Volume 167 — Missouri Reports

— Hon. W. L. Jarrott, Acting Judge. (1) The right given by section 3623 to invest the proceeds of a homestead, in a new homestead, which shall possess all the immunities of the old homestead, is confined to the homestead created by the act of which that section is a part, and refers to the homestead defined by our homestead act and not a homestead created by the laws of another State. Our homestead act can not be enlarged upon by the courts.

— Hon. W. W. Bucher, J udge. (1) The mistake was one of fact, not of law, and the petition sufficiently alleges mistake and error in the overpayment, inasmuch as it alleges it to have been made through error, and by mistake; and if the overpayment was in fact made, respondent can not in equity and good conscience retain that part of the payment that was excessive. Yeater v. Hines, 24 Mo. App. 619; Ashley v. Jennings, 48 Mo: App. 142.

— Hon. G. A. Denton, Special Judge. (1) This petition can not be read without concluding that the prime object is an atack upon the corporate existence of Amoret school district. It pleads that there was such de facto school district, for it is pleaded that such organization was acting as a school district, by levying taxes, issuing bonds, and building a schoolhouse.

— Hon. G. B. McAfee, Judge. (1) The general denial admits the falsity of the publication. Sheahan v. Collins, 20 111. 330; Townshend on Slander and Libel, sec. 403. (2) In a plea of mitigation nothing should be alleged that tends to justify or show that the publication is true. Regmer v. Cabot, 2 Gilm. 140; Sheahan v. Collins, 20 111. 326; Newell on Def., SI. and Lib., 898; Storey v. Early, 86 111. 461.

— Hon. Nat. M. Shelton, Special Judge. (1) The parties are entitled to the judgment that was in fact rendered by the court. Their rights can not be defeated by the mistake of the clerk in entering the judgment or the error of the attorney in drafting the decree. Or, in other words, is the clerk greater than the court?

— Son. Frank B. Dearing, Judge. (1) This is an equity case and the issues presented in it will be reviewed by this court as chancellors. Benne v. Schnecko, 100 Mo. 258; McElroy v. Maxwell, 101-Mo. 308. (2) The property being susceptible to division and being one tract, a portion of one section, all connected, and sued on as one tract, it was the duty of the sheriff to subdivide the land and sell only so much as was necessary to satisfy the judgment and costs.

— Hon. A. D. Bwmes, Judge. (1) There is no question of an innocent purchaser. Holdsworth v. Shannon, 113 Mo. 525. (2) Inadequacy is not a question in the case. The plaintiff has received nothing for his equity in the Cameron property. The deeds read in evidence show beyond question that Clark had not a shadow of title to the land described in the deed of trust.

— Hon. D. H. Bby, Judge. (1) No disposition a debtor may make of a homestead or other exempt property can be fraudulent as to creditors. It is no concern of creditors what he does with the exempt property. The creditor has no claim thereon and a general judgment constitutes no lien thereon, and a sale of the same conveys a good title free from the claims of the grantor’s creditors whether reduced to judgment or not.

Louis City Circuit Court. — lion. William Zachritz, Judge. (1) A city can not create a nuisance in its streets, or devote them, or any part thereof, to a purpose inconsistent with the rights of the public or abutting property-owners. Lockwood v. Railroad, 122 Mo. 91; Sherlock v. Railroad, 142 Mo. 182; Lumber Co. v. Railroad, 129 Mo. 455. (2) Municipal ordinances may be impeached for fraud and corruption. 1 Dill. Mun. Corp. (4 Ed.), sec. 311; Glasgow v-.

— Hon. W. W. Graves, Judge. Instruction 13, as asked by defendant, is tbe law. Tbe evidence shows that tbe car, tbe forward truck of wbicb was derailed, bad been made for and adopted as a part of tbe car equipment of tbe company and bad been in repeated use on its road in. trains operated by tbe deceased before the accident.

