Volume 158 — Missouri Reports

Louis City Circuit Court. — Eon. Selden P. Spencer, Judge. .* - (1) The court erred in overruling the objections of plaintiff to the testimony of the real estate agents called as witnesses by defendant. This testimony was clearly irrelevant to any issue in the case. It certainly had no pertinency to the issue of whether or not the operation of defendant’s electric plant caused plaintiff’s houses to shake or vibrate.

— Hon. John W. Henry, Judge. (1) Where damages awarded by the jury are excessive and unwarranted, the Supreme Court will award, a new trial. G-oetz v. Arabs, 22 Mo. 170; Sawyer v. Railroad, 37 Mo. 241; Eurnish v. Railroad, 102 Mo. 148; Johnson v. Railroad, (Minn.) 69 N. W. Rep. 900. (2) Upon plaintiff’s own showing this case should be reversed on account of misconduct of counsel in argument. Gibson v. Zeitig, 24 Mo. App. 66; Norton v. Railroad, 40 Mo.

<p>1. Appeals: existence in criminal cases. An appeal in criminal cases was unknown to the common law, and if it exists at all in a given case, it is by virtue of some constitutional provision or statutory enactment.</p> <p>2. -: conviction on information. An appeal lies for the defendant from a conviction in the circuit court of a misdemeanor on information, and also from a like conviction in the criminal court of Jackson county. (Overruling State v. Brown, 153 Mo. 578.) (Sherwood, Burgess, and Marshall, JJ., dissent.)</p> <p>3. Conviction Under Unconstitutional Law. One who has been convicted under a legislative enactment declared by the Supreme Court to be unconstitutional, is entitled to his discharge.</p> <p>PER MARSHALL, 3., DISSENTING.</p> <p>Appeals: conviction on information: appeal bv state. Neither the State nor the defendant is entitled to an appeal from a conviction founded on an information in’ the circuit court. Besides, it is inconsistent to hold that the statute gives the defendant a right to an appeal from a judgment based on a properly drawn information, but denies it to the State, and if State v. Brown, 153 Mo. 578, which denies an appeal to the defendant, is to be overruled, then also should State v. Carr, 142 Mo. 607, and State v. Cornelius, 143 Mo. 179, which deny the State the right to appeal, be also overruled. (Sherwood, J., concurring.)</p> <p>PER SHERWOOD, J., DISSENTING.</p> <p>Appeals: A statutory right. An appeal is purely a right and a creature of the statute, and no such right or creature exists unless it be affirmatively granted by the statute. And neither section 2482, Revised Statutes 1899, nor any other section of the statute, gives either the State or the defendant an appeal from a judgment founded on an information, and the eases of State v. Carr, 142 Mo. 607, State v. Cornelius, 143 Mo. 179, and State v. Brown, 153 Mo. 579, are all harmonious and consistent on this point. (Burgess, J., concurring.)</p>

Lonis City Circuit Court. — Hon. D. D. Fisher, Judge. Held: as the trial court has held in this case, that the statute gives to guardians ad litem chosen by the court in civil cases, without the consent of their wards, the right to demand and recover from the wards compensation for services as such guardians, then the statute is in contravention of sections 20 and 30, article 2 of the State…

Transferred from St. Louis Court of Appeals. (1) The demurrer to the evidence ought to have been sustained. The embankment and canal were permanent structures, and the damage, therefore, suffered in 1876, was an original injury, for which compensation, present and prospective, could have been recovered. The suit not having been brought within five years after the overflow of 1876, the statute of limitations barred a recovery afterwards. Bunten v. Railroad, 41 Eed.

— Hon. W. W. Graves, Judge. (1) The court erred in holding that John B. Rice was a qualified juror. His examination shows that he was prejudiced. The court held that, because the juror “guessed” that he could discard his prejudice and render an impartial verdict upon the law and the evidence, he was competent. The statute declares a juror competent if he has an opinion formed from rumor and newspaper repbrt, unless it is such as to bias, and prejudice his mind.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. As a general proposition the relation of a' witness at the time his testimony is offered is the sole test as to his competency. No former disqualification could render him incompetent. The divorce of a wife from her husband annuls the marriage, and places her in the same situation, so far as her competency as a witness is concerned, that she was in prior to the marriage.

— Hon. Gallatin Craig, Judge. (1) This offense, if an offense has been committed, was not proven by the State. There is no doubt about a wrong having been committed, but the evidence wholly fails to connect this defendant- with that wrong. It is the duty of the court to protect the defendant, and where as in this case, there is an -entire absence of evidence tending to prove the gravamen of the offense, the instructions asked should have been given.

— Hon. T. II. Parrish} Judge. To create a title under the statute of limitations the possession must be open and notorious and continuing under claim of ownership. Fugate v. Pierce, 49 Mo. 441; Bowman v. Lee, 48 Mo. 335. Two things must concur: First, ouster of the real owner, followed by an actual possession by the adverse claimant, and second, an intention on the part of the adverse claimant to oust the owner and possess for himself.

