Volume 131 — Missouri Reports

— Hon. John W. . Henry, Judge. (1) The constitutionality of an act is to be determined by its operation and not by the mere form it may assume. State ex rel. v. Hermann, 75 Mo. 340. (2) Unless the act is prospective in its operation and embraces within its terms all cities which might in the future have such population it becomes local and special, and must be declared void. State ex rel. v. Hermann, supra; State ex rel. v. County Court, 89 Mo. 237.

— Hon. E. M. Hughes, Judge. (1) The legacy of $500 to Mrs. McQueen is merely pecuniary legacy and is not directed to be paid out of the proceeds of land nor is it to be paid by an heir to whom land has been devised. Real estate is never charged with the payment of legacies while there is personal property remaining, unless such an intention with a direction to exempt the personalty is given. Coochv. Gooch, 1 Am.

— Hon. J. A. Hookaday, Judge. (1) Local or special taxes for local improvements are merely assessments upon the property benefited by such improvements. (2) The constitution prohibits the taking of private property for public use without just compensation. (3) This suit is founded on the ordinances as giving the right of action on the special tax bill sued upon and said ordinance should have been specifically pleaded. Judd v. Railroad, 23-Mo.

Louis City Circuit Court. — Hon. L. B. Y allí ant, Judge. Plaintiffs’ petition is as follows: Por cause of action against defendants, plaintiffs state as follows, to wit: ’ On or about the fourth day of September, 1888, one James yerdin departed this life in the city of St. Louis, leaving a last will and testament, dated the thirtieth day of June, 1888, which will was duly probated in the probate court in the city of St. Louis on the thirteenth day of September, 1888.

Mandamus. (1) This court has superintending control over the Kansas City court of appeals and may exercise the same in cases like that under consideration by mandamus. State ex rel. v. Philips, 96 Mo. 570; State ex rel v. Philips, 97 Mo. 331. (2) The coui’t of appeals has jurisdiction only of such causes as do not come within the appellate jurisdiction of this court.

— Hon. E. L. Scabbitt, Judge. (1) The testimony of E. T. Ehodus as contained in his deposition showed that his evidence was delivered from written memoranda, furnished him by other parties, and also furnished by the plaintiff, which the witness refused to allow the attorneys for defendants to inspect, or to permit the memoranda, to be inspected or copied by the notary or permit the memoranda or copies of same to be attached to his deposition.

Court. — Hon. W. W. Edwards, Judge. (1) The probate court had no jurisdiction to try any question presented in the case at bar. Johnson v. Jones, 47 Mo. App. 237. (2) The order of distribution was made in conformity with the statutes and rulings of the appellate court of this state. Johnson v. Jones, 47 Mo. App. 237; Knowlton v. Johnson, 46 Me. 489; Woerner on Administration, sec. 151. (3) The order of distribution does not conclude the rights of anyone not a party to it.

