Volume 162 — Missouri Reports

— Hon. W. W. Graves, Judge. (1) The Act of May 4, 1899, is a revenue measure and imposes a tax. The title or phraseology of a statute can not control its ultimate meaning and validity. This must be determined by the courts upon an examination of its true nature and effect.

— Hon. Richard Field, Judge. (1) Tbe court permitted tbe defendant to prove by witnesses that they bad known plaintiff before and after tbe accident, and that there was no difference in his looks and appearances after and before.

— Hon. W. W. Wood, Judge. (1) Where parol agreement is made to adopt a child and the child in good faith carries out the agreement by part performance, the contract is valid, and will be specifically enforced in equity.

— Hon. Geo. F. Longan, Judge. (1) The legal title shown by the record was vested in the appellant. The effect of the deeds to Elizabeth and her husband was to vest in them an estate in entirety in the land in controversy, and the husband as the survivor took the whole estate. R. S. 1899, sec. 4600; Modrell v. Riddle, 82 Mo. 35. (2) This title passed to the plaintiff by the deed from Phillip Carroll.

— Mon. W. W. Wood, Judge. (1) The mortgagee is entitled to credit for taxes paid. Goocb v. Botts, 110 Mo. 419. (2) Inadequacy of bids does not avoid sale. Vail v. Jacobs, 62 Mo. 130. (3)- The mortgagee is entitled to possession until debt is paid and can not be ejected until then, and limitation does not run while he is in possession. Hubbell v. Moiden, 53 N. Y. 225; Eee v. Swingley, 13 Pac. 375; 15 Am. and Eng. Ency. Law (1 Ed.), p. 819.

— Hon. Edward P. Gates, Judge. (1) Registry of a deed is only evidence of notice to after-purchasers from the same grantor. 20 Am. and Eng.

Louis City Circuit Court. — Ron. Jno. A. Tally, Judge. (1) Tbe findings of fact made by tbe court at request of McFarland are erroneous, because tbe evidence shows conclusively tbat McFarland and Vette reached a complete settlement and termination of tbe contract between them which both were ready to perform but for tbe interference of tbe Buckingham garnishment. This court will review all tbe evidence and will correct tbe findings of tbe trial court if found erroneous.

— Ron. R. O. Timmonds, Special Judge. (1) The court erred in permitting counsel for the State to examine defendant as to whether he had written letters to the prosecuting witness ánd as to his interpretation of the statements therein contained. He was not interrogated on the subject, on direct examination, and the same was not referred to by him. The admission of this evidence, over the objection of defendant, was clearly prejudicial, and constitutes reversible error.

— Son. D. W. Bhacldeford, Judge. (1) (a) Upon the death of her husband, Samuel Newton, plaintiff became endowed of one-third part of all the lands whereof her husband, or any other person to his use, was seized of an estate of inheritance at any time during his marriage. R. S. 1889, sec. 4513. This dower right of the widow, together with her homestead right, gave her all that she was entitled to in the real estate deeded to defendant by his brother, Samuel Newton.

— Hon. W. N. Evans, Judge. An assault with a deadly weapon with intent to kill is a felony, and it has been held not necessary to charge the manner in which the assault was made. State v. Chandler, 24 Mo. 371; State v. Clayton, 100 Mo. 516; State v. Wood, 124 Mo. 412: State v. Jones, 86 Mo. 623.

— Hon. Reuben F. Roy, Judge. (1) The court found affirmatively that the land in controversy was at the time of the levy and sale to plaintiff Tapley under the Jacobs judgment, a part of Ware’s homestead, but that Ware and his vendee were estopped from asserting the homestead right as against the plaintiff. If the land in controversy was a part of Ware’s homestead, then the Jacobs judgment constituted no lien on it, and a sale thereunder conveyed no title to the purchaser.

