Volume 122 — Missouri Reports

— Hon. D. W. Shackleford, Judge. (1) Courts are not bound to believe improbable and incredible statements or stories, simply because a jury seems to have rendered a verdict upon them. Curley v. Railroad, 105 Mo. 211; Spohn v. Railroad, 87 Mo. 74; Hunter v. Railroad, 23 N. E. Rep. 9; Spohn v. Railroad, 116 Mo. 617. The circuit court should have disregarded plaintiff’s evidence, and should have sustained the demurrer.

— Hon. C. A. Anthony, Judge. (1) Tbe petition only alleged and prayed judgment for damages in tbe sum of $100; it was therefore error for the court to render judgment for damages in the sum of $260. Carr v. Edwards, 1 Mo. 137 (Marg.); ' Hay ton v. Hope, 3 Mo. 53; Maupinv. Triplett, 5 Mo. 422; Moore v. -Dixon, 50 Mo. 424; Armstrong v. St. Louis, 3 Mo.. App. 100; Poulson v. Collier, 18 Mo. App. 605, loe. cit.; Carter v. Shotwell, 42 Mo. App. 665, loc. cit.; Popev.

R. H. Field, Judge. (1) Of the necessity for a legal assessment no question can be made. Taxes by valuation can not be apportioned without it. It is the foundation of all which follows it. Without a valid assessment taxes levied have no support and are nullities. Cooley on Taxation [1 Ed.], p. 260; The State ex rel. v. Cook, 82 Mo. 185; State ex'rel. v. Schooley, 84 Mo. 442; State ex rel. v. Railroad, 114 Mo. 1. (2) Real estate is assessed but once in two years.

Louis City Circuit Court. (1) The defendant is simply an insurance company, and the contracts sued on are purely those of life insurance. They have none of the elements of insurance upon the assessment plan, as such contracts are defined by our laws.

Louis City Circuit Comt. This suit is brought for the purpose, not only of recovering the damages sued for, but for the purpose of testing the right of bidders under the circumstances-detailed in the petition. It is not necessary to discuss-the nature of the defendant corporation. It is clearly' defined by the statutes and by many decisions of this-court.

Quo Warranto. Section 1011, Revised Statutes, 1889, providing that ■all the costs and expenses of registration, election and ■of the office of recorder of voters shall he paid, one-half out of the city treasury and one-half out of the county treasury, is in violation of sections 1, 3, 8, 9 and 10 of article 10 of the state constitution of 1875. ■ By sections 1 and 10 of the constitution, one mode is created for ■the exercise of the taxing power for state purposes, and…

— Hon.' C. H. S. Goodman, Judge. (1) The court erred in denying appellant’s motion to compel the defendant to elect upon which of the two counts of. her petition she would proceed to trial. The two counts were inconsistent. Soap Works v. Sayers, 51 Mo. App. 310; Roberts v. Railroad, 43 Mo. App. 287; Chambers v. King, 8 Mo. 517; Christy v. Price, 7 Mo. 431; Stalling v. Sappington, 8 Mo. 118; Karp v. Tyler, 73 Mo. 618; Moore v. Mfg. Co., 113 Mo. 109.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The charter of the North Missouri railroad company, and also the ordinance of the city of St. Louis, authorized the construction of the main track and siding in Collins street. Black v. Railroad, 58 Pa. St. 249; Railroad v. Municipality, 1 La. Ann. 128.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) The appellant, as creditor of'the Geneva Publishing Company, is entitled to the relief asked against, the city of St. Louis. Pendleton v. Perkins, 49 Mo. 565; St. Louis v. Lumber Co., 114 Mo. 87.

— Hon. J. H. Slover,. Judge. (1) That the defendant, as a common carrier,, could, by contract, lawfully limit its liability, is now too well settled to admit of controversy. M'cFadden v. Railroad, 92' Mo. 343; Rice v. Railroad, 63 Mo. 314;. Snyder v. Adams Express Co., 63 Mo. 376; Ballv. Railroad, 83 Mo. 574; Railroad v.Cleary, 77Mo. 634; O’Brycmv. Kinney, 74 Mo. 125; Brown v. Railroad, 18 Mo. App. 568; Hart v. Railroad, 112 U. S. 331.

— Hon. Joseph Cravens, Judge. (1) The pretended tax deeds, executed by Sample G?r and by Jared E. Smith, register of lands, and by John H. Moore, collector, read in evidence by plaintiff, • and under which he claims the lands in controversy, were void on their face, as has ever been held by this court when like deeds have been before this court.