<p>Appeal from St. Louis City Circuit Court. — Hon. L. B. Yalliant, Judge.</p> <p>(Í) The plaintiff’s petition is in the nature of an information in a criminal case. State v. Uhrig, 14 Mo. App. 413; Life Ass’n v. Boogher, 3 Mo. App. 173; Flint v. Hutchinson Smoke Co., 110 Mo. 500. (2) The plaintiff’s petition is in the nature of an information in a criminal case, and, being such, violates defendant’s constitutional rights to trial by jury. Section 28 of article 2 of constitution provides: “The right of trial by jury, as heretofore enjoyed, shall remain inviolate.” State v. Uhrig, 14 Mo. App. 413; Life Ass’n v. Boogher, 3 Mo. App. 173; Flint v. Hutchinson Smoke Co., 110 Mo. 500; Cable Co. v. Kansas City, 29 Mo. App. 89. (3) Jurisdiction of equity must not be extended to restraint of crime. State v. Uhrig, 14 Mo. App. 413; Life Ass’n v. Boogher, 3 Mo. App. 173; Cable Co. v. Kansas City, 29 Mo. App. 89; Flint v. Hutchinson Smoke Go., 110 Mo. 500. (4) There is a complete and adequate remedy at law under section 3783, Revised Statutes of Missouri, 1889. (5) This proceeding is in violation of the defendants’ constitutional rights as set forth in section 12 of article 2, constitution of Missouri, which provides: “That no person shall be proceeded against criminally otherwise than by indictment, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; in all other cases offenses shall be prosecuted criminally by indictment or information as concurrent remedies.” (6) The defendants’ right to a speedy public trial by an impartial jury of the country is invaded. See section 22 of article 2 of constitution of Missouri, which provides that: “In criminal prosecution the accused shall have the right to appear in person and by counsel to demand the nature.and cause of the accusation against him, to meet the witnesses against him face to face, to have process to compel the attendance of witnesses in his behalf at a speedy public trial by an impartial jury of the country.” Life Ass'n v. Boogher, 3 Mo. App. 173; State v. Uhrig, 14 Mo. App. 413; Flint v. Hutchinson Smoke Go., 110 Mo. 500.</p> <p>(1) Injunction is the proper remedy to prevent injury to, or destruction of, one’s lawful business by the wrongful conduct of others. The general ground for the jurisdiction of equity in such case is, that the injury can not be fully compensated by an action of law. In such case the damages are incapable of any fair estimation. Railroad v. City of Springfield, 85 Mo. 674; Railroad v. Railroad, 69 Mo. 65; Gleessner v. Anheuser-Busch Ass’n, 100 Mo. 508; Schopp v. St. Louis, 117 Mo. 131. (2) In such case where the injury is of a continuous nature, jurisdiction in equity attaches also to prevent the vexation and harassment of continued disturbances, and to prevent a multiplicity of suits. Carroll v. Campbell, 108 Mo. 550; Railroad v. Railroad, 69 Mo. 65. (3) That a court of equity will not interfere by injunction to restrain the publication of a libel, or the uttering of a slander, injurious to one’s business, stands upon peculiar grounds; and is an exception to the general rule, that equity will restrain wrongful acts, which are destructive of a plaintiff’s lawful.business. Flint v. Hutchinson Smoke Co., 110 Mo. 492; .Gas Co. v. Gas Co., 100 Mo. 501. (4) Courts of equity do not interfere by injunction to prevent the commission of crime; but this is subject to the limitation that the 'Contemplated crime is unconnected with violations of private right. State v. Schweickardt, 109 Mo. 496; 1 High on Inj., secs. 20, 27. (5) The jurisdiction of equity to restrain wrongful acts destructive of property rights is not ousted, because the acts sought to be restrained may amount to an infraction of the criminal law,' and subject the wrongdoer to prosecution and punishment. Sparhawk v. Railroad, 54 Pa. St. 401; People v. St. Louis, 5 Gilm. 351; 1 High on Inj., sec. 745; Emperor v. Bay, 3 De G-ex, F. & J. 217; Springhead Spinning Co. v. Riley, L. R. 6 Eq. Cas. 551; United States v: Elliott, 64 Fed. Rep. 27; Arthur v. Oakes, 63 Fed. Rep. 310. (6) It is common practice for a court of equity to interfere by injunction in cases of private nuisance injurious to a plaintiff’s property or business. In such case the jurisdiction is undoubted; and is founded on the ground of restraining irreparable mischief, or of suppressing oppression and interminable litigation, or of preventing multiplicity of suits. Hayden v. Tucker, 37 Mo. 214.' (7) A trespass will be enjoined when there is no adequate remedy afforded by an action for damages; and where the injury is to the manufacturing business of plaintiff, there is no adequate remedy by an action at law for damages. Turner v. Stewart, 78 Mo. 480; Bank v. Kercheval, 65 Mo. 682. (8) A court of equity will interfere by injunction to restrain a plaintiff’s ex-employees and others, who have banded together to injure or destroy plaintiff’s business, by the use of threats of violence toward plaintiff’s employees, and by putting such employees in fear of bodily harm, and thereby intimidating them, with the purpose of coercing and compelling them to quit the service of plaintiff; and by the use of like means to deter others from entering plaintiff’s service. Springhead Spinning Co. v. Riley, L. R. 6 Eq. Oas. 551; Sherry v. Perkins, 147 Mass. 212; Murdock v. Walker, 152 Pa. St. 595; Brace Bros, v. Evans, 3 R’y and Corp. L. J. 561; Gilbert-v. Miekle, 4 Sandf. Oh. 357; Rogers v. Evaris, 17 N; Y. Suppl. 264. The federal courts furnish a large number of cases directly in point for this proposition. Casey v. Typographical Union, 45 Fed. Rep. 135; Company v. Miners’ Union, 51 Fed. Rep. 260; Blindell v. Kagan, 54 Fed. Rep. 40; Railroad v. Pa. Co., 54 Fed. Rep. 730; United States v. Elliott, 62 Fed. Rep. 801; United States v. Elliott, 64 Fed. Rep. 27; Arthur v. Oakes, 63 Fed. Rep. 310.</p>

— Hon. Argus Cox, Judge. (1) The tax suit was properly brought against Jeff Thompson, he being the record owner. Vance v. Corrigan, 78 Mo. 94; State ex rel. v. Sack, 79 Mo. 661; Simonson v. Dolan, 114 Mo. 176. .(2) The law knows only one Christian name and does not recognize initials when there is a full Christian name, and if it did it could make no difference whether the “M.” came before the “Jeff” or after it. 16 Am. and Eng.