— Hon. J. L. Fori, Judge. (1) Tbe court erred in permitting witness Wilson to answer tbe question in reference to tbe character of deceased, as follows: “Isn’t it true, Mr. Wilson, that Joseph Covert was a splendid good man and so recognized by the best people of that county?” His answer being: “He was by me.” This was not the proper manner of establishing good character or of contradicting proof of bad character. Opinions of the witness are not admissible.

— Hon. T. B. Robinson, Judge. (3) The court and not the jury must determine whether the fact sworn to was material in the judicial proceeding in which the perjury is alleged to have been committed. An instruction, therefore, which submitted this-question to the jury was erroneous. The court should have declared to the jury what part of the alleged false oath was material to the questions pending before the justice. State v. Williams, 30 Mo. 364; State v. Higgins, 124 Mo. 640.

Louis City Circuit' Court. — Ron. R. D. Wood, Judge. (1) The court below erred in deciding against appellants upon the theory that to constitute infringement there must be a resemblance almost amounting to a criminal counterfeit.

<p>Appeal from Bates Circuit Court. — Eon. Jas. E. Lay, Judge.</p> <p>(1) The power of Woodson to sell under said deed is to be strictly construed. 4 Kent (13 Ed.), 330; 2 Washburn on Real Prop. (3 Ed.), 317; 18 Am. and Eng. Ency. of Law, 938; Pettis Co. v. Gibson, 73 Mo. 502; Wood v. Kice, 103 Mo. 336; Heidelberg v. St. Francois Co., 100 Mo. 75; Price v. Courtney, 87 Mo. 392. “A power of sale like all other powers can only be exercised in the mode and upon the exact conditions prescribed in the instrument of trust.” 2 Perry on Trusts (2 Ed.), secs. 475, 783; 27 Am. and Eng. Ency. of Law, 133, and cases cited. Nor can trustee alter any of the conditions or limitations of the trust or impose new ones, or change the nature or use of trust fund. Clark v. Maguire, 16 Mo. 302. (2) Under the clear and explicit conditions of said deed from Stephens and wife, Woodson, trustee, could not sell the land in controversy until after the death of Sinah Maxwell, and the sale to Isaac Smart was void, so far as Woodson was concerned. 2 Perry on Trusts, sec. 783, supra\ Talbott v. Hamill, 151 Mo. 292; Snook v. Mun-day, 45 Atl. Eep. 1; Heermans v. Eobertson, 3 Hun 464; Hunt v. Townshend, 31 Md. 336; Blácklow v. Laws, 2 Hare 40; Styer v. Freas, 15 Pa. St. 339; Loomis v. McOlintock, 10 Watts 274; Parker v. McMillan, 55 Mich. 265; Munday v. Yawter, 3 Grattan 518; Booraen v. Wells, 19 N. J. Eq. 87; Eichardson v. Sharpe, 29 Barb. (N. Y.) 222; Dohoney v. Taylor, 79 Ky. 124; Jackson v. Lignon, 3 Leigh 161; In re Yandervoort, 1 Eedf. (N. Y.) 270; Kilpatrick v. Burrow, 54 Hun 322; Downing v. Marshall, 1 Abb. App. Dec. (N. Y.) 525; Hopkins v. Quinn, 93 Ind. 223; Davis v. Howcott, 1 Dev. & B. Eq. (N. Car.) 460; Eaper v. Sanders, 21 Grattan 60. And his deed to Smart may be collaterally assailed. See last cases cited; also Scheidt v. Crecilus, 94 Mo. 327. (3) In construing the deed from Stephens to Woodson, effect must be given the entire instrument so as to carry out the intent of grantor. Eosburgh v. Eogers, 114 Mo. 122; Long v. Timms, 107 Mo. 512; Brown v. Gibson, 82 Mo. 529; Gibson v. Bogy, 28 Mo. 478; Jamison v. Éopiano, 48 Mo. 194; Davis v. Hess, 103 Mo. 31; First Pres. Church v. Keller. 39 Mo. App. 441; McCullock v. Holmes, 111 Mo. 445; Wolf v. Dyer, 95 Mo. 545; Walton v. Drumtra, 152 Mo. 489. The grantor had a right to impose restrictions on the sale of the land, however unimportant or unessential they might appear. (4) There was no power conferred on Woodson— as shown on the face of the deed — to sell the land and reinvest the proceeds (and none can be implied). The terms of the deed amounted to a direct prohibition against a sale in the lifetime of Sinah Maxwell. (5) Isaac Smart, when he took a deed from Woodson and Sinah Maxwell, was charged with knowledge of the extent of Woodson’s powers as trustee and of every recital in deed from Stephens and wife to Woodson and purchased at his peril. 27 Am. and Eng. Ency. of Law, 264; Freeman v. Moffett, 119 Mo. 302; Patterson v. Booth, 103 Mo. 402. (6) There is no element of estoppel set up in defendant’s answer in this case. There was no recital in the deed from Gaugh to Woodson and no evidence aliunde to make out one particle of estoppel. Fine v. St. Louis Public Schools, 30 Mo. 173; Pettis Co. v. Gibson, 73 Mo. 502; Yankee v. Thompson, 51 Mo. 234. (7) (a) The decree and finding of facts set up in the equity suit show the same issues, and as to statute of limitations and the construction of the deed in controversy, they were all determined against said Smart; and this record was conclusive, not only as to all issues involved in this case, but as to all issues which could have been raised. 1 Herman on Estoppel, sec. 411, pp. 481, 482; Laffoon v. Fretwell, 24 Mo. App. 58; Dickey v. Heim, 48 Mo. App. 114; Chouteau v. Gibson, 76 Mo. 47; Gwin v. Waggoner, 116 Mo. 151; Nave v. Adams, 107 Mo. 414; Sampson v. Mitchell, 125 Mo. 238;.Moody v. Peyton, 135 Mo. 482. (b) Nor does it make any difference that the court in the decree and finding of facts dismissed plaintiff’s bill on the ground that he had an adequate remedy at law. Yan Fleet on Form. Adp, sec. 41; Munson v. Munson, 30 Conn. 433; Huntley v. Holt, 59 Conn. 105; Knowlton v. Warner, 25 HI. App. 221; Almy v. Daniels, 15 R. I. 312; Painter v. Hogue, 48 Iowa 426; McReynolds v. Railroad, 34 Mo. App. 581; s. c., 110 Mo. 484.</p> <p>(1) Sale by trustee and re-investment of proceeds which were afterwards ratified by claimants estopped them. 2 Beach on Trusts and Trustees, sec. 672; 1 Perry on Trusts, sec. 334; 3 Kerr on Eeal Prop., p. 1750, sec. 1796; People v. Force, 100 111. 549; Price v. Blankenship, 71 Mo. App. 548; Talbott v. Hamill, 151 Mo. 393. (2) The equity suit decided nothing, was not final adjudication on merits, and is not res adjudicata. 2 Yan Fleet on Form. Adj., p. 878, secs. 444, 448, 452; Martin v. McLean, 49 Mo. 361; State ex rel. v. Eailroad, 89 Mo. 578; Garrett v. Greenwell, 92 Mo. 120; McNees v. Ins. iCo., 69 Mo. App. 232; Shanklin v. Francis, 67 Mo. App. 457.</p>

