Volume 125 — Missouri Reports

<p>Error to Buchanan Circuit Court. — Hon. A. M. Wood-son, Judge.</p>

— Benjamin J. Casteel, Esq., Special Judge. The sixth instruction given by the court and referred to in the opinion is as follows: “6.

— Hon. M. Gr. McG-begob, Judge. Action for damages for breach of a contract thus in substance described in the petition: On the twelfth day of September, 1891, plaintiff owned one third of a promissory note for $9,000, secured on real estate, whereupon he contracted with defendant on said date to transfer to him such interest, and in return therefor defendant, the owner of two fifths interest in a mining lease with an unexpired term of thirteen years on certain mining lots,…

Charles Circuit Court. — Hon. James F. Green, Special Judge. (1) The court should not have forced -the prisoner into trial on the twenty-eighth of September, 1893, while his attorney, employed and paid to defend him, was engaged in another court in the trial of a case, but should have continued the cause to the next term, or postponed the trial to a day certain. The court’s action was an abuse of the discretion lodged in it by law. Daughtery v. State, 26 S. W. Rep.

Louis Criminal Court. — Hon. H. L„ Edmunds, Judge. (1) The trial court erred in refusing to sign the bill of exceptions. People v. Genet, 59 N. Y. 80, is not applicable, for in that case no appeal had been granted, the escape having occurred before sentence.

— E. A. Vinson.halee, JEsq., Special Judge. (1) The sale of the land in this case was made by P. J. Keeler, October 4, 1875, and the deed executed by him January 24, 1879. It therefore appears that at the time of the sale P. J. Keeler was collector of the revenue of Nodaway county, by .virtue of his office as treasurer of said county; and at the time he executed the deed P. J. Keeler was collector of said county by virtue of his appointment by the county court.

— J. L. Mirick, Esq., Special Judge. (1) Final judgment must be rendered on sustaining of demurrer to third amended petition. R. S. 1889, sec. 2068; Beardsley v. Morgan, 73 Mo. 22; Spurlock v. Bailroad, 93 Mo. 13. (2) In contest of will neither can take nonsuit, but judgment must establish or reject the will. Benoist v. Murrin, 48 Mo. 48; Bedwellv. Swank, 84 Mo. 455; Hughes v. Burris, 85 Mo. 660; McMahon v. McMahon, 100 Mo. 97. Any other judgment is erroneous.

— Hon. E. J. Broaddus, Judge. (1) Under the authorities and the terms of the statute creating it, the Western Trust & Saving Association falls within the definition of a banking institution. Wharton’s Law Lexicon; Abbott’s Law Lexicon; Way v. Butterworth, 106 Mass. 76; Boone on Corporations, sec. 212; Oulton v. Sav. Institution, 17 Wall. 118.

— Hon. C. C. Bland, Judge. (1) The county is not liable for consequential damages to private property unless it is expressly given by statute. 2 Dillon on Mun. Corp. [3 Ed.], sec. 987; Reardon v. St. Louis Co., 36 Mo. 555; Swineford v. Franklin, 73 Mo. 279.

— Hon. H. C. O’Bryan, Judge. (1) This was a proceeding under tbe statute to widen a public road. R. S. 1889, secs. 7792-7796. (2) As shown by the agreed statement of facts, Murray Phillips owned one third of this land, and had possession of it all, one third as administrator and one third as guardian. Murray Phillips was the only party to the proceedings to condemn the land.

— Hon. James Gibson, Judge. (1) Having a judgment against Lafayette county, plaintiff had the right to execution thereon. R. S. 1889, sec. 4895. Sections • 4904, 4905, Revised Statutes, 1889, provide that certain property belonging to a county shall be exempt from execution. What sense would there be in such a statute provision if no execution at all could be issued against a county1?