— Hon. James ■ Gtbson, Judge. (1) An assignment of rents alone does not convey the lease under which the note accrues to the assignee, nor indeed does it convey any right, title, or interest in the lease. White v. Kane, 52 Mo. App. 300; Stanley v. Bobbins, 36 Vt. 430; Beal v. Car Spring Co., 125 Mass. 157; Watson v. Eunkins, 13 Iowa, 547; Taylor on Landlord and Tenant, sec. 447.

Louis County Circuit Cowrt. — Hon. Rudolph Hiezel, Judge. (1) Defendant’s instruction in the nature of a demurrer to the evidence should have been given. “If the risk is perfectly obvious to the sense of any man, ■whether servant or master, the servant assumes the risk.” Keegcm v. Kavanaugh, 62 Mo. 230;- Aldrich v. Furnace Go., 78 Mo. 559; Renfro v. Railroad, 86 Mo. 302; Jackson v. Railroad, 104 Mo. 448; Alcorn v. Railroad, 108 Mo. 81; Railroad v. Trimble, 35 N. E. Rep. 716;…

— Hon. James ' Gibson, Judge. (1) The conclusion of law in the judgment was erroneous because of its generality. Elliott’s Gen. Proc., sec. 969; Shipp v. Snyder, 121 Mo. 155. (2) The court erred in refusing to find as a material fact whether the appearance of the plaintiffs in this suit by attorneys in the partition suit was authorized. First.

— Hon. H. M. Bamey, Judge. A corporation in the transaction of its business, though embarrassed, can convey its assets by way of deed of trust, making a preference among its creditors. 2 Kent’s Com. 315, note g., and also 281; Cook on Corp. [2. Ed.] 691. Angelí ¿Ames on Corp. [Í1 Ed.] 187; 1 Beach on Priv.

— Hon. A. M. Woodson, Judge. (1) The judgment is excessive; the suit is for $4,800, while the judgment is for $7,767.76. (2) The terms of the contract under which the Rock Island company is entitled to the use of the union depot, are plain and unambiguous. It is not even hastily drawn.

— Hon. W. M. Robinson, Judge. (1) At the time of the levy of the writ of attachment, the property in controversy was in the exclusive possession of plaintiffs. This being the case, such seizure -was prima facie wrongful, and no presumptions obtained in favor of the officer that he did his duty in making the levy. State ex rel. v. Hope, 88 Mo. 430; State to use v. Fitzpatrick, 64 Mo. 185.

— Hon. James T. Neville, Judge. (1) As this is a suit in ejeetment, and the defendant having pleaded a general denial to plaintiff’s petition, and also an equitable defense, which presented an issue of facts, as well as law, the court erred in refusing the defendant the right of trial by a jury. Const., art. 2, sec. 28; 45 Mo. App. 166; 45 Mo. App. 566; Carter v. Prior, 78 Mo. 224; Wolf v. Schaeffer, 4 Mo. App. 372; Blade River Lumber Co. v. Warner, 93 Mo. 385.

— Hon. E. M. Hughes, Judge. (1) There is no indictment in the case. The record nowhere shows that the grand jury returned an indictment against defendant. R. S. 1889, sec. 4092. (2) It was error to permit the father of the prosecutrix to testify that he sent her money to enable her to come home. It was not pertinent to any issue in the cause and was damaging to defendant.

— Hon. C. C. Bland, Judge. (1) First. The court committed manifest error in admitting as evidence the letter marked “Exhibit A.” The only evidence of its authorship is what McNeil says, and his knowledge of defendant’s handwriting, as he himself admits, comes from a comparison of this letter with letters which the defendant says he never wrote, and no one else says* he did write; besides, the letters from -which McNeil acquired his pretended knowledge had no connection…

— Hon. James T. Neville, Judge. (1) The evidence is not sufficient to sustain a conviction. The verdict was the result of passion and prejudice, and the judgment should be reversed and the prisoner discharged.

(1) By the sale under execution and the sheriff’s deed dated December 2, 1881, the title of Jacob R. Beckwith, Cora A. Hill, Q-eorge B. Clark, and the Little River Valley & Arkansas Railway Company, was cut off and passed to M. W. Lawson, and from him to Qeorge B. Clark by deed of February 11, 1882.

