Volume 161 — Missouri Reports

- — Hon. O. F. Smith, Special Judge. (1) Instruction one given in behalf of respondent, does not truly declare the issues, and is .erroneous and misleading. Young v. Ridenbaugh, 61 Mo, 574. It assumes to declare the issues that are presented to the jury.

. — Hon. Jno. O. Wear, Judge. (1) Mrs. Gallaway’s deposition was incompetent, and it should have been excluded on appellants’ objection to it on that ground, when the respondent offered to read it at the trial. Messimer v. McCray, 113 Mo. 382; Chapman v. Dougherty,, 87 Mo. 622; R. S. 1889, sec. 8918; Williams v. Williams, 67 Mo. 661; Wheeler v. Tinsley, 75 Mo. 458; McAllister v. Beams, 35 Mo. App. 668.

Louis City Circuit 'Court. — Hon. Selden P. Spencer, Judge. Laws of Missouri 1849, page 67, autliorized minor females, over eighteen years of age to execute marriage contracts with the consent of parents while living, and of guardian after their death. The marriage contract between Mary F. Wrigbt and William II.

— Hon. Reuben F. Roy, Judge. A conveyance made by one who bas attained his majority, is of itself a disaffirmance of any conveyance made during minority. Craig v. Van Bebber, 100 Mo. 584; Lacey v. Pixler, 120 Mo. 383; Ridgeway v. Herbert (Mo.), 51 S. W. 1040. Silence or inaction will not prevent an infant from disaffirming his deed unless continued long enough to constitute bar under the statute. Huth v. Carondelet, 56 Mo. 209.

— Hon. E. J. Broaddm, Judge. (1) The court erred in finding that plaintiffs were heirs at law of Handy Lee, deceased, and entitled to an interest in this land. ,1 Bishop on M. D. & S., secs. 654 to 659; Johnson v. Johnson, 45 Mo. 595; Branch v. Walker, 102 N. Car. 32, 8 S. E. Rep. 896; State v. Harris, 63 N. Car. 1; Cantelou v. Hood, 56 Ala. 519; Harris v. Cooper, 31 H. C. Q. B. 182; Livingston v. Williams, 75 Tex. 653; Andrews v. Simmons, 68 Miss. 732; State v. Sapp, 10 S.…

— Son. D. W. Shackleford, Judge. (1) There was no contract entered into between Wallace and Lawson. The minds of the parties did not meet. Barton Bros. v. Hunter, 59 Mo. App. 610; Green v. Cole, 103 Mo. 70. (2) The submission to the jury of a single issue was improper. The recovery of specific real property was in issue, and the verdict of the jury should have been general. R. S. 1899, sec. 721; Majors v. Rice, 57 Mo. 384.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. (1) Witness Reeves ought to have been allowed to testify to the declaration of the motorman made immediately after the car had stopped, and before the boy was taken from under the car, and while efforts were being made to get him out from under the car, as to the exact cause of the injury. Such a declaration was admissible as a part of the res gestae. 1 Greenleaf on Evidence, see. 108; 21 Am. and Eng.

— Hon. Gallatin Craig, Judge. (1) Under the evidence, the defendant is not guilty of rape. He may be guilty of violating section 1838; if so, the case may be remanded. State v. Lacey, 111 Mo. 513-517; 2 Bishop’s Crim. Law, sec. 1132; 1 Whart’s Grim. Law, sec. 554; State v. Dalton, 106 Mo. 469. (2)' Where it appears that the verdict is unsupported by the evidence, or that injustice has been done, it is the duty of the trial court to interfere and award a new trial.

— Hon. Geo. F. Longan, Special Judge. (1) Apperson and George were both disqualified as jurors, having formed an opinion from reading the testimony of the witnesses at the coroner’s inquest. State v. Culler, 82 Mo. 623; State v. ITultz, 106 Mo. 53; State v. Robinson, 117 Mo. 649; State v. Foley, 144 Mo. 600. (2) That the objection was not made more specific is immaterial in this case. The object of specification is to apprise the court of the ground of objection.

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. (1) The court erred in rejecting evidence as to the value of the iron. The witnesses should have been permitted to express their opinion of the value of the iron generally. Railroad v. Norcross, 137 Mo. 415; Simmons v. Carrier, 68 Mo. 417.