— Hon. William S. Herndon, Judge. (1) Before the surety can be released because of a change of a contract there must have been some change so as to alter its identity. Warden v. Ryan, 37 Mo. App. 466. (2) In Leavel v. Porter, 52 Mo. App. 642, the contract provided for departures which, however, were to be made by the owner stating them in writing with the certificate of the architect indorsed thereon. This was not done and the court held that the surety was not released.

— Hon. Thomas H. Bacon, Judge. (1) The purpose and the result of this proceeding is to take away from and deprive appellant of a part of its property and franchise, and to appropriate the same to the exclusive use of respondent. This can not he done, as there is no authority of law for it. Railroad v. Railroad, 118 Mo. 615; Appeal of Railroad, 122 Pa.

— Hon. John W. Henby, Judge. (1) The evidence fully establishes a resulting trust in the premises in favor of the plaintiff, in the proportion in which she paid the purchase money, and the finding of. the court should have been for the plaintiff. Bowen v. McKean, 82 Mo. 594; Shaw v. Shaio, 86 Mo. 594; Thompson v. JRenoe, 12 Mo. 157; Kelley v. Johnson, 28 Mo. 249; Baumgartner v. Quessfekl, 38 Mo. 36; Harrison v. Smith, 83 Mo. 210; Hall v. Hall, 107 Mo. 101.

— Hon. A. M. Woodson, Judge. The court committed error in, refusing to permit the plaintiff to introduce any evidence in the case.

JError to Bollinger Circuit Court. — Hon. James D. Fox, Judge. (1) The administrators were not authorized by law to sell and assign the note to the plaintiff, and he could not, and did not, acquire any title, legal or otherwise, to it, which would sanction a sale under the deed of trust by the trustee or the sheriff.

<p>1. Appellate Practice: failure to file record: affirmance of judgment. Where an appellant fails to comply with the requirements of the statute in regard to filing the necessary record in the appellate court, and shows no good cause for the failure, the judgment will he affirmed on motion.</p> <p>2. -: -: -: omission of clerk. A judgment will not he affirmed on motion where it appears that the clerk of the trial court has failed to seasonably notify the appellant or his attorney of the completion of the required transcript for appeal.</p> <p>3. -: -: EXTENSION-OF TIME TO FILE BILL OF EXCEPTIONS. Where an appeal has been duly taken, but time to file bill of exceptions in the trial court has been extended, the appellant can not be held in default in prosecuting his appeal, until after the date so granted to complete the circuit record.</p>

(1) Even if it were admitted that John Hupp and wife had made and delivered a deed to Thomas Baine prior to the time they made the deed in evidence, to Evaline E. Baine, on the eleventh day of May, 1867, yet it stands uncontradicted and undisputed, from plaintiffs’ own evidence, that, if any such deed ever existed, it was delivered up and destroyed by the mutual consent of the parties to' it, and the deed , to Mrs. Baine made in lieu of it.

Charles Circuit Cowrt. — Hon. W. W. Edwards, Judge. (1) Defendant’s motion to dismiss because of a defect of parties plaintiff should have been sustained. The bond sued on, was the demand in the case. It is apparent on the face of the bond, that the curators of the St. Charles College, the obligees in the bond, are the only persons entitled to sue thereon, and that Garner B. Hitch, the plaintiff, is not the obligee, and has no cause of action against the defendant estate.

The plaintiffs sued for specific performance of contract for the transfer of patent rights. There was judgment on the circuit for defendants, and plaintiffs appealed.

— Hon. M. G-. McGregor, Special Judge. (1) The description in assessment and tax bill is not an accurate or intelligible description of the appellant’s land, but is altogether too uncertain to support a tax levy. State v. Railroad, 114 Mo. 1; Lowev. Ekey, 82 Mo. 286; Powers v. Larabee, 49 N. W. Rep. Power v. Boivdle, 54 N. W. Rep. 404. (2) A copy of the original assessor’s book should have been made by the assessor and returned to the court.