John W. Wofford, Judge. The instruction is not a correct definition of robbery. It omits the element of felonious intent. To constitute robbery the taking must be with intent to steal. This is elementary law. And the use of the woi’ds “with a felonious intent to deprive the owner of his ownership therein” coupled with a proper definition of the word, “felonious”-is the proper method of charging the felonious intent. State v. O’Connor, 105 Mo. 121.

— Hon. E. J. Broaddus, Judge. (1) In order to a dedication there must, of course, be the ownership of property which can be made the subject of dedication. Here Major Lightburne did not pretend to own, nor Allen and Burns to receive from him, any land east of the west line of the road or street; that is, any interest in the seven-foot strip taken off the east side of section 7. The plat of the addition shows that A. and B. claimed no interest in the seven-foot strip.

— Hon. Rudolph Hirzel, Judge. (1) A juror in a murder case is not disqualified by reason of Ms having “conscientious scruples” against enforcing the death penalty. He may have “conscientious scruples” against many laws in the statute, and yet be a competent juror in a case involving the enforcement of such laws.

— Hon. B. E. Turner, Judge. (1) An attestation clause is not 'necessary to the validity of a will. Ela v. Edwards, 16 Gray, 91; Fry’s Will, 2 R. I. 88; 1 Jarman on Wills [5 Am.Ed.], p. 218. See, also, Laycraft v. Simmons, 3 Bradf. 35. (2) Where the verdict is against the evidence and all the probabilities of the case it should not be permitted to stand. Spohu v. Railroad, 87 Mo. 74; Foster v. Foster, 77 Mo. 227; Ciarle v. Fairley, 30 Mo. App. 335.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) In these statutory and summary proceedings courts of general jurisdiction stand upon the same footing as those tribunals whose jurisdiction is special and limited. Ellis v. Railroad, 51 Mo. 200; Moses v. Bock Co., 84 Mo. 245; Lind v: Clements, 44 Mo. 540; Leslie v. St. Louis, 47 Mo. 474; Anderson v. Pendleton, 89 Mo. 61; State ex rel. v. Field, 107 Mo. 445.

(1) The deed from the county of. Bollinger to Mr. Allen and the payment by Mr. Allen of the railroad stock to the county all took place after the lands had been patented to the county by the state, under the act approved March 10, 1869.

Appeal /rom Oregon Circuit Court. — Hon. W. N. Evans, Judge. (1) The court erred in not ruling the state to elect under which count of the indictment it would prosecute. The two counts are inconsistent and repugnant, and were apparently drawn under different sections of the-statutes. State v. Gilmore, 110 Mo. 6; State v. Roux, 109 Mo. 660. (2) The court erred in not arresting the judgment.

— Hon. John Gr. Wear, Judge. (1) The courti should have ‘'permitted Louis Houck to show cause why»' he, as receiver of' plaintiff railway company, should not be made, party plaintiff in substitution of the railway company, and in that capacity prosecute this action against defendant. Beach on Receivers, secs. 692, 707, 708; National Trust Co. v. Murphy, 30 N. Y. Eq. 408; Trust' Co. w. Hoffman House, (sup.) 27 N. Y. S. 634.

— Hon. J. C. Lamson, Judge. This is an action for delinquent taxes on certain land brought by the state at the relation of the collector of Newton county, against John B. Davis, the Atlantic & Pacific Railroad Company, and the St. Louis & San Francisco Railway Company. From a judgment in favor of the plaintiff the railroad companies appeal.

— Hon. John W. Wofford, Judge. (1) The indictment is bad in that it contains two counts, each of said counts being repugnant to, and inconsistent with, the other. (2) The court erred in refusing to sustain the demurrer to the state’s evidence. There was a fatal variance between the descriptive averments of the indictment and the proof. (3) First. The court erred in holding that witnesses Moore, Holden, and Coppinger were competent' experts as to value of assets of the bank.

— Hon. James H. Lay, Judge. (1) A party out of possession can not maintain partition against one in possession and bolding adversely to him. Wommack v. Whitmore, 58 Mo. 448; Sausier v. Iron Co., 110 Mo.. 189; Colvin v. Sauenstein, 110 Mo. 575.

Mandamus. Peremptory writ awarded. “State oe Missouri. “Office Board of Election Com-1 missioners. — City Hall. / St. Louis, Nov. 4, 1895. “Hon. Franklin Ferris, City. “Sir: — I have the honor to acknowledge receipt of your inquiries concerning registrations and transfers, and in reply beg leave to submit the following: “First: The number of registrations received for three months prior to the closing of the registration records preceding the school board election of…

— Hon. Henby C. Riley, Judge. (1) The letters written to Lula Hawkins in St. Louis by her mother in answer to letters from her daughter were clearly incompetent, though they were penned by defendant at the dictation of Mrs. Sibley. The same may be said of the letters written to Mrs. Laura Hobbs, of St. Louis, by Mrs. Sibley, the mother of Lula Hawkins; neither Mrs. Sibley nor Mrs. Hobbs have any connection with this case.