Louis Oity Circuit Court. — Hon. Jas. E. Withrow, Judge. (1) The appeal in this case was properly taken to this court, although the judgment was for $1,750, as the error complained of in the refusal of the instruction involves the application and construction of the Constitution of the State, section 14 of article 2 of the Bill of Eights. Heller v. Pulitzer Publishing Company, 153 Mo. 205.

— Hon. Jas. H. Blover, Judge. (1) The record shows by direct testimony and by all the*facts and circumstances that defendant Lorie was cognizant of defendant Reiss’s financial condition and of his purpose and intent to dispose of his property in order to hinder, delay and defraud his creditors. This knowledge on the part of Lorie makes the deed fraudulent and void. Arnold v. Hartwig, 73 Mo. 175.

— lion. P. 0. Stepp, Judge. • (1) The evidence is wholly insufficient to show that defendant was incompetent to contract.

— Hon. E. J. Broactdus, Judge. (1) In an ejectment suit, if plaintiffs recover, it must be on tbe strength of their own titles. The evidence conclusively shows that Michael Turnage, Sr., was insane from 1842 to his death in 1876, and the records if admitted establish that he was judicially determined to be insane by the county court in 1852. (2) Michael Turnage, Sr., being thus declared insane was incapable of mating a contract in the premises. 1 N. S. 1855, see. 32, p. 868.

— Hon. Jas. T. Neville, J udge. (1) J. J. Sitton’s agreement with Boyd & Company to keep deeds to him off record, was fraudulent as against plaintiffs, and the bank’s deeds of trust on realty were connected therewith, grew out thereof, and were tainted with said fraud.

Transferred from Kansas Gity Court of Appeals, (1) The right to change of venue is entirely of statutory regulation, and unless some authority is given by the statutes none exists. Earning v. Eailroad, 157 Mo. 477; State v. Sanders, 106 Mo. 188; State ex rel. v. Wofford, 119 Mo. 408; Lewin v. Dille, 17 Mo. 64; State v. Turlington, 102 Mo; 642; Gee v. Eailroad, 140 Mo. 314. (2) The application did not comply with the statutes.

— Hon B. P. Gates, Judge. (1) The authorities are uniform that the liability of a municipal corporation for a defect in a sidewalk, as well as that of an abutting property-owner for permitting an obstruction on the sidewalk in front of his property, is because they are maintaining a nuisance. Dillon on-Mun. Corp. (4 Ed.), sec. 1032; Wood on Nuisances, see. 120; Congreve v. Smith, 18 N. Y. 82.

— lion. L. B. Woodside, Judge. The first and second declarations of law given on behalf of the defendant should have been refused. They are in conflict with the law defining the powers and regulating the duties of prosecuting attorneys. R. S. 1889, sec. 687. The third declaration of law should have been given.

— Hon. ~W. W. Wood, Judge. (1) Although, deceased was a trespasser on defendant’s train and was guilty of negligence in riding thereon, in violation of the company’s rules, yet such negligence was not contributory, and will not preclude a recovery in this case, because it was not the proximate cause of the injury. 7 Am. and Eng. Ency. Law (2 Ed:), 401; Kelly v. Eailroad, 95 Mo. 279.

- — Hon. Jno. A. Hockaday, Judge. (1) Where a deed inter vivos conveys real estate to one for life, and then to the issue of his body as a class, only those who answer the description at the death of the life tenant take as remaindermen. Eidley v. McPherson, 43 S. W. 772: Soper v. Brown, 32 N. E. 769; Bradford v. G-riffin, 19 S. E. 76. (2) (a) The deed from Jere Kingsbury would have created an estate tail at common law.

— Eon. E. P. Gates, Judge. (1) The primary question in a quo warranto proceeding is whether the respondent is entitled to hold the office. This right can only be determined by the court by the respondent pleading the facts in the case. Therefore, facts, and not evidence or conclusions of law, must be distinctly stated. 79 Mo. 272. It is no answer to an information in a quo warranto proceeding to state that no one else or some one else is not entitled to the office.