— Hon. W. W. Edwards, Judge. (1) Where the facts are undisputed and the evidence documentary and admissions of record, the appellate court will review the action of the trial court and decide if its judgment is warranted by the facts, although no instructions may have been asked or given. Wilson v. Albert, 89 Mo. 537; Willi v. Dry den, 52 Mo. 319; Henry v.' Bell, 75 Mo. 194; Brown v. Ass’n, 40-Mo. App. 425.

— Hon. O. A. Anthony, Judge. (1) The court erred in refusing the instruction in the nature of a demurrer to the evidence asked by the defendants at the close of plaintiff’s testimony in chief, and also in refusing a similar instruction at the close of all the evidence. The plaintiff in his petition claimed the land sued for as accretion.

— Hon. W.T. Wallace, Judge. (1) First. The deed to MeClurg was improperly-admitted in evidence because not acknowledged and proven as required by law. Second. Because defendants showed no connection with the deed. Third. Because the same was not such a valid, subsisting, outstanding title as could have been enforced by MeClurg. Fourth. In order to have been admissible it must be of the character last above named.

— Hon. W. D. Hubbard, Judge. (1) The original judgment rendered in favor of Jane D. Brown and the order allowing it as a demand against the estate of A. Woody; are void, because on the face of the judgment, and from the whole record, it affirmatively appears that the claim for rent for the year 1866, accrued after the death, of A. Woody. The estate of decedent can not be sold for debts accruing since his death.

— Hon. E. M. Hughes, Judge. (1) John H. Sampson, as the trustee of an express trust under the will of Richard Sampson, deceased, was the proper party to- take such steps as might be necessary for the protection of the interests of his beneficiaries, when the trust property was threatened with a sale at a sacrifice under the tax judgment.

— Hon. Henry M. Ramey, Judge. The court committed error in the following matters, rulings and particulars, viz.: First. In allowing defendants to introduce testimony tending to show that a great many persons from different parts of Platte and Buchanan counties, in April and May, 1891, came to defendants’ office and asked if George R. Arnold was selling twine for defendants, and said they had heard he (Arnold) was selling twine for them (defendants).

— Hon. James H. Lay, Judge. Plaintiff; on the circuit recovered judgment for personal damages in the sum of $3,750. Defendant appealed. The petition alleges negligence in the management of defendant’s railway. The answer sets up a settlement of plaintiff’s claim and payment of an agreed amount in discharge of plaintiff’s cause of action.

<p>1. Administrator’s Deed: notice op sale: erroneous recital. An erroneous recital in an administrator’s deed as to the time of publishing the notice of sale will be disregarded where the proof of publication shows that the notice was properly published.</p> <p>2. -: -: collateral attack. The omission of the record, in a proceeding to sell a decedent’s lands for payment of debts, to show that the posting of notice of sale was not dispensed with by order of court does not render the sale void on collateral attack.</p> <p>3. -: description op land: void order. A sale by an administrator under an order which does not describe the land is void.</p> <p>4. -: piñal settlement: report op sale. A report of sale by an administrator after final settlement and his discharge is void.</p> <p>5. Dower: adverse possession. The possession of a dowress and those claiming under her is not adverse to the heirs, where the dower has not been assigned.</p> <p>6. -. Where the decedent cultivated all his land as one farm, the fact that the dwelling house and other buildings were all on one forty acre tract does not deprive the widow of right to dower in the whole land.</p>

Charles Circuit Court. (1) Defendant’s instruction number 1 is illegal. First. It predicates the defendant’s right to recover upon the proposition that the plaintiff and his predecessors made no claim to the land in dispute, and that defendant and his grantor claimed the land as their own. This branch of the instruction is grossly erroneous. Thomas v. Baht, 45 Mo. 387; Mayler v. Hughes, 60 Mo. 105. Second.