— Hon. Jas. E. ' (xREEN, Judge. (1) “The rule is that where the facts are either disputed, or different inferences may be fairly drawn from the undisputed facts, the question of negligence should be submitted to the jury.” FusiU v. Bailroad, 45 Mo. App. 541, and cases cited; Frick v. Bailroad, 75 Mo. 601; Roddy-v. Bailroad, 104 Mo. 250; Davis-v. Bailroad, 46 Mo.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) Plaintiff in error was not a party to action 87074; the consolidation of that action with action 86102, to which he was a party, was without authority of law, and by the judgment in such consolidated action plaintiff in error is deprived of his property without due process of law, and in violation of his rights under the constitution of the United States of America, and also under the constitution of the state of…

— Hon. W. M. Robinson, Judge. (1) The deed from defendant L. R. Read to defendant Helen, while dated and acknowledged prior to the marriage, was not delivered until after the marriage and had no validity or effect until delivered. Huey v. Huey, 65 Mo. 689; Turner v. Carpenter, 83 Mo. 333; Hammerslough v. Cheathem, 84 Mo. 13; Sneathen v. Sneathen, 104 Mo. 201.

<p>Appeal from Mercer Circuit' Court. — Hon. Paris C. Stepp, Judge.</p> <p>The petition and demurrer mentioned in the opinion are as follows:</p> <p>PETITION.</p> <p>“Enoch Overton, Albert Overton, Isaac'</p> <p>Overton, Mary A. Wayman, Stephen Wayman, Susan J. Young, Albert Young, Martha A. Frates, Marion Frates, and Joel H. Shelly, executor of Moses Overton, deceased, with will annexed, Appellants. j</p> <p>“against</p> <p>“Randolph Overton, James Overton,Isaac Curtis, Nancy Curtis, Robert Overton, Charles Overton, and John C. Casteel, mortgagee, Respondents. ^</p> <p>“Plaintiffs for their 2nd amended petition state that on the 22nd day of March, 1891, one Moses Overton, at Mercer county, Missouri, departed this life. That he in his lifetime made and published his last will and testament, which said will was duly executed and declared to be by him his last will and testament, and which will was, after his death duly filed for probate in the office of the Probate Judge in and for said Mercer county and was by said Probate Court duly proved and probated and declared to be the last will and testament of the said Moses Overton. That he left surviving children and grandchildren — the plaintiffs and defendants, his only heirs as hereinafter set out.</p> <p>“That the plaintiffs, Enoch Overton, Albert Over-ton, Isaac Overton, and the defendant, James Overton, are the only sons surviving of the said Moses Overton, deceased. That the defendant, Charles Overton, is a grandson of the said Moses Overton, being the only child of Alexander Overton, a deceased son of the said Moses Overton. That the defendants, Robert Overton, and Nancy Curtis-are grandchildren of the said Moses Overton, being the only children of Joseph Overton, deceased, a son of the said Moses Overton.</p> <p>“That plaintiffs, Mary A. Wayman, Susan J. Young, and Martha A. Frakes, are the daughters of the said Moses Overton, deceased. That defendants Nancy Curtis and Isaac Curtis are husband and wife. That plaintiffs Stephen Wayman and Mary A. Wayman are husband and wife. That plaintiffs Albert Young and Susan J. Young are huslband and wife. That plaintiffs Marion Frakes and Martha A. Frakes are husband and wife. That Joel H. Shelly is the executor with the will annexed of the said Moses Overton, deceased, and is now acting as such and has in his possession the personal assets of deceased including the $600 hereinafter set out. That the said Joel H. Shelly was on the -day of-, 1891, by the Probate Court of Mercer county duly appointed executor of the last will and testament of the said Moses Overton, deceased, gave bond as such, was duly qualified as such, and has ever since that time and now is acting as such executor. That the defendant James Overton is a son and an heir of the said Moses Overton and refuses to be made party plaintiff herein, and therefore is made a defendant in this case. That the defendants, Eohert Overton, Nancy Curtis and Charles Overton, as well as Isaac Curtis, refuse to be made parties plaintiff herein, and are therefore made parties defendant in this suit. That defendant Eandolph Overton is a son of defendant James Overton. That on the 23rd day of December, 1890, and for a long time prior thereto the said Moses Overton was the owner in fee simple of the following described real estate situate in Mercer county, Missouri, to wit: ” [Here follows a description of land.] “in all ninety-one acres, which said real estate plaintiffs allege is and was at the time aforesaid of the value of $2,000. That on the said 23rd day of December, 1890, the said Moses Overton who was then of the age of eighty-four years-, resided with the defendants, James Overton and Randolph Overton. That the said Moses Overton at the time last aforesaid and for a long time prior thereto and from the said 23rd day of December, 1890, until the time of his death, to wit: March 22nd, 1891, was by reason of old age mental imbecility and physical debility so diseased in body and in mind as to be totally incompetent and incapacitated to transact any business whatever, and for the causes aforesaid was unable to know or understand the value of his property or to make an intelligent disposition thereof. That on the said 23rd day of December, 1890, the defendants Randolph Overton and James Overton, well knowing the premises and well knowing the mental imbecility of the said Moses Over-ton as aforesaid, and intending and contriving to cheat, wrong and defraud the said Moses Overton and these plaintiffs out of the real estate hereinbefore described, whilst the said Moses Overton was temporarily residing with them, did persuade, induce and cause the said Moses Overton for the sum of $600 to convey said real estate to the defendant Randolph Overton, which conveyance is recorded in book 25, page 191, in the office of the Recorder of Deeds in and for Mercer county. That said real estate was of the value of $2,000, which defendants well knew. That the