— Hon. D. W. Shacldeford, Judge. (1) On January 30, 1899, the State, over the objection and exception of defendant, dismissed said cause pending in Cass county, Missouri, and the judgment recited that he be discharged and that he go hence without day. This was a judgment discharging defendant from said cause, and he could plead same in bar of any other proceedings by the State. 1 Chitty’s Grim. Law, 461; Eogers v. Gosnell, 51 Mo. 468.

<p>Appeals: jurisdiction. Judgment was for defendant, and the amount of plaintiff’s demand was $4,371.95 and costs, nothing being said in the petition about interest. Held, that “the amount in dispute” is less than $4,500, and hence, under the Act of 1901, the appeal must be transferred to the proper court of appeals.</p>

— Hon. J. H. Blover, Judge. (1) Instruction lj given by tbe court at tbe instance of tbe plaintiff, in view of the plaintiff’s testimony, is erroneous. In its present form, it enables tbe plaintiff to avail himself of a presumption contrary to what he swears be knew. Nixon v. Railroad, 141 Mo. 439; Brannock v. Elmore, 144 Mo. 65 ; Roddy v. Railroad, 104 Mo. 150. (2) Tbe court erred in refusing to give instruction 6, offered by tbe defendant.

— Hon, Gallatin Graig, Judge In order to hold the wife as guilty in a prosecution of this kind the State was hound to show that the wife acted independently and was not coerced by the husband. The plan must have originated with her, and she must have been the responsible actor, not the servant of her husband’s will.

<p>1. Partnership: demand fob money:- silence: evidence. Where plaintiff’s right to recover judgment against three defendants on notes signed by one of them is predicated on the theory that the three were partners in the purchase and sale of land, it is proper to permit one of them to testify, as showing there was no partnership, that the one in whose name the title was taken did not call on him for any money towards paying for the land for fifteen months after their written contract was signed, and not until it was apparent that the venture would result in a loss. 'Such evidence is admissible as showing how the contract was regarded among them.</p> <p>2. Finding of Facts: appellate practice. Where the finding of facts was separate and apart from the conclusions of law reached by the court sitting as a jury, and no exceptions were saved to such finding, it stands as a special verdict, or an agreed case; and if the conclusions of law under the facts so found were correct, the judgment must be affirmed; otherwise, reversed. But this does not mean that every declaration of law given must have been correct, or that the judgment must be reversed if any error was committed in either refusing or modifying certain instructions offered. On the eontrary, the result is the test, and if that was in accordance with the facts found and the law of the case, the judgment will be affirmed.</p> <p>3. -: partnership: participation in proeits. An agreement to participate in the profits arising from the purchase and sale of lands does not constitute the parties to the agreement partners. Three defendants agreed among themselves that, in view of the location of a large factory by one of them, another would convey to him a tract of land 600 by 2,500 feet for his factory, and buy at least a section of land in the neighborhood in his own name, and after reimbursing himself for the purchase money by selling lots, the profits from 'such sales would be divided equally between him, the manufacturer and the other defendant who brought them together. The lands were bought on credit, which was not contemplated by the agreement, and notes signed by the one defendant given in payment. Some of the lots were sold by him but not enough to pay the purchase price of the land, the selling price being greatly decreased by a collapse of the land speculations and the failure of the factory, and sometime afterwards the holder of the notes, who had never known any one in the transaction but the ostensible, purchaser, brought thereon suit against the three defendants on the theory that they were partners in the purchase of the land. Held, that there was no such community of interest as made the defendants partners.</p> <p>4. -: -: -: books OF account. And a clause in the agreement to keep books of account showing the moneys paid for the land and the amounts received on the salé thereof, and to keep such books open to the inspection of the others, and the mailing of a trial balance sheet thereof to the other defendants, did not tend to prove the partnership. Each member of a partnership has the right to inspect the books without any agreement, and hence this clause is inconsistent with the theory that there was a partnership.</p>

— Hon. Jno. W. Henry, Judge. (1) Tbe plaintiff, at the time he accepted employment from the city was presumed, as a matter of law, to know of the existence of the ordinance introduced in evidence, which provided that his salary as clerk should be in full compensation for the services which he might render to the city as notary public. With this knowledge he entered into the employment of the city.

