Volume 143 — Missouri Reports

— Hon. E. L. SckBRITT, Judge, (1) The contract, if one was made, which defendant denies, was for the sale of land and was not in writing andis void under section 5186,Re vised Statutes 1889. (2) There was no part performance on the part of Peter W. Ditseh or the appellant to take the case out of the statute of frauds. 1 Story, Eq. Jur. [10 Ed.], sec. 764; Sitton v. Ship, 65 Mo. 297; Cox v. Cox, 29 Pa.

Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge. (1) The money arising from the sale of these bonds could not be appropriated to any other purpose than that for which the said bonds were issued, either by the county court or anyone else. R. S. 1889, sec. 835. (2) In making contracts the county court is the agent of the county, with express, limited and defined powers; and persons contracting with it must take notice of its power and authority.

Transferred from Kansas City Court of Appeals. ’Remanded to Kansas city court of appeals. This court has no jurisdiction of this case because no judge of the court of appeals deemed the decision of that court contrary to any previous decision of the Supreme Court. The only power the court of appeals has to certify this cause to this court is that conferred by section 6 of the amendment of the Constitution in regard to the court of appeals.

— Hon. E. J. Broaddus, Judge. (1) Prosecutions by municipal corporations for the recovery of fines are civil actions. St. Louis v. Smith, 10 Mo. 439; St. Louis v. Knox, 74 Mo. 79; Kansas City v. Clark, 68 Mo. 588; St. Louis v. Wetzel, 31 S. W. Rep. 1045. (2) The information and complaint describes the offense in the language of the ordinance and is sufficient. St. Louis v. Knox, 74 Mo. 79; Springfield v. Ford, 40 Mo. App. 586; State v. Adams, 108 Mo. 208.

— Hon. James D. Eox, Judge. (1) The deed from Jabez Clarkson under section 5, chapter 32, Revised Statutes 1855, page 355, created a statutory estate — estate tail being by said statute abolished. R. S. 1855, p. 355, sec. 5, chap. 32; Clark-son v. Clarkson, 125 Mo. 381. (2) Under the statutory estate so created John Clarkson took a life estate; ■and at his death the remainder was vested in Roy Conyers as the only child of said John Clarkson.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) The property was wantonly sacrificed and the inadequacy of price was so gross as to demand that the sale be set aside. Walter v. Herman, 99 Mo. 529; 2 Pom. Eq. Jur. 926; Davis v. Dreisbach, 81 111. 395. (2) Sheriff may delay sale, and it is his duty to do so when property is about to be sacrificed. Comvay v. Nolle, 11 Mo. 74.

Mandamus. (1) The order of appeal, as made by the court, does not operate to suspend or supersede the order granting a new trial. R. S. 1889, secs. 2246, 2247, 2248, 2249 and 4744; Laws of 1891, p. 70; 23 Am. and Eng. Ency. of Law, p. 285; Komerick v. Castleman, 21 Mo. App. 587; Railroad v. Atkinson, 17 Mo. App. 486; Lexvis v. Railroad, 59 Mo. 495; State ex rel. v. Meeker, 19 Neb. 444; State ex rel. v. Mayor, 44 N. W. Rep.

— Hon. Argus Cox, Judge. (1) The breaches are all properly assigned. State to use v. Bartlett, 68 Mo. 581; Stillwell v. Hamm, 97 Mo. 579; Brisker v. Stone, 47 Mo. App. 534; Outtridge v. Vanatte, 27 Ohio St. 336. „ (2) Even if there was ■but one breach properly assigned, the demurrer would have to be overruled.

— Hon. Cyrus A. Anthony, Judge. (1) In this proceeding appellant’s reply to and denial of garnishee’s answer to interrogatories stands in the place of a petition. Bank v.Billon, 75 Mo. 380; Grosch v. Bardenheimer, 15 Mo. 353. (2) The facts stated in appellant’s reply are admitted by the demurrer. McKinnic v. Mathews, 59 Mo. 99; Plant Seed Co. v. Michael Plant & Seed Co., 23 Mo. 579.

