fails, such provision must be followed by him in seeking to enforce the guaranty: Scott v. Vulcan Iron Works Co., 31 Okl. 334, 122 Pac. 186; Updegrove v. Gold Balance Valve Co., 156 Pac. 684. Indeed, the universality of the lar breeding mares in foal, as by the con- the purchaser in the event the warranty tract of sale the stallion was warranted to do. The question for review arises out of the following clause of the contract of sale: "This certifies that I, L. W. Cochran, of Crawfordsville, Indiana, have sold the Percheron stallion Pizarro No. 49996 stallion, to Isabella Horse Company of Isabella, Okl., on Feb-general rule is not questioned in Voris v. ruary 23, 1909, for $1,600. And I also guarantee the above-named stallion to get 60 per cent. of all healthy and regular breeding mares in foal, provided said stallion is properly cared for and exercised and in a healthy condition, and said mares are returned regularly to be tried and bred; provided, that if said stallion does not fill the above guarantee after a fair trial, said Cochran agrees to furnish said purchaser another stallion of equal value and said purchaser agrees to accept said stallion in satisfaction of this contract; provided, however, that the stallion returned has been well cared for, has not been sold and is returned to said Cochran at Crawfordsville, Ind., February 3, 1910, and not later, sound and in as good condition as when sold." It was conceded that the stallion was not returned pursuant to the foregoing agreement, but notwithstanding this judgment was rendered in favor of the defendants. The court below took the view that the vendee had the option either to stand upon the warranty and recoup his damages in the ac tion against him on the promissory note, or to accept from the vendor another stallion that would satisfy the warranty. In a former opinion this court sustained the view of the trial court upon the authority of Voris v. Gage et al., 46 Okl. 748, 149 Pac. 150. In the Voris Case, supra, the terms of the contract and the question involved were identical with the contract and question involved in the case at bar. The court in an opinion prepared by Mr. Commissioner Galbraith held: "For a breach of warranty contained in the written guaranty set out in the opinion the vendee had the option either to stand upon the warranty and recoup his damages in an action against him on the promissory note or to accept from the vendor another stallion that would satisfy the warranty. Under section 977, Rev. Laws 1910, a stipulation in a contract that restricts the right of the parties to pursue the usual legal remedies in the ordinary tribunals for a breach thereof is void." [1, 2] Upon rehearing the court, after more mature deliberation, is of the opinion that Voris v. Gage et al., supra, is unsound in principle and should be overruled. There is no conflict in the authorities holding in effect that the parties may agree by provision in their contract to pursue a certain | course or a certain remedy in case of breach of warranty, and that such course or remedy is exclusive of the ordinary remedies where it fairly appears to have been the intention of the parties. 5 Elliott on Contracts, 5111. So universal is this rule that to cite the authorities from other jurisdictions supporting it would be but a work of supererogation. The following are a few of the cases in this jurisdiction which hold that where the parties to a contract of sale have Gage et al., supra, but the conclusion reached by the court is based solely upon the erroneous view that the clause of the contract under consideration prescribing the course to be pursued was ineffective for that purpose, because it contravenes section 977, Rev. Laws 1910, which provides: "Every stipulation or condition in a contract, by which any party thereto is restricted from enforcing his rights under the contract by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void." We are wholly unable to perceive how this section has any application whatever to the question under consideration in either this or the principal case. The section, as seems to be assumed by the learned commissioner who prepared the opinion in the Voris Case, is not directed against stipulations in contracts which restrict the rights of the parties to pursue the usual legal remedies in the ordinary tribunal, etc., but against stipulations or conditions by which any party to a contract is restricted from enforcing his rights under the contract, by the usual legal proceedings, etc. There is no stipulation or condition contained in either of these contracts by which any party thereto is restricted from enforcing his rights under the contract by the usual legal proceedings in the ordinary tribunals, and the fact that the parties are now engaged in an effort to enforce what they deem to be their respective rights under the contract by legal proceedings in the ordinary tribunals of the state furnishes the most convincing proof that this is so. What are the parties' rights under their contract? is the precise question now under consideration. Obviously the answer to this question must be found by resorting to the contract itself. Now, assuming, as the trial court found, that the guaranty has been breached by the vendor, what are the rights of the vendee under the contract? We find them stated in the contract substantially as follows: The vendee agrees that in case said stallion does not fill the above guaranty after a fair trial, the vendor may furnish him another stallion of equal value, and said vendee agrees to accept the stallion in satisfaction of the contract, provided, however, that the stallion is returned to the vendor not later than March 1, 1910, sound and in as good condition as when sold. Obviously, there is nothing in this which in the slightest restricts either party from enforc ing his rights under the contract by the usual proceedings in the ordinary tribunals. Therefore, inasmuch as it was competent for should take advantage of any breach of the | On January 1, 1912, Belton Miles and his warranty, and what the rights of the vendee present wife, Annie Miles, executed a mortshould be in case the stallion did not meet the requirements of the guaranty, it must be held that the course agreed upon by the parties is exclusive, and the buyers having failed to return the horse in accordance with the provisions of the contract, they are precluded from recouping their damages in the action against them on their promissory notes. 1. CURTESY 2 HOMESTEAD 143-INDIAN TERRITORY - LAW IN FORCE- OccuPANCY OF MINOR CHIldren. Prior to statehood, when certain sections of Mansfield's Digest of the Laws of Arkansas were in force, by virtue of Act Cong. May 2 1890, the husband had, the requisite conditions existing, an estate of curtesy in the lands of which his wife died seised, and there was no law in force at that time which gave, to the exclusion of the husband's curtesy right, the minor child or children of the wife the right to the use and occupancy, during the minority of said children, of the lands occupied as a home by the husband, wife, and child at the time of the wife's death. 2. CURTESY 12(4)-CURTESY CONSUMMATE -TRANSFER. The right of curtesy consummate may be assigned or transferred, and the assignee or transferee has a right to the use and possession thereof. gage on said lands to the American State [1-3] While the Arkansas law was in force before statehood, the right of curtesy existed in the Indian Territory. Johnson v. Simpson, 40 Okl. 413, 139 Pac. 129; Blaylock v. Muskogee, 117 Fed. 125, 54 C. C. A. 639. Upon the death of the wife, all other requisites existing, the husband becomes vested with a freehold estate known as curtesy consummate. Hampton v. Cook, 64 Ark. 353, 42 S. W. 535, 62 Am. St. Rep. 194; Todd v. Oviatt, 58 Conn. 174, 20 Atl. 440, 7 L. R. A. 693; Jackson v. Jackson, 144 Ill. 274, 33 N. E. 51, 36 Am. St. Rep. 427; Malone v. Conn, 95 Ky. 93, 23 S. W. 677; Templeton v. Twitty, 88 Tenn. 595, 14 S. W. 435. When the right of curtesy becomes a vested interest, it cannot be destroyed by the Legislature. Zeust v. Staffan, 16 App. D. C. 141; Clay v. Mayr, 144 Mo. 376, 46 S. W. 157; Wyatt v. Smith, 25 W. Va. 813; Cooley, Const. Lim. (7th Ed.) 513. On the death of the allottee, Prudence Miles, née Jackson, her husband became vested with the curtesy right in her land, and curtesy may be sold, assigned, or mortgaged, and the vendee has a right to the use and enjoyment of the estate; but it is the contention of the plaintiff that she has the right to the use and occupancy of the premises as a homestead during her minority, and that this right is given her by the stat Patterson & Farmer, of Pauls Valley, for ute of Arkansas in force in the Indian Terriplaintiff in error. tory at the time of the death of said allottee. PRYOR, C. In November, 1905, Prudence The statute of Arkansas giving the minor Miles née Jackson, a Chickasaw freedman, children the right to use and occupancy of died seised of her allotment. She left sur- the homestead during their minority was not viving her as her next of kin and heirs at extended by the acts of Congress over the law her child, Leanna Miles, and her hus- Indian Territory, and there was no other band, Belton Miles. At the time of her law in force at the time which gave the mideath she and her husband, Belton Miles, nor children the right to the use and ocand her daughter, Leanna Miles, were occupancy of the homestead during their micupying the said allotment as their home.nority. Their right to the use and occu pancy of the homestead during their minori- | Cherokee Indians. Nancy Baldridge died inty is a statutory right, and, in the absence testate March 6, 1902, while her husband, of the statute, no such right exists. This Columbus Baldridge, died September 24, right not having been given to the plaintiff, 1905. Nancy Baldridge, by a first marriage the husband and his grantee have a right to Charles Clark, was the mother of three to the use of the premises during the life children: Jennie Whitener, née Clark, Perof the husband, to the exclusion of the plain-ry Clark, and Myrtle Clark, who died in tiff, and the trial court properly sustained 1907. As a result of her marriage with Cothe demurrer to the petition. lumbus, two children were born, the allottee, The judgment of the trial court should be Nelson, and Takie. Prior to his marriage affirmed. [Ed. Note.-For other definitions, see Words and Phrases, Second Series, Ancestral Estate.] 2. INDIANS 18-ALLOTMENT-DESCENT. In case both parents are of Cherokee blood, the estate of a deceased son ascends equally to the father and the mother. If the mother's death precedes that of the son, the moiety which she, if living, would have taken ascends to her heirs. to Nancy, Columbus had contracted a former marriage of which union three children were born, but whose names do not appear in the proceedings. Claiming to be the sole heirs at law of Nelson, the children of Columbus, after the death of Nelson, sold the lands allotted to Nelson through the probate court of Cherokee county to Millard F. Moss, the defendant. The controversy arises through the claim that at the death of Nel son his estate ascended to his father, Columbus, at whose death it descended to the latter's children. On the part of plaintiffs it is claimed that on the death of Nelson the estate ascended one-half to his father Columbus and one-half to the heirs at law of his deceased mother, Nancy, each being fullblood Cherokee Indians. That Myrtle Clark having died in 1907 unmarried, without issue and intestate, her interest in the estate of her deceased half-brother passed in equal parts to her sister Jennie, her brother Perry, and her half-sister Takie. [1, 2] It will be noted that the descent was cast while chapter 49 of the Laws of Arkan3. APPEAL AND ERROR 173(10)-REVIEW-sas was in force in the Indian Territory by QUESTIONS NOT RAISED BELOW. Where a case is submitted entirely upon an agreed statement of facts in which it is stipulated by the parties "that the sole question to be passed upon and decided by the court in this case is the question of descent," and the court so confines its decision, the prevailing party will not be permitted in this court for the first time to raise the issue of limitations, on the claim that upon that issue the trial court reached a correct conclusion. Error from District Court, Cherokee County; John H. Pitchford, Judge. Action by Jennie Whitener, née Clark, and Perry Clark, against Millard F. Moss. Judgment in favor of defendant, and plaintiffs bring error. Reversed and remanded, with instructions. E. C. McMichael and Asbery Burkhead, both of Tahlequah, for plaintiffs in error. J. I. Coursey, of Tahlequah, for defendant in error. congressional enactment. Nelson having died without descendants, and the estate being ancestral as distinguished from a new acquisition (Shulthis v. McDougal, 170 Fed. 529, 95 C. C. A. 615; Pigeon v. Buck, 38 Okl. 101, 131 Pac. 1083; Id., 237 U. S. 386, 35 Sup. Ct. 608, 59 L. Ed. 1007; Roberts v. Underwood, 38 Okl. 376, 132 Pac. 673; Id., 237 U. S. 386, 35 Sup. Ct. 608, 59 L. Ed. 1007; Mc Dougal v. McKay, 43 Okl. 261, 142 Pac. 987; Id., 237 U. S. 372, 35 Sup. Ct. 605, 59 L. Ed. 1001), section 2531, Mansfield's Digest, governs the devolution of the title. That section provides: "If the estate come by the father, then it shall ascend to the father and his heirs; if by the mother, the estate, or so much thereof as came by the mother, shall ascend to the mother and her heirs." As the estate came as much by the blood of the mother as by the blood of the father, SHARP, C. J. Nelson Baldridge, a full- it cannot be said that the heirs of the forblood Cherokee Indian, died in Cherokee mer inherit to the exclusion of the latter. county, Okl., September 8, 1904, unmarried, While the case does not come clearly within intestate, and without issue, leaving an al- the statute, in that an allotment of land canlotment of lands, a one-third interest in not strictly be said to "come by the father," which is claimed by the plaintiffs in this ac- or "by the mother," it has been applied in tion. Nelson Baldridge, the deceased, was such cases in order to effectuate as nearly the son of Columbus Baldridge and Nancy as possible the purpose of Congress in fixing Baldridge, each of whom were full-blood the rules of descent in such cases. Cowo kochee v. Chapman, 171 Pac. 55; Shulthis 78 Ark. 1, 93 S. W. 58, 8 Ann. Cas. 208; v. McKay, 170 Fed. 529, 95 C. C. A. 615; McDougal v. McKay, 237 U. S. 372, 35 Sup. Ct. 605, 59 L. Ed. 1001. That Nancy Baldridge died prior to the death of her son Nelson, would not affect the right of her children to inherit her moiety of the estate. Thorn v. Cone, 47 Okl. 781, 150 Pac. 701; Buck v. Simpson, 166 Pac. 146; Johnson v. Dunlap, 173 Pac. 359. Chicago v. Duffy, 179 Ill. 447, 53 N. E. 982; Halpine v. May, 100 Mass. 498; Gensler v. Nicholas, 151 Mich. 529, 115 N. W. 458, 14 Ann. Cas. 452; Eckes v. Stetler, 98 App. Div. 76, 90 N. Y. Supp. 473; Hall v. Darrah (Tex. Civ. App.) 59 S. W. 815. Nor does the fact that prior to answer defendant had filed a general demurrer, in the face of the subsequent admission, affect the rule, as clearly the case was submitted upon the issue of law "that the sole question to be passed upon and decided by the court in this case is the question of descent." [3] Counsel for defendant in error seem principally to rely on the statute of limita- | raised in the agreed statement of facts, tions as a defense. It is said that if upon the face of the record and the admitted facts the judgment of the trial court is correct, though based upon a wrong reason, the judgment should be affirmed. The principle contended for has no application, as the case below was tried entirely upon an agreed statement of facts in which, at the conclusion, was the following provision: "That the sole question to be passed upon and decided by the court in this case is the question of descent. That is to say, whether or not the whole estate descended to the father, Columbus Baldridge, on the death of Nelson Baldridge, or did one-half descend to the heirs of the deceased mother, Nancy, formerly Nancy Baldridge." That the stipulation was treated as limiting the issues to the question of descent appears from the following provision of the journal entry: As the judgment of the court is in conflict both with the statute and the decisions, fixing and determining the rule of descent in such cases, it is reversed, and the cause remanded, with instructions to proceed in accordance with the views herein expressed. All the Justices concurring. WHEELER & MOTTER MERCANTILE CO. v. MILLER et al. (No. 8349.) Jan. 29, 1918. (Supreme Court of Oklahoma. Rehearing Denied Sept. 24, 1918.) (Syllabus by the Court.) 1. JUDICIAL SALES 39-VACATION-INADEQUACY OF PRICE. If unaccompanied by circumstances showing unfairness in the conduct of the successful bidder or sufficient to raise a presumption of fraud, a judicial sale will not be set aside for mere inadequacy of price, unless it is so great as to shock the conscience. 2. MORTGAGES 529(3)—FORECLOSURE SALE -FINALITY-POLICY OF LAW. "The court further finds, as stated and agreed in the stipulation filed herein as the testimony in the case, that the sole question to be decided in this case under the evidence is whether, upon the death of Nelson Baldridge, the whole estate of Nelson Baldridge descended to the father, Columbus Baldridge, to the exclusion of the children of Nancy Baldridge, deceased, mother of said Nelson Baldridge, deceased, by her former husband, Charley Clark, deceased, or did one undivided half of said estate descend to It is the policy of the law that a judicial the heirs of the mother of the deceased, Nelson sale shall be final; and in the absence of fraud Baldridge." or unfairness and a clear showing of gross inadThe rule is of almost universal applica-terest of a mortgagor in mortgaged property is equacy of price, one who has acquired the intion that questions, of whatever nature, not raised and properly presented for review in the trial court, will not be noticed on appeal. And where counsel declares in the trial in open court that only a certain question is involved in the case, or where, by stipulation, the case is submitted only on a certain question, other questions cannot be raised in the appellate court. This question was be fore the court in the early case of Little Co. v. Burnham, Hanna, Munger & Co., 5 Okl. 283, 49 Pac. 66. In that case the journal entry and an amendment to the record show that: "Both parties elected to submit the case upon the question of the validity of the chattel mortgage in question." And it was held that the question as to whether possession was taken by another under a transfer by way of pledge could not, after such an agreement, be considered on appeal. Other cases in point are: St. L. & S. W. R. Co. v. White Sewing Mach. Co., not entitled to have a foreclosure sale thereof, made conformably to statute, set aside for the the statutory notice of the time of such sale, he reason that, having failed to receive other than was not present thereat, particularly where his failure to receive notice of such character is not attributable to the conduct of the purchaser. Commissioners' Opinion, Division No. 3. Appeal from District Court, Tillman County; John W. Hayson, Judge. Objections by the Wheeler & Motter Mercantile Company, purchaser from trustee in the confirmation of a foreclosure sale in case bankruptcy of Miller Bros., incorporated, to of Interstate Mortgage Trust Company against Miller Bros., a corporation, and its trustee in bankruptcy, to Bettie Miller. Sale confirmed, and the objector appeals. Order affirmed. M. S. Singleton and Harris & Nowlin, all of Oklahoma City, for plaintiff in error. Robinson & Whiteside, of Altus, for defendants in error. BLEAKMORE, C. On November 18, 1909, ; some kind of an agreement between the the Interstate Mortgage Trust Company com- plaintiff and Stewart Miller and his mother menced suit in the district court of Tillman to suppress competitive bidding at such sale. county to foreclose a real estate mortgage. There was also a tender of the amount of Subsequently by amended petition, Miller the judgment and costs, etc. Upon hearing Bros., a corporation which had acquired the of motion to confirm the sale, together with mortgagor's title to the premises and later the objections thereto, on December 15, 1915, been adjudged a bankrupt, and Robert the sale was confirmed. Wheeler & Motter Landers, trustee in bankruptcy of the estate | Mercantile Company has appealed. of Miller Bros. Company, were made parties defendant; and on March 26, 1915, judgment was rendered for plaintiff in the sum of $2,641.82, interest, attorneys' fees, and costs, foreclosing a mortgage and ordering a sale of the property. On July 7, 1915, the trustee in bankruptcy, as an asset of the estate of Miller Bros. Company, sold its interest in the property to Wheeler & Motter Mercantile Company, and on October 1, 1915, executed and delivered his deed evidencing such sale. On September 29, 1915, an order of sale issued out of the district court of Tillman county directing the sheriff to sell the mortgaged property in satisfaction of the judgment of March 26th; pursuant to which the same was sold for $2,850 to Bettie Miller, who it appears is the mother of Stewart On Miller of the Miller Bros. Company. December 2, 1915, Wheeler & Motter Mercantile Company filed in the district court of Tillman county objections to the confirmation of the sale to Bettie Miller, setting forth its purchase of the property from the trustee in bankruptcy, and that its representative and agent, one C. J. Tuohy, had called upon Wilson & Roe, a firm of lawyers residing at Frederick, in Tillman county, who were attorneys for plaintiff in the foreclosure suit, and had employed them "to institute certain litigation against the occupy ing tenant of such property, for the recovery of the rents and profits therefrom, and also employed them and engaged their services to keep him advised and notify him of the date of the sale of the real estate pursuant to the order of the court in this action"; that thereafter Tuohy became sick and was confined to his bed for several weeks, unable to look after any business; that in August, 1915, Wilson & Roe had written him to the effect that they would send him notice of such sale in ample time for him to attend the same; that by reason of such letter and employment he relied solely upon Wilson & Roe to notify him of the date of such sale; that said attorneys through oversight or neglect failed to so notify him, and he was thereby prevented from attending the same and protecting the interest of the principal; that he was ready, willing, and able to have bid at such sale an amount sufficient to protect its interest; that the property was worth a sum largely in excess of the amount for which it was sold. It was also alleged on information and belief that there was The sole question presented is the alleged abuse of discretion by the trial court in confirming the sale. It appears from the evidence upon the hearing of the objections to the confirmation of the sale that the judgment in favor of the mortgagee had theretofore been assigned to the purchaser, Bettie Miller. Some time after the rendition of such judgment Mr. Tuohy, in a conversation with Mr. Wilson, of the firm of Wilson & Roe, stated that he purposed bidding in the property at the sheriff's sale, and he later wrote a letter inquiring the date of such sale, which Mr. Wilson answered under date of August 21, 1915, as follows: "The sheriff's sale for the Miller property foreclosed on by the Interstate Mortgage Company will be advertised immediately after September 26th. The advertisement will have to run five weeks, so it will make the date of the sale some time about the first of November. We will send you the notice of the sale so you will have ample time to be here on the date of the sale." Mr. Wilson testified: "Mr. Tuohy when he came down said something about buying this place by virtue of a sale of the equity of the trustee of the Miller Bros. Company, over at Lawton, and when he spoke about the sale, it was my understanding that the reason he was interested in it was owing to the fact that he had purchased the equiI was over at Lawton some ty of the trustee. two weeks after I had written this letter in August, and I was informed that the sale by the trustee of these premises and the action of the referee in allowing them to be sold had been reversed by the federal court, by Judge Cotteral, and that was the reason that I did not notify him; I just took it for granted, and will admit that it was a mistake on my part, considering that he did not have any equity, and I did not pay any more attention to it, and when I received that letter November 1st that morning, the morning of the sale, I called his attorney, Mr. Singleton; of course I did not know where I could find Mr. Tuohy, and I found that he was at Guthrie, and I tried to get into communication with Mr. Tuohy, so he could send a man down to bid, but I did not get him, and he did That was not have time to come down here. the real reason that I did not let him know; I just let the matter slip my mind, and I thought that all of the interest that he had in the farm had been taken away because I understood that the ruling had been reversed, and both of them were cases of mistake." On cross-examination by Mr. Wilson Mr. Tuohy testified: "Q. In fact you understood at that time that we represented the plaintiff, the Interstate Mort gage Trust Company, and told you of that fact? A. Yes, sir. Q. And that we agreed to send you a copy of the publication notice, that was purely a matter of accommodation to notify you of the sale? A. Yes, sir." |