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. The sale or traffic in liquor in Missouri in quantities of less than three gallons is regulated by statute and is required to be carried on under a license first had and obtained for the purpose, and known as a dramshop license. The business can not be pursued except in conformity with law.

<p>1. Fraudulent Sale: agreement to employ vendor: creditors. The sale of personal property by an insolvent debtor to a tona fide purchaser, followed by an immediate change of possession, with an agreement that the vendor should resell said property for the vendee and receive for his services in so doing the residue of the proceeds of the resale after deducting the amount of the purchase price and a certain sum as the profits of the vendee, held not fraudulent as to the vendor’s creditors.</p> <p>2. -: intent: knowledge oe vendee. A fraudulent intent, to render a sale of property void as to creditors, must exist at the time of the sale, and the vendee must have knowledge thereof.</p> <p>3. Evidence: HEARSAY. Hearsay evidence is incompetent to prove one’s indebtedness.</p> <p>4. Contract Of Sale: MINORITY. One not a party to a sale can not attack it on account of the vendor’s minority.</p> <p>5. --: usury. Nor can one not a party to a usurious contract attack it on that ground.</p>

<p>Appeal from St. Louis City Circuit Court. — Hon. L. B. Yalliant, Judge.</p> <p>(1) A mortgagor may sell the mortgaged chattel, free from the lien, with the oral consent of the mortgagee. Jones on Chattel Mortgages [4 Ed.], secs. 456 and 486; Holloway v. Arnold, 92 Mo. 293; Stafford v. Whitcomb, 8 Allen, 518; Pratt v. Maynard, 116 Ma,ss. 388; Brant v. Daniels, 45 111. 453; Gage v. Whittier, 17 N. H. 317; Saxton v. Williams, 15 Wis. 292; Perry v. Dow, 56 Vt. 569; Littlejohn v. Pearson, 23 Neb. 192; Bank v. Weed, 89 Mich. 357. (2) First; The mortgagor has the right to sell all of his interest before maturity of the debt, or it may be sold on execution. Jones on Chattel Mortgages [4 Ed.], sec. 454, and cases cited; Gage v. Whittier, 17 N. H. 312; Caldwell v. Pray, 41 Mich. 307; Hathaway v: Braynard, 42 N. Y. 322; Hamillv. Gillespie, 48 N. Y. 556; State v. Carroll, 24 Mo. App. 358; Spaulding v. Mazier, 57111. 148; Porter v, Parmley, 43 How. Pr. 445; Bank v. Metcalf, 29 Mo. App. 384; Keflin v. Slay, 78 Ala. 180. Second, And this though the mortgagor is forbidden by statute to sell without the written consent of the mortgagee. Jones on Chattel Mortgages [4 Ed.], secs. 455, 456; Gage v. Whittier, 17 N. H. 312. Third. Authority in the mortgagor to sell may be inferred. Jones on Chattel Mortgages [4 Ed.], sec. 457, and cases cited. (3) The right to take possession in case of insecurity or sale is an option which the mortgagee may or may not exercise. Bank v. Metcalf, 29 Mo. App. 384; Skiff v. Solace, 23 Vt. 279; Caldwell v. Pray, 41 Mich. 307. (4) First, A purchaser of a mortgaged chattel can not be held liable for a conversion of it without a definite demand by the mortgagee. Jones on Chattel Mortgages [4 Ed.], sec. 491; Ware v. Society, 125 Mass. 584; Hathaway v. Braynard, 42 N. Y. 322; Caldwell v. Pray, 41 Mich. 307-312. Second, The same principle is recognized in Weill v. Tyler, 38 Mo. 545; State v. Mooney, 65 Mo. 494. (5) Plaintiff should have shown what it got from the sale of the bank stock; it being only entitled to recover the' balance due on its note. Jones on Chattel Mortgages [4 Ed.], sec. 788 and cases cited; High v. Brown, 46 Iowa, 259; Gage v. Whittier, 17 N. H, 312; Bank v. McLaughlin, 1 McCrary, 258.</p> <p>(1) The court below did not err in ignoring the defense that Dunn, as agent of the bank, had given Webber and Wilson, the thieves who stole the cattle, oral authority to sell. (2) The court did not err in refusing the first and second declarations of law asked by defendants. (3) A mortgagor may sell the mortgaged chattel free from the lien, with the consent of the mortgagee, as claimed by appellants in their first point. Holloioay v. Arnold, 92 Mo. 293. (4) This court, in Bank v. Morris, 114 Mo. 255, decided that a purchaser of a mortgaged chattel can be held liable for a conversion of it without a definite demand by the mortgagee.</p>