— Ron. Jos. D. Perlcins, Judge. (1) The trial court had authority to order a special ¿rand jury. State v. Harris, 73 Mo. 287; State v. Cunningham, 130 Mo. 507. Defendant failed to raise the objection as to the legality of the grand jury until after verdict. Having failed to bring it to the áttention of the court befpre “verdict found” he will be held as having waived whatever defect there may be so far as his statutory right is considered. State v. Harris, supra.

— Hon. J. O. Lamson, Judge. (1) The order of the court in sustaining defendants’ motion to strike out plaintiffs’ second amended petition, does not state any reasons why it was sustained.

Louis City Circuit Court. — Hón. John A. Talty, Judge. (1) The petition does not state any cause of action against either defendant. (2) The petition does-not state any cause of action against the leasehold interest of Judson M. Thompson. State ex rel. v. Thompson, 149 Mo. 441. (3) The judgment in this case is in its nature such an entirety that, one part being bad, the whole of the judgment should be reversed.

— Hon. B. J. Broaddus, Judge, (1) The deed to Henry Dilley should not be admitted as evidence. There is nothing appearing from it from which jurisdiction of the probate court can be established, (a) It nowhere appears that there was any petition for sale for payment of debts, (b) Or that exhibits required by law were filed, (c) Or that land was in fact sold to pay debt.

— Non. Jas. T. Neville, Judge. (1) Inasmuch as Damrill was dead at the time of the trial of this case, Mills was not a competent witness as to his transactions with Damrill affecting the title to this property. Chapman v. Dougherty, 87 Mo. 617.

Louis City Circuit Court. — Hon. D. J). Fisher, Judge. (1) The demurrer to the evidence as to Harry Rosenberg ought- to have been sustained, and the instruction given, under which the jury were left to find him guilty, was absolutely without warrant of law. There was .no evidence that Harry Rosenberg was interested in his father’s business, or that he made the contract for himself.

Louis City Circuit Court. — Hon. Ler.oy B. ■ Valliant, Judge. (1) Plaintiffs established a complete and perfect title to the property sued for and are entitled to recover. (2) The evidence shows that defendants have no title to the property. Their deeds have been construed and the location of their property determined by an adjudication which is conclusive and binding on them. West v. Bretelle, 115 Mo. 653.

— Hon. Argus Oox, Judge. (1) The offense of arson is comsummated by the least burning of a house. The charring of a floor or wall is sufficient and it makes no difference how soon the fire is extinguished. Wharton on Criminal Law (10 Ed.), sec. 826.

<p>Habeas Corpus: application. to supreme court. An application for release on habeas corpus, asserting that relator’s imprisonment is illegal on the ground that the ordinance under which he was convicted is void, is insufficient when made to the Supreme Court, under Revised Statutes 1899, section 3613, providing that a person applying for the writ who is held in custody on a charge of misdemeanor shall apply to the judge of the circuit court in the county in which he is held in custody, if such judge be in the county; there being no such allegations in the petition.</p>

— Hon. Chas. F. Strop, Judge. (1) The single question in this case is, whether or not the land involved is a part of the property required by law to be assessed by the State board for the assessment and equalization of railroad property. If so, the judgment should be reversed; if not, it ought to stand. The solution of this question depends solely upon the statutes in force at the time.

— Hon. P. G. Si&p (1) The. court should have set aside the verdict and granted the defendants a new trial for the reason that the verdict was contrary to the evidence and the unquestionable weight •of it, and was rendered in absolute disregard of the instructions of the court, and manifestly “the result obtained by the verdict must thereupon be ascribed to prejudice, passion or partiality and not to that calm weighing of the facts in evidence which should always characterize…

— Hon. W. N. Hvans, J udge. (1) We contend that the taxes levied for school purposes in excess of forty cents on the $100 valuation, where the certificates of the district clerks fail to show that such excess was voted by the taxpayers, are illegal.