— Hon. Joseph Ckavens, Judge. (1) Where one occupies land’ up to a certain line, under a mistaken belief that it is the true line, but with no intention to claim beyond the actual line or legal boundary, “such a possession will not be deemed so adverse as to start the statute of limitations to run against the rightful owner. Tiedeman on Real Property [1 Ed.], sec. 699; University v. McCune, 28 Mo. 481; S'chad v. Sharp, 95 Mo. 573; Jacobs v. Mosely, 91 Mo. 457.

Louis. City Circuit Court. This is a proceeding which plaintiff claims is bottomed on section 1815, Revised Statutes, 1889. She owns a tract of land having a front of one hundred and forty-six feet, eight and one-half inches on the west side of Marcus avenue, and extending westwardly one thousand, one hundred and thirty feet.

— Hon. James H. Lay, Judge. (1) The court erred in admitting the testimony of the witnesses, E. D. Mers and Geo. H. Short, regarding the custom of defendant’s employees to give signals when placing cars on the house track, and of plaintiff regarding his loss of earnings and of plaintiff and his witnesses Drs. Cundiff, Shuttleworth and Grant regarding the paralysis of his arm, against the objections of defendant.

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. (1) The court erred in dismissing plaintiff’s bill. (2) There should have been a decree in accordance with, the prayer in plaintiff’s petition. (3) The court erred in the exclusion of the- testimony showing that no defense was' made to the attachment suits brought by other creditors. Woolen Mills v. Kampe, 38 Mo. App. 229; Williams v. Jones, 23 Mo.

— Hon. J. H. Sloven, Judge. In this proceeding, plaintiff in the court below succeeded' in obtaining an injunction perpetually enjoining defendant from removing certain houses built on lots 12 to 18 inclusive, in block 12, “James G-oodin Place,” an addition to Kansas City.

— Hon. John W. Henry, Judge. (l)'The court records and deeds were read in evidence without objection, and, by the declaration refused, the court below was properly asked to test and determine their legal effect. Bartlett v. O’Donoghue, 72 Mo. 563; Pettis Co. v. Gibson, 73 Mo. 502. (2) The appraisement made two days before and filed with the petition for sale of the real estate in question, was required by statute.

— Hon. Henry M. Ramey, Judge. (1) The deed from Bender to Zimmerman, though absolute on its face, was intended only as a security or indemnity against loss by Zimmerman by being surety in an appeal bond, and this intention is shown by the written contract or defeasance executed by Zimmerman to Bender at the time of the execution of the deed. The deed and the defeasance are to be construed together as one instrument, which being done, the deed will be treated as a mortgage.

— Hon. Richard-Field, Ju.dge. Plaintiff is the widow of William Gentry. During' his lifetime he lived on and had his mansion - house on the “blue land” at a point marked “X,” as shown by the plat hereto annexed.

<p>1. Railroad: liability of purchaser: pass. The purchase of a railroad without assumption of any of its debts or obligations does not bind the purchaser to honor a perpetual pass given by the vendor to one in consideration of a right of way over his land.</p> <p>2. -: -: -: covenant. A covenant to furnish a landowner with a perpetual pass on a railroad passing over his land does not run with the land.</p>

— Hon. ' H. P. White, Judge. Transferred to Kansas city court of appeals. (1) The information upon which the final judgment complained of is based is not sufficient to uphold such judgment. Jefferson City v. Courtmire, 9 Mo. 692; Mayor, etc.., v. Hussey, 21 G-a. 80; Town, etc., v. Hammond, 76 N. C. 33; City v. Reliar, 18 Iowa, 65; State v. Langston, 88 N. C. 692.

Clair Circuit Court. — Hon. D. P. Stratton, Judge. (1) The court erred in refusing the declaration of law asked by the defendants. A deed to husband and wife creates a tenancy by the entirety, neither taking a moiety, but each the entire estate. Gibson v. Zimmerman, 12 Mo. 385; Garner v. Jones, 52 Mo. 68; Beauchamp v. Shrader, 52 Mo. 72; Shroyer v. Nickell, 55 Mo. 264; Ball v. Stephens, 65 Mo. 670; Baker v. Steivart, 2 L. R. A. 434.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) This case falls within the decision in Michael v. St. Louis 112 Mo. 612. (2) Notice by publication, was sufficient. St. Louis v. Rankin, 96 Mo. 497. (3) The evidence is insufficient to support the judgment. (1) At the date of the ordinance and condemnation proceedings Utah street was a public street, and not the subject of the exercise of the right of eminent domain.