(1) The county owning swamp lands has the power to have the same drained and reclaimed for settlement. R. S. 1889, secs. 6461-6463; State ex rel. v. Wayne Co., 98 Mo. 366; Bailroad v. Hatton, 102 Mo.. 53. (2) Counties can make contracts concerning swamp lands within their limits, such lands being at the disposal and under the management of the counties through their proper officers. R. S. 1889, sec. 3157; Crutchfield v. Warrensburg, 30 Mo.

— Hon. D. P. Stratton, Judge. (1) The court had no right to order the occupying claimant to keep the land, and pay for it at its value aside from the improvements, unless the respondents in their answer asked for leave to relinquish the land, and recover the value thereof aside from the improvements. Revised Statutes, secs. 4648 and 4649. (2) The offer to relinquish the land and take its naked value under section 4648 would be in the nature of a cross bill.

<p>1. Constitution : statute: special law. The act of the legislature of 1891 (Acts, p. 175), providing for the division of cities containing three hundred thousand inhabitants or more into districts for the election of justices of the peace, although it was intended to apply only to the city of St. Louis, is constitutional.</p> <p>2. -:-: judicial officers. Said act is not unconstitutional because the legislature provides therein that the division of a city into election districts shall T?e made by judicial officers.</p> <p>3. -: -: -. Duties which are not judicial may be performed by a judicial officer, unless they are clearly such as are confided by the constitution itself to the executive or legislative departments.</p>

<p>Lease: FORFEITURE: ejectment. An owner made a lease of valuable mineral lands in consideration that the lessee would establish and maintain manufactories thereon, dig and quarry stone and other mineral substance therefrom, and of the payment of one dollar for each ear load of mineral mined; the lessee failed to erect the manufactories or to work the mineral, but, after the execution of the lease and the carrying away of some material as specimens, joined a pool by which he agreed not to work the mineral for three years. Held, in ejectment by the lessee to obtain possession, that he had forfeited his right to the iwemises and could not recover.</p>

(1) Tlie deed to “John Clarkson and his bodily heirs” at common law would have created an estate tail. 1 Wash. on'Real Prop., 102, 104, 105; Tiedeman on Real Prop., sec. 47; 1 Chitty’s Blackstone, side pp. 109-115; Phillips v. Laforge, 89 Mo. 72; Bu/rris v. Page, 12 Mo. 358.

<p> Motion for Appeal Bond. </p>

— C. O. Tichenor, Fsq., Special Judge. (1) In the construction of wills, the intention of the testator, ascertained from the language employed, is the controlling guide of courts. Redman v. Barges, 118 Mo. 568; Shumate v. Bailey, 110 Mo. 415. The rule governing the construction of common law conveyances is not applicable to the construction of executory devises. Inglisv, Harder, 3 Pet. (U. S.) 117.

— John A. Sea, Esq., Special Judge. (1) The conveyance to Catharine Woodall and the heirs of her body unquestionably created, at common law, an estate tail; and after the passage of the statute Be Bonis, which created estates tail, it was possible to limit a remainder, either vested or contingent, after such a conveyance to one and the heirs of her body. 2 Washburn on Real Property, p. 593, par. 13, and cases cited.