Louis City Circuit Court. — Son. Sélden P. Spenoer, Judge. (1) Plaintiff’s petition does not state facts sufficient to constitute a cause of action. R. S. 18-89, sec 4513; R. S. 1899, sec. 2933; Gross v. Lange, 70 Mo. 45; Garrison v. Young, 135 Mo. 203.

<p>1. Appeals: jurisdiction: right of way: judgment for damages. Where a judgment for money alone is prayed for and obtained, the amount in dispute being less than $2,500, the appeal is to the court of appeals. Although the suit might have been tried on the theory that it was an action for the specific performance of a contract, between the vendor and vendee, of a right of way for a railroad through land, yet if the case actually tried and determined by the court was simply one for damages against one of the parties to a contract, the Supreme Court has no jurisdiction on the theory that, under the facts of the case, the title to real estate might have been involved, and a more extensive remedy applied for.</p> <p>2. - — ——:-: real estate: judgment. It is not enough to give the Supreme Court jurisdiction of the appeal that title to real estate may be drawn in question, or inquired into during the progress of the ease, but the judgment sought or rendered must directly affect or operate upon the title itself.</p>

<p>Preference: trust fund: guardian: deposit in bank. A fund deposited in a bank by a guardian arid curator of minors known by tlie bank to be so deposited by Mm as trustee for them, can not be paid in preference to the claims of other depositors, unless there is something in the circumstances of the deposit to constitute it a special deposit (that is, something which precludes the bank from mingling it with the general moneys of the bank), for if it was a general deposit the title thereto passed to the bank ¡and the relation of debtor and creditor between the bank and guardian was created, and not that of trustee and cestui que trust.</p>

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. By the deed of conveyance and dedication the legal fee in the land passed to the respondent; there was no reversion or re-entry provided for in the deed; the respondent conld not lawfully divert the use of the premises from market house purposes to an ¿ngine house for the use of the fire department, and therefore the appellants have the right to invoke the aid of a court of equity to restrain the respondent from…

— Hon. B. M. Hughes, Judge. (1) Marriage differs in many particnlars from ordinary, general or commercial contracts. It is more than a mere civil contract — it is a matter of State concern, and tbe State is a party to tbe bargain which, a man and woman make when they become bnsband and wife. And a contract to marry is assumed to be made for tbe purpose of mutual comfort and happiness. Blank v. Nolil, 112 Mo. 159; State v. Bittick, 103 Mo. 183; Dyer v. Brannock, 2 Mo.

