Volume 153 — Missouri Reports

Louis City Circuit Court. — Ron. P. B. Filter aft, Judge. (1) The statute of limitations can be urged as a defense in an action of ejectment under a general denial. Stocker v. Green, 94 Mo. 280; Coleman v. Drane, 116 Mo. 391. (2) The admissions .in open court, by plaintiffs, are equivalent to saying that defendant and Yitrey, his grantor, had been in open, notorious and continuous possession of the strip in question, cultivating the same for 39 years.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. (1) Florida had the right to call upon defendants, Penny and Boucher, to release the deed of trust of record. He held and controlled it at the time, and their release was legally operative. The doctrine of subrogation could not be invoked by plaintiffs under the facte as disclosed by the evidence in the case. Grady v. O’Reilly, 116 Mo. 346; Bunn v. Lindsay, 95 Mo. 250.

<p>1. Public Office: salary. A public officer is not entitled to his salary by virtue of a contract, express or implied. The right to the salary which the statute or ordinance prescribes, exists as a creature of law, and as an incident to the office; and that salary is to be paid him whether or not he neglects his official duties, or performs services for which it is no fair compensation.</p> <p>2. -: -: ABSENT ON PERSONAL BUSINESS. No deduction can be made from the salary of the mayor of St. Louis because of his absence from the city on private business. Nor is this holding in conflict with the clause in the city’s charter that another officer during his absence shall be acting mayor and "receive the same compensation as the mayor.”</p>

Mandamus. (1) The Act of March. 15, 1899, is constitutional. Eirst. It is established law that the State has the power to impose a police force upon its municipalities, and compel their support out of the municipal revenues derived from taxation. 1 Dillon on Mun. Oorp. (4 Ed.), secs. 58 and 61; Tiedeman on Mun.

Appeal'from St. Louis County Circuit Court. — Eon. Rudolph Eirzel, Judge. (1) Tbe depositions not being subscribed, and there being nothing in itihe certificate of the notary indicating either a waiver of signatures or consent to the taking of the depositions in shorthand, they were in fact incompetent and inadmissible as evidence when objected to. Steckman v. Harber, 55 Mo. App. 81; R. S. 1889, secs. 4453-4455.

Louis Oity‘Circuit Court. — Hon. Leroy B. Yalliant, Judge. (1) All* the space lying east of the west line of the wharf as established by ordinance 5403 has been dedicated by deed as a public wharf. The portion thereof allotted by the lower court to the plaintiff was improperly adjudged to her. (a) Resting in estoppel, it is wholly immaterial whether the deed is a warranty deed or a, quitclaim deed or arises out of matter in pais. Greenl. on Evid.

Quo Warranto. (1) -The contract entered into between Owens, Hoffman .and Towns was a corrupt bargain, and constitutes bribery within the meaning of that term as used in the election laws. R. S. 1889, sec. 3722; Laws 1893, p. 157, secs. 1, 2, 3 and 10; 10 Am. and Eng. Ency. of Law (2 Ed.), pp. 783 to 794; 4 'Am. and Eng. Ency. of Law (2 Ed.), pp. 911, 912; State ex rel. v. Collier, 72 Mo. 13; Harding v. Stokes, 1 M. & W. 354; Chatham’s case, 2 P. R. & B. El.

Quo Warranto. (1) The county clerk had no right to decide upon which People’s party ticket the names of the fusion county candidates should be printed and there being two People’s party State tickets certified to him in regular form if was his duty to print the names of the fusion county candidates under both said tickets. People ex rel. v. Dist. Court of Arapahoe Co., 31 Pac.

— Hon. Joseph D. Perkins, Judge. (1) Tbe first use to be made by a city of taxes collected is to maintain its organization and pay its ordinary, necessary running expenses. And the evidence showing the revenue for each year to be insufficient to pay its ordinary current expenses ■to maintain its organization and to pay these hydrant rentals, the contract with plaintiff is void as being in excess of the taxing power of the city. Dillon Mun. Oorp.

— Hon. J. H. Slover, Judge; (1) Tbe petition fails to state a cause of action.

- — Hon. Andrew Ellison, Judge. (1) Section 18, chap. 63, G. S. 1865, on the subject of railroad subscription provides that “upon the making of such subscription by any county, city or town as… Held: 58 Mo. 213; Christian v. New-berry, 61 Mo. 451; Werner v. Peacock, 31 Mo. App. 245; Lee v. Hollister, 5 Eed.