— Hon. W. I. Wallace, Judge. It is believed that the law of this case, and the right of the plaintiff to recover damages, was settled by this court on proper proof, in the cases reported in 93 Mo. 530, and in 104 Mo. 658. (1) The former petitions, though supplanted by amended ones, were competent evidence against plaintiff, as admissions, especially as they were all signed by plaintiff personally. Anderson v. McPike, 86 Mo. 293; Bailey v. O’Bannon, 28 Mo.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The supreme court will reverse a judgment based on evidence so improbable, as to necessarily lead to the conclusion that the verdict was the result of passion or prejudice. Spolm v. Railroad, 87 Mo. 74; Garrittv. Greemvell, 92 Mo. 120; Whitsettv. Ransom, 79 Mo. 258. (2) Instructions are erroneous which leave it to the jury to find, in a general way, what constitutes negligence.

— Hon. O. M. Spenceb, Judge. (1) The vendor of real estate has the same right in equity to enforce specific performance as the vendee. Paris v. Haley, 61 Mo. 453; Rogers v. Wolf, 104 Mo. 1; Pomeroy on Specific Performance, page 6, see. 6, and authorities cited.

Louis City Circuit Court. Hon. Daniel Dillon, Judge.. (1) The circuit court erred in refusing to give defendant’s instruction for a nonsuit. The charter of the city of St. Louis, paragraph 2, section 26, article 3, gives the mayor and assembly power, by ordinance, “to establish, open, vacate * * * all streets, sidewalks, alleys,” etc. Whether a street should be kept open or •vacated is purely a matter of expediency, and is a question for the municipal assembly to decide.

— Hon. R. H. Field, Judge. The ordinances read in evidence give the board of public works sufficient authority to employ an architect and pay him from the city hall fund. Mister v. City, 18 Mo. App. 217. The appointment of appellant as architect by the board of public works, and the acceptance of such appointment on his part, constitute a contract.

— Hon. M. Gf. McGregor, Judge. The settlement was binding on the county court. “Now, while these settlements do not have the conclusiveness of judgments, no reason can be seen why they should not be given the force of settlements between private persons. '* * * The error was in the decision of the county court as to the amount of the collector’s commission. The settlement was approved, the excessive commission allowed, and a full quietus given.

— :Hon. E. J. Broaddus, Judge. (1) Before plaintiff can maintain this action it must appear from the evidence that plaintiff was legally organized as a special school district. City of FLoplci/ns v. Railway Co., 79 Mo. 98; State v. Hays, 78 Mo. 600; Robinson v. Jones, 71 Mo. 582; State v. Cleveland, 80 Mo. 108; Hambleton v. Town of Dexter, 89 Mo. 189; Railroad v. Shambaugh, 106 Mo. 557; Wagner’s Statutes, p. 1262, art. 2, secs. 1, 2, 3 and 4.

— Hon. Andrew Ellison, Judge. The court erred in refusing the declarations prayed by appellant. Plaintiff, though an infant, had a right to enter and hold and take the profits during his minority. This would be true, even if he had conveyed the fee, but he could not in that case conclusively avoid the conveyance till he is of age. Lawson on Contracts, sec. 147, p. 161; 10 Am. and Eng. Encyclopedia of Law, 643 and note 1; 1 Parsons on Contracts [5 Ed.], 322; 1 Am. Lead.

— Hon. Richard Field, Judge. In 1877, one of the defendants herein, Joseph P. Wagner, executed his promissory note to George W. Garrett for $472.71, with ten per cent, interest from date, compounded annually.

Mandamus. (1) Relator is entitled to charge and receive from the county of Jackson the sum of $10 per day for each and every day’s attendance by him, as official stenographer, on the criminal court of Jackson county. R. S. 1889, secs. 8242, 8245.

— Hon. W. D. Hubbard, Judge. This being an action at law, not even an effort being made at equity after amputating the Sims prong of it, by dismissing his complaint, there was left no evidential grounds on which to go back to the files of circuit clerk nor the justice. Seaman v. Paddock, 51 Mo. App. 467.