— Hon. O. L. Hobson, Judge. (1) Defendant’s demurrer to the evidence should have been sustained. The clause in the bill of lading requiring notice was,not complied with and the court should have directed a verdict for the defendant. Rice v. Railroad, 63 Mo. 314; Flamed v. Railroad, 51 Mo. App. 482; Sprague v. Railroad, 34 Kan. 347; Railroad v. Koch, 47 Kan. 753; Greenwood on Public Policy, rule 455, p. 517.

— Hon. W. W. Wood, Judge. (1) The court below committed error in holding that only five-tenths of testator’s real estate and seven-tenths of his personal property was disposed of- by the will in controversy. Unless the contrary clearly appears upon the face of, the will — which is not true in the case at bar — the presumption of law is, that testator intended to dispose of all his property by the will in question.

<p>1. Appeals: jurisdiction: constitutionality of law. Until the trial court has finally passed upon the-constitutionality of an act, the Supreme Court does not have jurisdiction of the appeal. And where a bank by its -answer pleads a general denial and three separate special defenses, among them that an act in reference to usury is unconstitutional, and a motion to strike out the three special defenses is sustained, and after judgment against defendant the court grants him a new trial on the ground that it had erred in sustaining the motion to strike out, it will not be held that it passed upon the constitutionality of such usury act.</p> <p>2. -: -: -: new trial. The granting of a new trial by the trial court on the ground that it had erred in striking out certain special defenses contained in the answer, among them a plea that a certain act of the legislature was unconstitutional, is not adjudging the act unconstitutional, 'but only saying that the question shall be one of those to be decided when the ease is tried again.</p> <p>3. Usury: what is. If the transaction is a loan and the money charged or exacted for the use of the money loaned exceeds the legal rate of interest, it is usury, no matter what words it may be clothed in or how it may be disguised. But if the transaction is a purchase of a previously executed and uttered note, or other evidence of debt, such charge is as legal as any purchase of any other merchantable article.</p> <p>4. -: effect of. The taint of usury does not wipe out or destroy the debt, but by the act of 1891 (which has been declared by this court to be constitutional) it destroys the lien or mortgage given to secure the debt.</p> <p>5. -: WHO mat interpose defense. The plea of usury is a privilege personal to the debtor or his privies in blood, contract or representation, and an attaching creditor of the mortgagor is a privy in representation with the mortgagor, and hence can interpose the defense of a usurious note to a claim by the mortgagee of the mortgaged property by him attached.</p>

<p>Appeal from Jackson Circuit Court. — Eon. Edward L. Scarritt, Judge.</p>

Louis City Circuit Court. — Hon. John-A. Tally, Judge. (1) Plaintiff, the Thorn & Huhkins Lime and Cement company, had a full and plenary remedy at law, by prosecuting its action begun and pending against the Lyons Construction company and its surety upon the bond incorporated in the sewer contract for the protection of parties supplying materials for the construction of the sewer.

Louis City Circuit Court. — Hon. H. T). Wood, Judge. (1) By Ms deed to Nolker, Tower imposed upon the remaining portion of his property in said Block No. 1366, a servitude for the benefit of Nolker’s lot, which passed to plaintiff with the latter as an easement appurtenant thereto. Washburn’s Easements and Servitudes (4 Ed.), 115; Coughlin v. Barker, 46 Mo. App. 54.

Louis City Circuit Court. — Hon. John. A. Tally, Judge. At the close of plaintiffs’ testimony the court should have instructed the jury to find for defendant as requested by it. The plaintiff has two theories upon which he claims that the evidence shows the manner- of the death of young Neville, as follows: First.

— Hon. Jno. A. Hochaday, Judge. (1) The administrator pendente lite is a temporary-receiver ; and the failure of the contestants to give a supersedeas bond in the will case had the effect of restoring the testator’s property to the executor. State ex rel. v. Woodson, 128 Mo. 497; State ex rel. v. Hirzel, 137 Mo. 435; State ex rel. v. Klein, 137 Mo. 673; State ex rel. v. Dillon, 98 Mo. 90.

<p>Appeal: title to real estate: trespass: appellate jurisdiction. In an action for damages for trespass in cutting and carrying away trees from a tract of land, while the title to such land must be inquired into, and the true ownership thereof ascertained, such inquiry into the title is not sufficient to give the Supreme Court jurisdiction on the ground that title to real estate is involved. In order to confer such jurisdiction the judgment to be rendered must directly affect the title.</p>

— Hon. J. L. Fort, Judge. (1) “Before a court is authorized to sustain a demurrer to the evidence because of its insufficiency, it must appear that, admitting all the evidence introduced by the plaintiff to be absolutely true, and giving him the benefit of every reasonable inference to be deduced therefrom, he is not entitled to recover.” This rule is alike applicable to trials to. the court as well as trials before a jury.

