Volume 151 — Missouri Reports

— Hon. Charles L. Dobson, Special Judge. (1) The deed in trust to Graves, trustee, executed by Legrand G'. Buford for tbe benefit of Ora- O. Buford, author^ ized Graves, as trustee, upon tbe written request of said Ora, to convey the land by deed or mortgage, but it contained no restriction upon tbe power of tbe wife, Ora, to do that. It did not purport to confine ber power of conveyance to tbe mode named in the deed.

— Hon. E. L. Scarritt, Judge. . (1) Henry O. Ktimpf signed the name on the back of said note as an indorser for George Kumpf, with the knowledge of Sophia Harburg that he was merely an indorser and surety. Any agreement between Sophia Harburg and George Kumpf that changed the terms of contract, extension of time of payment or change of rate of interest without the consent of Henry C. Kumpf, would release him whether he be indorser or surety.

Transferred from Kansas City Court of Appeals. (1) The amendment, by striking out tbe names of two of the plaintiffs, was proper and was authorized by the statute. Section 6347, E. S. 1889; Davis v. Ritchie, 85.Mo. 501; Williston v. Smith, 52 Mo. App. 133; Busclie v. McElroy, 12 Mo. App. 567. (2) A contract payable to “A, B or 0” is a contract to pay them jointly and all should join in suit.

<p>Appeal from, St. Louis Oity Gircuit Court. — Hon. Leroy B. Valliant, Judge.</p>

— Hon. J. C. Lamson, Judge. (1) Tbe question to be determined by tbis court is whether or not tbe trial court properly sustained tbe demurrer at tbe close of plaintiff’s evidence.

Louis City Gircuil Court. — IIon. Leroy B. Valliant, Judge. (1) When one, being notified by tbe assessor, fails or refuses to make return of his personal property for taxation, then it becomes tbe duty of tbe assessor to assess him, and tbe property wbicb should have been listed shall be assessed at double its valuation. Secs. 7532, 7535 and 7536, R. S. 1889. (2) These provisions are not in conflict with sec. 4, art. X, of tbe Constitution.

— IIon. W. S. Herndon, Judge. (1) The court erred in permitting any evidence on the demand. Lindsay v. Archibald, 65 Mo. App. 117. (2) A series of separate and independent transactions running through several years do not constitute an account. Compton v. Johnson, 19 Mo. App. 88. (3) Plaintiff and the decedent, were married prior to the married woman’s act of 1875, and the gifts of the father rested absolutely in the husband.

— Hon. J. H. Slover, Judge. (1) Defendants having wholly failed to make any proof that any of the-attachment plaintiffs -were creditors of Chas. Johns, and there being nothing in the record to show that Chas.

Transferred from Si. Louis Court of Appeals. (1) There was no proceeding to foreclose, or of sale within the terms of the policy simply by the advertisement. The advertisementisaloneaproposition of sale and for bidders to appear at a contemplated sale. There is no proceeding for 'the sale or for foreclosure until the. property is put up for sale in accordance with the notice. Sansum’s Digest of Insurance Law, p. 613; Ins. Oo. v. Lewis, 30 Mich. 41.

- — Iíon. James EE. Lay, Judge. (1) Appellant’s first contention, in this ease, is that the tax judgment is absolutely void as to him, -and that a sale thereunder conveyed no title. The judgment, which is only upon publication or constructive notice, and by default, is against Vaughn Turner, whereas the record owner of whom the purchaser must take notice, is Singleton V. Turner, or as the law recognizes no middle name, is simply Singleton Turner.

— Hon. John M. Wood, Judge. (1) Tbe court erred in .admitting tbe evidence of plaintiff. “In actions where one of tbe original parties to tbe contract or cause of action in issue* and on trial is dead, or is shown to tbe court to be insane, tbe other party to such contract or cause of action shall not be admitted to testify in bis own favor or in favor of any party to tbe action claiming under him.” Sec. 8918, E. S. 1889; O’Bryan v. Allen, 108 Mo. 227.

Transferred from Kansas Gity Court of Appeals. (1) The canse of action was barred by the provisions of the act of April 9th, 1895. The law in force at the time the suit is commenced must govern, and not that in existence when the right of action accrued. Billion v. Walsh, 46 Mo. 492; Gilker v. Brown, 47 Mo. 105. It is competent for the legislature to change or shorten the time within which suits may be brought.' 13 Am. and Eng. Ency. Law, pp. 695 to 703.