— Hon. C. A. Anthony, Judge. Plaintiff instituted this equitable proceeding in order to obtain the canceling of a deed made to the defendant of a certain fractional interest in a tract of land, the consideration paid therefor being $100.

— Hon. J. W. Henry, Judge. ' (1) The respondent pursued the wrong remedy. Long before the suit was brought the appellant had prescribed the benefit district for the payment of any damages for the grading in question. The remedy provided by statute was exclusive and efficient. Constitution, sec. 21, art. 2; Session Laws, 1885, p. 49; Session Laws, 1887, p. 37; Dillon on Municipal Corporations [4 Ed.], sec. 993; Beoch v. Newark, 33 N. J. L. 129; Heiserv.

— Hon. John W. Henry, Judge. (1) Tbe judgment in case number 3313 can not be-collaterally attacked as in this ease. It is res judicata. , The date of execution of the note sued on is a fact admitted by defendant there, plaintiff here. It is a fact decided in, and necessary to, the judgment, and is conclusive on all parties.

Certified from Kansas City Court of Appeals. The errors complained of by appellant do not appear upon the' record proper, but if committed by the court below, were committed during the progress of the trial, and. as no bill of exceptions has been filed, this court can not review them. R. S. 1889, sec. 2167; State exrel. v. Circuit Coiirt,4A Mo-. 574; State v. Miller, 56 Mo. 125; Greene Co. ex rel. v. Wilhite, 35 Mo. App. 39; Story v. Ragsdale, 30 Mo. App. 196; McNeil v. Ins.

— Hon. C. W. Sloan, Special Judge. (1) There was no express grant on the right of way. The deed from Samuel Wilson to Caroline Mitchell described the ground by metes and bounds. A grant of land to or bounded by a street or alley, when there is none, where the strip is owned by the grantor, will give a right of way over the strip to the grantee. This we admit to be law.

— Hon. Andrew Ellison, Judge. (1) A corporation may sue for libel or- slander against it “in the-way of its business or trade.”' Newell on Slander and Libel, p. 360; Johnson v. Co., 64 Mo. 539. (2) A false imputation made for the-purpose of injuring one in his profession or trade is actionable, even though the words may not, strictly speaking, be defamatory.

— Hon. R. H. Field, Judge. (1) The petition as to plaintiff’s second cause of action should not have been dismissed. The facts alleged stated the existence of a lien, which plaintiffs can enforce; also a personal liability of the Lippincott Investment Company, upon which plaintiffs are entitled to personal judgments, and which said lien secured. (2) The court should have rendered judgment for plaintiffs on the cause of action set out in second count of the petition.

— Hon. M. G. McG-regor, Judge. ■ (1) A mortgage given on a stock of merchandise, providing that mortgagor .is to remain in possession and sell mortgaged goods in ordinary course of retail trade, is void as to creditors, and the stigma is attached to it if the evidence adduced shows mortgagor is to sell.

<p>1. Tax Deed: sufficiency of recitals: revenue law or 1872. Under the revenue law of 1872, section 224 (p. 130), requiring the purchaser of land forfeited to the state for nonpayment of taxes to pay the amount of taxes charged against the land, with interest and costs and ten per cent, penalty in addition, to entitle him to a certificate of purchase, a tax deed, showing on its face that neither the interest nor the penalty was paid, is void.</p> <p>2. -: -: -. A tax deed, under said law of 1872, for land forfeited to the state, must show on its face that the county clerk issued the order directing the collector to receive the delinquent taxes with interest, etc., from the purchaser.</p> <p>3. -: -: -. Under the statute (Laws, 1872, p. 128) requiring the recital in a tax deed of the assignment of the certificate of purchase to show an indorsement under the purchaser’s hand, written on the hack of the certificate and dated, a recital neither showing that it was under the hand of the assignee nor on the hack of the certificate nor that it was dated is not sufficient.</p>

— Hon. John W. Henry, Judge. (1) The objection that the circuit court did not acquire jurisdiction in the condemnation proceedings because the petition was filed in vacation and summons was issued without the petition having been first presented to the judge, is not well taken.