— Hon. A. M. Woodson, Judge. (1) The referee erred in refusing to take and state an account between the parties. The referee’s findings of fact in an equity proceeding are not conclusive upon the trial or appellate court. Heman v. Britton, 88 Mo. 549: Harckvare Co. v. Wolter, 91 Mo. 484; Co. v. Bissell, 41 Mo. App. 426; Holt v. Simmons, 16 Mo. App. 97; Pendergast v. Eyerman, 16 Mo. App. 387; Bender v. Marble, 37 Mo. App. 234.

Louis City Circuit Cou/rt. (1) Plaintiff made no case entitling it to go to the jury, and defendant’s demurrers to the evidence should have been sustained, both the one offered at the close of plaintiff’s case, and that offered at the close of the whole case. Gray v. Packet Co., 64 Mo. 49; McLean v. Rutherford, 8 Mo. 13; Graves v. Poage, 17 Mo. 91; Whitney v. Bank, 55 Yert. 155; s.- c., 45 Am. Rep. 598.

The court erred in rendering a decree for plaintiff upon the evidence. Under the facts and law applicable thereto, plaintiff did not make out a case of undue influence. Norton v. Paxton, 110 Mo. 465; Couch v. Gentry, 113 Mo. 255; Gay v. Gillilan, 92 Mo. 256; Brinkman v. Bueggesick, 71 Mo. 556; Jackson v. Hardin, 83 Mo. 180.

— Hon. C. H. S. Goodman, Judge. (1) The contract signed by both Steele and Greening is full and complete, and no additional stipulations could be engrafted upon it without Steele’s consent. Pearson v. Carson, 69 Mo. 550; Robinson v. Jarvis, 25 Mo. App. 451. (2) Where a contract is plain and complete in itself, and is not procured by fraud or deceit, the person making it can not be heard to say that he did not enter into such contract, but a different one.

<p>1. Adopted Child: heirship. A child adopted under Revised Statutes, 1889, section 968, is capable of inheriting from the adopted father in like manner as if born to him in wedlock.</p> <p>2. -: widow: statute. Where one dies leaving such adopted child, the widow of the deceased can not elect to take one-half of her husband’s real estate under Revised Statutes, 1889, section 4520.</p>

Louis City Circuit Court. (1) The trial court erred in decreeing that the testator, by his will and the codicils thereto, intended to devise and bequeath “unto his wife, Ellen L. Moore, a life estate in one-third of the net income of the testator’s personal property, consisting of notes and outstanding accounts, cash and stock in the building association of the Missouri Medical College, and one-fifth of the net income of all of the testator’s real estate for and during her…

— Hon. Joseph Cravens, Judge. (1) Martha A. May, the mother of appellants, bought the lands in controversy and paid value for them; hence the grantor had no right to limit the interest of his grantee. Woodv. Kice, 103 Mo. 329. (2) And it is plain that he had no intention of retaining a reversionary interest therein; and it is also plain from the circumstances and evidence in the case that the grantee had no such intention.

— Hon. E. J. Broaddus, Judge. (1) Prom consideration of the whole of said will, taken together, in its general scope and design, said testator entailed all real property he owned at the date of his will, and entailed all real property acquired after the date of said will (except the one-third (1-3) interest in the Latham farm, by him owned at the date of his will), and that, at the time of the execution of the contract, read in evidence, for the sale of real estate to…

— Hon. E. M. Hughes, Judge. This is a suit in equity to set aside a contract for . fraud, etc., in which the trial court, after a full hearing, rendered a decree dismissing the bill on the merits.

— Hon. J. H. Slover, Judge. (1) Tlie note was without consideration. (2) The note was procured by fraud and the bank is chargeable with knowledge thereof. A bank is bound by the knowledge of any director who takes part in the discount of a note presented to the bank for discount as to equities affecting the liability of the maker of the note. Atlantio Mills v. Indian Orchard Mills, - 147 Mass. 268; 1 Mor. Priv.