— Hon. John W. Woeeord, Judge. The city charter does not authorize the city to single out a merchant dealer in produce and tax him $50 and a merchant’s license, when a grocery merchant deals in all things a produce dealer handles, and only pays a merchant’s license. E. S. 1889, see. 1900; Constitution, art. X, sec. 1; St. Louis v. Spriegel, 75 Mo. 145.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) Tbe indictment in this case attempts to charge the commission of. four separate and distinct crimes: recording bets and wagers; registering bets and wagers; selling auction pools and engaging in book-making. The judgment recites that the defendants have been found guilty as charged in the indictment. Of what offense have they been convicted ?

<p>Appellate Practice: no exceptions: ejectment. Where no exceptions are saved to any proposition of law in an ejectment suit, and no declarations of laiv were given or refused, and there is ample evidence to justify the finding of the trial court, the case will be affirmed.</p>

— ITon. Richard Field, ■ Judge. (1) The plaintiff’s evidence showed that for a long time prior to the suing out of the writ of attachment, the defendant company was engaged in the business of dealing in options and grain futures, employing the capital and assets of the defendant company in that business instead of in the .business authorized by its charter.

— Hon. J. E. Green, Judge. (1) Plaintiff showed color of title by warranty deed, which implies seizin and possession unless adverse possession should appear. Therefore plaintiff could sue in ejectment. Thompson v. Newberry, 93 Mo. 18; Dyer v. Krackauer, 14 Mo. App. 39; Apperson v. Allen, 42 Mo.

Quo Warranto. • (1) Corporations are creatures of tbe law, and when they fail to perform duties which they were incorporated to perform, and in which the public have an interest, or do acts which are not authorized or are forbidden them to do, the State may forfeit their franchises and dissolve them by an information in the nature of a quo warranto. 2 Beach, Priv. Corp., sec. 840; State ex rel. v. Meek, 129 Mo. 431; People v. N. E. Sugar Eef.

— Hon. Edward P. Gates, Judge. (1) We do not deny that Kansas City can amend its charter in certain respects, nor that the extension of limits is an amendment, but we do deny that this particular… Held: in Westport v. Kansas City, supra, that an extension of the limits is an amendment of the charter, disposes of that phase of the case.

Louis City Circuit Court. — Hon. Leroy B. * Yalliant, Judge. Held: that the same shall not be alienated or alienable: “Therefore, it shall and may be lawful for the said Henry Shaw by his last will to devise, and by proper deed or deeds in his lifetime to convey (mating use of both or either of said methods of disposition), to such trustees as he may appoint, for the uses and purposes which are…

— ITon. J. H. Slover, Judge. (1) The court erred in its holding that the fact that E. Eox & Oo. were conducting a lottery constituted a defense to this action. Hayden v. Sample, 10 Mo. 223; Bennett v. Bank, 61 Mo. App. 297; State to use v. Hesselmeyer, 34 Mo. 76; State ex rel. v. Stark, 75 Mo. 566; State ex rel. v. Good-hue, 74 Mo. App. 162.

— Hon. C. A. Anthony, Judge. (1) In the will under consideration, the word “children” means such children as remain at the parental home and submit themselves to parental control, and the words “for a home for her and my children,” at most, limit the life estate in the widow to a use for a home, only so long as the children are under parental care and continue to reside on the “home farm.” (2) Whatever construction may be adopted, it is -quite certain the plaintiff, being…

<p>Dremature Action. Following Talbott v. Hamill, to be found on page 292, of this volume, it is held that this action was prematurely brought.</p>

— Hon. Edward P* Gates, Judge. (1) The plaintiff contends: (a) That this is an equitable action, and the report of the referee only a special finding to be approved or disapproved by the chancellor or by the Supreme Court, and if disapproved the chancellor or the Supreme Court can make such findings as may appear just and proper.

Louis Oily Circuit Gourt. — Hon. Daniel Dillon, Judge. (1) The plaintiff bank is not chargeable with negligence in its manner of handling the collection of the draft in question.

Louis City Circuit Court. — IIon. John M. Wood, Judge. This defendant is in the same legal attitude with the city in reference to its non-liability for hidden or latent defects. This was not a contrivance in itself dangerous, and no attempt was made by respondent to prove it so. On the contrary, it is shown affirmatively that its construction is such that danger therefrom is most improbable.

Louis City Circuit Court. — Hon. John M. Wood, Judge. (1) The Labeaume patent, under which plaintiff claims title, does not make the Mississippi river the boundary of the grant; therefore, the property therein embraced was not riparian, and was not entitled to the accretions made by the river.

