessee to the lessor. This point is ruled by Kimbriel v. Montgomery, 28 Okl. 743, 115 Pac. 1013. There we held:

plaintiff in error.

J. W. Childers, of Okmulgee, for defendants in error.

TURNER, J. On November 5, 1914, plaintiff in error, William Lunsford, sued Lonnie McCann, Frank Jones, Lee Jones, Kelly Jones, and Steve Stevenson and P. S. Stevenson, in the county court of Okmulgee county for rent alleged to be due on lands described, and, at the same time, sued out an attachment to enforce his lien as landlord as provided by Rev. Laws 1910, § 3806 et seq. The petition substantially states: That plaintiff

original lessee, there is neither privity of estate nor privity of contract: the lessor cannot sue the sublessee upon the lessee's covenant to pay rent."

"As between the lessor and sublessee of the

Gauley Coal, etc., Co. v. Sharp (W. Va.) 52
L. R. A. (N. S.) 968, it is said:

In a valuable note to the case of Kanawha

from an assignment of the lessee's full term, "Since, in case of a sublease, as distinguished there remains an estate in the lessee, intervening

between the reversion and the estate or interest | paid by him on the land, and establishing in the sublessee, there is no privity of estate be- and foreclosing a mortgage lien on the intween the subtenant and the lessor, and, as there is no privity of contract, the former is not lia-terest of said Sol Haggerty in the land and ble to the latter for rent"-citing a long list of in favor of the plaintiff, J. L. Terwilliger, authorities, among which is the case of Kimbriel and establishing and foreclosing a lien upon v. Montgomery, supra. the entire premises in favor of Geo. C. BeiThe judgment of the trial court is affirmed. dleman, and adjudging that J. H. Nance had All the Justices concur.

citizenship to take the descent and distribu- | case-made, and is not otherwise brought betion. It has been held since the date of fore this court so that the same can be rethe original judgment, and also that upon viewed; hence we cannot consider these asthe petition to vacate, that the right to in-signments of error. Casner v. Streit, 42 Okl. herit is dependent on some one of the con- 710, 142 Pac. 1004; In re Colling's Guardianditions named. Thompson v. Cornelius, 155 ship, 40 Okl. 629, 140 Pac. 141; Waltham Pac. 602; Jefferson v. Cook, 155 Pac. 852. Piano Co. v. Wolcott, 38 Okl. 770, 135 Pac. 339; Arnold v. Moss, 27 Okl. 524, 112 Pac. 995.

Judgment of the court below is affirmed. All the Justices concur.

DIETERLE et al. v. HARRIS et al.

(No. 7073.)

Dec. 4, 1917.)

[1] Sol Haggerty and Martha Haggerty demurred to the petition in the court below upon the grounds, inter alia, that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled. Thereafter, the Haggertys answered, admitting all of the allegations in the petition with reference to the allotment of the land, the death of the allottee, and their relation to him, but denied that he was married to (Supreme Court of Oklahoma. Ludie Haggerty, or that she became seised of any estate of inheritance in the premises. The Haggertys were represented by counsel at the trial, evidence was taken, and the judgment now attacked rendered thereon. They did not file motion for new trial or attempt to appeal from this judgment. If the omission to aver or prove that the alleged heirs of the allottee were Creek citizens, or descendants of such, or that there was no person of Creek citizenship to inherit, might have been cause for reversal of the judgment, which it is not necessary to decide, it does not follow that the judgment can now be vacated for that reason. The court had jurisdiction of the parties, of the subject-T. L. Brown, Judge. matter, and the particular questions decided. For aught that appears, the very point upon which the petition is now attacked may have been urged upon the demurrer or in the trial, and decided against the defendants below, and the court below may have been of the opinion that the question relating to the Creek citizenship of the next of kin was immaterial. If so, the judgment is no less conclusive because based upon such mistake of law. National Surety Co. et al. v. Hanson Builders' Supply Co., 165 Pac. 1136; Chivers v. Board of Commissioners, 161 Pac. 822, L. R. A. 1917B, 1296. Furthermore, for aught that even now appears, the alleged heirs may have all been Creek citizens or descendants of Creek citizens. If so, no more can be said against the petition than that it is defective or insufficient in a matter that was amendable, and the judgment rendered thereon would not be void for that reason. Kaufman v. Grow, 158 Pac. 300. For these and other reasons not necessary to mention, the attack on the judgment upon the ground mentioned cannot now be entertained.