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. (1) Assignment statutes are designed to provide a method . whereby a debtor may, under the supervision of a court, apply his assets to the payment of his debts, and to effect a pro rata distribution of such assets among all of his creditors. They are remedial and should be liberally construed to accomplish the salutary purposes of their enactment, namely, a distribution of the assets equally among all the creditors.

Louis County Circuit Court. — Hon, Rudolph Hirzel, Judge. (1) The court had no authority or right to give the jury an instruction on murder in the first degree; by so doing, it gave the jury an impression that the defendant had committed murder. (2) When “heat of passion” is used, it must be defined. And the court ought to have defined “heat of passion” in such instructions used.

<p>Appeal from St. Louis City Circuit Court. — Eon. James E. Withrow, Judge.</p> <p>(I) Instruction 4 given for defendant Bensieck, touching the contributory negligence of plaintiffs minor son, was a proper and correct declaration of law. Sly v. Nailroad, 134 Mo. 68l; Schmitz v. Railroad, 119 Mo. 256; Ridenhour v. Railroad, 102 Mo. 270; Payne v. Railroad, 129 Mo. 405; Spillane v. Railroad, 135 Mo. 414; Riley v. Railroad, 68 Mo. App. 652. (2) Instruction 5 given for defendant city, respecting the proof necessary to justify a verdict for plaintiff, was a proper declaration of law. Lindsay v. Davis, 30 Mo. 412; Jackson v. Hardin, 83 Mo. 186; Pierce v. Railroad (Mont.), 6 Am. Neg. Rep. 109.</p> <p>(1) The court clearly erred in giving instruction 4 at the instance of defendant Bensieck. The instruction exacted of the injured boy the highest degree of care of which he wa3 capable. The boy was capable of exercising the highest degree of care for his safety that a boy of his age, discretion and experience could exercise. Vet this instruction bars a recovery unless the boy, at the time of his injury, was exercising such high degree of care. (2) The plaintiff need prove only such portion of his averments as constitute his cause of action. Radcliffe v. Railroad, 90 Mo. 135; Morrow v. Surber, 97 Mo. 161; Knox County v. Groggin, 105 Mo. 191.</p>

— Hon. Jolin A. Hockaday, Judge. (1) The court erred in not more fully instructing tbe jury on tbe law as applicable to tbe case, according to tbe evidence, and tbe jury could not fully comprehend defendant’s mental responsibility, as shown by tbe instructions in tbe case. Tbe defendant established an habitual chronic state of insanity, extending all through bis life, and the burden of proof was on tbe State, to show a lucid interval, at tbe time of tbe billing.

'Appeal from St. Louis City Circuit Court. — Hon. Jas. E. Withrow, Judge. (1) The judgment in favor of Eose against Curry et al., on December 13, 1883, was res adjudicata between the parties to that suit, and as between them finally determined the superiority of his title to that under which they claimed and Eose’s right of possession. Estes v. Nell, 110 Mo. 650.

— Hon. Edward P. Gates, Judge. (1) There was no lawful assessment of defendant’s property. The assessment, as expressly charged in the petition was made in pursuance of the Act of 1897. Laws 1897, pp. 215. 216.

— Hon. J. H. Slover, Judge. (1) This court acquires jurisdiction in this appeal by reason of the defendant appellant having invoked in his answer the protection of the Constitution in regard to the violation of the provision thereof securing to defendant the right to enjoy his property and property rights and not to be deprived of them without due process of law, the ruling of the trial court being adverse to appellant’s contention.

Transferred from St. Louis Court of Appeals. (1) The purchaser of goods under a contract of sale waives his rights to damages resulting from a breach of the contract if he accepts the goods without objection or protest after he has full knowledge of all the facts constituting the breach, (a) This is the rule when the breach results from a deficiency in the quality of the goods.

— Hon. Olías. L. Dotson, Judge.' The court should have directed a verdict for the defendant. (a) The physical facts established by plaintiff’s own evidence show that deceased knew of the approach of the train, and was guilty of negligence in not getting out of danger, and that but for this negligence on his part the accident would not have occurred. Lane v. Bailroad, 132 Mo. 26; Kelsay v. Bailroad, 129 Mo. 374; Hayden v. Bailroad, 124 Mo. 573.

— I-Ion. E. P. Gates, Judge. The statute provides (Laws 1895, p. 186) that if the widow remarries, her homestead is forfeited. Rut the statute on dower (Revised Statutes 1889, section 4513), provides that the widow shall hold one-third for life. Hence, when homestead constitutes part of the dower, it can not be forfeited by the remarriage of the widow.

