Volume 146 — Missouri Reports

Louis City Circuit Court. — Hon. William Zachritz, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence. (2) The court erred in instructing the jury that they should consider the evidence as to a former conviction, either for the purpose of fixing the punishment, or, for the purpose of discrediting the defendant as a witness. (3) The court erred in instructing the jury for attempted burglary when the evidence shows the offense was complete.

<p>Appellate Practice: bill of exceptions: when not reviewed. Where the bill of exceptions contains the testimony, but not the instructions, nor the motion for a new trial, nor the motion in arrest of Judgment, nor any entry showing an exception taken and saved to the action of the trial court in overruling the motion for a new trial, the Supreme Court will review only the record proper.</p>

— Hon. C. A. Anthony, Judge. *(1) The instruction for murder in second degree was error in this case, (a) The elements of malice and premeditation are lacking. There can be no murder of either degree without malice and premeditation. State v. Weiners, 66 Mo. 13; State v. Mitchell, 64 Mo. 191; State v. Curtis, 70 Mo. 594; State v. Harris, 73 Mo. 287. (b) This case at the very worst, upon the evidence for the State, could only be manslaughter in the third degree.

— Hon. John W. Wofford,. Judge. (1) Instruction 10 is erroneous, in that it limits defendant’s right of self-defense to the assault made by deceased alone upon him, and leaves out of consideration his right to use a weapon, if necessary, to protect himself from harm threatened by the mob of angry and excited men, who armed with a knife, a revolver, and bricks and stones, were aiding and acting in concert with deceased in his assault upon defendant at the time the fatal shot…

— Hon. Dorsey W. Shackleford, Judge. (1) The giving of instructions for murder in the first degree was prejudicial to the defendant. There was no elements of that degree in this homicide and such an instruction is simply a statement of the court to the jury that the offense is more heinous than the law shows it to be and an invitation to the jury to punish the defendant severely.

— Hon. John W. Woeeord, Judge. (1) Burglary and larceny are two distinct offenses though joined in the same count of the indictment, and the court should have instructed as to both larceny and burglary. The jury should have been told they might acquit of burglary and convict of larceny in which event the larceny would be petit in this case.

— Hon.W. N. Evans, Judge.' (1) The county becomes indebted in any year for services performed or goods sold and delivered during that year up to the constitutional limitation of the -amount of revenue provided for that particular year. Andrew Co. ex rel. v. Schell, 135 Mo. 31. (2) Neither the allowance of a claim nor the issuance of a warrant in evidence of such allowance, creates the debt.

<p>1. Appeals: trespass: to what court. An action for trespass is strictly a personal action. And so a suit to recover $1,200 damages for the cutting down and removing of pine logs from a certain tract of land, alleged to belong to plaintiff, does not involve title to real estate, and the appeal is to one of the courts of appeals.</p> <p>2. -: --: -: title investigated. Although it maybe necessary in such an action to investigate the title, because the plaintiff can not recover unless he is the owner, yet, as his title is not in anywise affected by a judgment in said cause, it can not be said that the title to real estate is involved under the language of the Constitution governing appeals. (Overruling Musióle v. Railroad, 114 Mo. 311.)</p>

— Hon. L. B. Woodside, Judge. (1) The compensation of a county clerk is an annual compensation — not quarterly. Allen v. Cowan, 96 Mo. 193; Lycettv. Wolff, 45 Mo. App. 489. For the year 1896 it was measured by the year from January 1, 1896, to January 1, 1897. If within that time it was proven in a legal way that the population of the county had increased from less than twenty thousand to twenty-two thousand, then the county was immediately transferred to a higher class.

— Hon. W. W. Wood, Judge, (1) The will of Calvin Atkins gave Margaret A. Atkins a life estate in the property he died possessed of with absolute power of disposal and any disposition she made of the property in her lifetime was a legal exercise of the power given her and vested a legal title, in anyone to whom she gave it. Harris v. Knapp, 21 Pick. 416; Davis v. Boggs, 20 Ohio St. 550; Turner v. Timberlahe, 53 Mo. 371; McKenzie’s Appeal, 19 Am.

— Hon. C. O. Tickenob, Special Judge. (1) A ‘‘party wall” means a solid wall, without windows or openings of any kind therein; and where there is a contract calling for a “party wall,” and one of the parties thereto builds, leaving windows or openings in the wall, he is a trespasser ab initio on the land of the other. Harber v. Evans, 101 Mo. 668; St. John v. Sweeney, 59 How. Pr. 175; Vansykel v. Tryon, 6 Phila. 401; Milne’s Appeal, 81 Pa. St. 56; Vollmer’s Appeal, 61 Pa.