— Eon. E. M. Eughes, Judge. (1) After satisfaction entered by a mortgagee or the beneficiary in a deed of trust on margin of record the land becomes thereby discharged from the lien, and the legal title revests in the mortgagor. Sec. 7096, R. S. 1889; McNair v. Pieotle, 83 Mo. 57; Gale v. Mensing, 20 Mo. 461; Jackson v. Cunningham, 28 Mo. App. 354; Blanchard v. Baker, 29 Mo. 441; Dickerson v. Bridges, 48 S. W. 825.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. (1) A policeman, appointed as such by the board of police commissioners of the city of St. Louis, is entitled to serve for a fixed and definite period of four years from and after the date of his appointment. Laws of 1860-61, p. 449, sec. 6 (2 R. S. Mo. 1889, p. 2195).

Louis City Circuit Court. — lion. John A. Talty, Judge. (1) Tbe court below erred in instructing tbe jury to find for plaintiff on tbe issue of libel or no libel, only tbe fact of publication being admitted, tbe jury thus being deprived of tbe power to render a general verdict on that issue of libel or no libel.

— Hon. H. O. Riley, Judge. (1) Tlie law contemplates that all lands subject to overflow from the same source, that can be protected by the same levee, or system of levees, shall be included in one levee district. E. S. 1889, sec. 6669.

— lion. J. W. Alexander, Special Judge. • (1) The issue should have been confined to undue influence. West v. West, 144 Mo. 132. There was no allegation or evidence of incapacity to make a will, and this court can not determine on what ground the jury found against the will, and the cause must be reversed. Cash v. Lust, 142 Mo. 630.

Hughes, Appeal from Lincoln Circuit Court. — Hon. E. M. Judge. (1) The mother died in Eebruary, 1883, and from that time until his marriage, in 1884, about 18 months, Sumner Oox lived alone on the land, keeping batch. The plaintiff’s debt was contracted in March, 1883, when Sumner Oox was living alone on the land. He was not a housekeeper, nor was he the head of a family. .

Louis City Circuit Court. — lion. D. D. Fisher, Judge. Held: citing 2 Redfield on Railways, pp. 577, 578, that the city of St. Louis had such power, even without legislative grant. The same proposition is held in Bunkman v. Railroad, 95 Mo. 241; Grube v. Railroad, 98 Mo. 336; Rafferty v. Railroad, 91 Mo. 37.

— Hon. John A. Hockaday, Judge. (1) If defendant entered into a marriage contract ■with the plaintiff, believing at the time that she was a chaste and virtuous woman, when in fact she was not, she can not recover in their action. Irving v. Greenwood., 1 Car. & Payne, 350: Young v. Murphy, 3 Bing.

Louis City Circuit Court. — Hon. John A. Talty, Judge. The court erred in giving the peremptory instruction at the close of plaintiff’s case, for the following reasons: (1) Where, as in this case, a testator unjustly discriminates against three of his children and in favor of those who lived with him and were entrusted with the management and control of his business and had access fo his moneys, together with the other facts of his old age, blindness and general debility and…

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. (1) Instruction numbered 6 properly declared the law. “One who attempts to cross over a sidewalk, as part of a road known to him to be dangerous, when the dangerous place could have been easily avoided, as by passing around it, or taking another side of the road, is wanting in due care, and the court may so say as a matter of law.” Cohn v. City of Kansas, 108 Mo. 393; Gerdes v. Iron & Foundry Co., 124 Mo. 355;…

— Hon. W. W. Fry, Special Judge.' (1) Tbe trial court committed error in overruling plaintiff’s motion to strike out those parts of defendants’ answer which alleged that certain of the plaintiffs had petitioned the court for the appointment of trustees to hold certain funds mentioned in the paper in controversy, and had accepted the benefit of certain provisions in said paper; and also committed error in admitting, against the objections of the plaintiffs, evidence, offered…

— Hon. Andrew •Ellison, Judge. (1) Under the act of April 11, 1895 (Laws 1895, p. 259), the instructions asked by plaintiff should have been given. The passage of that act ipso facto added to the school district the territory lately annexed to the city. Litson v. Smith, 68 Mo. App. 39L (2) Section 1466, E. S. 1889 is a valid statute. The power to extend is in no way dependent upon the proviso relating to exemption.