— Hon. James T. Neville, Judge. (1) In its settlements with county officials, .for fees collected, or other funds, the county court acts in a ministerial or administrative capacity, and its acts not being judicial have not the conclusive effect of ordinary judgments.

Louis City Circuit Court. — Hon. James E. Withrow, Judge. (1) A municipal corporation authorized by the State to construct wharves and to improve its harbor may impose wharfage or port charges upon vessels and water craft for the use of such improved wharf or harbor. Keokuk Northern Line Packet Co. v. Keokuk, 95 U. S. 80; Northwestern Union Packet Oo. y. St. Louis, 100 U. S. 423; Wiggins Eerry Co. y. East St. Louis, 107 U. S. 365.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) The petition in this case states a cause of action upon promissory notes, and in order for plaintiffs to recover it was necessary for them to allege and prove that the notes sued on were executed by the North End Building and Loan Association. Showing only that they were attested by the secretary is not sufficient for that purpose. Cole v. Armour, 55 S. W. Rep. 476; Smith v. Roach, 59 Mo. App. 115; Coxv. Bishop, 55 Mo.

<p>Appeal: title to real estate: appellate jurisdiction. In order to give the Supreme Court jurisdiction of a cause on the ground that title to real estate is involved, the judgment to be-rendered must directly affect the title. The fact that a collateral inquiry into the title is necessarily involved in the trial is not sufficient to confer jurisdiction.</p>

— Hon. W. N. Evans, Judge. (1) Tbe defendant seeks by answer and cross-bill to defeat tbe legal title of plaintiffs, derived to them by mesne conveyances from tbe defendant, tbe first being a deed of trust to secure a note of $38 to Geo. B. Waters, and the second a trustee’s deed foreclosing such deed of trust to Geo.

<p>1. Expired Contract: equitable relief: redemption: extension of time. A defendant who has obtained possession of land under a contract of purchase to pay the purchase money in five equal annual installments, can not complain, in a suit in ejectment, that the court, under his equitable answer, gave him nine months after his failure to pay the first installment in which to redeem, because the contract had- in fact expired on his failure to pay the first installment. And in fixing the terms under which he may redeem the court is .not •bound by the terms of the contract.</p> <p>2. -: — : -: -: EIXINS RATE OE INTEREST: NO EXCEPTION. The appellate court will not convict the trial court of error for fixing the rate of interest which the amount for the redemption of land should bear at a higher rate than seems to be authorized by the evidence, unless the error was called to the attention of the trial court.</p> <p>3. Ejectment: redemption: no exceptions: no error. In a suit in ejectment, the decree of the court permitting defendant to redeem, although not authorized by the answer or evidence, will not be reversed on appeal unless the plaintiff objected thereto at the trial. Neither party can be heard to object on appeal.</p>

<p>1. Will: attestation: at request of testator. Although there was no formal, verbal declaration by the testator in the presence of the witnesses that it was his last will, and no formal, verbal request by him of the witnesses to attest it, yet if the testator dictated the will, and knew the witnesses had been sent for to attest it, and were waiting outside the room while it was being prepared, and that they were called in for that purpose, and in their presence he signed it, and then the draughtsman in his presence requested them to sign it, this makes a sufficient request on the part of the testator of the witnesses to attest the will.</p> <p>2. -: mental capacity. Where the testator knew what act he was performing, what property he possessed, the disposition he was making of it and the persons and objects of his bounty, especially if these facts appear from the face of the will itself, and he dictated its terms, his mental capacity to make the will is established.-</p> <p>3. -: -: WEAKENED by medicines. If the testator’s physician prescribed spirits of ammonia, suppositories of quinine sulphate, carbonate of ammonia, syrup of ipecac, distilled water and .syrup of tolu, carbonate of creosote, spiritus fermenti and syrup of tolu, to be given at short intervals, for two weeks before testator’s death, and they were so given, they were prima facie insufficient to impair his capacity to make a will.</p> <p>4. -:-; whiskey. The court will not declare, as a matter of law, that the giving of an ounce and a half of whiskey in teaspoonful doses every three hours, a short time before the will was made, to a testator sixty years old, suffering from consumption or a kindred disease, impaired his mental capacity to make a will..</p> <p>5. -: undue influence. Undue influence means such influence as amounts to over persuasion, coercion, or force, destroying the free agency and will power of the testator.</p> <p>G. -: -: priest -and confessions. What passed between testator and a priest in confession, is a privileged communication, and neither a court nor a jury have a right to predicate a decision of a case upon undisclosed matters occurring there. And although the testator may have given $1,000 each for the repose of the souls of himself, wife, father and mother, when the cost of masses is usually only from $25 to $50, yet what passed between the priest and testator at the time the confession was heard, when taken in connection with such bequests, do not afford such support for the charge of undue influence as to justify the submission of that issue to the jury, if the testimony of the priest, introduced by contestants, the only witness on the point, not only denies the charge of undue influence, but affirmatively shows it to be untrue. The suit must be determined by the facts proved, and not by suspicions.</p> <p>7. -: masses. The giving of the major portion of his estate by a testator, worth forty or fifty thousand dollars, having no wife, children or other descendants, for masses for the repose of the souls of himself, wife, mother and father, some of whom had been dead for many years, is not of itself sufficient evidence to justify or warrant a jury in finding that he was incompetent to make a will or that he was unduly influenced.</p>