— Hon. E. J. Broaddus, Judge. (1) The money in the hands of the trustee must be regarded, in equity, as real estate and the administrator of Charles A. Jarboe, has no title thereto. Note to Fletcher v. Ashburner, 1 White & Tudor’s Eq. Cas. 534; 4 Kent’s Com. 50; 1 Scribner on Dower [2 Ed.], 457. (2) Charles A. Jarboe took an equitable fee simple in the lands devised in trust.

— Hon. R. H. Field, Judge. (1) The court erred in permitting plaintiff to testify as to statements made to him by different persons concerning the alleged slander. (2) Witnesses may testify as to their understanding of the slanderous language. Nelson v. Borchenius, 52 111. 236. (3) The court erred in not permitting Lewis Johnson to testify that Callahan had told him that he gave the acceptance to Bashford.

<p>1. Railroad: acquisition of land: presumption. Where a railroad company was not authorized by its charter to receive a conveyance of land for other than railroad purposes, the law will presume that it complied with its duty in that regard. (Per Sherwood, J., Brace and Burgess, JJ., concurring.)</p> <p>2. -: ———: -. The actual appropriation of land for such purposes by the successor of the company that acquired it, soon after such acquisition and continuously thereafter, affords a reasonable presumption that it was acquired for those purposes. (Per Sherwood, J., Brace and Burgess, JJ., concurring.)</p> <p>3. -: -: fee: easement. Although the act of 1849 (Laws, p. 219) incorporating the Pacific Railroad Company, apparently vested in the company the fee simple of land taken by it through process of condemnation, the whole act, taken together, provided only for having the land either relinquished or taken for the purposes of constructing, maintaining and operating a railroad and the company, under its provisions, acquired a mere easement and not the fee. (Per Sherwood, J., Brace, and Burgess, JJ., concurring.)</p> <p>4. Contract: .construction. What the law will imply in an express contract is as much a part and parcel of it and as much to be considered in construing it as if stated in such contract in direct terms. (Per Sherwood, J., Brace and.BuRGESs, JJ., concurring.)</p> <p>5. Dower: easement. A widow is not dowable in an easement. (Per Sherwood, J., Brace and Burgess, JJ., concurring.)</p> <p>6. Railroad: easement: reversion. A railroad company which has" acquired an easment in land for railroad purposes can not dispose of it in detached and fractional portions, but only as a whole to another corporation for those uses and those alone for which it was acquired. An attempt to divert the subject of the grant to other purposes would result in reversion to the last owner of the premises. (Per Sherwood, J., Brace and Burgess, JJ., concurring.)</p> <p>--: EMINENT DOMAIN: RELINQUISHMENT OETITLE: CONDEMNATION: owner. Where the charter of a railroad company uses the word "owner” when providing for voluntary relinquishment or condemnation of property for railroad purposes, such owner is the only party, with the exception of the curator of minors, with whom the company need treat in negotiating a purchase or bring before the court in the exercise of the power of eminent domain. (Per Sherwood, J., Brace, and Burgess, JJ., concurring.) I</p> <p>8. Eminent Domain: condemnation proceedings: dower. The wife’s inchoate right of dower may be extinguished by condemnation proceedings against her husband, under the Missouri Statutes. (Per Sherwood, and Barclay, JJ., Brace and Burgess, JJ., concurring.)</p> <p>' 9. -: -:--. A conveyance of a right of way, by a husband, to a company authorized to take land for public use, would extinguish the inchoate right of dower of his wife, though she did not . join in the conveyance. The same effect would follow where the husband conveyed the land in fee to a third person who then transferred it to the corporation, entitled to, and which in fact did, subject the laud to public use as a railway. (Per Sherwood and Barclay, JJ., Brace and Burgess, JJ., concwrring.)</p> <p>10. -:--: -. When the estate of the husband is lawfully acquired and subjected to public use, the wife retains no inchoate right of dower in the property while the public use continues. (Per Sherwood and Barclay, JJ., Brace and Burgess, JJ., concurring.)</p> <p>11. Voluntary Performance of Compulsory Act, Legal Effect of. A voluntary performance of an act to which a party is compelled by law should have the same effect as if produced by compulsion. (Per Sherwood J., Brace and Burgess, JJ., concurring.)</p> <p>12. Statute: construction. What is implied in a statute is as much a part of it as what is expressed. (Per Sherwood J., Brace and Burgess, JJ., concu/rring.) .</p> <p>13. Eminent Domain: power of legislature. Within the limitations of the constitution it is competent for the legislature to prescribe the mode and manner in which the sovereign power of eminent domain shall be exercised. (Per Barclay, J., Brace, J., concm-ring.)</p> <p>14. Statute: construction. The effects and consequences of a proposed construction of a law may properly be considered in arriving at the probable intent of the lawmaking body. (Per Barclay, J., Brace, J., concurring.)</p> <p>15. Dower: property: constitutional guaranty. The right to dower in Missouri is statutory, and, during the life of the husband, the inchoate right thereto is not such an estate as is beyond legislative control. It is not “property” within the meaning of the constitutional guaranties for the protection of property. (Per Barclay, J., Brace,- J., concurring.)</p> <p>16. -: partnership: burial ground. No dower may be recovered in land owned for partnership objects, or devoted to burial purposes. (Per Barclay, J., Brace, J., concurring.)</p>

— Hon. B. E. Turner, Judge. Plaintiff, the widow of Melker Baker, on the nineteenth of March, 1891, brought this action for the assignment of dower in a certain strip of ground used by defendant corporation for its track, roadbed and right of way. Melker Baker djed in March, 1890.

Certified from St. Louis Cou/rt of Appeals. (1) It is insisted that there is no evidence of fraud in this transaction. There is no proof that the firm was insolvent at the time of the execution of the notes-to McCune and Wigginton.

Prohibition. ' (1) Prohition is the proper method by which to determine the priority of jurisdiction as between courts of common jurisdiction. Thomas v. Mead, 36 Mo. 232; Trainer v. Porter, 45 Mo. 336; Fx parte Smith, 23 Ala. 94; Henry v. Steele, 28 Ark. 455; State v. Allen, 45 Mo. App. 551.

— Hon. D. P. Steatton, Judge. (1) It is competent for the owner to convey his mines by a separate and distinct grant so as to create one freehold in the soil and another in the mines. War-dell v. Watson, 93 Mo. 107; 3 Washburn on Real Prop. [5 Ed.], p. 416, sec. 31; side p. 625.

— Hon. Gavon D. Burgess, Judge. (1) The trial court erred in admitting the subsequent declarations of John W. Price, made to the witness, Sarah S. Kendrick, as proper evidence by which to establish the execution of the writing in controversy. First. In the first place, it was not proved, nor is it even fairly inferable from her testimony, that the paper to which Judge Price referred in the supposed conversation with Mrs. Kendrick, is the same paper now propounded as his will.

— Hon. D. A. DeAbmond, Judge. (1) Mrs. Baker was guilty of negligence contributing to, if not causing, her injuries, and, therefore, was not entitled to recover for them. Beach on Contributory Negligence, sec. 63; Patterson’s R’y Accident Law, p. 168, et seq_.; Boyd v. Railroad, 105 Mo. 371; Harlan v. Railroad, 64 Mo. 480; Turner v. Railroad, 74Mo. 607; Kelley v. Railroad, 75 Mo. 138; Tucker v. Railroad, 23 N. E. Rep.

— Hon. James Gibson, Judge. (1) The justice’s execution was issued on September 28, 1888, and returned December 26, 1888. In Whitman v. Taylor an execution was issued on September 8 and returned December 5, and the court say it was returned on the eighty-ninth day. Then in this case the execution was returned on the ninetieth day, the right day for the return. Whitman v. Taylor, 60 Mo. 127.

<p>.Appeal from St. Louis Criminal Court. — Hon. H. L. Edmunds, Judge.</p> <p>(1) The court erred in refusing to allow the introduction of the city ordinance offered by the appellant. (2) The court committed error in addressing his remarks to the witnesses Summers and Hopkins while they were on the stand. (3) The court erred in refusing to instruct the jury upon the lower grade of assault to kill, under section 3490, Revised Statutes. (4) The court erred in failing to instruct the jury upon the good character of the accused. (5) The court erred in overruling appellant’s motion for new trial. (6) The court erred in refusing to sign and allow appellant’s bill of exceptions. Revised Ordinances, City of St. Louis, sec. 1428, p. 952; State v. Findlay, 101 Mo. 217; State v. Rill, 91 Mo. 423; Suttiev. Aloe, 39 Mo. App. 38; State v. Schloss, 90 Mo. 361; State v. Rroneck, 95 Mo. 79 ; State v. DeMosse, 98 Mo. 340; State v. Jones, 14 S. W. Rep. 947; Kelley’s Crim. Law and Prac.,see. 441, p. 286; Revised Statutes, 1889, secs. 3637, 3643.</p> <p>(1) The alleged newly discovered evidence was merely cumulative and hence constituted no ground for a new trial. Defendant did not file his own affidavit in support of the motion. State v. Welsor, 21' S. W. Rep. 443. (2) The motion for a new trial does not assign as a ground therefor the failure of the court to give instructions. (3) The evidence as to ordinance requiring a dramshop keeper to give a bond to conduct an orderly house was properly excluded. (4) Where the affidavits filed as to the correctness of the bill of exceptions are in conflict, the certificate of the trial judge that the bill is untrue should prevail. State v. Jones, 102 Mo. 305.</p>

<p>Supreme Court: appellate jurisdiction. Where, on appeal to the supreme court from a judgment overruling a motion to retax costs, the sum involved is less than $2,500, and no other ground for the court’s jurisdiction is shown, the cause will be certified to the court of appeals.</p>

— Hon. A. M. Woodson, Judge. Action on special tax bill, lot 1, in block 5, in Hall’s addition to the city of St. Joseph, being the subject of the tax. At the instance of the appealing defendants, Jennie Wall was made a codefendant. All of the parties defendant claim title to the lot under the will of Robert Wall, which so far as necessary to quote, is the following: “jFifth.

— Hon. B. E. Tijeneb, Judge. The court committed error in refusing to give plaintiff's instructions numbers 1, 2, 3 and 4, because: First. A tax collector can not personally or by agent purchase real estate at a sale thereof made by himself, and he acquires no title by such a transaction, and the sale which he makes to himself, is void, on grounds of public policy, and the court should have so declared.

<p>1. Practice: attachment: affidavit. An affidavit, in an attachment suit, that the affiant "has good reason to believe, and does believe, that the defendant is not a resident of this state” is sufficient.</p> <p>2. -: -: publication. The court may order the publication of notice to such nonresident defendant before his property has been seized under the attachment process.</p> <p>3. -: -: corporate stock. The interest in shares of corporate stock may be attached, although such shares stand on the books of the corporation in the name of another.</p>

Louis City Circuit Court. Transferred to st. louis court,of appeals. (1) Mandamus will not lie to compel the performance of executive duties, nor to control the executive in the performance of powers and duties pertaining to his office of executive, nor in matters wherein he has a discretion. Cooley on Const. Lim., p. 136, note 3.

Heney M. Ramey, Judge. The house was constructed after the street grade was established and this case falls within the doctrine, of Davis v. Railroad, 119 Mo. 180.

— Hon. Henry M.. Ramey, Judge. (1) Plaintiff was not entitled to recover under the pleadings. Gaus v. Railroad, 113 Mo. 309; Julia-Building Association v. Tel. Co., 88 Mo. 273; Smith v. Railroad, 98 Mo. 24. Under the law the city council', could not make a valid contract with the property owners for the purchase of the right to grade, unless-an appropriation was made therefor; what it could not do directly it could not do indirectly.

<p>1. City: intoxicating liquor: license. Where a city is authorized hy its charter to collect a license tax for the sale of intoxicating liquor, the power to punish for selling without license is implied.</p> <p>2. -: -: local option law: penalty. A city which has adopted the local option law can, hy ordinance, affix a penalty of not less than $300 and not more than $1,000 for the sale of intoxicating liquors in violation of its ordinance. (R. S. 1889, secs. 4606, 1506, 1902.)</p>

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. (1) The plaintiff is not barred by limitation. Dyer v. Wittier, 89 Mo. 81; Bradley v. Railroad, 91 Mo. 498. (2) The evidence establishes that the land sued for was created by accretion to the Missouri shore of the river. Campbell v. Laclede Co., 84 Mo. 372; St. Clair Co. n. Livingston, 23 Wall. (IT. S.) 66; St. Louis v. Railroad, Ilk Mo. 13; St. Louis, v. Lemp, 93 Mo. 477; Public Schools v. Risley, 40 Mo. 356; LeBeauv.

Clair Circuit Court. (1) A good and sufficient contract for the conveyance of real estate may be made by letters and telegrams. Bishop on Contracts, sec. 328; Greely-Burnham Co. v. Capen, 23 Mo. App. 301; Whaley v. Hinchman, 22 Mo. App. 483; Sohn v. Jarvis, 101 Ind.' 578.