— Hon. H. L. Bcarritt, Judge. (1) Defendants demurrer to plaintiff’s testimony should have been sustained, or the court should have given the peremptory instruction in defendant’s favor at the close of all the testimony.

Louis City Circuit Court. — Hon. Thomas A. Bussell, Judge. (1) Defendants, motion to strike tlie third amended (being plaintiffs’ fourth) petition from the files should have been sustained, (a) The fourth petition stated an entirely new cause of action, (b) After the demurrer to the second amended (being plaintiffs’ third) petition -had been sustained, defendants were entitled to judgment; and it was error to allow plaintiffs to file a fourth petition.

— Hon. J. O. Lamson, Judge. (1) The fireman, engineer, brakeman and conductor were f ellow servants, and Ithe conductor was not a vice-principal as to either the engineer or fireman. McGowan v. Railroad, 61 Mo. 528; Marshall v. Sticker, 68 Mo. 308; Shaub v. Railroad, 106 Mo. 75; Rutledge v. Railroad, 123 Mo. 121; Ryan v. McOulley, 123 Mo. 636; Sherrin v. Railroad, 103 Mo. 378; Moran v. Brown, 27 Mo. App. 487; Corbett v. Railroad, 26 Mo.

— Hon. W. W. Wood, Judge. (1) The application of payments must be made to such debts as the debtor was legally bound to pay, and not to such as he was not legally bound to pay. Poindexter v. LaRoche, 7 Smed. & M. (Miss.) 699; Beck y. Hass, 31 Mo. App. 180.

— Hon. John. A. Hochaday, Judge. (1) The verdict of the jury is according to the law and the evidence. There being no error committed in the trial of the case and the jury being the sole judge of the guilt or innocence of the defendant, the court will not interfere with their verdict. State v. Moxley, 115 Mo. 644; State v. Cook, 58 Mo. 548; State v. Musick, 71 Mo. 401.

<p>1. Ejectment: adverse possession: time it began. One whose possession at its inception was not adverse but consistent with the title of the true owner, must show when he began to hold the land adversely. And unless he does this by some unequivocal conduct or claim, his possession will not be held to be adverse, however long he may occupy the land.</p> <p>2. -: -: UNDER CLAIM OF ownership. To constitute title by limitations, the possession must be under claim of ownership, besides being open, notorious, and continuous for ten consecutive years.</p> <p>3. -: improvements. Entry upon land claiming only the improvements and not the land itself does not constitute adverse possession.</p>

— Hon. W. L. Jarrott, Special Judge. (1) It clearly appears from the evidence that there was no “human being” in the part of the house occupied by Young and his family at the ¡time of the burning. The rooms occupied by each family were the “dwelling house” of that family only. So in burglary and larceny. State v. Davis, 138 Mo. 107; State v. Dale, 141 Mo. 284; State v. Burdett, 145 Mo. 674.

— Son. L. B. Woodside, ' Judge. In the case at bar there is absolutely no evidence showing that at the time of the alleged seduction or at any other time, .the prosecutrix was an “unmarried female.” This fact should have been shown in evidence by the State. Where there is no evidence that at the time of the alleged seduction the prosecutrix was an unmarried female, a conviction will not be sustained. State v. Wheeler, 108 Mo. 658.

<p>1. Burglary: eeoeiving stolen goods. Certain stolen goods were found the night after their theft, in defendant’s trunk, and between the mattresses of his bed. There was no evidence of defendant’s presence in the room at or after the time of the burglary, up to the time of his arrest. The State showed that, after being taken to jail, defendant stated to a detective, “I am in this;” that said property was first brought to the rear of a restaurant, a short distance from defendant’s room; that he knew the parties that came there with it; and that he knew he had done wrong in allowing it to go into his place. Upon the detective asking him who the parties were, defendant refused to talk further. Held, that the testimony showed defendant guilty of receiving stolen goods, but would not sustain a conviction of burglary.</p> <p>2. -: -: CONFLICT IN EVIDENCE AND INDICTMENT. Defendant was indicted for burglary, the stolen goods being found in his room. The State introduced evidence of statements by defendant that he knew the parties.who had stolen the goods, and that he had done wrong in allowing them to be brought to his place. Held, that the State, having given credit to the theory that defendant had received the stolen goods, by offering the admissions, could not insist on a conviction of burglary, based on that portion of the evidence relating alone to recent possession of the stolen goods.</p>

— Hon. Reuben F. Roy, Judge. (1) The testimony of tbe sheriff, jailer and Dr. Clark, as to tbe examination, appearance and tbe condition of defendant’s leg, on tbe day of bis arrest, and tbe expressions of opinion by them that this condition was tbe result of a human bite, was incompetent and illegal. By tbe admission of this testimony, a right of defendant, recognized at common law and guaranteed by our Bill of Rights, was invaded. Constitution, art. II, sec. 23.