Jackson Circuit Court: — Hon. Jno. W. Henry, Judge. The chattel mortgages to Pierce and defendant, under which defendant claims, not having been lawfully acknowledged and recorded, did not become valid liens on the lazy S cattle ns against appellants, who by virtue of their mortgage became subsequent purchasers of the same cattle, and who were also creditors 'of Skinner, the common debtor of all the parties.

— Hon. W. W. Wood, Judge. (1) The defendant, in his answer, undertakes to set out facts which entitle him to affirmative equitable relief. In his prayer, he likewise asks affirmative equitable relief. In discussing the case, therefore, we shall do so, upon the theory that the proceeding is one in equity, and shall refrain from discussing the declarations of law given and refused by the trial court. Conran v. Sellew, 28 Mo. 322; Wendover v. Baker, 121 Mo. 290.

<p>Appeal from Cass Circuit Court. — Hon. W. W. Wood, Judge.</p>

<p>Appeal from Cass Circuit Court. — Hon. W. W. Wood, Judge.</p>

<p>Appeal from Cass Circuit Court. — Hon. W. W. Wood, J udge.</p>

Clair Circuit Court. — Hon. Jas. H. Lay, Judge. (1) Upon the entire record the interpleader is not entitled to recover, and the court should have directed a verdict for plaintiff. State ex rel. v. O’Neill, 52 S. W. Rep. 240; State ex rel. v. Merritt, 70 Mo. 283; Reid v. Lloyd, 52 Mo. App. 278. (2) The giving of the note for $2,934, payable in two years, under the circumstances of the case rendered the transaction fraudulent.

Louis City Circuit Court. — Hon. Jacob Klein> Judge. (1) The proceeding is really against tbe land, and under execution enforcing judgment therein tbe levy is only against tbe land; and from considerations of public policy tbe contractor is protected, if be bas no other information and bis order of publication embraces tbe names of tbe record owners. Payne v. Lott, 90 Mo. pp. 676, 680, 68Í; Yance v. Corrigan, 78 Mo. 94; State ex rel.

— Hon. W. 8. Herndon, Judge. (1) Tbe court erred in excluding tbe testimony of William Henry. Tbe deed is a quitclaim and is not contradicted by tbe evidence offered. Besides, Henry’s statement to tbe parties and tbe declaration of Mrs. Crane and Edward Smith, were part of tbe res gestae and show tbe title or interest sbe intended to convey. It siho-ws further that tbe interest to be conveyed was known to Smith, the grantee, and that he acquiesced in it.

— Hon. E. M. Hughes, Judge. (1) In tbe first count of the amended petition, plaintiff only sued for the installment of fixed rental for that month, together with other installments for subsequent months, omitting from the account all averments regarding the said royalties; but in the second count of the amended petition she sued to recover the royalties for the said month of August, 1895, which were embraced in the original petition, also to recover royalties which accrued…

— Hon. G. A. Anthony, J udge. (1) At common law under our Missouri statutes, the husband was, and is, entitled to curtesy in all of wife’s realty whether a legal or an equitable separate estate, notwithstandshe may have the right to dispose of and convey such equitable estate, without joining her husband in the conveyance. 1 Kerr on Beal Estate, secs. 842, 843; Winkler v. Winkler, 18 W. Ya. 455; Alderson v. Alderson (W. Ya.), 33 S. E. Bep. 228.

Louis1 City Circuit Court. — Hon. D. D. Fisher, Judge. (1) The City of St. Louis, by virtue of its charter, has authority to pave or otherwise improve its sidewalks, and to provide for the payment of the cost thereof by special assessment against the abutting property. Charter, art. 3, sec. 26, clause 2; art. 6, sec. 18. And the city may enter into annual contracts with a public contractor for the construction and reconstruction of such sidewalks.

Transferred from Kansas City Court of Appeals. (1) The identical question whether the court should instruct the jury to find against appellant on this- counterclaim was before this court on a former appeal and decided in favor of this appellant. That decision settles the question, and the circuit court had no right to ignore it. This question ,is res adjudicaba. Forester v. Railroad, 26 Mo. App. 122; Revis v. Railroad, 30 Mo. App. 564; McKinney v. Harral, 36 Mo.