— Hon. E. J. Broaddus, Judge. (1) Our registry act provides that no instrument in writing, which the law required to be acknowledged and recorded, shall be valid except between the parties thereto and such as have actual notice thereof, until the same shall be deposited with the recorder for record. R. S. 1899, sec.’ 925. (2) Innocent purchaser for value by quitclaim deed acquires title as against prior unrecorded conveyances.

— Hon. W. W. Wood, Judge. (1) In a case where the answer is a virtual admission of plaintiff’s cause of action, but asks affirmative relief on equitable grounds, the entire ease is converted into one in equity, to be governed by the rules of equity practice. O’Day v. Conn, 131 Mo. 325; Schuster v. Schuster, 93 Mo. 443; Allen v. Logan, 96 Mo-. 591; Wendover v. Baker, 121 Mo. 289.

— Hon. Henry G. Riley, Judge. (1) The judgment is not supported by the evidence. The testimony of plaintiff and her witnesses is too loose and uncertain to .justify the judgment of the court. There is no testimony from which the court can arrive at a conclusion that the notes had been paid, at the time of the sale.

Transferred from Kansas City Court of Appeals. (1) The trial court committed error in giving plaintiff’s instruction 1, and in refusing defendant’s instruction 2; and this is true, whether the case be treated as a common-law action for negligence, or as an action against defendant as a carrier, or as an action under the provisions of section 2615, Revised Statutes 1889.

<p>Railure to Comply With Rule: no abstract: dismissal. This ease is in the Supreme Court on a complete transcript. No abstract of record was filed. The statement fails to state the nature of the suit, or the substance of the pleadings, or what, if any, judgment was rendered, or what proceedings were had in the case, or whether motion for new trial or a bill of exceptions was filed. Held, that the case must be dismissed because of a failure to comply with rules 12 and 13 which require an abstract sufficient to give a full and complete understanding of all questions presented to this court for decision.</p>

Louis Oounty Circuit Court. — Hon. Rudolph Hirzel, Judge. It being an issue in the case as to tbe plaintiff’s ownership of the property, the plaintiff offering no proof of ownership, was not entitled to recover, and the jury properly found a verdict in favor of the defendant.

<p>1. Replevin: property in custodia uesis: parties and privies. Goods placed in the hands of a plaintiff under a writ of replevin are in custodia ■legis until the final determination of the suit, and until' that time he has no right to sell or dispose of them, and if they are sold by him or by others under his direction (for instance, by a regularly licensed warehouseman to whom plaintiff had delivered them for keeping, only and by the auctioneer to whom the warehouseman delivered them under an order from plaintiff) and afterwards defendant is adjudged to have been their owner at the time replevined, and exercising his statutory election, demands their return, such, plaintiff and all privies (in this case, the warehouseman and auctioneer) are liable, as in conversion, for the value of the goods. And the liability of the privies in such case attaches whether or not at the time they aided in the sale of the goods they knew they belonged to plaintiff. (Following Mohr v. Langan, 77 Mo. App. 481, and overruling Coen v. Watkins, 62 Mo. App. 502, and disapproving of the obiter doctrine announced in Donohoe v. McAleer, 37 Mo. 312.)</p> <p>2. --■:-:-: third parties. As to parties to a replevin suit or their grantees or privies, the property is in custodia legis pending the determination of the suit, and can not be sold by the party in possession or levied upon by either party or their privies. But as to third persons the pendency of the replevin suit does not place the property in custodia legis, and does not bar their right to proceed against it by proper judicial process to establish their rights to such property as being paramount to that of either of the parties to the replevin suit. (Overruling Bank v. Owen, 79 Mo. 429.)</p>

— Hon. Edward P. Gates, J udge. (1) When a note is given, its execution relates back to tbe inception of tbe contract from which it arose — particularly when, as in the ease at bar, the note in question was dated February 1, 1886, the time when the debt it evidences actually existed, as is shown by the evidence of the defense in the case. County of Montgomery v. Auekley, 92 Mo. 126; Block v. Morrison, 112 Mo. 356; Morris v-. Bird, 11 Mass. 436.