<p>Appeal from Jackson Circuit Court. — Hon. E. P. Oates, Judge.</p>

<p>1. Indictment: rape: charge of sex. An indictment which charges that defendant “did in and upon Ivy B. Turney, unlawfully...... make an assault and her, the said Ivy B. Turney, then and there unlawfully, forcibly, and against her will feloniously......did ravish,” etc., sufficiently charges that the prosecutrix was a female, although it does not specifically say so.</p> <p>2. -: name of juror: mistake of typewriter. The transcript sent by change of venue to another county, says the court appointed “John Ii. Calrk” foreman of the grand jury, but the indictment is indorsed “a true bill, John L. Clark, foreman,” and the record recites that the “indictment is by the court examined and found to be indorsed a true bill by the foreman, John L. Clark.” The entry of the impaneling of the grand jury shows that John L. Clark was sworn as a member, and that no man named “Calrk” was. Held, that Clark’s name was, by misprision of the typewriter who copied the transcript, misspelt, and that the foreman of the grand jury did indorse it. And where the record shows that Charles Hall was sworn as a grand juror, and that no such person as Charles Halim was so impaneled, it will be held that the typewriter by mistake struck the wrong key, and added a letter to, and that Halim was not a member of the grand jury.</p> <p>3. Jury: in charge of unsworn officer. It is not reversible error to put the panel, from the time it is made up until they are sworn to try the case, in charge of an officer without swearing him.</p> <p>4. Rape: penetration. Where one officer testified that defendant stated to him that he struck the prosecutrix, and “then tore her drawers and got on her and accomplished the rape,” and another that he nodded his head and said “yes,” when he asked him, “Did you do it?” and the physician who was first present after the assault upon the girl, who was only about sixteen years old, stated he made a digital examination and “found the hymen absent,” there was sufficient evidence of penetration to permit the case to go to the jury.</p> <p>5. -: confession: competency. A statement without promise or hope of leniency to the defendant made by the officer in charge of him, even at a time when he was informed that a near-by crowd was probably a mob, that he had better tell the truth about the charge of having ravished a girl, does not make inadmissible the confession then made by the defendant to such officer.</p> <p>6. Age of Defendant: competency. It is always competent to show the size and age of defendant and the knowledge of the witnesses in respect thereto, and particularly is this true when the evidence bears directly upon his capacity to commit the crime charged.</p> <p>7. Bape: punishment. Where the jury has found the defendant, who is sixteen years old, guilty of rape and assessed the punishment at death, he is punishable in the same manner and .to the same extent as provided by law for persons over eighteen years of age.</p> <p>8. -: -: REMARKS OF PROSECUTING ATTORNEY: NO EXCEPTION. Unless there is an exception saved at the time to a remark of the prosecuting attorney that if the jury gave defendant only a penitentiary sentence he could only be sent to the reform school on account of his age, or if defendant’s attorneys say they did not hear the remark, then unless some affiant states the remark was in a low tone, there can be no reversal on that account, because the matter was not brought to the attention of the trial court.</p> <p>9. -; CONVICTION: SUFFICIENCY OF EVIDENCE. The evidence in this case was sufficiently substantial to justify the jury in finding that the defendant had raped the prosecuting witness and to justify his hanging under the statute.</p> <p>10. -: punishment: no EXCEPTIONS. The Supreme Court will not consider the failure of the trial court to instruct upon the punishment prescribed by the statute, if the appellant saved no exceptions to the failure of the court to instruct upon all the law of the case.</p>

<p>For the reason expressed in State v. Thierauf, 167 Mo. 429, the indictment in this ease is held to be invalid.</p>

Louis City Circuit Court. — Son. Franklin Ferris, Judge. (1) The contract here in question is essentially a contract of lease, whereby certain premises were let by defendant to plaintiffs for the purpose of having plaintiffs occupy the same and exercise certain exclusive privileges thereon for a period of forty-nine days, at a rental price of $90,000.