— Hon. Paris C. Stepp, Judge. The court had no authority to do other than to carry into execution the judgment of this court; the judgment of this court being that the lower court enter judgment in favor of the plaintiff for one undivided fifth of the premises described in the petition. No matter was left it for judicial examination or determination, and that nisi prius court had no power or authority to do other than to carry out the judgment of this court.

— Hon. E. L. Scarritt, Judge. (1) The tax deed from the city to Moise was valid on its face and conveyed a good title. Charter of Kansas City 1875, art. 4, sees. 12, 20; art. 6, sees. 45, 53, 63 and 64; Charter 1889, art. 4, secs. 15, 22; art. 5, secs. 37, 47, 57, 58; art. 17, sec. 8; Hyermanv. Blakely, 13 Mo. App. 407.

<p>Appeals: abstract. The rules of this court require that “the abstract must set forth so much, of the record as is necessary to be consulted in the disposition of the assigned errors.” Where the abstract does not disclose that any error was committed in the trial court, the judgment will be affirmed.</p>

— Hon. E. L. Scarritt, Judge. (1) The suicide clause has no application to accident insurance. By its terms it applies only to life policies. Accident insurance has always been defined by the legislature to be “insurance other than life.” Acts 1869, sec. 1, p. 45; 1 Wag. Stat. 1870, sec. 1, p. 759; R. S. 1879, sec. 5987; R. S. 1889, sec. 5873.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. The judgment below must be affirmed, as this court can not consider the question concerning the competency of this juror because the motion for new trial is not preserved in the record, and therefore it does not appear whether the action of the court in the matter of the competency of this juror was made one of the grounds of appellant’s motion for a new trial; or, if so, whether the plaintiff excepted to the court’s…

Transferred from St. Louis Court of Appeals. (1) An insolvent debtor can not make a voluntary conveyance of his property so - as to defeat the claims of his creditors. Stivers v. Horn, 62 Mo. 473; Bohannon v. Combs, 79 Mo. 305; Garrett v. Wagner, 125 Mo. 450.

— Hon. W. N. Evans, Judge. (1) It is entirely immaterial for what consideration or reason Collins assigned the land warrant with which the land was entered to his sons, since neither he nor his grantees can plead his fraud as against the heirs of his sons. (2) That statute of limitations may transfer and transmute title, but to have this effect the possession must be open, adverse and continuous.

John Q-. Wear, Judge. (1) The execution offered in evidence, and the return of the constable thereon, with the other proceedings of the constable under said execution, is sufficient to show that the respondent had no property subject to said execution; and the return thereon is, in fact, a return of nulla bona in this proceeding. R. S. 1889, secs. 4907,6286-7; Baconv. Beven, 44 Miss. 293; Stateex rel. v; Brady, 53 Mo. App. 202; Halev.

Quo Warranto. (1) A street railway constructed and operated without authority of law is a public nuisance. Larimer and Lincoln v. Railroad, 137 Pa. St. 533; Booth on Street Railway, see. 3; Fanning v. Osborne, 102 N. Y. 441. (2) The appropriate remedy for the unauthorized use of streets for railway purposes, in so far as the city, is concerned, is a proceeding by quo warranto on the information of its duly authorized public officer. State ex ret. v. Railroad, 140 Mo. 539.

<p>Appeals: OVERRULING MOTION FOR NEW TRIAL: NO EXCEPTIONS. Unless an exception be taken and preserved (by bill of exceptions) to the action of the trial court in overruling a motion for a new trial, there is nothing before the appellate court but the record proper.</p>