<p>1. Appellate Jurisdiction: federal constitution. In order to give the Supreme Court appellate jurisdiction on the ground that the case involves the construction of the Constitution of the United States, it must affirmatively appear from the record that the protection of that Constitution was invoked in the trial court and denied by that court to the losing party there. And where the only question raised by the pleadings or instructions or by any proceeding had in the trial court, is the question as to fraud in the procurement of the notes sued on and the failure of the consideration therefor, there is no Pederá! question involved.</p> <p>2. -: -: statute: time of taking effect. A contention that a statute of Arkansas did not take effect until -after the notes in suit were exeeutéd, involves the applicability of the statute to the suit, but does not involve the constitutionality of the act.</p>

— Son. Richard Field, Judge. (1) This is not a ease where the line was unknown but the line had been agreed upon, fixed and marked with a hedge by the owners of both tracts, and when this is done, followed by possession, the agreed line becomes the true line and can not be changed. Elynn v. Walker, 151 Mo. 550;- Hedges v. Pollard, 149 Mo. 225; Brummell v. Harris, 148 Mo. 431.

Mandamus, (1) It is fii-mly established in the jurisprudence of this State and elsewhere that when, by law, a vote is required or permitted to be taken and a majority of the legal voters is mentioned in such law as being necessary to carry the proposed measure, such majority must be a majority of all the legal voters voting at such election.

<p>1. Note: reading before EXECUTION. One who is sui juris can not release himself from the payment of a judgment on a note which contained a power of attorney to confess 'judgment, by a plea that he did not read the note before he signed it and did not know it contained such terms, if he had full opportunity to read it and there was no fraud, misrepresentation, trick or concealment in the procurement of the note.</p> <p>2. -: -: province of equity: parol EVIDENCE. In the absence of fraud or mistake, parol evidence is not admissible to contradict or vary a written contract.</p> <p>3. -: suit on judgment: defenses. After a note has been merged into a foreign judgment and suit is brought on that judgment in this State, the defenses that might have been available if properly interposed in the suit on the note are not available here. Fraud in the note constituting the cause of action is not a good defense in a suit on the judgment into which it has been merged. Only fraud exercised in the very act of procuring the judgment is available for an attack on the judgment.</p> <p>4. -: cognovit: foreign judgment. A judgment without process or actual appearance, on a note containing a cognovit authorizing any attorney at law to appear in any court of the United States, waive process, enter appearance and confess judgment against the maker for the amount due, including interest and costs, and release all errors, is authorized by the laws of Ohio, where the note in this ease was made. And being a valid judgment in that State, it is entitled under the Federal Constitution “to full faith and credit” when sued on in this State.</p> <p>Held, by Valliant, J., dissenting, that a judgment may be valid in the State where it is rendered, yet the Federal law does not require the courts of this State to acknowledge its validity, if actual service of process was not had in the court of the other State which rendered judgment, or if defendant did not in reality enter his appearance. And the Missouri courts having no authority to render judgment upon a note without process or appearance, or notice or knowledge, a judgment valid in the State where the note was made, should not be recognized here as binding if the maker of the note did not know at the time that it contained such cognovit.</p> <p>5. -: -: -: limitations. Nor is such judgment affected by the fact that the note was barred by limitation under the laws of Missouri at the time suit was brought thereon in Ohio, if the judgment, which is the basis of the suit in this State, was not so barred.</p>

Transferred from Kansas City Court of Appeals. The amount appealed from and in controversy on this appeal is the sum of $1,160, for which judgment was rendered against appellants in the trial court. If the judgment is affirmed it will be for said sum of $1,160; hence, that is really the amount involved 'in this appeal. That amount being less than $2,500, the Court of Appeals, and not the Supreme Court, has jurisdiction of the appeal.