(Syllabus by the Court.)

1. PARTIES 88(3) — MISJOINDER-STATUTE. A petition which shows a mere misjoinder or excess of parties plaintiff is not subject to demurrer for defect of parties under Rev. Laws 1910, § 4740, subd. 4.

2. FRAUD 13(3)-ELEMENTS IN GENERAL.

The fourth paragraph of the syllabus in case of Wingate v. Render, 160 Pac. 614, is adopted herein. 3. MINES AND MINERALS 58-OIL AND GAS LEASES-FRAUD.

Evidence examined, and held, that there was sufficient evidence adduced at the trial to sustain the finding and judgment of the trial court on the question of fraud.

Commissioners' Opinion, Division No. 2. Error from District Court, Rogers County;

[2] The consideration of the other two as signments of error would involve an examination of all the evidence at the hearing of the petition to vacate the judgment and for a new trial. It appears from the certificate of the trial judge that the oral testimony given at that hearing by Sol Haggerty and Ephraim Colbert is not incorporated in the

Action by Hattie Harris and others against C. W. Dieterle and others. Demurrer to petition overruled, and judgment for plaintiffs, and defendants, except Sanger, bring error. Affirmed.

Ertell & Hart, of Claremore, for plaintiffs in error. Adams & Wills, of Claremore, for defendants in error.

POPE, C. The parties will be designated as they appeared in the court below. This action was brought by the plaintiffs to cancel two oil and gas leases, one executed by the plaintiff Levi Higginbotham to the defendants Dieterle, Strong, and Koenig, and the other executed by Malinda Sloan, née Higginbotham, to Dieterle and Sanger. Case was tried to the court, and judgment canceling lease executed by Levi Higginbotham to Dieterle and Sanger, from which judgment all the defendants prosecute error, except J. E. Sanger, who was made a defendant in error.

The plaintiffs alleged in their petition: That Thomas Higginbotham, Levi Higginbotham, and Malinda Sloan, née Higginbotham, were children and heirs at law of Betty Higginbotham, deceased, and as such inherited a certain tract of land in Rogers county, Okl. Thomas Higginbotham since the death of Betty Higginbotham had resided in the immediate vicinity of the land in question, that Malinda Sloan resided in Tulsa,

that the evidence was not sufficient to warrant the judgment of the trial court in canceling the said oil and gas lease on the ground of fraud. The evidence introduced at the trial tended to show: That the defendant Dieterle, while acting for and on behalf of himself and the defendants Strong and Koenig, had sought to obtain an oil and gas lease on the land in question from Levi Higginbotham, and was told by Levi Higginbotham that his brother, Thomas Higginbotham, had been given full control and management of the said land by himself and his sister Malinda, and that whatever ar

Okl., and that Levi Higginbotham resided in Muskogee, Okl., and that by common consent of the three children above named, Thomas Higginbotham had been given general control and supervision over said land for purposes of renting and leasing for oil and gas and agricultural purposes upon terms and conditions which he deemed for the best interest of all concerned. On the 10th day of June, 1912, Thomas Higginbotham executed an oil and gas lease on the land to M. J. Phillippe, who assigned the same to Hattie Harris. That the defendants Dieterle, Koenig, and Strong with full knowledge of the existence of the lease made by Thomas Higgin-rangements he made with Thomas would be botham to one Phillippe and assigned to Hattie Harris, and of the facts and circumstances leading up to the making of the said lease, on June 20, 1913, by fraud and deceit induced Levi Higginbotham to execute an oil and gas lease on the said land to them, and that on June 1, 1913, C. W. Dieterle and J. E. Sanger by fraud and deceit induced Malinda Sloan to make and execute an oil and gas lease to them.