<p>Appeal from Jackson Circuit Court. — Hon. G-eobge F. Longan, Special Judge.</p> <p>(1) The court erred in overruling defendant’s application for a change of venue. Freleigh v. State, 8 Mo. 610; State v. O’Rourke, 55'Mo. 445; State v. Turlington, 102 Mo. 653; State v. Sayers, 58 Mo. 585; R. S. 1889, sec. 4153; Laws 1895,162; State v. Burgess, 78 Mo. 234; State v. Tatloio, 136 Mo. 683. (2) The court erred in not excluding from the jury’s consideration all evidence relating to the door introduced in evidence. State v. Buckler, 103 Mo. 208; Whar. Crim. Ev. [8Ed.], sec. 767. (3) The court erred in admitting in evidence, over the objections of defendant, the bill of sale from Frederick J. Jackson, the deceased, to Lizzie Jackson, his wife, dated July 8,1893. State v. Barker, 96 Mo. 389. (4) The court erred in refusing, upon defendant’s motion, to compel the prosecuting attorney to exhibit and produce the papers found upon the body of the deceased, Frederick J. Jackson. R. S. 1889, secs. 2177, 2178 and 4204. (5) The court erred in failing to instruct the jury as to manslaughter in the fourth degree. State v. Banks, 73 Mo. 597; State v. Maguire, 113 Mo. 675; R. S. 1889, sec. 4208. (6) The court erred in giving instruction number six, which says: “If you shall believe from the evidence that the defendant voluntarily entered into the difficulty that resulted in the killing of Frederick J. Jackson by the defendant, then there is no self-defense in this case.” State v. Leiois, 118 Mo. 84; State v. Partloiv, 90 Mo. 621; Reed v. State, 11 Tex. App. 509; State v. Gilmore, 95 Mo. 560; State v. Parker, 96 Mo. 382; State v. Berkley, 92 Mo. 41.</p> <p>The “intent” which moved defendant to voluntarily enter into the difficulty being involved in cases where the plea of self-defense is interposed, in justice to the defendant, a proper instruction thereon should have been given. The jury were not told that the defendant had the right to act in self-defense, although he voluntarily entered into the difficulty, provided, he did not so enter into it for the purpose and with the intent to kill or do great bodily harm. In this error was committed. State v. Partloio, 90 Mo. 615; State v. Rapp, 142 Mo. 447; State v. Golden, 25 Ga. 532. We, therefore, deem it unnecessary to prepare a brief iipon the questions involved in the record.</p>

— Hon. E. J. Beoaddus, Judge. (1) Mary Osborn and her grantees were estopped by proceeding to set off dower and for rent and by her general warranty deed to Benedict Weldon from claiming that she was in possession and conveyed her quarantine only. Thistle v. Thistle, 50 Mo. 299; 2 Smith’s Lead. Cas. in Eq., pp. 756 and 717; 2 Scribner on Dower, sec. 22.

Louis City Circuit Court. — Hon. William Zacheitz, Judge. The second count of the indictment (upon which defendant was convicted) does not charge forgery in the first degree. It follows the language of the sections 3644 and 3645 of Revised Statutes 1889, by charging that defendant had in his possession a forged instrument with intent to defraud by uttering and passing, and that he sold and delivered such forged instrument with intent to have the same uttered and passed.

— Hon. Joseph D. Perkins, Judge. (1) A prosecution, conviction and sentence for the receiving of a bank deposit during the period of insolvency, is a bar to other prosecutions for acts occurring during the same period. Comm. v. RockafeUow, 2 Lackawana Legal News, 338.

— Hon. E. J. Bboaddus, Judge. (1) There is nothing save the record proper in this ease for consideration. It does not appear that the bill of exceptions was ever signed by the trial judge.

Louis City Circuit Court. — Hon. John M. Wood, Judge. (1) The relation of partnership does not exist between persons associated in a common undertaking unless each one has the right to manage the whole business, and to dispose of the entire property involved in the enterprise for its purposes, in the same manner and with the same power as all can when acting together.

— Hon. J. O. Lamson, Judge. (1) The indictment sets out in legal form sufficient facts and charges to constitute a cause of action for the crime of perjury. R. S. 1889, secs. 3665 and 3671; State v. H.uckeby, 87 Mo. 414; State v. Gave, 81 Mo. 454; Kelley’s Grim. Law, sec. 821; State v. Pratt, 98 Mo. 482; State v. Jennings, 98 Mo. 493; State v. Hormon, 106 Mo. 635; State v. Smith, 63 Yt. 201; State v. Massie, 5 Tex. App. 81; State v. Mattingly, 8 Tex.

Louis City Circuit Court. — Hon. James E. Withbow, Judge. (1) Plaintiff’s right of recovery rests primarily and solely upon the cause of action, if any, granted under section 4425 of the Revised Statutes of Missouri, 1889, the provision of which that is applicable to this case, being, “if such deceased being a minor and unmarried,” and there was no averment in the petition that the deceased was “unmarried,” nor was there any evidence at the trial in that regard.

— Hon. H. M. Ramey, Judge. (1) Ordinarily where there is no consent the law presumes that “an entry and possession by a tenant in common is not adverse to the cotenant, but that the possession is in support‘of the common title.” Rodney v. McLaughlin, 97 Mo. 431; Long v. McDow, 87 Mo. 197; Hill v. Allen, 12 Mo. App. 580.