— lion. Richard Field> Judge. It was error to refuse to grant defendant’s demurrer to tbe plaintiff’s evidence prayed at tbe close of plaintiff’s case, and to refuse to instruct tbe jury at tbe close of all tbe evidence that tbe plaintiff could not recover for the following reasons: (1) Plaintiff bad been familiar witb tbe crossing for many years, and well knew whatever obstacles or difficulties there were to bearing or seeing the approach of a train from tbe east.

— Hon. Rudolph Hirzel, Judge. (1) The record proper, that is, the petition, answer and reply, show that the intestate came to his death after the Act of February 9, 1897, took effect, and the facts stated show that but for the provision in said law, plaintiff would have no right of recovery. The question of the constitutionality of said act is therefore before the court irrespective of the question whether the bill of exceptions was properly filed.

— Ron. L. B. Woodside, Judge. (1) It is the duty of the county courts of the several counties, at the May term, every year, to appropriate, apportion and subdivide the revenues.collected and to be collected, and moneys received and to be received. The money collected and received would be money on hand or surplus revenue. R. S. 1899, sec. 9283.

— Son. Jno. A. Sockaday, Judge. (1) The trial court committed reversible error in giving and permitting to be read to the jury defendants’ instruction number 2.

Louis. City Circuit Court. — Hon. Jas. E. With-row, Judge. The instrument before the court is a voluntary assignment, as contemplated in section 323, Revised Statutes 1889, relating to voluntary assignments.

— Ron. D. W'. Shackleford Judge. (1) Tbe petition stated no cause of action as tbe Legislature bad by its solemn enactment extended tbe time for bringing suits on personal taxes until tbe tbirty-first day of Decernber, 1895, and this suit being commenced on the fifth day of November, 1895, was prematurely brought and plaintiff can not recover. Laws 1895, pp. 243, 245.

— Hon. P. G. Stepp, Judge. (1) Tbe first count in tbe indictment is worthless for the reasons: First. It does not allege that the mortal wound, the homicidal act, was “feloniously,” etc., given. State v. Green, 111 Mo. 588; State v. Herrell, 97 Mo. 108; State v. Emerich, 87 Mo. 115; State v. Eeaster, 25 Mo. 327; State v. Eairlamb, 121 Mo. 155; State v. Deffenbaeher, 51 Mo. 27; State v. Murdock, 9 Mo. 740; State v. Clayton, 100 Mo. 519; State v. Rice, 149 Mo. 466. Second.

— Hon. E. R. McKee, Judge. (1) The county court, as the administrative agent of the county, had full power and authority to make the contract with plaintiff. It pertained to a matter directly affecting the interests committed to its charge, and it would have been remiss in the performance of its duties had it not employed counsel familiar with Federal court procedure to take charge of and. manage the county’s defense to the suit.

<p>1. Appellate Practice: bill of exceptions: finding of facts: judge’s signature. Where a bill of exceptions was not signed, a signing of the findings of fact under the hand and seal of the judge, three months before the bill of exceptions was ready to file, can not be considered as a signing of the bill, and hence did not cure the defect.</p> <p>2. -: -: statement IN transcript: defect. A statement, written in the transcript after the close of the term, that defendant filed a bill of exceptions signed by the judge, was not sufficient to cure a defect arising from the absence of the judge’s signature to the bill.</p> <p>3. -: -: motion foe new trial: NO REFERENCE. Where the motion for a new' trial was copied in the record subsequent to the judge’s signature to an alleged bill of exceptions, and the motion was -not referred to in the alleged bill, it was not incorporated therein and could not be considered.</p>