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.

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 conIclude 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."

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 chil"Section 2 of the Act of Congress approved dren or of the Commission to have said chilJune 2, 1900, entitled 'An act to ratify an agree-dren enrolled on the Seminole roll, but the ment 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."

From the syllabus of that case we take this excerpt:

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

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.

PER CURIAM. Adopted in whole.

This was an action by the defendant in Where the directors of an insolvent corpo- error, plaintiff below, against the plaintiffs ration, upon the sale of its entire property, received a large sum of money, some of which they in error, defendants below, to hold the deused to pay debts of the corporation, but paid fendants liable to the payment of a judgment themselves about $8,000 for sums they claimed for $5,697.12 recovered by him against the to be due them from the corporation, but paid Adamson Coal & Mining Company. The findnothing 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 the questions raised, and are as follows: by the statute defining the obligations and liabilities of directors.

the time it bought the assets and property of the | chasers, leaving corporate debts unpaid, such Adamson Coal & Mining Company. trust in favor of creditors, which a court of persons take the property charged with a equity will enforce.

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.

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 can

not be sustained by a court of equity. The conduct of the directors of this railroad corporation 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 DEVEREUX, C. (after stating the facts as was rendered by Circuit Justice Harlan, it is above). Separate petitions in error and as- held that, when a private corporation is dissignments of error are filed on behalf of the solved or becomes insolvent, and determines Adamsons and Rudd and the Union Coal to discontinue the prosecution of its busiCompany, and, as they present different ques-ness, its property is thereafter affected by tions, we will first consider those filed on be- an equitable lien or trust for the benefit of half of the Adamsons and Rudd. 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 This motion is as follows: affairs, who, if not technically trustees, hold the corporate assets in a fiduciary relation

"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 Lis 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 into the hands of other than bona fide pur

to creditors.

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:

"In two or three American jurisdictions the contrary and regrettable doctrine obtains that 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:

"Indeed, no cases that we know of deny a fiduciary 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 will enforce the execution of such trusts in favor

of the creditors even when the matter in contro-, and for which in equity they should account. versy may not be cognizable in a court of law. C., R. I. & P. R. Co. v. Howard, 7 Wall. 392, Such assets are usually controlled and managed by directors or trustees; but courts of equity at 416, 19 L. Ed. 117, cited with approval will not permit such managers, in dealing with by this court in Collins v. Kaw City Mill & the trust estate, in the exercise of the powers of Elev. Co., 26 Okl. 641, 110 Pac. 734, where their trust, to obtain any undue advantage for it is said: themselves, to the injury or prejudice of those for whom they are acting in a fiduciary relation.'

"Equity regards the property of a corporation as held in trust for the payment of the debts of the corporation, and recognizes the right of credThe same rule that directors of an insol-itors to pursue it into whosesoever possession it vent corporation are held as trustees for may be transferred, unless it has passed into the creditors is announced in Jones on Insolvent hands of a bona fide purchaser; and the rule is well settled that the stockholders are not entitled and Failing Corporations, § 55. to any share of the capital stock nor to any dividend of the profits until all the debts of the corporation are paid. Assets derived from the of its property, become, as respects creditors, sale of the capital stock of the corporation, or the substitutes for the things sold, and, as such, they are subject to the same liabilities and restrictions as the things sold were before the sale, and while they remained in the possession of the corporation.'

In Lyons-Thomas Hardware Co. v. Perry Stove Co., 86 Tex. 143, 24 S. W. 16, 22 L. R. A. 802, the question under consideration is discussed in an elaborate note, in which it is said:

"The most serious conflict between the courts on the question of preferences by insolvent corporations is in reference to the preference of debts of directors. In a few states the doctrine

that corporations may prefer creditors is followed to its full extent, and preferences to the directors themselves, although obtained by virtue of their superior knowledge of the condition of the corporation, are upheld."

And in the note it is said:

"But the great weight of authority denies the right of directors of a corporation to take advantage of their position to obtain preferences for themselves or unsecured debts"-citing many

cases.

In Wait on Insolvent Corporations, § 1621, it is said in part, in speaking on the question of the general right of a corporation to prefer its creditors:

The case of Topeka Paper Co. v. Oklahoma Pub. Co., 7 Okl. 220, 54 Pac. 455, is cited by plaintiff in error to sustain their contention, but the facts in that case were that two corporations consolidated, and it was attempted to hold the directors liable for the debts of one of the corporations, and the court held that they were not liable, on the ground that it was not shown that the value of the property of the corporation was by the act of the stockholders destroyed, impaired, or lessened

in value.

ey to pay debts due themselves.

This case, therefore, is no authority for one like the present, where the directors sell "The practical working of the rule_sustaining every particle of property the corporation corporate preferences is monstrous. The unpre-owned, go out of business, and use the monferred creditors have only a myth or a shadow left to which resort can be had for payment of their claims; a soulless, fictitious, unsubstantial entity that can be neither seen nor found. The capital and assets of the corporation, the creditors' trust fund, may under this rule of law be carved out and apportioned among a chosen few, usually the family connections or immediate friends of the officers making the preferences."

This language is very applicable to cases where the directors preferred themselves. See Jones on Insolvent and Failing Corporations, § 132.

The plaintiff in error relies upon the cases holding that directors are not trustees, and especially on Corey v. Wadsworth, 118 Ala. 488, 25 South. 503, 44 L. R. A. 766, in which the doctrine that a director of an insolvent corporation is not a trustee for creditors, and consequently that he can pay his own claim in preference to other creditors, as

upheld in the opinion, but this is opposed to the great weight of authority, and, as we think, of reason, and the true rule is that the director of an insolvent corporation is a trustee of the corporate assets for creditors, and that he cannot prefer a prior unsecured debt of his own to the injury of other creditors. But the plaintiff in error contends that their liability is fixed by the provisions of Rev. Laws 1910, § 1254. But this action is not brought under this section, but in equity to reach the trust fund that has come

[7] Complaint is also made that the court erred in rendering a personal judgment against these plaintiffs in error, but, under the evidence in this case, if a personal judgment cannot be rendered, the defendant in error would be without any remedy, for the plaintiffs in error received the payment in money, not in specific property of the corin error is sound, a trustee can always esporation. If the contention of the plaintiffs cape liability by squandering or concealing the trust fund. That a court of equity can render a personal judgment when otherwise the plaintiff would be without remedy is settled. Murray v. Speed, 153 Pac. 181, No. 5442, decided November 16, 1915, and not yet officially reported.

[6] That the defendant in error was a cred

itor before his demand was reduced to judgment is settled by the provisions of Rev. Laws 1910, § 2893, which provides:

"A creditor, within the meaning of this chapter, is one in whose favor an obligation exists, by reason of which he is, or may become, entitled to the payment of money.'

And see Shelby v. Ziegler, 22 Okl. 799, 98 Pac. 989.

The judgment, therefore, against Peter Adamson, Jr., Maudie Adamson, and A. Z. Rudd should be affirmed.

[8] Coming to the matters presented by the