— Hon. Reuben E. Roy, Judge. (1) We challenge the sufficiency of the proof in this case to sustain the verdict of the jury and judgment of the court. (2) On the last and fourth trial the sheriff served the list of qualified jurors on D. A. Ball, attorney for defendant, instead of upon defendant, as the law directs. R. S. 1889, sec. 4204.

Louis City Circuit Court. — Hon. P. R. Elitoraft, Judge. (1) Appellant was under no obligation to disclose the nature or extent of his interest to the company or to its stockholders, as he occupied no fiduciary relation to them, and was not accountable to them for his profits, not having done or said anything to create any such right on their part.

— Hon. John H. Flanigan, Special Judge. (1) The defendant was entitled to change of venue from the Jasper circuit court and from that county upon his application and affidavit.

Charles Circuit Court. — Hon. E. M. Hughes, Judge. (1) The plaintiff’s judgments were liens upon the interests of these sons in the real estate at their father’s death and at the date of the probate, in common form, of the alleged will.

<p>1. Specific Performance: contract to purchase land: perfect title. By written contract defendant agreed to convey to plaintiff certain lots, “the title to be perfect and to be conveyed by warranty deed.” Reid, that the plaintiff was entitled to a title which would enable him to hold the land in peace and which contained no flaw that might disturb the property’s market value, or subject him to annoying lawsuits. Until such title was tendered the defendant could not compel specific performance.</p> <p>2. -:-:-: contingent remainder. Defendant’s title was as follows: In 1845, one Burk conveyed the land to Sarah Still-well, the habendum clause being, “to have and hold the above described lot, with all the rights and privileges to the same belonging, unto the said Sarah Stillwell and the heirs of her body forever.” The title of the said Sarah, who is still living, by mesne conveyances lodged in defendant, and Sarah’s three children, the oldest a son, the other two daughters, after they arrived at legal age also conveyed the lots by warranty deed to defendant. Held, that the defendant did not have a perfect title to the land, but only a conditional or contingent estate.</p> <p>3. —-•:-:-: heirs. No one is an heir of a living person.</p> <p>4. ——:--:---: HEIRS OE one’s' BODY: PRIMOGENITURE: eldest son. Where the conveyance is to one and the heirs of his body, the estate is not cast, by the statute abolishing entails, upon the eldest son of the first taker, but upon the heirs general of such life tenant. The words, “according to the course of the common law,” do not mean that the eldest son is to take the estate to the exclusion of the other heirs of such life taker.</p> <p>5.---:---:--: -: POSSIBILITY OE ISSUE EXTINCT. Where a deed is made to one and the heirs of her' body, the law will not presume the possibility of issue extinct so long as she lives, and it can not therefore be determined during her life who her heirs are.</p>

— Hon. James H. Lay, Judge. (1) By his deed of trust Barnett conveyed the legal title to Perkins, but which he should convey, even without following the strict terms of the deed, and in the event of his refusal to act, the then sheriff Hartsock had the same power. Schanewerk v. Holer edit, 117 Mo. 22; Lanier v. McIntosh, 117 Mo. 518; Kennedy v. Siemers, 120 Mo. 86; Springfield K. & T. Co. v. Donovan, 120 Mo. 127; Snyder v. Bailroad, 131 Mo. 580.

— Hon. Benjamin E. Tuenee, Judge. (1) A conveyance which is void, as in fraud of creditors, because fraudulent in part upon a false and pretended debt, will not be sustained to the extent of the adequate and honest consideration paid by the grantee. Baldwin v. Short, 125 N. Y. 553. Where a part of the debt secured is fraudulent, the whole mortgage is void. Boland v. Ross, 120 Mo. 208; State ex rel. v. 'Hope, 102 Mo. 410; Clark v. Lee, 44 N. W. Rep. 260; Wait on Fraud.

— Hon. W. N. Evans, Judge. (1) The court should have given an instruction for murder in the second degree in view of the defendant’s testimony. State v. Wiener, 66 Mo. 13; State v. Robinson, 73 Mo. 306; State v. Curtis, 70 Mo. 599; State v. Ellis, 74 Mo. 207; State v. Lewis, 74 Mo. 222; State v. Kotovsky, 74 Mo. 247; State v. Ross, 14 Mo. App. 567; State v. Banks, 73 Mo. 591; State v. Harris, 76 Mo. 363; State v. Berkley, 109 Mo. 673.