Plaintiff Malinda Sloan pleads a tender of $27 paid her by defendants Dieterle and Sanger with interest on the same from date

of payment. Defendants deny generally all the material allegations in plaintiffs' petition, but admit that Levi Higginbotham, Thomas Higginbotham, and Malinda Sloan are children and heirs of Betty Higginbotham, deceased, but deny that Thomas Higginbotham was authorized to lease said land for oil and gas purposes for Malinda and Levi, admit the execution of all the leases mentioned in plaintiffs' petition, but contend that the leases from Levi and Malinda are valid and binding leases. The defendants interposed a demurrer to plaintiffs' petition, and for grounds of said demurrer allege: (1) That Thomas Higginbotham and Levi Higginbotham and Malinda Sloan have no interest in the subject-matter of the action as set out in plaintiffs' petition. (2) Plaintiffs' petition does not state facts sufficient to constitute a cause of action in favor of the plaintiffs and against the defendants. The demurrer was overruled by the court.

[1] The order overruling the demurrer is assigned as error by the defendants, who urge only the one ground, to wit, that Thomas and Levi Higginbotham and Malinda Sloan had no interest in the subject-matter of the action. While the defendants designate the grounds on which the demurrer was urged as a defect of parties plaintiff, the facts stated as the grounds upon which the defendants rely clearly show a misjoinder and not a defect of parties plaintiff, and such objection does not constitute a ground for demurrer, but should have been presented by motion to strike out the unnecessary parties. Tucker v. Hudson, 38 Okl. 791, 134 Pac. 21; Bourland v. Madill State Bank et al., 32 Okl. 761, 124 Pac. 314.

satisfactory with him. In a short time thereafter Dieterle called on Thomas Higginbotham for the purpose of obtaining from him an oil and gas lease on the land in ques

tion. Thomas refused to make a lease to

Dieterle, stating to Dieterle at that time that he had already given Captain Harris a lease on said land and could not give another.

Within a short time thereafter the defendant his home in Muskogee, and stated to him Dieterle returned to Levi Higginbotham at that he had seen Thomas, and that it was entirely, agreeable with him that Levi execute the lease, and that he (Thomas) had made or agreed to make a lease on said land to Dieterle, and exhibited to him a paper writing purporting to be an oil and gas lease, with his and his brother's name inserted as parties to the lease, all of which was done for the purpose of inducing him, the said Levi, to execute an oil and gas lease on the land in question to Dieterle. That he (Levi) was led to believe by the representations made to him by Dieterle to the effect that his

brother Thomas had executed a lease to the defendant Dieterle, and desired Levi to execute a lease on said land to Dieterle, and that Levi, believing the said statements and representations to be true, was induced thereby to execute the oil and gas lease on the said land set out in the plaintiffs' petition. That he would not have executed said lease if the said representations had not been made. That the same were false, and that as

soon as he learned of the untruthfulness of

the said representations made to him by Dieterle he returned the money received by him as a consideration for executing said lease, and repudiated the entire transaction. The court in the case of Wingate v. Render

said:

"To constitute actionable fraud, it must be made to appear: (1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; (6) that he thereby suffered injury; and (7) that all these of certainty, and all of them must be found to facts must be proven with a reasonable degree exist; the absence of any of them would be

The plaintiffs allege that they are fullblood Creek Indians, citizens of the Creek SMITH et al. v. JOS. W. MOON BUGGY CO. Nation, duly enrolled as such, and the owners of the land involved, but the court sus-(Supreme Court of Oklahoma. Dec. 11, 1917.) tained the motion to dismiss because of the following allegations contained in plaintiffs' petition: