Volume 105 — Missouri Reports

— Hon. E. M. Hughes, Judge. (1) The court erred in setting aside the sale and canceling defendants’ deed. The sheriff had full power and authority, under the school-fund mortgage and the order of the county court, to levy upon, advertise and sell the land set forth in the school-fund mortgage. R. S. 1889, secs. 8059, 7091, 7088; Kelly v. Burt, 61 Mo. 463. (2) Under section 8059, Revised Statutes of 1889, the levy by the sheriff and the advertisement were strictly proper.

Mandamus. (1) Mandamus will lie from the supreme court to the court of appeals to compel the reinstatement of an appeal improperly dismissed. State ex rel. v. Philips, 97 Mo. 333. (2) The statute requires the appellant to cause a “certified copy of the record entry of the judgment order or decree appealed from ” to be sent up. R. S. 1889, sec. 2253. The judgment appealed from in this case was clearly the judgment sustaining the attachment.

— Hon. D. A. DeArmond, Judge. (1) The state is bound to prove, first, that defendant took the prosecuting witness unlawfully against her will, and, second, that his intent was to compel her at the time of the taking to marry him. R. S. 1879, sec. 1256. (2) The letters of May 17, and June 6, 1888, were improperly admitted in evidence. They were irrelevant and prejudicial. Only such' evidence is admissible which tends to prove the issue. Greenl. Ev. [ 14 Ed.] sec. 52-3.

Louis Circuit Court. — Hon. Daniel Dillon, Judge. (1) The Mechanics’ Bank, the plaintiff, is not the real party in interest. The judgment is for the Mechanics’ Bank, and, therefore, for the wrong party. This must lead to a reversal of the judgment of the court below. R. S. Mo. 1889, sec. 1990; Pomeroy on Remedies, sec. 128; Tutt v. Cousins, 50 Mo. 152; Charles v. Haskins, 11 Iowa, 834; Wright v. Parks, 10 Iowa, 342; Ford v. Johnson, 19 Johns.

(1) The circuit court in the trial of the cause should have admitted the evidence of the two grand jurors offered by the plaintiff, appellant here, to show what the testimony of the defendant was, on which the indictment was found, the reasons for spcrecy having ceased as the evidence was sought after the state had entered a nolle prosequi in the criminal prosecution. Hendekoper v. Cotton, 3 Watts, 56; Dreux v. Domec, 18 Cal. 83 ; Sharpe r>.

<p>1. Criminal Law : felonious stabbing : indictment. An indictment for felonious stabbing, under Revised Statutes, 1879, section 1262, need not charge that the knife, with which the crime was alleged to have been committed, was a deadly weapon, nor that it was open in the hands of the defendant at the time of the stabbing.</p> <p>2. Criminal Practice: indictment : “a true bill.” An objection on the trial of a change of venue case that the indictment was not indorsed by the foreman'of the grand jury “ a true bill” is rightly overruled, where the transcript from the county in which the indictment was found shows the indorsement was in fact made, and the original indictment was not produced to show the contrary.</p> <p>3. Instructions : felonious stabbing. Instructions given on the trial of an indictment for felonious stabbing approved.</p> <p>4. Criminal Practice : lower grade of crime : waiver. A defendant who requests the court to limit its instructions to the specific offense charged in the indictment cannot complain of its failure to instruct on lower grades of the crime.</p> <p>5. -: statutory rights : waiver. Statutory rights may be waived by a defendant in a criminal case when done voluntarily and of his own head.</p>

— Hon. J. M. Sandusky, Judge. (1) The record in the land-office touching the tract in controversy was made up according to law; the plaintiff had a right to rely upon it, and the defendant is bound by it. (2) There was no evidence to sustain the verdict in this case. Plaintiff’s patent conveyed to him the legal title, and,there was no evidence to overthrow it. The court will in such case reverse the judgment. Caines v. Ins. Co., 50 Mo. 44 ; Hearne v. Keath, 63 Mo. 84.

<p>Constitution: jurisdiction of supreme court : case involving* title to real estate. A suit in which the controversy is as to the proper apportionment, between life-tenants, remaindermen and assignees of their interests, of charges on realty created by special tax bills, does not involve title to real estate within the meaning of the constitution conferring appellate jurisdiction on the supreme court, regardless of the pecuniary sum involved, “ in cases involving title to real estate.”</p>

— Hon. B. E. Turner, Judge. (1) The petition states facts sufficient to constitute a cause of action for fraud. Phelps Co. v. Bishop, 68 Mo. 250; Kerr v. Simmons, 82 Mo. 269. (2) It states a case not barred by the statute of limitations. Plaintiff need not anticipate the defense of the statute. Halsey v. Wood, 55 Mo. 252 ; Burén v. Burén, 79 Mo. 538; Bunn v. Miller, 96 Mo. 324.

— Hon. G-. D. Burgess, Judge. It is clear from the evidence that there was a plan agreed upon to entrap defendant laid by the witnesses Payne, Hill and Yan Wye. Hill was to bring with him the defendant Hayes, and Hill was acting as the agent of the “committee” and A. Payne, the proprietor of the store, and, if this was true, then there was no burglary committed, and the court erred in not giving the instructions prayed by defendant and refused by the court.

— Hon. T. H. Bacon, Judge. ' (1) When the court has no jurisdiction of the subject-matter, the judgment or decree is void. Adams v. Cowles, 95 Mo. 501; Brown v. Woody, 64 Mo. 547; Bray Marshall, 66 Mo. 123 ; Cloud v. Inhabitants, 86 Mo. 366. (2) The decree did not bind either Kennerly or Berolzheimer. Eddy v. Baldwin, 23 Mo. 588; Collins v. Warren, 29 Mo. 236..

— Hon. D. P. Stratton, Judge. (1) The mortgage from V. O. Grant to Yernon county is void, and did not pass the legal title to the land therein described. The county had no power to hold land in trust for section 16, township 34, range 31, there being no such person or corporation. Douthitt v: Stinson, 63 Mo. 268; Wheeler ». Smith, 9 How. 55.

Prohibition. An application was made by relator, Mr. Rogers, a member of the school board of St. Louis City, against the judges of the St. Louis court of appeals, to prohibit the latter from entertaining jurisdiction of a cause in quo warranto, wherein the state, at the relation of the circuit attorney of St. Louis, was plaintiff, then pending in that court. The object of the last-named action was to oust Mr. Rogers from his office as a member .of that board.

Louis City Circuit Court. (1) A judgment is an entirety. Ins. Co. v. Clover, 36 Mo. 392. (2) The judgment in the unlawful detainer case is not binding on the sureties in this case. Gunn v. Sinclair, 52 Mo. 327; Howell v. Camp, 60 Mo. 569.

— Hon. H. P. White, Judge. (1) The case ought to have been continued. (2) The court erred in the matter of the testimony of the witness Franke, in ordering him from the witness-stand before the state had finished its examination, and before the defendant had an opportunity to examine him. (8) No instruction applicable to the evidence of the defendant was given. State v. Anderson, 86 Mo. 309 ; Stale v. Banks, 73 Mo. 592; State v. Tate, 12 Mo. App. 327.

—Hon. E. L„ Edwards, Judge. (1) Upon the undisputed facts the finding of the court should have been for appellant. The ex parte petition and judgment in the partition suit is binding on plaintiff. She was joined as a party, and the petition was signed by “Burke & Howard, attorneys for petitioners. ’ ’ She cannot attack the proceeding collaterally. Freemanv. Thompson, 53 Mo. 183 ; Reinfelt v. O'Brien, 57 Mo. 571; Gh S. of Mo. 1865, sec. 55, p. 663.

<p>1. Land : tortious possession : trespass. One taking possession of land without legal or equitable right thereto is simply a trespasser.</p> <p>'2. -: -: EQUITABLE title. "While the tortious possession so taken if continued a sufficient length of time may, under certain circumstances, ripen into a legal title which may be successfully asserted against the true owner, yet an equitable title cannot be derived from a wrongful act, because of the long continuance of the wrong.</p> <p>3. -: LIMITATION ; LEGAL TITLE DERIVED FROM UNITED STATES. The statute of limitations will not run in favor of one in possession of real estate so long as the legal title remains in the United States.</p> <p>4. --: COTERMINOUS PROPRIETORS : AGREEMENT AS TO BOUNDARY LINE. An agreement as to a boundary line between coterminous proprietors does not have the effect of a conveyance of portions of the land between them, but merely of determining the boundaries to the land already owned by them respectively.</p> <p>5. --:--:--. An oral agreement as to a boundary line accompanied by possession and improvement is founded upon a good consideration and is not contrary to the statute of frauds, and will bind the parties and their privies.</p> <p><6.--:--:--. A conveyance by the parties bound by the agreement and their privies by the same description as that under which they obtained title and held possession will pass the title according to the agreed boundary.</p> <p>7. -:--: ratification. An agreement as to a boundary line may be ratified by the acts and conduct of the parties.</p>

— Hon. W. I. Wallace, Judge. This is an action of ejectment in the ordinary-form for the south half of the northeast quarter and northwest quarter of the northeast quarter of section 34, township 34, range 14, in Laclede county. The defense is the statute of limitations, adverse possession under color of title, etc. In the circuit court the cause was submitted on a statement of facts, agreed to by both parties.

Appeal, from St. Louis City Circuit Court. — Hon. A. M. Thayer, Judge. This is an action for damages caused by the negligent pulling down of a brick wall upon the building in which plaintiffs’ stock of goods was stored in the city of St. Louis on November 17, 1877. The petition in this case was passed upon by this court in this cause in 82 Mo. 150, and held good on •demurrer.

Louis County Circuit Court. — Hon. W. W. Edwards, Judge. (1) The board of trustees of the town of St. Ferdinand had no power, in’ the year 1844, to make, or authorize the making of, the lease from them to Mary Lyons, dated November 2, 1844, and read in evidence by the respondents. Act of March 14, 1835 ; Laws of Mo. of 1835, p. 488; R. S. 1835, p. 600 (an act for the incorporation of towns).

— Hon. B. E. Turner, Judge. (1) Entry of satisfaction of the school-fund.mortgage by the deputy county clerk was a nullity. R. S. 1879, sec. 7114; State ex ret. v. Moeller, 48 Mo. 381; St. Louis Co. v. Bonner, 72 Mo. 389 ; State v. Hitfcman, 84 Mo. 81; St. Louis Co. v. Heathy 8 Mo. App. 104. It was no part of 'the duty of the deputy county clerk to collect the school fund from Goggin. See authorities, supra.

Louis City Circuit Court.— Hon.. L. B. Valliant, Judge. (1) The demurrers to the evidence at the close of plaintiff’s testimony and at the close of all the testimony should have been sustained. Wood on Mas. & Serv., secs. 368 and 419 ; Huffman v. Railroad, 78 Mo. 54; Am. & Eng. R. R. Cas. 166. (2) The instructions given for plaintiff were erroneous, as there was no evidence to sustain them. Dahlstrom, v. Railroad, 96 Mo. 99 ; Dowling r>. Allen, 88 Mo. 297.

— Hon. Rudolph Hirzel, Judge. (1) The evidence does not warrant the verdict. The proof that a defendant had both a motive and an opportunity to commit a crime is not sufficient of itself to warrant a verdict of guilty. Something more must be proved. 2 Best on Ev. [Morgan's Ed.] secs. 452, 453. The court ought to have directed the jury to find for defendant. State v. Brosius, 39 Mo. 534 ; State v. Carter, 72 N. C. 99; Miller v. Territory, 19 Pac. Rep.

— Hon. C. A. Anthony, Judge. (1) The order of the regular judge, of December 4. 1889, for the election of a special judge to try the case and pass on the application for a change of venue was a nullity and void. R. S. 1889, sec. 4176; Lacy v. Barrett, 75 Mo. 469.

— Hon. C. A. Anthony, Judge. The law was not complied with in the condemnation p oceedings. The proviso in Revised Statutes, 1879, section 4942, was not observed. The law which authorizes the taking of private property for public use must be strictly construed. Attorney General v. Water Works Co., Fitzgibbon, 195; Belcher, etc., v. St. Louis, etc., 82 Mo. 121; Anderson v. Pemberton, 89 Mo. 61. A void condemnation is collaterally assailable. Fisher v. Monks, 43 Mo. 520.

— Hon. Andrew Ellison, Judge. (1) The answer states facts sufficient to constitute an estoppel, and defendant’s instructions, numbered 1, 2, 3, 5 and 6, should have been given. R. S. 1889, sec. 2049 ; Bigelow on Estoppel [1 Ed.] pp. 480, 590, 607 ; Rice v. Bunce, 49 Mo. 231; PeUcington v. Ins. Co., 55 Mo. 172; Guffey v. O’Reiley, 88 Mo. 425; Vilas «. Smith, 25 Wis. 310; Swain v. Seaman, 9 Wall. 254.

— Hon. W. D. Hubbard, Judge. (1) First. The court erred in admitting the testimony of W. M. Fisk, as to the employment of S. F. Heffernan, to contradict or impeach the records of the Stone county court. Second. 'The testimony of said Fisk as to what occurred between Judge Farmer and Heffernan in the Stone county court room was incompetent and should not have been admitted. Castleman v. Pelf, 50 Mo. 589 ; Freeman v. Thompson, 53 Mo. 192. Third.

— C. V. Buckley, Esq., Special Judge. This suit is based, upon a contract in writing between the law firm of Thrasher & Young and Greene county, made December 31, 1878, and a supplemental contract of July 15, 1880, both made by the county court of Greene county in behalf of the county, and entered of record. This action was originally begun in the county court of Greene county.

— Hon. W. D. Hubbard, Judge. (1) If the plaintiff shows prior possession as owner either in himself or his grantor, if it appears that defendants hold under the same grantor, it is unnecessary to go further as to proof of title. Miller v. Hardin, 64 Mo. 545; Smith v. Lindsey, 89 Mo. 76; Cummings v. Powell, 97 Mo. 524; Charles v. Patch, 87 Mo. 450.

— Hon. M. G. McGregor, Judge. The following instructions were given for the plaintiff : “1.

— Hon. J. M. Sandusky, Judge. The action is for various kinds of damages sustained by plaintiff, including the death of his wife, at a public crossing of defendant’s railway, in consequence (as is charged) of the negligence of operatives of a train of defendant in failing to give signal of bell or whistle as it approached the crossing. The defenses are contributory negligence and the general issue.

— Hon D. P. Stratton, Judge. • (1) The tax proceedings against Thomas Carr, on which respondent relies for title, are absolutely null and void. The circuit court of Barton county never acquired jurisdiction of the person of the defendant in the tax suit. The defendant was not personally served, and the order of publication issued against him was void.

Prohibition. (1) Section 30, article 2, of the constitution provides, “ That no person shall be deprived of life, liberty •or property without due process of law.” This has been universally construed' to mean that every citizen has a right to be heard, and his rights determined in a court of competent j urisdiction.

Louis City Circuit Court. — Hon. L. B. V alliant, Judge. (1) It being conceded by all the evidence that the ordinance called for a paving block eight inches deep, there was no power in the board of public improvements to make a contract for a paving block from seven to eight inches deep. Leach v. Cargill, 60 Mo. 316; Keating v. Kansas City, 84 Mo. 416. (2) No action can arise on a void contract. Keating v. Kansas City, supra.

<p>Appeal from Jackson Criminal Court. — Hon. H. P. White, Judge.</p>

— Hon. H. P.White, Judge. The defendant saved no exception to the overruling of her motion for a new trial; consequently, there is nothing before this court for construction except the record proper, and on that the judgment should be affirmed. State v. Marshall, 36 Mo. 400; State v. McDonald, 85 Mo. 539; State v. Reed, 89 Mo. 168 ; State v. Burke, 89 Mo. 638.

<p>Appeal from Morgan Circuit Court. — Hon. E. L. Edwards, Judge,</p>

— How. D. A. DeArmond, Judge. The indictment does not charge the commission of any offense under section 3490, Revised Statutes, 1889. The offense charged belongs to the first class of offenses •defined by section 3489, Revised Statutes, 1889, i. e., shoot at or stab. And this class of offenses is not •embodied in section 3490, Revised Statutes, 1889.

Louis County Circuit Court. — Hon. W. W. Edwards, Judge. This action was commenced in the circuit court, city of St. Louis, at the October term, 1886, for personal injuries alleged to have been sustained by plaintiff on the twenty-fourth day of November, 1882, while engaged as brakesman in the performance of his duties upon a train of defendant on the Carondelet branch.

— Hon. W. H. Hubbard, Judge. (1) All that a stranger to a judgment is required to look to is the judgment, execution and sheriff’s deed, and, if they appear to be regular upon their face, he will be protected; for the policy of the law is opposed to setting aside judicial sales, and at a tax sale this rule applies. State ex rel. v. Sargent, 12 Mo. App. 228-238.

<p>The Decision in Laney v. Garbee, ante, p. 355, followed and affirmed.</p>

— Hon. J. PI. Slover, Judge. (1) The defendant’s objection to the introduction of any evidence should have been sustained. The petition “should have set forth, with a reasonable degree of particularity, the acts which it was intended to be shown were negligently done.” Gurley v. Railroad, 93 Mo. 451. This was not done.

— Hon. T. A. Gill, Judge. (1) The rules of the company, governing the operation of extra trains, were irrelevant, the train in question not being an extra, the rules being exclusively for the government of employes, and it not appearing that Mr. Boyd was familiar with them, or that he relied upon their observance; and the failure, if any, to observe them had nothing to do with the accident. Stepp v. Railroad, 85 Mo. 223.

--Hon. B. E. Turner, Judge. The trial court erred in finding for the defendant. The debt sued for was created by law and not by the action of the county court, and the limitations in the constitution do not apply. Potter v. Douglas Co., 87 Mo. 239; Rollins v. Lake Co., 34 Fed. Rep. 845; Dillon on Mun. Corp., sec. 137 ; Butz r. Muscatine, 8 Wall. 581; Barnard r. Knox Co., 37 Fed. Rep. 563.

— Hon. G. D. Burgess, Judge. (1) The first instruction given for the state was erroneous. It was without evidence to support it. (2 ) The state’s second instruction was also wrong. Even if defendant had mentally approved the acts of Nathan Gooch without, however, giving expression to such approval by act or word, this of itself would not have constituted a crime. State ®. Cox, 65 Mo. 29; State 'o. Hielcam, 95 Mo. 322; Wharton’s Crim. Evid. [ 8 Ed.] 440.

LoUis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The demurrer at the close of plaintiff’s evidence should have been sustained because of the absence of causal connection between the acts of negligence charged in the petition or proved, and the injuries alleged to have been sustained by plaintiff. Wyatt v. Railroad, 6 Best & Smith, 709; Wharton on Negligence, secs. 134, 138 and 200; Railroad v. Fich, 34 Am. & Eng.

— Hon. J. H. Sloveb, Judge. (1) Equity courts have jurisdiction of partition cases. 1 Story Eq. Jur., secs. 646, 658, and cases cited ; Saving Inst. v. Collonms, 63 Mo. 290 ; Edioards v. Phillips, 73 Mo. 60; Spitz v. Wells, 18 Mo. 468. (2) And the chancellor’s finding of “fact” is reviewable in the appellate court. Hardware Co. v. Wolters, 91 Mo. 484; State ex rel. v. Hurlstone, 92 Mo. 332 ; Murphy v. Murphy, 1 Mo.. 741 ; Bender v. Maride, 37 Mo.. App. 242.

Louis City Circuit Court. — How. James A. Seddow, Judge. (1) The trustee had no authority to sell under the deed of trust; only one of the secured notes was due, and the sale was premature. (2) The deed made by Thomas J. Meier and wife to Herman H. Meier as trustee for Alvina Meier, dated April 9, 1857, conveyed the equity of redemption of said land in trust for the separate use and benefit of Alvina Meier, and it is color of title.

— Hon. O. M. Spencer, Judge. (1) Payment of the purchase money to the guardian was unauthorized. The statute, Revised Statutes, 1855, section 85, page 1116, provides that the sheriff “shall” collect the money and make the deed. He must sue in his own name ( Wiley v. Roberts, 27 Mo. 388), and a payment made as in this case, without his consent, would be no defense. Rogers went into possession under a contract of purchase.

— Hon. E. M. Hughes, Judge. (1) Though a deed only takes effect from its delivery, the possession of the deed by the grantee is presumptive evidence of delivery. Green v. Yarnall, 6 Mo. 326. It is well settled that a delivery of a deed to a stranger for the use of the grantee is a good delivery. Carter v. Mills, 30 Mo. 439. The rule in Missouri is that delivery of a deed will be presumed as of the date of the acknowledgment. Fountaine v. Savings Inst., 57 Mo. 561.

Louis City Circuit Court. — IIon. L. B. Y allí ant, Judge. (1) The court erred in excluding competent evidence offered by defendant, viz. : That of Dr. Scott as to plaintiff’s condition while in his charge. Edington v. Ins. Co., 77 N. Y. 568 ; Or oil v. Tower, 85 Mo. 250 ; McKinney v. Railroad, 104 N. Y. 352 ; Ex parte Marmaduke, 91 Mo. 254; Greenleaf t>. Birth, 5 Pet. 137; Pinkham v. Cockrell, 43 N. W. Rep. 921 ; Railroad v. Huntley, 38 Mich. 537; Brown v. Ins.

— IIon. W. D. Hubbard, Judge. (1) The acts of Daniel Biddlecome could confer no rights or equities in the land in controversy on appellee in the absence of proof that he was administrator of the estate of Jonathan L. Pare, deceased. The records introduced were worthless, and could confer no title, he not being shown to have any authority in the •premises. So far as the evidence goes he was an entire stranger to the title.

Charles Circuit Court. — Hon. W. W. Edwards, Judge. , 1) The exceptions to the report ought to have been sustained on the ground that the referee had failed to take and subscribe the statutory oath. A taking of an oath is not a subscription of it. R. S. 1889, sec. 2143. (2) Referees are required to report the evidence so “that the rulings of the referee upon the evidence offered may be reviewed.” R. S. 1889, secs. 2152, 2153; Caruth v. Wolter, 91 Mo. 484.

(1) This action is brought under the provisions of section 2518, Revised Statutes of 1889. (2) The lower court erred in sustaining the demurrer to the petition, and in rendering judgment thereon against the plaintiff. “If one place money or property in the hands of another, to be kept safely and restored when demanded, this is a direct trust, to which the statute (limitations) will not apply.” Angelí on Limitations [May’s Ed.] p. 170 ; St. Louis Co. v. King, 11 Pac.

— Hon. Thomas H. Bacon, Judge. (1) The court should have given instructions,numbered 1 and 2, as asked by plaintiff. (2 ) Plaintiff ’ s instruction, numbered 3, should have been given.

— Hon. R. H.. Field, Judge. (1) There was error in overruling the objections to the jurisdiction, because a contract of relinquishment had been made with these appellants under section 4 of the charter. And in support of the proposition the following authorities are cited: Laws, 1875, art. 7, secs. 1-5, pp. 196, 244-245 ; State r. Snyder, 98 Mo. 555 ; Paring Co. r. Hunt, 100 Mo. 22; State ex ret. v. Mead, 71 Mo. 266, 271; Cooley’s Const.

— Hon. D. A. DeArmond, Judge. (1) Defendant’s demurrer to the plaim tiff ’s evidence, and its instruction in the nature of a demurrer to the whole case, should have been given. First. The doctrine that an employe cannot recover for an injury occasioned by a latent defect, unless the defendant knew it, or could have discovered it by the exercise of reasonable care, is so firmly and familiarly established in this state that a citation of authorities is scarcely justifiable.

— Hon. C. C. Bland, Judge. (1) The third instruction given for the state was erroneous. It was a commentary on the evidence, and, therefore, directly in violation of the express provisions of the statute on the subject.

<p>1. Habeas Corpus: erroneous sentence : statute. The supreme court will not on habeas corpus discharge a prisoner because of an erroneous sentence to the penitentiary by the trial court, but will, under Revised Statutes, 1889, section 4800, enter a proper judgment and remand him.</p> <p>S.--:--:--. The foregoing rule is applicable where two sentences are so erroneously entered as to run contemporaneously and the supreme court will in such case enter a proper judgment, making the second sentence take effect on the expiration of the first.</p>

Certified from St. Louis Court of Appeals. (1) Clause 4 of section 1246 of article 6 of the revised ordinances of 1887, of the city of St. Louis, is void in so far as it undertakes to ñx a standard of diligence or liability for negligence in civil suits at common law against street railway corporations. 39 Mo. App. 447.

Appear from, Jackson Circuit Court. — Hon. T. A. Gill, Judge.- (1) The court erred in giving and refusing instructions. (2) The damages assessed are excessive. There were no circumstances shown indicating wantonness, recklessness or conscious negligence that could be made the basis for aggravated, exemplary or punitive damages. Parsons v. Railroad, 94 Mo. 286; see, also, Stephens v. Railroad, 96 Mo. 207. (1) The court did not err in giving plaintiff’s first instruction.

Louis City Circuit Court. — Hon. J. A. Seddon, Judge. (1) In this state the property and franchises of corporations are without exception subject to the power of eminent domain. Const., art. 12, sec. 4. And when the right to construct or operate a street railroad in any city, town or village is sought, the consent of the municipality is essential to the grant. It is also essential to validate a transfer of the franchise. Const., art. 12, sec. 20.

<p>This Case Determined under the authority of the decision in Union Depot liy. Go. v. Southern jRy. Co., ante, page 563.</p>

<p>This Case Determined under the authority of the decision in Union Depot Ry. Co. v. Southern Ry. Co., ante, page 562.</p>

<p>Where no Bill of Exceptions was filed and there is no error in the record proper the judgment of the trial court will be affirmed.</p>

Genevieve Circuit Court. — James D. Pox, Judge. (1) It is sought by this proceeding to declare •defendant a trustee for plaintiff in purchasing the property in question and to divest title out of him, upon a proper accounting, for the following reasons: First. Defendant agreed to protect her interests, for as he' himself said: “I told her we had always done right by her,” or as she says he agreed to bid in the property for her at the sale if it did not sell for over $200.

— Hon. M. G. McGregor, Judge. (1) No exceptions were saved on the admission or exclusion of evidence, and the testimony will not be reviewed. State v. Burke, 89 Mo. 637, and authorities cited. (2) The only instructions objected to were instructions, numbered 3 and 4. These instructions properly declare the law, and are fully sustained by the following cases: State v. Fuller, 96 Mo. 165; State v. Dierberger, 96 Mo. 666; State v. Bierberger, 90 Mo. 369 ; State ®.

— Hon. J. M. Davis, Judge. (1) If the money sued for was paid in pursuance of the contract set forth in defendant’s answer, the plaintiff cannot recover on averments which ignore and contradict the contract. The petition should have set it forth truly, and pleaded such facts as would have entitled plaintiff to recover notwithstanding the contract. Christy v. Price, 7 Mo. 430 ; Fruin v. Railroad, 89 Mo. 397; Mill Co. v. Brundage, 25 Mo.

— Hon. J. E. Ryland, Judge. (1) The court committed error in permitting the witness, W. R. Jackson, to testify as to an alleged confession or statement, alleged to have been made by defendant to said witness in the mayor’s office in the town of Corder. First. Because it was claimed by said witness that said statement, confession or conversation, was reduced to writing, signed by defendant and witnessed by said witness Jackson and one J. M. Livengood. Second.

<p>Constitution: supreme court jurisdiction. The supreme court has no jurisdiction of a cause on the ground that it involves the construction of the constitution of the United States or of this state, unless the record as it existed when the case was appealed shows that the constitutional question was fairly and directly raised in the trial court by some of the methods recognized by the practice .and procedure of the court.</p>

Louis City Circuit Court. — Hon. Shepard Barclay, Judge. (1) The court erred in admitting the evidence offered by plaintiff relative to the distance at which an engine bell could be heard from the Fillmore street crossing. Marcott v. Railroad, 49 Mich. 102; Hurt v. Railroad, 94 Mo. 260 ; Brown v. Road Co., 89 Mo. 153; Rosenheim v. Ins. Co., 33 Mo. 236; Rose v. Bank, 91 Mo. 403; Weil v. Posten, 77 Mo. 288.

— -Hon. R. H. Field, Judge. (1) Plaintiff can only recover upon the allegations in his petition. It is said in N. B. & C. R. & L. Co. v. Conybeare, 9 H. L. C. 724: “But it is most essential, in the administration of justice in a court of equity, that the nature of the case, when it is constituted of fraud, should be most accurately and fully stated in the bill of plaintiff.