Louis City Circuit Court. — Hon. John A. Tally, Judge. (1) The witnesses from whom the defendant intended to obtain this newly discovered evidence, did not make affidavit thereto, but the defendant alone makes the affidavit. As to what the new witnesses would testify to, this does not satisfy the statute. The affidavit of the witness himself must' be produced or his absence accounted for. State' v. McLaughlin, 27 Mo.

•Appeal from Ralls Oircnit Oonrt. — Son. John Megowan, Special Judge. The itirial court had no right to extend the time of filing the motion beyond the statutory term of four days and more especially to a time in Vacation of court. Section 4270, R. S. 1889, especially provides that a motion must be filed before judgment and within four days after the rendition of the verdict. This statute has been held to be mandatory.

Louis City Circuit Court. — Hon. John A. Tatty, Judge. The court has frequently, in fact, universally held that where there is evidence showing guilt, the verdict will not be overturned on that ground. It is only where there is a total failure of evidence that such an objection will be considered. As to the strength of the evidence, the rule is to leave it entirely to the judgment and wisdom of the jury, and under no circumstances will their province be invaded.

Transferred from St. Louis Court of Appeals. (1) A conveyance wholly or partially voluntary which renders the grantor insolvent, can always be set aside at the instance of an existing creditor, without any proof of fraudulent intent either on the part: of the grantor or grantee, because a man must be “just before he is generous” and can not give away property as against existing debts. 8 Am. and Eng. Ency. of Law, 752; Loes v. Murphy, 45 Mo. App. 519; Bump on Fraud. Oonv.

Louis City Circuit Court. — Eon. John A. Talty, Judge/ In the alleged instrument of .adoption, relied on in this case by plaintiff, there is no acknowledgment at all by the plaintiff, and the only acknowledgment is by N. J. Sarazin, “that he executed the same as his free act and deed.” And, as under the statute “the deed (of adoption) shall be executed, acknowledged, and recorded in the county of the residence of the persons executing the same, as in the case of conveyance…

<p>Appeal from Macon Circuit Court. — Hon. Andrew Ellison, Judge.</p>

— Hon. J. L. Fort, Judge. (1) The court erred in refusing to admit testimony tending to show that deceased died of neglect and not of the wounds inflicted. State v. Landgraf, 95 Mo. 102; Coffman v. Com., 10 Bush. (Ey.) 495. (2) Instruction numbered 2 uses the term “in a heat of passion,” without defining or attempting to define the meaning of the term. It should have been defined. State v. Andrew, 76 Mo. 101.

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge: In an action at law, although the case is tried by the court sitting as a jury, if no instructions are asked or given, the judgment must be affirmed, if there is substantial evidence in the record to support it. Clark v. Railroad, 127 Mo. 255; Miller v. Breneke, 83 'Mo. 163; Hamilton v. Boggess, 63 Mo. 233; Wilson v. Railroad, 46 Mo. 36; Hernán v. Handlan, 59 Mo. App. 490; Gentry v. Templeton, 47 Mo. App. 55.

Louis City Circuit Court. — Hon. Leroy B. Valliant, Judge. (1) Ey interposing the demurrers to appellant’s petition the respondents conceded the truth of all the averments of the petition. Shields ,v. Johnson Co., 144 Mo. 77; Dodson v. Lomax, 113 Mo. 555; McGinnis v. Geo. Knapp & Co., 109 Mo. 131; Wolff v. Ward, 104 Mo. 127. (a) And they thereby also conceded to he true the conclusions of fact drawn from the matters recited in the petition.

Louis City Circuit Court. — Hon. J. A. Tatty, Judge. (1) There was no exception at the time to the failure of the court to instruct on all the law of the case and therefore no advantage can be taken of that now. State v. Cantiña, 118 Mo. 100. (2) The affidavits are by a girl and a man who simply swore they were present and saw the robbery but did not recognize either of the defendants as being one of those taking part in it.