Transferred from St. Louis Court of Appeals. (1) Equity does not aid a party to recover back usurious interest. Nelson v. Betts, 21 Mo. App. 234; Kirkpatrick v. Smith, 55 Mo. 389; Banson v. Hays, 39 Mo: 445. (2) If suit had been brought by W. Gr. Swinney to collect this note, then, by the statute, Vandergrif could not get credit for any usury, if any, that was paid on the chattel mortgage indebtedness.

<p>1. Municipal Corporations: delegated powers: discretion. The Legislature may delegate to municipal corporations the power to open, improve and pave streets; and in the exercise of such powers by such corporations, its discretion within the legitimate sphere of its authority is proportionately as wide as is the like discretion possessed by the legislature of a State, and is not subject to judicial revision or reversal.</p> <p>2. -: BENEFIT ASSESSMENT: NOTICE TO TAXPAYER. In a proceeding by a city to enforce the lien of a special tax-bill, for the cost of paving a street, issued against the owner of a lot abutting thereon, notice to such taxpayer is not required. Such proceeding calls for no inquiry into the weight of evidence, nor for anything in the nature of a judicial examination, and nothing could be changed by hearing the taxpayer. No right of his is therefore invaded.</p> <p>3. -: ORDINANCE: REPAIRS: ultra VIRES. The requirement of a city ordinance and contract providing for maintaining and repairing for five years a street upon which paving is done, iá not ultra vires on the part of the city.</p> <p>4. -: SPECIAL TAX-BILL: FEDERAL CONSTITUTION: DUE PROCESS OF law. The city council by resolution declared the work of paving a street to a stated extent, and with a pavement of a defined character, •to be necessary. This resolution was published for ten days, and the contract of paving let to the lowest and best bidder, conformably to the city charter. The contract expressly provided that the work should be paid for by the issuance of special tax-bills. The cost of the pavement was to be apportioned and charged against the lots fronting thereon according to the method prescribed by the charter, which is, that the total cost of the work shall be apportioned to the frontage of the several lots or tracts of land abutting upon the improvement. Held, that a special tax-bill issued in accordance with the above provisions of the city charter is a valid lien upon" the tract of land against which it is issued, and is not in violation of the fourteenth amendment to the Federal Constitution which prohibits the fairing of private property without due process of law.</p>

<p>Appeal from Jackson Circuit Court. — Mon. J. M. Slover, Judge.</p>

<p>1. Incorporation of City: judgment: res adjudioata. Neither the State, nor its Attorney-General, nor its prosecuting attorney can by quo warranto, or by any other writ or independent process known to the law, question the validity of the incorporation .of a city by the county court of the county, acting within the scope of its constitutional and statutory authority, unless fraud and collusion on the part of such court is charged and proven, or unless fraud has been so practiced upon it, in the matter of procuring the order, that for that reason it might be treated as fraudulent. Unless such is shown, sueh judgment is final and conclusive, binding on all courts.</p> <p>2. -: PETITION SIGNED BY MAJORITY TAXABLE INHABITANTS: JURISDICTION. In a suit to have declared void the incorporation of a city, the question of whether or not the petition therefor was signed by a majority of the taxable inhabitants of the district is immaterial, because such fact was not jurisdictional — was not necessary to the county court’s .right to hear and order the incorporation of the town or city. And for the same reason, the question of who are taxable inhabitants is immaterial. And said court, having authority to determine such facts on the filing of a petition purporting to be signed by a majority of the inhabitants of the district, its finding thereon can not be inquired into, except on appeal or writ of error, and certainly not by quo warranto, unless illegality in the proceedings or fraud in the procurement of the order was practiced.</p> <p>3. Quo Warranto. Quo warranto is not a, writ of correction or review.</p> <p>4. -: CHARACTER OE PROOF AND PLEADING: INCORPORATION OE town. To assail an order of the county court incorporating a city or town, or to disturb the result of its judgment, by quo warranto, all the essential infirmities and iniquities of such order, resulting from the manner of its procurement or the fraud of the court, must be alleged and proven with the same strictness that would be required in a bill of equity having for its object the annullment of the final judgment of a court of record. But if there has be§n fraud the writ of quo warranto will avail to oust the city of its incorporated rights.</p> <p>5. Incorporation of Towns: pasture lands. The incorporation of a town can not be declared illegal because one or two inhabitants therein, at the time of such incorporation, were temporarily using a few lots or blocks for what they called agricultural or pastural purposes. It is not the use for which a small fraction of the designated district may be employed, that determines whether the statutory conditions necessary to incorporation are present, but the general character, fitness, use and adaptability of the united whole. The incorporation will not be defeated by lands used for agricultural purposes solely, if they have become so surrounded and connected with lands used for town and city purposes as to constitute a part thereof.</p> <p>6. -: EXTENSION OF LIMITS: P.ABTIES DEFENDANT. A Suit to have declared void the incorporation of a city, on the ground that the ordinance extending its corporate limits was not approved by a majority of its qualified voters, must be brought against the city itself, and not its officers.</p>

Louis City Circuit Court. — Hon. Selden P Spencer, Judge. The verdict of twenty years against John Coffee, and the verdict of only five years against Prank Schaffer, shows that the jury were so prejudiced against the defendant Coffee that the verdict itself is the result of passion and should be set aside. There'is -absolutely nothing in this record which would warrant such >a discrimination in the sentences.