Mandamus. (1) Tbe conference report having been adopted carried tbe bill with it. If it was necessary to submit to tbe Senate tbe original bill after tbe adoption of tbe conference report for passáge, then said bill was .subject to amendment as any other bill. (2) This is a mere ministerial act demanded of these respondents and they can not escape tbe performance of a plain duty by withholding action until that body has adjourned. State ex rel. v. Meier, 143 Mo. 439.

— ITon. John W. Henry, Judge. (1) Tbe defendant is not liable on the contract sued on for the reason that the newsboy was killed while .acting as a lookout on plaintiff’s train and while outside the line of his employment as news agent, (a) The engineer in charge of the train had authority under the circumstance of the case to call on the news agent for assistance.

— Hon. J C. '■ Lamson, Judge. (1) There is no evidence in the cause of any incompetency on the part of Grant Sheldon to perform the duties he was employed to perform by the defendant, or that any incompetency or unskillfulness of Sheldon caused the accident. (2) There was no evidence in the cause of any notice to the defendant of any incompetency or unskillfulness on the part of Sheldon. (3) The court should have given defendant’s fourth instruction.

— Hon. John W. Henry, Judge. •(1) Irregularities or informalities in the petition by the union of two causes of action in one count are waived by pleading to tbe merits. Anderson v. McPike, 41 Mo. App. 331; Paddock v. Somes, 102 Mo. 235; Young Men’s, etc., v. Hubacb, 82 Mo. 475; Grove v. Oity of Kansas, 75 Mo. 672; R. S. 1889, sec. 2047; Williams v. Eisber, 50 Mo. 198; House v. Lowell, 45 Mo. 381.

Transferred from Kansas City Court of Appeals. (1) The indorsement of the $2,000 Abner George note by tbe plaintiff, and the delivery of the same to her husband to use as collateral security was just as binding as to third persons as if she had been a feme sole. Secs. 6864 and 6869, R. S. 1889; Leete v. State Bank, 115 Mo. 184; Brown v. Dressier, 125 Mo. 589; Hiltenbrandt v. Robitzsch, 62 Mo. App. 437.

— Hon. John W. Henry, Judge. (1) After a man is duly adjudged insane, he is thereafter conclusively incapable of transacting business in law, however sane he may be as a matter of fact, until he is regularly and properly adjudged sane again by the method pointed out by the statute. Rannells v. Garner, 80 Mo. 474; Keihne v. Russell,' 53 Mo. App. 667; Redden v. Baker, 86 Ind. 191; Hughes v. Jones, 116 N. Y. 67; Cochran v. Yan Surley, 32 Am. Dec. 574; Hovey v. Hobson, .89 Am.

— Hon. John W. Henry, Judge. (1) Conceding, for argument, tbat McKenzie was non compos at tbe date of tbe deed in question, yet it does not follow tbat the deed is therefore voidable, even against bis immediate grantee, (a) “Tbe mere fact tbat a party to an agreement was a lunatic, will not operate as a defense to its enforcement, or as ground for its cancellation.” 2 Pomeroy, Eq.

— Hon. Wm. S. Herndon, Judge.' (1) A tab bill in proper form and which states the facts required by statute is made prima facie evidence that the amount claimed in said suit is just and correct. The State ex rel. v. Schooley, 34 Mo. 447; State ex rel. v.Eullerton, 143 Mo. 682; E. S. 1889, sec. 7682; State ex rel. v. Eau, 93 Mo. 126; State ex rel. v. Scott, 96 Mo. 72.

— Hon. D. O. Allen, Special Judge. (1) Tbis suit may be maintained against both defendants, and this, too, though each road owns a separate right of way, and though each road built and maintains a separate dam or embankment. In the first place the relief, to be of any avail, must be against both defendants; and in the second place the rule is well settled that it is proper, in equity cases like this, to join all parties who have a common interest in the question to be tried.

Louis City Circuit Court.- — Hon. Leroy 33. Valliant, Judge.

Louis City Circuit Court. — Hon James E. Withrow, Judge. This appeal presents nothing for the court to review. We submit that for the following reasons disclosed by the abstract of the record, the judgment herein should be affirmed: Eirst. No objection was made in the trial court to the introduction of the evidence concerning plaintiff’s relations-with Green. The abstract shows simply, “Objected to by-plaintiff; objection overruled; exception saved.” This amounts to nothing.