Charles Circuit Court. — Hon. E. M. Hughes, Judge. (1) The evidence clearly showed that plaintiff’s mother was in the situation of a passenger, entitled to the same degree of care from the defendant as if she was actually upon the train. She had bought her ticket and was on her way to the platform about the time that the train she was to take was due, when another train of defendant, running at an excessive and prohibited rate of speed, ran against and killed her.

— Hon. E. B. McKee, Judge. Privilege is classed as absolute and conditional. In this particular case it is conditionally privileged, there being evidence to show want of good faith and bad intent on the part of defendant in charging the plaintiff with adultery, and it was the duty of the court to submit the question to the jury. Townshend on Libel and Slander (4 Ed.), p.’514.

— Hon. D. W. Shackle-ford, Judge. (1) The objection to the introduction of any evidence because of the alleged insufficiency of the petition is not well taken. It stated a cause of action to foreclose the deed of trust, and that was all the defendant Ery was interested in. (2) The deed of trust was competent. There is nothing in the objection that the note therein described is not the one offered in evidence.

— Hon. N. M. Shelton, Judge. (1) While it is declared in section 20, article 2, Constitution, that “Whenever an attempt is made to take private property for a use alleged to be public, the question of whether the contemplated use be really public shall be a judicial question and as such judicially determined without regard to any legislative assertion that the use is public,” still, section 14, article 12, declares that railroads are public highways and railroad companies…

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) The pooling contract was without consideration and was purely voluntary. (2) It is too vague and indefinite in its terms to be susceptible of enforcement. (3) No time is limited, by the terms of the contract, for the duration of the pool, and hence it was terminable at the will of any party to it. Cook on Stockholders, secs. 610 and 612; Thompson’s Commentaries on the Law of Corporations, secs. 6410, 644.

— Hon. W. W. Bucher, Judge. (1) The deed from George W. Worley conveyed his interest in the land to William E. Worley, or to William Worley. •of Linn county; 'then the said George W. Worley, one of the plaintiffs, parted with his title to said land as a homéstead or otherwise. There was no evidence that Henrietta Worley, one •of the plaintiffs, and wife of said Geo. W. Worley, used and occupied the land as owner thereof, or was the manager of and head of a family.

Mandamus. (1) (a) Mandamus will lie to compel the county treasurer to pay a warrant legally drawn upon him where he has money in his hands with which to pay the same. State ex rel. v. Treasurer Callaway Co., 43 Mo. 229; State ex rel. v. Justices Bollinger Co. Ct., 48 Mo. 477; State ex rel. v. Haynes, 72 Mo. 378. (b) And where the warrant is drawn upon a special fund it is not necessary to reduce it to a judgment before resorting to mandamus.

Mandamus. (1) The ordinance in controversy is invalid because it requires the board of public improvements to make a contract with relator which involves public work. Sec. 27, art. 6, charter of St. Louis; State ex rel. v. Barlow, 48 Mo. 16; Cole v. Shrainka, 37 Mo. App. 427, 433. (2) Said ordinance is invalid because it undertakes to grant to relator the right to use the streets for a private purpose.

Louis City Circuit Court. — Hon. L. B. Valliant, Judge. (1) If Seitz had died intestate, his lands would have de*scended subject to the widow’s rights, to his two children in equal parts. To direct the descent in a different course requires plain words in the will. Every fair intendment is to be made in favor of the heir-at-law. Wright v. Hicks, 12 Ga. 163; Bender v. Dietrich, 7 W. & S. 284; Howard v. American P. Soc., 49 Mo. 291; Schouler on Wills (2 Ed.), sec. 480.

<p>Appeal from St. Louis City Circuit Court. — Hon, L. B. ValUant, Judge.</p>

— Hon. J. TI. Slover, Judge. (1) (a) The court erred in permitting plaintiff, against defendants’ objections, to read in evidence section 3 of ordinance 833, and ordinance 522, of Kansas City, Kansas. By these ordinances, a civil liability was sought to be created, in favor of plaintiff against the defendants, in the absence of any averment in the petition that defendants had accepted said ordinances. The admission of the ordinances in evidence was therefore error.

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. (1) Instructions 1 and 2, given for plaintiff, were erroneous in authorizing the jury to find against defendant, although the sewer in question burst in consequence of an extraordinary and unusual rainfall. The city was not bound to provide against a danger of this character; its obligation was merely to maintain' a sewer of sufficient capacity and strength to withstand the force and power of ordinary storms.