— Hon. J. L. Fori, Judge. (1) Tbe testimony of tbe witness tbat defendant some times carried a large Colts’ pistol, wbicb bad a small slide or cateb on tbe side tbat stuck out from tbe weapon, bad no conneetion. with, the pistol with which the defendant actually struck the deceased, but was a remote and separate transaction altogether, and should not have been admitted. Evidence of independent and disconnected matters are not admissible.

County Court. — Hon. J. L. Fort, Judge. (1) Tbe indictment is fatally defective. It does not charge that defendant assaulted deceased with a pistol or with anything else. State v. Eurgerson, 152 Mo. 92. It does not conclude “and so the grand' jurors aforesaid,” but simply says, “and so the jurors aforesaid,” and for this reason is fatally defective. State v. Eurgerson, 152 Mo. 92; State v. Meyers, 99 Mo. 107; State v. Stacy, 103 Mo-. 11.

<p>Indictment: “under oath.” An indictment for murder is bad which fails to state that tbe grand jurors “under tbeir oatb” do say that the defen ant did feloniously, etc., kill and murder, etc. It is necessary that the indictment state, “And so, the grand jury upon their oath, do say.”</p>

— Hon. J. O. Lamson, Judge. (1) The portion of defendant’s answer stricken out constituted a good defense. Springfield Eng. Co. v. Donovan, 147 Mo. 622; Hughes v. Ass’n (Tenn.), 46 S. W. Rep. 362; R. S. 1889, sec. 2812. The application, written bid, and tibe action of the board of directors, as pleas, constituted a good def ense, and show a full compliance with the law.

— Hon. J. O. Lamson, Judge. (1) Appellants contend that the only question presented by the record in this case is whether or not the instrument sued on comes under the head of “bond, bill of exchange or promissory note.” If it does, then under R. S. 1889, sec, 2042, now R. S. 1899, sec. 597, the judgment in the case of Reed Bros. v. R. D. O. Nicholson, was properly taken- at the August term, 1896, defendant having been personally served more than fifteen days before the…

Louis City Circuit Court. — Hon. Leroy B. Vailiant, Judge. (1) In 27 Am. and Eng. Ency. of Law, p. 949 is found this statement-: “It is settled1 by a multitude of decisions that the right to plead usury is a privilege personal to the debtor.” Webb on- Usury, sec. 365 ; Tyler on- Usu-ry, p. 403; Ransom v. Hays, 39 Mo. 445; Hill v. Taylor, 125 Mo. 331; Vette v. Geist, 55 S. W. Rep. 871. (2) The finding was for the wrong party, and should have been for garnishee.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) The court erred in permitting defendant, Abraham Slupsky, to testify.- When one p’arty to the contract is dead the other party is incompetent. R. S. 1899, sec. 4652; Meier v. Thieman, 90 Mo. 433; Chapman v. Dougherty, 87 Mo. 617; Ring v. Jamison, 66 Mo. 424; Wood v. Mathews, 73 Mo.- 477; Stanton v. Ryan, 41 Mo. 514.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. . (1) In an 'action against the city of St. Louis for damages for injuries sustained upon a public highway by reason of its defective condition,, it is not necessary to join as a co-defendant with the city any third party who may be also liable by reason of his having created the defect. Badgley v. St. Louis, 149 Mo. 122.

— Hon. GJiarles F. Strop, Judge. (1) In partition sales, all tbe parties to tbe proceeding, as well as tbe purchasers', are entitled to tbe protection of tbe court. Goodie v. Crow, 51 Mo. 212. (2) While the approval of a partition sale rests largely in the discretion* of the trial court, mere inadequacy of price is n'ot sufficient ground upon which to set aside the sale. 17 Am. and Eng. Ency. of Law, 795.

— Hon. E. M. Hughes, Judge. (1) (a) Tbe assignee of a note secured by a chattel mortgage can maintain in bis own name an action of replevin for tbe recovery of tbe mortgaged property. Tbe indorse1ment of the note (if valid) carried tbe mortgage (if it was a legal instrument) with it. Tbe debt and security are inseparable. Tbe assignee of a note secured by a chattel mortgage may in this state maintain replevin in bis own name. Kingsland & Eerguson Mfg. Co. v. Grissman, 28 Mo.

<p>Transferred from St. Louis Court of Appeals.</p>