Louis Oity Oircuit Qúurb —IIon. Horatio D. Wood, Judge. (1) Officers of mutual insurance companies and fraternal-beneficial associations, have no power to waive the provisions of their by-laiys, especially such provisions as relate to the substance of the contract. May on Ins., secs. 146 and 14Y; Priest v. Ins. Co., 85 Mass. 604; Hale v. Ins. Co., 6 Gay 169; Brewer v. Ins. Co., 80 Mass. 203; Sweet v. Relief Society, Y8 Me. 545; McCoy v. Mut. Ins.

Louis Circuit Court. — Hon- Jacob Klein, Judge. (1) The instruction given by the court of its own motion is unsupported by any evidence.

— Hon. William S. Herndon, Judge. The word child, as used in the adoption law, means a minor, notwithstanding the same word in the dower act or the statute of descents may include an adult. In re Moore, 14 R. I. 38.

— IIon. William S. Herndon, Judge. An adult can not be adopted in this State. The word “child” in the first section of the act of 1857 is used in the sense of minor, and the words “heir and devisee” used to indicate a person who may take an estate after death, and by virtue of a written instrument.

— Hon. William S. Herndon, Judge. (1) Evidence as to alleged admissions of plaintiff that he did not claim the strip of land in controversy by adverse possession should not have been admitted, because such admissions, even if true^ would constitute no defense to plaintiff’s claim of title or possession of the land. St. Louis Pub. Schools v. Risley, 28 Mo. 415; Miller v. Rosenker, 144 Mo. 292. Estoppel has no application to the facts involved in this case.

Louis Gity Circuit Court. — Lion. Selden P. Spencer, Judge. (1) A common gaming house is one which is open to persons generally for purposes of gambling. Rice v. State, 10 Tex. 545; Lockhart v. State, 10 Tex. 275; State v. Mosby, 53 Mo. App. 571; People v. Weithoff, 51 Mich. 213. (2) On the facts pleaded in the amended answer, the grand stand and appurtenances are a common gaming house, for betting upon horse races is gambling.

Transferred from Kansas Gity Court of Appeals. ■ (1) By taking certain of tlie property assigned, plaintiff ignored the assignment, attacked its validity, and virtually said: “We Iiave $1,532 worth of goods in here; we will just rescind our contract of sale, and make onr debt all at once, without waiting for the assignment to proceed to the allowance of claims.” Subsequently plaintiff attempted to take benefits under the assignment, still holding the property replevied, or…

— Hon. W. W. Rucker, Judge. ' (1) No particular form or ceremony was essential to constitute tbe delivery of tbe deeds from James McCracken and wife to John A. McCracken. It could be accomplished by acts or words or both. Crowder v. Searcy, 103 Mo. 97; Sneathen v. Sreathen, 104 Mo. 201; Tyler v. Hall, 106 Mo. 313; Rumsey v. Otis, 133 Mo. 85; Younge v. Guilbeau, 3 Wall. 636..

— Hon. II. O. Riley, Judge. (1) The title vested in either Cape Girardeau or Scott county by virtue of the acts of the Legislature. Railroad v. McGhee, 75 Mo. 522; Pool v. Brown, 98 Mo. 676; Mitchell v. Nodaway Co., 80 Mo. 257. (2) A legislative grant is the highest muniment of title. A subsequent patent does not aid it. Wright v. Gish, 94 Mo. 110; Whitney v. Morrow, 112 TJ. S. 693; Wunderlech v. Spradling, 121 Mo. 377.

— Hon. Jambs H. Lay, Judge. (1) It will be seen tbat tbis case is sharply differentiated from the case of Cravens v. N. Y. Life Ins.

Louis City Circuit Court. — Hon. D. D. Eisi-ier, Judge (1) The receipt of June 1, 1885, and the entry of satisfaction and discharge of June 16, 1885, are prima facie evidence of payment. State ex rel. v. Branch, 112 Mo. 661. (2) The statements contained in the judicial proceedings given in evidence are solemn declarations on the part of the plaintiff Alice, upon which, at her suit, the courts have acted.

— How. D. W. Shackleford, Judge. ^ / (1) The circuit court of Cooper county was without jurisdiction to try and determine this case. Therefore the judgment entered by it should be reversed. When the petition and bond for removal were filed the State court had nothing to do except to make an order transferring the case to the Federal court. The making of such order was not essential to the jurisdiction of the Federal court. Shepherd v. Bradstreet, 65 Fed.

Mandamus. (1) When a county warrant is in legal form, lawfully issued, properly assigned and is presented by the legal holder thereof, in payment of any county tax for any year by the owner of the lands of personal property, the collector has no discretion whatever in the matter, and it is imperative upon him to receive the same. R. S. 1889, secs. 3205, 7604; Logan v. Barton Oo.