Transferred from Kansas City Court of Appeals. (1) It is a final judgment upon an information and not an indictment that is appealed from, and is without statutory ’ authority therefor. Secs. 1 and 2 of art. VI, Constitution of 1875. (2) If the right to an appeal is purely statutory, then the appeal in this case must be dismissed, unless there be some authority of that character therefor. In re Bauer, 112 Mo. 231; St. Louis v. White, 99 Mo. 475; Sec. 4277, R. S. 1889.

-lion. B. L. Scarritt, Judge. (1) That the judgment must conform to the pleading is self-evident and clearly established. Eithian v. Monks, 43 Mo. 502; Black on Judg., sec. 242; Freeman on’Judg., sec. 121; Clemons v. Helihan, 72 N. W. Rep. 270; Ashbrook v. Roberts, 59 Cal. 97; Lipp v. Hasback, 12 Neb. 371. (2) Bagley, by his own acts, is estopped from claiming a lien on the interest in the property purchased by complainant.

— Hon. James i?, Blover, Judge. (1) The court should have permitted the case to have gone to the jury. It was for the jury to say whether the sidewalk was safe or not; and whether respondent was guilty of negligence or not. Appellant contends that the court erred in sustaining demurrer to the evidence and asks that this court remand the cause.

Transferred from St. Lonis Court of Appeals.- (1) A verbal agreement that one of two instruments is to bave priority over tke other may be shown. Linville v. Savage, 58 Mo. 248; Rogers v. Tucker, 94 Mo. 346. (2) The recital in a deed of trust that it is given to secure a balance of purchase money does not ipso facto make it a prior lien, and proof of an agreement that it was not to be a prior lien does not tend to change or alter the terms of a written instrument.

— Mon. J ames T. Neville, Judge. (1) A Iona fide creditor has the right to take security for his debt, although he may know the effect it will have to hinder or delay other creditors and although he may also know that the debtor thereby intends to hinder, delay or defeat other creditors, provided such secured creditors does not participate in the fraudulent purpose, or intent of said debtor.

— lion. A. M. Woodson, Judge. (1) Even if the deed, of trust was legally void for want of delivery, it was intended by the parties to be a mortgage, or lien on the land, and it was an equitable mortgage, and appellant bought it as such, and his rights against Ensor, or against these plaintiffs who claim Ensor’s title, are the same in equity that they would be if the mortgage was legally perfect. Martin v. Nixon, 92 Mo. 26.

— Hon. W. W. Wood, Judge. The court erred in excluding the written memorandum offered in evidence by plaintiff, being the memorandum made at the sale under the deed of trust, showing that the real estate in question was sold to defendant Hartman.

— lion. Joseph D. Perhins, Judge. , (1) To permit plaintiffs to recover in tbis action would deprive Knowles of bis property without notice, without a day in court and without due process of law. They seek to recover solely as creditors of Knowles.

— Hon. Joseph D. Perlcins, • Judge. (1) Tbe power to assess property for state and. county ■taxes is vested solely in tbe county assessor. Acts 1893, p. 216; E. S. 1889, secs. 7532, 7533, 7534, 7535, 7536, 7537. And bis mode of so doing is restricted. B. S. 1889, secs. 7534, 7553, 7564. Tbe board of equalization was powerless to make an assessment, and wasrestricted to “equalizing” tbe values only of tbe property already assessed by tbe assessor.

<p>Appeals: jurisdiction: constitutional question,-, how raised. In an appellate court a ease involving the construction of the Constitution of the United States or of this State, within the meaning of that section of the Constitution governing appellate jurisdiction, is one, only, wherein it plainly appears upon the face of the record in the appellate court that the question of a particular construction thereof was raised, passed upon and the ruling thereon excepted to in some appropriate manner, by the losing party, in the trial court. And unless the record shows such facts, the case will be transferred back to the court of appeals from which it came.</p>

— Son. A. 'M. Woodson, Judge. ' (1) The alleged contract in release of dower is not sustained by any direct evidence. No agreement or writing of any kind, signed by appellant to that effect is shown. No witness swears to any such oral agreement on her part.

— Hon. E. J. Broaddus, Judge. (1) The deed from Charles Barger to George N. Rice; conveying him eighty acres of land and describing it as the north half of northeast quarter of section seventeen, township fifty, range twenfy-eight, was a complete, full and definite description of land circumscribing and defining the lines of the land he was entitled to by the regular congressional subdivision of land and that respondent can not go beyond the south line of said eighty-acre…