<p>1. Appellate Jurisdiction: appeals: title to real estate. . A proceeding by mandanms to compel a school district to pay relator $200 which had been awarded him in a proceeding to condemn his land for a school house site, does not involve title to land within the meaning of the constitutional provision governing appeals, and hence the appeal from the order of the circuit court quashing the writ, is to one of the courts of appeals, and not to the Supreme Court.</p>

— Hon. James T. Neville, Judge. (1) The structure in question, being situated on grounds dedicated to public use, is a common nuisance. Herman on Nuisances, secs. 248, 250, and 260; Butherford v. Taylor, 38 Mo. 315. The right of the public to use the commons must rest on the same principles as the right to use the streets. Cincinnati v. White, 6 Pet. 431; Cummings v. St. Louis, 90 Mo. 259. The erection of a dwelling on a public square is a public nuisance.

Louis City Circuit Court. — Hon. James E. Witheow, Judge. (1) The defendants by calling on Hollmann as a witness to identify his signature to the affidavit waived the.right which they had to object to his testimony. Tomlinson v. Ellison, 104 Mo. 105.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. . (1) The decree in this case is based upon the dictum of the Supreme Court in the case of Shickle v. Watts, 94 Mo. 417, that the court has the right to inquire into the sale and transfer of the property-received by a corporation for its stock, whether such sale and transfer is fraudulent or not; which decision has been overruled by the Supreme Court. Woolfolk v. January, 131 Mo. 620.

— Hon. A. W. Mullins, Special Judge. (1) It is clear that Tobbein desired and so expressly stated in his will that the Catholic church at Lexington should have one half (not three twelfths of his estate) after the determination of his wife’s life estate. Preston v. Brant, 96 Mo. 556; Murphy v. Carlin, 113 Mo. 112; Van Winkle v. Van Houten, 3 N. J. Eq. 193.

— Hon. E. M. Hughes, Judge. (1) At the common law a man .can defend his dwelling house even to the extent of taking life if necessary to prevent an unlawful entrance, without being liable even for manslaughter. The defense of the dwelling house stands on different grounds from the defense of personal property. 2 Bishop’s New Crim. Law, sec. 707; 1 Bishop’s New Crim. Law, sec. 858; Wharton’s Cr. Law [9 Ed.] sec. 503 and note 1; 1 Hale’s P. C. 458, 486; 1 Chitty Cr. L. [4 Am.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. Defendant’s instruction in nature of a demurrer to the evidence should have been sustained. Among other reasons because no witness saw defendant at the place of the killing; no identification of the pistol in evidence showed it to have been a factor in the killing. But to the contrary.

<p>1. Setting Aside Deeds: inadequacy op price. Inadequacy of price alone will not justify the setting aside of a sheriff’s sale of real estate under execution, unless the price is so inadequate as to shock the moral sense and outrage the conscience. Then courts will interfere to promote the ends of justice. In the ease at bar land worth $25 per acre sold for fifteen cents an acre. Held, that under the circumstances, plaintiff offering to return the purchase money, it would be unconscionable to permit the sale to stand.</p> <p>2. -: -: duty of sheriff. The sheriff in sellir/g land under execution is the agent of both plaintiff and defendant, :.nd bound to protect the interests of both. It is his duty to see that the property is not sacrificed, and if the bids are grossly inadequate he should return the execution “no sale for want of bidders.”</p> <p>3. Executions: voluntary issuance by clerk: custom. Plaintiff and his attorney have the exclusive right to control the issuance of an execution after judgment, and the issuance of it by the clerk of his own motion is merely gratuitous on his part, and for any subsequent proceedings by the sheriff in pursuance thereof neither plaintiff nor his attorney is in anywise responsible, nor bound thereby. Nor is his voluntary act relieved, nor are plaintiff's rights in anywise impaired, by the fact that it had been the custom in the county for the clerk to issue executions upon all judgments rendered at the last preceding term whether directed to do so or not.</p> <p>4. -: -: laches. Although it had been the custom of the elerk of the court to issue executions on all judgments rendered at the last preceding term whether directed to do so or not, no laches can be imputed to plaintiff because neither he nor his attorney knew that the execution had been issued, and particularly is this true if the sheriff has not advised them that the execution was in his hands or informed them of the levy or of his purpose to sell the property.</p>