said Moses Overton was at the time of the execution of said' conveyance by reason of the physical inability and mental imbecility aforesaid utterly incompetent to make said sale, transact said business or understand the value of said real estate or to know the consequences of said act, all of which defendants at the time well knew, and well knowing the premises as aforesaid and with the intent</p> <p>Vol. 131 mo — 36 to cheat, wrong and defraud the said Moses Overton and these plaintiffs, did willfully, knowingly and fraudulently persuade, induce and cause the said Moses Overton to execute the deed aforesaid. That in order to procure the $600 aforesaid to pay the purchase price of said real estate that said Randolph Overton executed a deed of trust to said real estate to the defendant John C. Casteel to secure'him, the said Casteel, in the sum of $600, which trust deed was executed on the 14th day of January, 1891, and is recorded in the office of the Recorder of Deeds in and for Mercer county, at book 2, page 13. That plaintiffs bring into court and tender to the said Casteel, mortgagee as aforesaid, the said sum of $600 with, the interest thereon to time of trial.</p> <p>“That the said Moses Overton in his lifetime demanded of defendants that they reconvey to him said real estate, at the same time offering to return to defendants the said sum of $600, the purchase price thereof, which the defendant then and there refused to do or perform, and still refuse to do or perform. That after the death of the said Moses Overton these plaintiffs demanded of defendants that they convey said real estate to the said Moses Overton, his heirs, or assigns; and at the same time offered to return to defendants said sum of $600, the purchase price of said real estate as aforesaid, with all the interest thereon, what the defendants then and there refused to do.</p> <p>“Plaintiffs therefore pray that the said deed from the said Moses Overton to the defendant Randolph Overton be set aside and held for naught; that the trust deed from the said Randolph Overton to ¡the said John C. Casteel be set aside and held for naught, and that the said Casteel be required to receive the said sum of $600 with the interest thereon tendered as aforesaid; and that all the interest of the said Randolph Overton and John C. Casteel be vested in the heirs of the said Moses Overton and for other and proper relief.”</p> <p>DEMURRER.</p> <p>“Now comes the defendant, Randolph Overton, and demurs to the fourth amended petition in this cause for the following reasons:</p> <p>“First — Because there is a defect of parties plaintiff in this: The petition alleges that Moses Overton, deceased, under whom plaintiffs claim title to the real estate in controversy, left a last will, which has been duly probated, and that plaintiff Joel H. Shelly is the executor of said will, but the petition fails to show that said Joel H. Shelly as such executor or otherwise has any interest in said real estate or that said real estate is mentioned in, or disposed of, by said will or that said Joel H. Shelly has legal capacity to try this suit.</p> <p>“Second — Because the petition does not state facts sufficient to constitute a cause of action, and because it does not show that the other plaintiffs or defendants have any just interest with the said Joel H. Shelly, or any other interest.</p> <p>“Third — Because the petition shows that the parties in interest have not united therein to set aside said deed and that several of them are opposed to setting it aside and that several of the said parties in interest and heirs of said Moses Overton, deceased, are opposed to this suit and to setting aside said, deed, and that plaintiffs have no authority to maintain this suit.</p> <p>“Fourth — Because there is a defect of parties plaintiff in this, that the petition shows that a deed of trust was executed conveying said land to a trustee, but said trustee is not made a party to this suit.”</p> <p>(1) Under the statutes of the state of Missouri if a party in interest refuses to join as plaintiff, he may be made a party defendant. R. S. 1889, see. 1994. (2) Parties necessary to a settlement of controversy must be made parties plaintiff or defendant. R. S. 1889, secs. 1992, 1993, 1994 and 1995. (3) The parties in interest in this action derived their interests as heirs of Moses Overton, and as their interests were not derived by contract they might sue severally. By cm v. Biddle, 78 Mo. 521; Clark v. Cable, 21 Mo. 223; Baney v. Smiser, 28 Mo. 310; McAllen v. Woodcock, 60 Mo. 174; Henry v. Mt. Pleasant Tp., 70 Mo. 497. (4) The only question before the court is whether the plaintiffs could sue without all heirs interested with them joining as plaintiffs.</p> <p>(1) As none of the provisions of the will are stated in the petition there is absolutely nothing to show that Joel H. Shelly, as executor, is either a necessary or proper party to the suit, or that he, as executor or otherwise, has any interest in the real estate in controversy. (2) The petition does not show that any of the plaintiffs or defendants, except Randolph Overton, have any interest in the real estate in controversy. They have no interest as heirs, because Moses Overton left a will, and the petition does not state that they have any interest under the will. For aught that appears in the petition, Randolph Overton may have been the sole legatee under the will. (3) The petition alleges that a deed of trust was executed by Randolph Overton to secure a loan of $600 and prays to have said deed of trust set aside but does not make tbe trustee to whom tbe land was conveyed a party to the suit. We think the trustee was a necessary party to a suit to set aside the conveyance of the land to him. Siemers v. Kleesburg, 56 Mo. 196; Krisman v. Erisman, 59 Mo. 367; Sutton v. Say den, 62 Mo. 101; Siemers v. Schrader, 88 Mo. 20. (4) If any of the four grounds of demurrer were well taken then the order of the court sustaining the demurrer was proper and plaintiffs should have amended their petition; but they have chosen to stand upon it and the judgment of the circuit court should be affirmed.</p>