— Hon. E. J. BroadduSj Judge. (1) Instruction numbered 16, in bill of exceptions, is erroneous and should have permitted the jury to have passed upon the present question of sanity even though they may have found and believed that the defendant was not insane at the time of the killing.

<p>1. Certiorari: questions considered. The Supreme Court, in a certiorari proceeding, will not review the rulings of the trial court on questions whether it had jurisdiction, unless an appeal or writ of error affords no adequate remedy.</p> <p>2. Final Decree in Vacation: circuit judge: appointment oe receiver. Under the Missouri judicial system the judge of a circuit court has no authority in vacation to render a final decree or judgment in any case. A átatute which would confer on the circuit judge the authority in vacation to appoint a receiver and to hear and determine the whole issues in a suit to wind up a building and loan association, would be unconstitutional.</p> <p>3. -: meaning oe the wobd “cohrt.” The word “courts” in that part of the Constitution which vests the judicial power in certain courts therein named, is used in its technical sense. The judge is rightly called the “court” only when the judicial body -over which he presides is in session. A “court” is a judicial assembly; the judge is its presiding officer.</p> <p>4. -: BUILDING AND LOAN STATUTE: MEANING WHEN COMPARED with insurance statute. The statute concerning the winding up of building and loan associations is no authority for the rendering of a final decree in vacation. It says the process, pleadings and proceedings shall be the same as in the winding up of insurance companies, but it does not say or mean that the jurisdiction of the circuit judge in vacation shall be the same as that given by the insurance statute. Besides, the insurance statute, which provides that the same proceedings may be had in vacation as in term time, was passed under the Constitution of 1865, which did not dispose of all the judicial powers of the State, as did that of 1875, but made mention of “such other tribunals as the Legislature might prescribe.” Hence, these words have no place in the insurance statute since the Constitution of 1875 became operative.</p> <p>5. -: -: receiver. The circuit judge in vacation has authority to appoint a receiver of a building and loan association, upon a proper showing, and to require him to give bond, take possession of its assets, and preserve them until the court in due course can make judicial investigation. But he can go no further, even though the corporation’s answer is filed and presented to him along with the petition. He can not dissolve the corporation and direct the receivers to proceed to administer the estate of the association, and all such orders in vacation are void. There must be in term time an adjudication upon the statements contained in the petition. But at the next succeeding term the court can make such orders, and make any further orders for preserving the estate as the emergency demands, and whether it errs or not in so doing is not open to review in certiorari, since it then had jurisdiction both of the persons and subject-matter.</p>

— Hon. D. H. Hby, Judge. (1) There is no evidence in this case to support a verdict for rape, (a) To support a verdict of conviction for rape there must be proof of force used on the part of defendant, or intimidation; and of the utmost resistance on the .part of the prosecuting witness. R. S. 1889-, sec. 3480; State v. Burgdorf, 53 Mo. 65; State v. Perkins, 11 Mo. App. 82.

— Hon. George F. Longan, Judge. The court erred in refusing to sustain defendant’s demurrer to plaintiff’s evidence, offered at the close of plaintiff’s case: First. Plaintiff was not upon defendant’s depot grounds for the purpose of transacting any business with it. He was there as a runner for a hotel, solely in hia master s private business.

<p>1. Road: description in judgment: instruction. A description of a road as “beginning at a point ten or twelve rods north of the center of section 33,” etc., is so uncertain and indefinite as to amount to no description at all, and a judgment enjoining defendant from obstructing a road so defined, does not inform him what lands he is forbidden to fence, obstruct, etc.</p> <p>2. -: -: correction. But if the evidence shows that the beginning of the road is marked by a monument fixed by the commissioners who laid out said road, and that its course and boundaries have become well defined by use in accordance with said monuments, and the actual markings made by them, the judgment may be corrected to correspond with such facts, although the commissioners’ report itself and the petition may have wrongly stated the distance the starting point is from the center of the section.</p> <p>3. Description of Dand: monuments. In all descriptions of land, a location by courses and distances gives way to that fixed by monuments.</p>

— Hon. Rudolph Hirzel, Judge. The evidence failed to disclose facts which amount to a cause of action against this defendant There was… Held: and only held, after it has notice either actual or constructive in time to have caused the removal of the nuisance. This is clearly held, in Carvin v. St. Louis, 151 Mo. 347; Baustian v. Young, 152 Mo. 325. This case is entirely unlike the cases cited for appellant, of Norton v. St. Louis, 97 Mo. 537 and City v. Ins. Co., 107 Mo. 92.