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The finding and judgment of the court should have been for the plaintiff. An injunction should have been granted. Sanders v. Jacob, 20 Mo. App. 96; St. Louis Garb. Mfg. Go. v. Fclipse Carb. Go., 58 Mo. App. 411; Am. Brew. Go. v. St. Louis Breiv. Co., 47 Mo. App. 14; Trash ‘v. Wooster, 28 Mo. App. 408; Filley v. Fassett, 44 Mo. 168; Liggett-Meyers TobaccoCo. v. Sam Reed Tobacco Co., 104Mo. 153; Carson v. Cry, 39 Fed.

Louis City Circuit Court. — Hon. James B. Withrow, Judge. (1) The relator has no claim in law for services in criminal proceedings, except as set forth in section 4990, Revised Statutes 1889 (as amended, Acts 1891, p. 146, section 11), and the fees claimed are not set forth in that section. (2) The allowance of any other fees than those set forth in section 4990, is expressly prohibited by section 4991, Revised Statutes 1889 (reenacted, Acts 1891, p. 146, section 12).

Louis City Circuit Court. — Hon. Jacob Klein, Judge. (1) The rule or principle applicable to a negotiable promissory note acquired after maturity, viz., that the indorsee takes it subject only to such equities as ai’e connected with its inception, has no application in this case. The plaintiff received the note after maturity; it had then been paid and extinguished, and was dead paper as to the defendants.

— Hon. J. O. Lamson, Judge. (1) The judgment is absolutely void for want of jurisdiction; but conceding that as against Iona fide purchasers that it is not, there is a line of decisions by the Supreme Court of this State to the effect that if such purchasers knew of defects and irregularities in the judgment, like that in this case — that is, that they had knowledge of the residence of Horine and Tooker— that they are effected by such knowledge.

Louis City Circuit Court. — Hon. John A. Talty, Judge. (1) Upon the formation of the company the property of the estate was represented by the stock of the company, which was under the joint control of both trustees, and Mrs. Levering was not in any way excluded from the trust. (2) First. No excessive commissions have been charged.

<p>Appeal from St. Louis City Circuit Court. — Hon. Jacob Klein, Judge.</p>

<p>Appellate Practice: no bill of exceptions: motion to affirm. A judgment can not be affirmed on appeal on the ground that no bill o£ exceptions was ever filed in the cause, for error may appear on the face of the record proper.</p>

— Hon. Chas. L. Dobson, Judge. (1) The' judgment of the criminal court is illegal as against E. A. Stevens, viewing the proceedings before the police judge and criminal court as a civil case. R. S. 1889, secs. 4056-4064; Constitution, art. II, sec. 1; State v. Dolan, 93 Mo. 467; Leonard v. Sparks, 63 Mo.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. (1) The trial court erred in refusing to dismiss the petition on the ground that no case for equitable relief was made out. There was no allegation or proof to show that McDonald, the maker of the note which plaintiff seeks to have incorporated into a deed of trust, is insolvent. His testimony was that he is engaged in the real estate business at St. Louis as a member of the co-partnership of McDonald & Ryan.

— Hon. D. P. Stratton, Judge. (1) The court erred in leaving it to the jury to say whether defendant stopped and prevented the performance of the contract. Plaintiffs both testified they quit solely on account of the correspondence, beginning with the letter of July 6. It was for the court and not for the jury to say whether the effect of this correspondence was to stop them and prevent them from doing more. Enterprise Soap Works v. Sayers, 55 Mo. App. 15; Falls' Wire Mfg.

— Hon. J. C. Lamson, Judge. (1) A motion to set aside a sale under execution filed in the original cause, before the return term of the execution, is the proper mode of proceeding for the purpose, and a purchaser under the execution can be brought in by notice of the pendency of the motion. State ex rel. Yancy, 61 Mo. App. 397; Am. Wine Co. v. Scholer, 13 Mo. App. 345; Freeman on Executions, secs. 306-310.

— Hon. E. J. Broaddus, Judge. (1) The petition alleged and the answer admitted that the Omaha Life Association was a benevolent corporation, and the undisputed proof showed it was doing a life insurance business on the ‘‘assessment plan.” It, therefore, was not subject to the provisions of sections 5849 and 5850, R. S. 1889. Whitmore v. Sup. Lodge, 100 Mo. 47; Hanford v. Mass. Ben. Ass’n, 122 Mo. 50; Haynie v. Indemnity Co., 139 Mo. 416; Theobold v. Sup. Lodge, 59 Mo.