— Hon. W. W. . Rucker, Judge. (1) The Holloway mortgage is not a statutory mortgage and is at best only a common law mortgage with power of sale. (2) The Holloway mortgage provided that the sale should be “for cash in hand.” The sale actually made was on credit, no cash being paid. This entitles the defendant to avoid the sale-.

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. (1) The contract was one.for a. marketable and indefeasible title, and for a good and sufficient deed to the same. The written contract is inconsistent with and contradicts defendant’s testimony on the trial, that Reveley knew at the time the contract was made there was a cloud on the title and was willing to accept a deed to the land notwithstanding such cloud.

— Hon. Argus Cox, Judge. (1) The question whether defendant is an innocent purchaser was not made an issue by the pleadings. Wallace v. Wilson, 30 Mo. 335; Holdsworth v. Shannon, 113 Mo. 508. (2) A trustee acts for all interested parties, must be without partiality (26 Am. and Eng.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The deed of trust under which defendants claim title was executed by Clark, May 13, 1857, and it matured in six months from date, being November, 1857. The adverse possession, commenced before the deed of trust was executed and at the time of the compromise in 1868 had run more than ten years subsequent to its maturity. Title under the deed of trust was, therefore, barred.

Louis City Circuit Court. (1) The verdict of the jury on the second counterclaim was against the evidence and was unsupported by any evidence inasmuch as the only testimony fixing the value of the money damages sustained under the second counterclaim was disregarded by the jury, and because of this the verdict should be set aside.

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. Affirmed. (1) The fourth section of the act of 1869 (Session Acts of 1869, p. 207) is valid and not unconstitutional, and the court, therefore, erred in sustaining defendant’s motion for new trial.

— Hon. D. P. Steatton, Judge. (1) Unless the plant received by the company under the arrangement of December 12 was fairly worth $80,000, the stock is not full paid and the stockholders are liable to creditors for the difference. Constitution of Missouri, art. 12, sec. 8; Garrett v. Coal Co., 113 Mo. 337; Liebke v. Knapp, 79 Mo. 24; Keillor v. Laclemann, 11 Mo. App. 550; Chouteau v. Dean, 7 Mo.'App. 210; Shiclde v. Watts, 94 Mo. 410; Bankv. Galloper, 43 Mo. App. 482.

— Hon. A. M. Woodson, Judge. (1) In construing wills, the object should always be to ascertain the intention of the testator.