- — How. Richard Field, Judge. (1) The settlement made by the former executrix in 1874, had only the force and effect of an annual settlement and was not a final settlement of the estate by which the probate court lost jurisdiction, (a) Because the same was not received by the court as a final settlement. Morehouse v. Ware, 78 Mo. 103.

— Hon. E. B. McKee, Judge. (1) The petition alleges a contract was made by William Steele with Mrs. McCabe for the benefit of plaintiff. The decree finds there was no contract made with Mrs. McCabe, but that William Steele did make such a contract with the plaintiff. A decree in equity must be founded upon facts embraced within the pleadings. The court could not base a decree on a state of facts not set up in the pleadings.

<p>1. Ejectment: conveyance: description: error appearing on face: reformation. The deed by its face undertook to describe five pieces of land, but, by repeating the description of one of them, only described four. It further said that the deed conveyed “in all 189.38 acres,” whereas in fact it contained only 149.38. The purpose of the deed was to convey to a son the home place, which consisted of 189.38 acres of five contiguous tracts, and if the description, instead of repeating the word “southeast,” had used the word “northeast,” the deed would have conveyed the entire farm. The grantor said before the deed was made that he intended to sell the home place to his son, and after making the deed put him in possession of the entire tract, and afterwards said he had sold it to him, and died without having otherwise disposed of the forty which was omitted from the deed. Held, that the grantor’s heir, after his death, could not recover possession of an heir’s share, in the omitted forty, the evident purpose being to convey the entire farm, and the deed will therefore be reformed in accordance with that intention.</p> <p>2. -: reforming deed: LACHES: limitations. Where the defendant, the grantee in a deed, has been in the continuous, peaceable and uninterrupted possession for twenty-six years of land which by mistake was omitted from the description, 'and his title or possession has never been questioned until suit in ejectment has been brought by the grantor’s heirs, he is not barred by the statute of limitations from asking that the deed be reformed.</p>

— Hon. J. H. Slover, Judge. (1) The court erred in refusing to instruct that benefits to the property in controversy, by reason of switch facilities, were special benefits. Railroad v. Fowler, 142 Mo. 683. (2) The court erred in admitting in evidence the report of the condemnation commissioners and in permitting counsel to comment upon it in his closing argument to the jury. Lewis on Eminent Domain, sec. 449.

F. L. Bcarritt, Judge. ■ (1) Under all the evidence the plaintiff was not entitled to recover and the court should have directed a verdict for defendant. Bradley v. Reppell, 133 Mo. 545; State ex rel. v. Gravel Road Co., 138 Mo. 332; State ex rel. v. Payne, 129 Mo. 468; Thompson on Corporations, sec. 6719; Morawetz on Corporations (2 Ed.), 746; 9 Am. & Eng.

Louis City Circuit Court. — Hon. H. D. Wood, Judge. (1) The plaintiff fully performed the contract in all respects. (a) The contract identifies the lot to be transferred by plaintiff as the one on which “is situated the double three-story brick building, marked and known as Nos. 310 and 312 Market street.” This is a more specific description of the lot to be conveyed than the general words import, which describe mere space. The house is a fixed and visible object, a monument.

<p>1. Preference: hindering other creditors: grantee’s knowledge. A. deed made by the owner of a farm to the president of a bank, in discharge of a debt owing such grantee, and of other indebtedness due the bank, and of a judgment lien and a prior mortgage, aggregating about the value of the land, if received by such grantee in good faith for such purpose, is a valid preference, notwithstanding it operates to hinder and delay other creditors and the grantor intended that it should have that effect. Mere knowledge of such intent by the grantee is not sufficient to avoid the transaction; in order to have that result he must have actually participated in the grantor’s fraudulent purpose.</p> <p>2. -: rule: assumption oe another’s debt. A debtor may prefer one creditor over another by direct payment or transfer of property, provided the property is taken in satisfaction or assumption of a just demand, and not as a mere screen to secure the property to himself.</p> <p>3. -: -: purchase from insolvent debtoe. A transfer of property as a preference by an insolvent debtor to one or more creditors in payment of a bona fide indebtedness, is governed by entirely different rules than those which apply to an ordinary purchaser from an insolvent vendor.' In the ease of a purchaser from an insolvent vendor, the purchaser’s knowledge of the fraudulent intent on the part of the vendor makes the sale voidable at the instance of other creditors of the vendor, even though the purchaser did not actually participate in that purpose. But in the case of a preference, the grantee’s knowledge of the grantor’s intention to delay and hinder other creditors, unless he actually participates in that intent, does not affect the transaction. And where no more property is conveyed to the preferred creditor than is sufficient to pay his own debts and those of others which he assumes to pay, there is no participation in the debtor’s fraudulent purpose.</p> <p>4. —-: good faith: bubden. The burden of proving the good faith-of the transaction whereby a defendant became a preferred creditor is not on him. The burden of proof rests on the party assailing the transaction as fraudulent. Nor is that burden shifted by a showing that the grantor’s purpose was to fraudulently hinder his other-creditors.</p> <p>5. -: conspiracy to defraud: evidence. A conspiracy to defraud one’s creditors can not be shown by the declaration of one of the supposed conspirators.</p> <p>G. —-■: FRAUD: PROOF: CONSIDERATION EXPRESSED IN DEED. Where the amount of indebtedness assumed and paid by the grantee in a deed is equal to or greater than the actual value of the land, it is no evidence of fraud that the expressed consideration for the deed was really larger than the amount of such indebtedness.</p> <p>7. -: -: -: remaining IN possession. Where the grantor in a deed of preference continues to remain in possession of the land, that fact, unexplained, tends to show a lack of good faith in the grantee. But where he pays the grantee a fair rent, and this is applied in paying taxes on the land and interest on the indebtedness assumed by the grantee, the grantor’s remaining in possession is no evidence that the transfer was fraudulent on the part of the grantee.</p> <p>8. -: -: -: tax lists. Tax assessment lists made out by an assessor against the grantor in a preference without consulting him, but signed by him without knowing the property conveyed to the preferred creditor was included therein, if the preferred creditor knew nothing about the matter, but actually paid the taxes, are no evidence of a fraudulent preference.</p> <p>9. -: -: -: withholding deed erom record. Where the deed of preference is withheld from record without any' agreement or understanding between the parties thereto to that effect, but by a mere oversight or neglect on the grantee’s part, and no other creditor gives the maker credit on the faith that he was the owner of the land, and there is no circumstance connected with the failure to file it from which fraud can be inferred, such withholding is not fraudulent.</p> <p>10. -: -: laches. Plaintiff lived in the neighborhood where the farm was located, and nine years after the deed was made under which the defendant claims the land, brought this suit to set that deed aside as fraudulent. He claims he knew the deed was fraudulent all the time, but did not bring the suit until the building of a railroad increased the value of the land to nearly twice the consideration mentioned in the deed. Held, that plaintiff was guilty of such laches ¡is precluded his recovery, even though the transaction was fraudulent-</p>

— Hon. Richard Field, • Judge. (1) Plaintiff’s cause' of action, as stated in tbe petition, and as shown by the evidence, did not entitle him to the appointment of a receiver, because it nowhere appears in the pleadings or evidence that plaintiff had any title to the property itself, or that he had any lien thereon, or that the property itself constituted a special fund to which plaintiff had a right to resort in satisfaction of his claim, and for the further reason that no…

— Son. F. J. Broaddus, Judge. (1) Judgment should have been rendered for plaintiff upon either of two grounds, viz.: (a) Full prepayment on account of previous indebtedness due from Nannie Crowley to the plaintiff, (b) By relying upon the promise of gift and being induced to erect valuable improvements thereon. If either of the above propositions were true, then there was equity in the bill, and the petition should not have been dismissed.

— Hon. Jno. G. Wear, Judge. ('ll The court should hare sustained defendant’s objection to the introduction of any testimony, because the petition does not state facts sufficient to constitute any cause of action. The petition states that the defendant, Horton Land & Lumber Company, was engaged as a manufacturer during the months of March, April and May, 1896, when the bond sued on covered taxes which were to accrue, if at all, during the tax year beginning June 1, 1896.

— Hon. D. P. Stratton, Judge. (1) “A personal judgment can not be rendered against a married woman for a debt contracted prior to tbe revision of 1889, of our statutes.” Bruns v. Capsticlc, 46 Mo. App. 397; Gazollo v. McCann, 63 Mo.