— Hon. W. N. Evans, Judge. (1) There is no equity in plaintiffs’ bill which seeks to cancel and hold for naught the mortgage executed by Mrs. Brown, without any offer to return the consideration. Shroyer v. Nickell, 55 Mo. 264; Evans v. Snyder, 64 Mo. 516; Snider v. Coleman, 72 Mo. 568; Sims v. Cray, 66 Mo. 614. (2) The mortgage deed of Mary E. Brown was sufficient to. bind her separate statutory estate, under section 6869, Revised Statutes, 1889, as amended.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) A party for whose benefit a stipulation in a contract is made, may maintain a suit on such stipulation in his own name. Fitzgerald v. Barker, 70 Mo. 687. This doctrine was first confined to suits on simple contracts. Bankv. Benoist, 10 Mo. 519; Bobbins v. Ayres, 10 Mo. 538; Meyer v. Loioell, 44 Mo. 328; Flannigan v. Hutchinson, 47 Mo. 237. But this rule was afterward extended to covenants.

<p>1. Resulting Trust: fraudulent purpose. A resulting trust ean not arise when the transactions on which the supposed trust is bottomed appear to have had their origin in any fraudulent purpose.</p> <p>2. -: -: limitations. Where a son obtains the title to his father’s land through transactions intended by the father to defraud his creditors, no resulting trust arises in favor of the other heirs of the father upon the latter’s death, and this is true, although the claims of the father’s creditors are barred by .the statute of limitations.</p> <p>3. Trusts and Trustees. The relation of trustee and cestui que trust must result from the facts as they exist at the time of the transaction out of which the trust arises, and can not be created by subsequent and independent circumstances.</p> <p>4. Practice: equity. Courts of equity have no more right than courts of law to act upon crude notions of what is right in a particular case, without reference to established rules and precedents.</p>

Mandamus. (1) If a court of appeals decides a cause contrary to the last previous ruling of the supreme court on the subject, the supreme court has power by mandamus to compel the court of appeals to transfer the cause to this court, notwithstanding that no one of the judges of the court of appeals is of opinion that the judgment of the court of appeals conflicts with the prior'judgment of the supreme court.

— Hon. E. M. Hughes, Judge. (1) There can he no accounting or final settlement by an administrator after his removal or resignation before the 'appointment and qualification of a lawful administrator as his successor. 2 Woerner’s Amer. Law of Administration, sec. 536, p. 1183; Bible Society v. Oakley, 4 Dem. 450.

jError to St. Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. (1) The evidence establishes that the land sued for was created by accretion to the Missouri shore of the river.

<p>Conveyance: deed for support: mental capacity of srantor. In an action by the heirs of a deceased grantor to set aside a deed of a farm made in consideration of an agreement for her support, the evidence showed that she was an aged widow, and, though palsied and physically helpless, took care of her property and attended to her business affairs and executed the conveyance in question, with full knowledge of its contents, and that defendant faithfully performed his part of the agreement, which was the consideration for such deed. Held, that a finding of the trial court that the grantor was mentally incapable of executing the conveyance was erroneous.</p>

Louis City Circuit Court. (1) The plaintiff was at the time of the injury a. servant of the defendant. First. The general servant' of one person may, for a time or on a particular occasion, become the servant of another by submitting himself, either expressly or impliedly, to the control and direction of the other. Morgan v. Smith, 35 N. E. Eep. (Mass.) 101: Hasty v. Sears, 31 N. E. Eep. (Mass.) 759; Johnson v. Lindsay, L. E. App. Cas.