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. (1) The dedication of . the twenty-five foot strip to the city vested the fee in the city of St. Louis to the use of the public. Belcher, etc., Co. v. Elevator Co., 82 Mo. 181. (2) On the vacation of the street by the ordinance offered in evidence the fee reverted to the person who owned the abutting property at the time of the dedication, and, in case of his decease, to his heirs.

<p>1. Corporation: execution: return: nansas statute. General Statutes of Kansas, paragraph 4567, provides that the sheriff shall return a writ of execution “within” sixty days from its date. Paragraph 1192, Ibid., provides that if execution is issued against a corporation, except a railway, religious, or charitable corporation, and no property on which to make a levy can be found, the creditor may proceed by action to charge the stockholders with the amount of his judgment. Seld, that a return against such corporation defendant before the expiration of the sixty days’ period is not premature where the defendant is insolvent and has ceased to do business.,</p> <p>2. -: insolvency: judgment: Kansas statute. Where the corporate debt left unpaid at the time of the dissolution of the corporation is a judgment, a creditor’s suit against stockholders may, under the General Statutes of Kansas, paragraphs 1200 and 1204, be founded on such judgment instead of on the original cause of action.</p> <p>3. Practice: parties: assignee: statute. Under Kevised Statutes, 1889, section 1990, requiring suits to be brought in the name of the real party in interest, an assignee is entitled to sue in his own name, regardless of any collateral arrangement between him and the assignor as to the proceeds.</p> <p>4. -: -: -. Such assignment, it seems, is sufficient, although not made in writing.</p> <p>5. -: -: -: trust. The transfer by the beneficiary of an express trust of his interest in the trust fund does not revoke the trust but the trustee still remains such for the beneficial assignee.</p> <p>6. Corporation: judgment : payment. Plaintiff, to whom a note against a corporation had been assigned by a bank, recovered judgment thereon, but execution against the defendant was returned nulla bona. S., who was guarantor of the note, deposited the amount due the bank with the express understanding that the deposit was to be regarded as a security and not as payment, and took a certificate of deposit "not subject to cheek.” The bank agreed to prosecute actions against the corporate stockholders to enforce their individual liability. Held, that the deposit was not a payment and satisfaction of the judgment.</p> <p>7. -: stockholder: creditor: remedies. A stockholder may become a creditor of a corporation, and for any debts he may have paid for it in excess of his liability as a stockholder he has all the remedies and rights of any other creditor of the corporation.</p> <p>8. -: -: -: -: Kansas statute. General Statutes of Kansas, paragraph 1205, providing that if any stockholder of a corporation, other than railway, religious, or charitable corporations, pay more than his share of any of its debts he may compel contribution from the other stockholders by action, does not exclude such stockholder from invoking all the remedies open to other creditors.</p> <p>9. -: -: DOUBLE LIABILITY FOR CORPORATE DEBTS: KANSAS statute. Under General Statutes of Kansas, paragraphs 1192 and 1206, a corporate stockholder is liable for corporate debts in an amount equal to that of his stock and also to any sum remaining unpaid on his stock.</p> <p>10. • — ■—: -: -: enforcement in Missouri. The foregoing statutory provisions are contractual and not penal ones, and will, therefore, be enforced in Missouri, though the statutes of the latter state limit the liability of stockholders in corporations created under its laws to the amount of his stock.</p> <p>11. -: -: -: -. Under said statutes of Kansas (paragraphs 1192 and 1206) a subscriber for $5,000 of stock who has paid $2,500 thereon is liable for $7,500, notwithstanding it was agreed on organization to issue stock as fully paid when only fifty cents on the dollar was actually paid.</p>

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) In reviewing a demurrer to evidence, plaintiff should have the benefit of the most favorable view of his case that the evidence warrants, and every reasonable inference therefrom. Larson v. Railroad, 110 Mo. 238; Alcorn v. Railroad, 108 Mo. 81; Buck v. Railroad, 108 Mo. 179. (2) And where the petition is sufficient, and the evidence tends to prove its averments, a case is made for the jury.

<p>Appellate Practice: mandate. Where a cause is remanded by the supreme court with specific directions as to further proceedings, the trial court has no authority to do anything not embraced in such directions.</p>

— Hon. H. C. O'Bryan, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. Plaintiff claims to have, and seeks by this suit to enforce, a lien against the Eanney homestead, now owned by Mrs. Byrd. It should appear by the allegations of the petition that such lien exists and the failure to so allege is fatal to plaintiff’s right to recover. Fay v. Aclcims, 8 Mo. App. 566; Thrush v. Cameron, 21 Mo.