Genevieve Circuit Court. — Hon. James D. Eox, Judge. (1) Quasi corporations (subdivision of the State) are but instrumentalities' of the State, and the State incorporates them that it may more effectively discharge its duty; they are political or civil divisions of the State created by general law, to aid the administration of government. They are purely auxiliaries of the State Their powers relate to subjects purely of State concern. Dillon on Mun.

<p>1. Appeals: voluntary nonsuit. A plaintiff who has voluntarily taken a nonsuit in the circuit court, in either an action at law or an equity case, has no appeal.</p> <p>2. -: -: case stated. Plaintiff in the first count in his petition sued in ejectment for possession of certain lands, and in his second count prayed that certain deeds to defendant be set aside ' because made to hinder and defraud the creditors of the grantor. At the trial, the cause being submitted to the court, the court after hearing all the evidence expressed the opinion that the law was for defendant. The record states that plaintiff then took “an involuntary nonsuit with leave to move to set the same aside.” Held, that the plaintiff has no appeal; that the mere calling of the nonsuit "involuntary” in the record, did not make it such, but in order for the nonsuit to be involuntary, plaintiff must be constrained to take his nonsuit by some adverse ruling of the court which precludes his recovery.</p>

— Hon. James T. Neville, Judge. (1) The defendant was guilty of negligence when it failed to furnish plaintiff a properly constructed crooked link to enable him to make the coupling with reasonable safety, and even though plaintiff knew the effort to make such coupling with a straight link was dangerous, yet if he believed it could be done with care and caution on his part, and he did exercise care and caution in the effort to make such coupling, then he was not guilty of…

Louis City Circuit Court. — Hon. Thomas A. Russell, Judge. (1) A judgment in a mechanics’ lien suit, when the parties to a prior deed of .trust have been joined and duly served in the suit, is binding on such parties and their privies, and the purchaser of the property under such judgment obtains title as against all such, (a) Judgment in res adjudicate.

— Hon. J. C. Lamson, Judge. (1) The United States is the source of all title. The United States conveyed the land in controversy to the defendant by patent, — that patent was recorded in the office of the recorder of deeds of the county, in which the land was situated long prior to'plaintiff’s pretended purchase. Defendant read that patent in evidence, and, never having parted with the title so conveyed to him, should have prevailed in the court below.

Louis City Girctiit Court. — Hon. Jacob Klein, Judge. (1) The-trustee is to be charged with all the rents she received, or that, by a reasonable degree of diligence, she might have received, and having failed to pay them over to the cestui que trust, she should be charged with interest. 2 Beach on Trustees, sec. 507.

— Hon. J. C. Lamson, Judge. (1) The court erred in admitting evidence as to the execution and contents of a contract between Charlotte Davidson and her husband at the time the deed to her was made by him, because: First. There was not sufficient proof that such contract, signed by the parties, was executed and lost or destroyed. Second. It was a contract, if it existed at all, between husband and wife and wás void. Third.

— Hon. Richard Field, Judge. (1) The deed of trust relied on by plaintiffs was not a perfect deed because it never was so delivered as to give effect as a completed deed. Hammer slough v. Cheatham, 84 Mo. 20; Huey v. Huey, 65 Mo. 692; Griming v. Steele, 122 Mo. 287; Railroad v. Rif, 13 Ohio St..252; Hicks v. Goode, 12 Leigh, 479; Overman v. Kerr, 17 Iowa, 490; Brevard v. Neeley, 34Tenn. 169; Conner v. Bahvin, 16 Minn. 175; Hill v. McMichal, 13 Atl.

— Hon. J. H. Sloven, -Judge. (1) Proof by plaintiff’s witness Seidlitz that some of the defendants, when testifying at a former trial of this cause, admitted having signed the bond sued on, gave these defendants no right to prove another part of their testimony on a different subject, by this witness on his cross-examination, to wit, that they also testified at the former trial, that the penal sum of the bond had been changed from $10,000 to $5,000, and the court erred in…

Certiorari. (1) The law violates section 8, article X, of the Constitution, because the tax exceeds the limit therein fixed. Brookfield v. Toocg, 141 Mo. 619; Arnold v. Hawkins, 95 Mo. 569; Black v. McGonigle, 103 Mo. 192. (2) If this law be declared to create a tax on property as distinguished from the use thereof, it is void because the property is not taxed in proportion to its value, as required by section 4, article X, of the Constitution.