<p>Appeal By State: information. Tlie State is not entitled to an appeal nor to a writ of error, on the quashing of an information for insufficiency. (Following and approving State v. Clipper, 142 Mo. 474, and State v. Carr, 142 Mo. 607).</p>

— Hon. John A. Hockadax, Judge. (1)The court erred in sustaining respondent’s motion to strike out part of appellant’s amended answer. Appellant’s defense was both legal and equitable, and he was entitled to both or either. Ledbetter v. Ledbetter, 88 Mo. 60; Justice v. Town of Lancaster, '20 Mo. App. 559; Wendover v. Baker, 121 Mo. 290. (2) In so striking out appellant’s amended answer, he was deprived of his answer to respondent’s temporary injunction.

— Hon. H. M. Ramey, Judge. (1) The court should have sustained defendant’s demurrer to the evidence. Plaintiff can not recover in an action for negligence when her own negligence contributed with that of the defendant to produce the injury. Murry v. Bailroad, 101 Mo. 236; Kellny v. Bailroad, 101 Mo. 67; Weber v. Kansas City Cable Co., 100 Mo. 194; Gleeson v. Excelsior Mfg.

— Hon. E. J. Broaddus, Judge. (1) The deposition of Oyler should have been admitted in evidence; it tended to prove that there was a marriage settlement between the plaintiff and James Cazier, admitting that the evidence was hearsay. (2) Post-nuptial agreements for separation and maintenance will bar dower, although the intervention of a trustee are valid, and, where accepted by the wife in lieu of dower, will be held to bar her dower right. Gorbertv.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) Inasmuch as the summons in the case was served on William E. Burr, the judgment is against him, and he is entitled to have the action of the trial court reviewed here, and if error was committed by that court, to have the judgment reversed. Parry v. Wood-son, 33 Mo. 348; Kronski v. Railroad, 77 Mo. 370; Chamberlain v. Blodgett, 96 Mo. 483; Weber v. JEbling, 2 Mo. App. 15; R. S. 1889, sec. 2113.

— Hon. E. M. Hughes, Judge. (1) This being a suit in equity this court will review the entire evidence and determine the cause on the weight of the evidence. Thomas v. Railroad, 49 Mo. App. 110; Bush v. Arnold, 50 Mo. App. 8; Berne v. SchnecJco, 100 Mo. 250. (2) We insist that under the evidence in the case the verdict should be for plaintiff.

— Hon. James T. Neville, Judge. (1) The indictment is vague and indefinite. It does not charge that the offense was committed in Polk county. It does not allege the sexual act to have been felonious. (2) The judge who tried the case had no jurisdiction for the reason that there was no opportunity given the defendant and the prosecuting attorney to agree upon some attorney present to try the case or to elect one.

— Hon. John A. Hooeaday, Judge. (1) As Shock owned no other property he had a right to select these lots and claim them exempt in lieu of the property mentioned in the first and second sub-divisions of section 4903, Revised Statutes 1889. R. S. 1889, sec. 4906. Finley v. Barker, 110 Mo. 408.

<p>Appeal from St. Louis City Circuit Court. — Hon. Leroy B. Yalliant, Judge.</p> <p>(1) It is the State and not the individual who can complain in such cases as this. Barton v. Ilurdy, 1 Gray, 119; Mott v. Trust Co., 19 Barb. 568; Gold Mining Co. v. Bank, 96 TJ. S. 640;. Nemizer v. Wright, 75 Ya. 239; People v. O’Neil, 7 Mich. 335. (2) When the possession is back of the time when it became unlawful to take game, the presumption has no further force as evidence, and what was then lawful can not be made a crime by lapse of time. Powhatan Steamboat Co. v. Railroad, 24 How. 247.. (3) Did the statute mean that the bare possession of game should be absolute evidence of guilt? If so, why does section 3902, Revised Statutes of Missouri, say that the possession of such game shall only be prima facie evidence of such guilt? It clearly was its intent to allow one having game to show that he did not kill it or buy it during th'e closed season, and also that he did not acquire it in the State of Missouri at all. R. S. 1889, sec. 3902; Harris v. Bunnell, 12 How. 79; Spragtie v. Booney, 104 Mo. 349; Bank v. Owens, 2 Pet. 536; Gopell v. Hall, 7 Wall. 558; Bank v. Matthews, 8 Otto, 624; Hudgins v. Greenbaum, 61 Mo. 110; Green v. Corrigan, 87 Mo. 370; St. Louis v. Consolidated Coal Co., 20 S. W. Rep. 699. (5) The object of the statute was to prohibit the killing and the sale of game in certain seasons prohibited by law and'thus protect the game in Missouri, and no question of moral turpitude affecting the public interests, like gambling, etc., is involved. It was never the intention of the legislature to say that property lawfully acquired and simply stored without any offer to sell the same in a period prohibited by law, should be lost and that the severest hardship would be visited upon the plaintiff, entailing a loss of $*7,000.</p> <p>(1) The contract upon which appellants rely is for the storage of such game as sections 3901 and 3902 declare it to be a misdemeanor for any person to have in possession during the period known as the “closed season.” State v. Bandall, 1 Mo. App. 16; State v. Judy, 7 Mo. App. 524; State v. Farrell, 23 Mo. App. 176; Geer v. Connecticut, 161 U. 8. 519; McCready v. Virginia, 94 U. S. 391; Manchesterv. Massachusetts, 139 U. S. 240; State v. Farrell, 23 Mo. App. 176; Fx parte Maier, 103 Cal. 476. (2) No act which is forbidden by law, whether malum in se or malum prohibitum, can constitute "a valid consideration for a contract. The law which prohibits the end will not lend its aid in promoting the means designed to carry it into effect, and in this respect the law gives no countenance to the old distinction between malum in se and malum prohibitum. That which the law prohibits, either in terms or by fixing a penalty to it, is unlawful; and it will not promote in one form that which it declares wrong in another. Friend v. Porter, 50 Mo. App. 89; Sprague v. Rooney, 104 Mo. 360; Connor v. Black, 119 Mo. 142; Garrett v. Kansas Coal Mining Co., 113 Mo. 339; Bick v. Seal, 45 Mo. App. 475.</p>

Transferred from St. Louis Court of Appeals. We contend that the sheriff’s offer to put Eestor into possession of an undivided four fifths still leaving George Meglitsch on the premises, and his father, Anton Meglitsch, with him, if he desired to have him there, and the father desired to remain with his infant child was all that was required under the execution, the plaintiffs in the present case and George Meglitsch being tenants in common.

— Hon. E. M. Hughes, Judge. (1) This form of action is the proper proceeding in a- case like this, for an attaching creditor to avail himself of property fraudulently conveyed by his debtor. The solvency or insolvency of the defendant is immaterial in a proceeding like this. R. S. 1889, see. 571; Lackland v. Smith, 5 Mo.

Certiorari. (1) JohnC. Conley died prior to the passage of the amendatory acts of March 16 and 17,1897. If, therefore, the act of April 1, 1895, is in conflict with the Constitution, there was no law in force at the time of his death imposing a collateral succession tax. Const, art. II., see. 15; In re Langdon, 41 N. E. Rep. 401; In re Embtiry, 45 N. Y. S. 621; Estate of Roosevelt, 25 L. R. A. 695.

— Hon. John W. Wofford, Judge. (1) The indictment is defective: First. It does not aver that the “contract for the purchase” was made designedly and with intent to cheat and defraud. Second. It does not aver that defendants designedly and with intent to cheat and defraud agreed to pay cash on delivery. Third. It does not aver that defendants designedly and with intent to cheat and defraud obtained possession of the goods. Fourth.

— Hon. James H. Lay, Judge. (1) The court erred in refusing to allow witnesses, expert and non-expert, to testify and give opinions as to testator’s mental condition. Those who are acquainted with the testator at the time of his making the will, saw him act, heard him talk, and were acquainted with his mental condition, may give their opinion ..as to whether or not he had sufficient mental capacity to make a will. This is a fortiori, true of experts.

Louis City Circuit Court. — Hon. JohnM. Wood, Judge. (1) The granting of a decree for specific performance is at all times a matter of discretion, not a matter of right, and such a decree may be granted or refused as the court may think proper under all the circumstances of the case, or plaintiff may be remitted to his action at law. Story’s Eq., par. 742; Veth v. Gierth, 92 Mo. 97, 104; Paris v. Haley, 61 Mo. 453; Pomeroy v. Fullerton, 131 Mo. 581.

— Hon. John A. Hockaday, Judge. (1) The contract between appellant and respondent to extend the time for the payment of certain debts and for the foreclosing of deeds of trust securing the same for a period of five years, was, for a valid consideration, legal and binding on the parties thereto. 2 Jones on Mort. [5 Ed.], secs. 1190, 1191; Ins. Co. v. Bonnell, 35 Ohio St. 365; Thompkins v. Thompkins, 21 N. J. Eq. 338; West v. Brison, 99 Mo. 684; Semple v. Atkinson, 64 Mo. 504.

— Hon. Chas. Mabtin, Special Judge. (1) The court erred in admitting in evidence pi’o-bate certificates of allowance offered by plaintiffs. R. S. 1889, sec. 4881; Freeman on Judg. [4 Ed.], sec. 252; Greenl. on Ev. [14 Ed.], secs. 538 and 539; Ford v. O’Donnell, 40 Mo. App. 51. Said certificates, if admissible, were not sufficient to prove in the case at bar that Ellis was indebted as alleged in plaintiff’s petition.

John A. Hockaday, Judge. (1) Where the line between adjoining proprietors is uncertain, or they are ignorant of its true location, and they fix upon a permanent boundai’y line, and possession is taken accordingly, the agreement is binding on them and those claiming under them.

— Hon. Frank Hagerman, Special Judge. (1) In actions for specific performance eacli case must be determined on its own merits. If upon a whole view of the facts and circumstances, the court shall be of the opinion that the contract is fair, just and equitable, it'will use its extraordinary authority and decree specific performance. Ivory v. Murphy, 36 Mo. 542; 2 Story?s Eq. Jur. [13 Ed.], sec. 742; Tyson v. Watts, 1 Md. Ch, 13.

Transferred from St. Louis Court of Appeals. (1) There is no conflict, apparent or real, between the decision of the court of appeals in this case and State ex rel. v. Stone, 120 Mo. 428, on which the certificate of the dissenting appellate judge below was made; and the case should be remanded to the St. Louis Court of Appeals for judgment. McCarty v. O’Bryan, 137 Mo. 591; Opinion of Brace and Burgess, JJ.

Transferred from Kansas City Court of Appeals. (1) Under -the uniform line of decisions in this State neither a partner nor his personal representative is entitled to maintain an action at law against a copartner for debts,or liabilities arising out of the partnership transactions until there has been a settlement inter se and a balance found. Ranlán v. Farley, 29 Mo.

Louis City Circuit Court. — Hon. LeboyB. Yalliant, Judge. (1) The court erred in restricting the evidence introduced by defendant to the defense set up in the answer that Florida contemplated suicide at and prior to the time when he made his application for the policy of insurance sued on herein. Said evidence was also admissible, and should have been received, under the second defense set up in defendant’s answer.

— Hon. John A. Hogkaday, Judge. (1) The withholding of the deed of trust of March 24, 1879,- from record until November 21, 1892, having the effect, as shown by the evidence, to mislead and deceive plaintiffs, rendered such instrument fraudulent as to them. Bank v. llohrer, 138 Mo. 369; Bank v. Buck, 123 Mo. 141; Bank v. Frame, 112 Mo. 502; Bank v. Doran, 109 Mo. 40; Walshv. Chambers, 13 Mo. App-301; Hilliard v Cagle, 46 Miss. 309.

— Hon. William S. Herndon, Judge. (1) The circuit court manifestly erred in finding for the respondent without any evidence of title in him to the land in suit. The plaintiff must recover on the strength of his own title, and not on the weakness of defendant’s title.

— Hon. E. M; Hughes, Judge. (1) That part of defendant’s amended answer which was stricken out contains a good equitable de^fense. If the facts pleaded were true plaintiffs are es-topped from claiming the land. McNess v. Waney, 50 Mo. 388; Landrum v. Bank, 63 Mo. 48; Collins v. Bogers, 63 Mo. 515; Evans v. Snyder, 64 Mo. 516.

<p>Jurisdiction of Supreme Court. Respondent, The Webb City & Carterville Waterworks Company, recovered a judgment for $1,224.60 against Webb City, a city of the fourth class, for hydrant rental. Held, that the Supreme Court has no jurisdiction of the appeal, since the only question raised in the record is whether said city had authority, under section 951, article IX, chapter 21, Revised Statutes 1879, to enter into said contract for hydrant rental.</p>

,. Louis City Circuit Court, — Hon. Thos. A. Russell, Judge. (1) No facts are alleged which, show that any property right of plaintiffs will be in any manner affected by the threatened action of defendant. Moreover the petition should show a particular injury to plaintiffs distinct from that which they might suffer in common with the public. 10 Am. and Eng. Ency. of Law, 783; Sandman v. Railroad, 79 Mo. 632; Seager v. Kankakee Co., 102 111. 669.

— Hon. James T. Neville, Judge. (1) The proceedings of Hampton in the acquirement of this property were dishonest, inequitable and a fraud on the rights of defendant Sleeper, and for that reason the title should be divested out of plaintiff and vested in defendant. Baldwin v. Whitcomb, 71 Mo. 651, loe. cit. 659; Hodge v. Hubb, 94 Mo. 489, loc. cit. 553; 1 Story’s Eq. Jur. [2 Ed.] 252; Bresnehanv. Price, 57 Mo. 422; Sanderson v. Voelcker, 51 Mo. App. 328.

— Hon. Rudolph Hiezel, Judge. (1) Mere error in a judgment is no ground for equitable relief. Brackett v. Brackett, 61 Mo. 221; Ellis v. Jones, 51 Mo. 189; Carolus v. Koch, 72 Mo. 645. (2) Conceding for the sake of argument only that it was erroneous to tax these costs against the plaintiff, it was an error which appeared on the face of the judgment, and could have been reached by writ of error, and hence is no ground for equitable relief. Railroad v. Lewright, 113 Mo. 660.

— Hon. E. M. Hughes, Judge. (1) An action of ejectment is purely an action at law, and plaintiff must recover on the strength of his own title. It is not sufficient for plaintiff to show an equitable title; it is essential that he show the legal title to be in him. Hunt v. Sellech, 118 Mo. 588; Hart v. Steedman, 98 Mo. 452; Harwood v. Tracy, 118 Mo. 631; West v. Bretelle, 115 Mo. 653.

— Hon. E. J. Bkoa.ddus, Judge. (1) The relation of banker and customer, and of mortgagor and a mortgagee, and trustees, agents, administrators, guardians, attorneys and others whose connection with any person is such as to establish a confidential relation between them concerning his property, and give them special knowledge and opportunity regarding it, creates a confidential relation between the parties.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) There is no evidence that the $1,175, or any part thereof, was paid into Simpson’s hands before or contemporaneous with the purchase of Simpson in his own name, as charged in the answer, and, therefore, 1 ‘there was no feoffment without -consideration, to result to the use of the feoffor, and there could be no resulting trust.” Perry on Trusts, secs. 133,135; Kelly v. Johnson, 28 Mo. 251; Sells v. West, 125Mo. 621.

— Hon. Richard Field, Judge. (1) No amendment can change the cause of action, and whilst there is but one form of action it is still true that an action ex delicto can not be changed into an action for a breach of contract by amendment, nor can a cause of action be substantially ■ changed by amendment. Holliday v. Jackson, 21 Mo. App. 664; Philips v. Broughton, 30 Mo.

— Hon. Wm. S. Herndon, Judge. (1) On March 2,1891,. the law empowering villages to change to cities of the fourth class was section 977, Revised Statutes 1889. (2) If the town or village is incorporated by the general, or any special law, such town or city could organize as a city of the fourth class only by passing an ordinance “and submitting the same to the legal voters of such city or town for ratification.” Sec. 977, stipra.

— Hon. E. J. Beoaddus, Judge. (1) The allegations in the petition and the judgment'of the court simply for the recovery of the land, with damages, costs, and value of the monthly rents and profits, as allowed only in ejectment suits by statute, without decreeing the legal title in plaintiff, make it manifest that the case was tried by the circuit court on the theory that it was a suit at .law in ejectment, and not a proceeding in equity or under the married woman’s statute;…

— Hon. W. W. Rucker, Judge. (1) The court erred in giving the first instruction on the part of the respondent. This instruction purports to cover the entire case and directs a verdict against the interpleader, if the jury should find a fraudulent intent on the part of the cashier of the bank in accepting the note indorsed to it. It wholly omits any requirement of a fraudulent purpose on the part of the grantor in the deed of trust or the beneficiary named therein.

— Hon. E. M. Hughes, Judge. (1) The contract of indorsement is a new contract and is independent of the note and it is not an engagement with the maker. Edwards on Bills and Notes [3 Ed.], see. 383; 2 Am. and Eng. Ency. of Law, 385; Beach on Modern Law of Contracts, sec. 605; Tiedeman Com. Paper, sec. 256; JDunnigan v. Stevens, 122111. 396; Bowers v. Bank, 58 111. App. 498; Ferguson v. Staples, 82 Me. 159; Trabue v. Short, 18 La.

— Hon. E J. Beoaddus, Judge. (1) To constitute a tort there must be a conjunction of damage and wrong, and there is no tort if either damage or wrong is wanting. Cooley on'Torts [1 Ed.], 62. (2) The cause'of action submitted to the jury involved no element of wrongfulness. To make the enticement of the wife from her husband actionable it must have been done from malice or with improper motives. Bhinehart v. Bills, 82 Mo. 534; Gilchrist v. Bale, 34 Am. Dec. 469.

— Hon. E. M.’ Hughes, Judge. (1) The mortgage is not good because the description of the property in the mortgage is insufficient to pass title. It is not sufficient, standing alone, to make a good or binding mortgage, where the possession is not surrendered to the mortgagee, as in this case. France v. Thomas, 86 Mo. 80. Nor could the plaintiff proceed against the property at law, as in this. case. France v. Thomas, 86 Mo. 80; Jennings v. Spark-man, 39 Mo.

<p>1. Married Women: separate property op wipe. The personal estate of the wife which comes to her during coverture by gift or inheritance, remains her separate property and under her sole control, unless, by the express assent of the wife in writing, full authority is given by her to the husband to sell, encumber or otherwise dispose of the same for his own use and benefit.</p> <p>■2. _: -: investment in land. If the husband invests the wife’s statutory separate money in land, without her written assent, and takes the legal title jointly to himself and her, even though with her knowledge and acquiescence, the title is held in trust for her.</p> <p>3. -: -: -: PURCHASE money: partly the husband’s. Where the husband purchases land and pays for it with the separate money of his wife in part, without her written assent authorizing him to do so, and in part with his own money, and takes the legal title jointly to himself and her, the title will be held in trust for her in the same proportion as the amount of her separate money used by him bears to the whole of the purchase money.</p>

Charles Circuit Court. — Hon. E. M. Hughes, Judge. (1) The court admitted improper evidence offered by plaintiff. Upon dissolution of a partnership the power of partners to bind the firm, by contract or admissions, ceases. Greenl. Ev., sec. 112; Story on Part., secs. 107,323; Brady v. Rill, 1 Mo. 315; Popev. Bisley, 23 Mo. 185; Bowzelot v. Rawlings, 58 Mo. 75; Fowler v. Helm, 29 Mo. 324; Little v. Ferguson, 11 Mo. 598.

— Hon. W. W. Wood, Judge. A suit involving the title to the lands in controversy, in which the parties were the same as in the case at bar, was determined by this court and reported in 125 Mo. 118.

— Hon, William S. Herndon, Judge. (1) A release deed in the ordinary form may convey title. Wilson v. Albert, 89 Mo. 537. (2) A release or quitclaim deed does not operate upon the land itself nor upon the title directly. Bogy v. Shoab, 13 Mo. 380. (3) A mere naked release deed to one not in possession or having a vested interest would be void. Bran-ham v. Mayor, 24 Call, 606; Bennett v. Irwin, 3 Johns. 366; Kerr v. Freeman, 33 Miss. 292.

Hon. Alex. Ross, Judge. (1) No assessment was made of said property as required by law. The assessor back-assessed said property without calling upon said defendant for his assessment and when not finding him did not leave a written notice with some member of his family as he was required by law.to do. R. S. 1889, secs. 7531 and 7532; Rich Hill Coal Co. v. Neptune, 19 Mo. 438.