— Hon. Jno. W. Wofford, Judge. (1) Unless one excepts to tbe actions of tbe court in its failure to instruct on all tbe law in tbe cause, there is no reversible error. State v. Gordon, 153 Mo. 516; State v. McAfee, 148 Mo. 310; State v. Sprague, 149 Mo. 409; State v. Albright, 144 Mo. 638.

— Hon. Jno. W. Wofford, Judge. (1) Tbe list of forty-seven for tbe trial of this case contained in the bill of exceptions, shows that notwithstanding there were fifty-two regularly summoned jurors in attendance on the court, these five men were placed upon the panel for the trial of this ease. Sec. 3191, R. S. 1899.

Louis City Circuit Court. — Non.. Franklin Ferris, Judge. (1) It is bad pleading to allege various articles of different kinds to be of an aggregate value. Nothing appears on the face of the indictment to show that the books, the one article proved, was of value more than thirty dollars. The testimony at the trial may show it, but it must appear by the indictment that the grand jury so found. This is horn-book law. Wharton’s Or. PL and Pr.

<p>Appeal: courts: title to land: transfer of cause. Where, in a suit to quiet title to land, the court finds the title to be in plaintiffs, but decrees a lien on the land for an aggregate sum of $86, expended in payment of taxes by defendant, and the question on appeal is not the title, but whether such sum ought to constitute a lien, the case will be transferred from the Supreme to the Court of Appeals.</p>

Louis County Circuit Court. — Hon, B. Hirzd, Judge. (1) The trustee and the beneficiary in a deed of trust are necessary parties to a partition suit. Eeinhardt v. Wen-deck, 40 Mo. 577; Dameron v. Jamison, 71 Mo. 97; Yates v. Johnson, 87 Mo. 213; Harbison v. Sandford, 90 Mo. 477; Estes v. Nell, 108 Mo. 173; Hiles v. Eule, 121 Mo. 249; Lilly v. Menke, 126 Mo. 214.

Louis City Circuit Court. — lion. Selden P. Spencer, Judge. If the bill of exceptions is filed in term time, the filing must be evidenced by a record entry of the court- showing the filing — if filed in vacation pursuant to an order of court granting leave to file it in vacation, “there must be some certificate on the bill itself, signed by the clerk, indicating the fact and date of filing,- or some entry made by the clerk in the records of the court to that effect.”…

Louis County Circuit Court-.- — Hon. B. Hirzel, Judge. (1) The deed from J. M. Thompson was fraudulent and void and should be set- aside, (a) It was void because it was without consideration and voluntary, (b) It was fraudulent and void because it was made for the purpose of defrauding the creditors of said corporation and especially plaintiff.

Louis City Circuit Court. — Hon. P. B. Filter aft, Judge. (1) The court erred in not granting defendants’ demurrer to the evidence, because plaintiff’s evidence showed that Dr. Bradford was “to furnish plaintiff all that was necessary for his personal expenses, and was to set him up handsomely when he got through with him.” The testimony further showed that Dr. Bradford furnished Ryans with his personal expenses and purchased him a farm, and gave him money with which to buy…

— Ron. W. N. Evans, Judge. (1) The information is bad because it states two separate and distinct crimes. State v. Williams, 152 Mo. 115; State v. Jackson, 89 Mo. 561. (2) In an information for forgery, this court has held that very slight inaccuracies will be fatal. Thus, changing the instrument, said to have been forged, is a gross variance and should not be allowed.

— Hon. E. M. Hughes, Judge. (1) Plaintiff was entitled to a trial by jury for tbe reason that the pleadings tendered an issue of fact, pure and simple. (2) There could be no settlement of the affairs of the partnership without taking into account the rights and liabilities of all the partners. (3) The evidence shows that there has not been a settlement of all the affairs of the partnership.

— Hon. Samuel Davis, Special Judge. (1) Tbe ordinance in question, in that it does not pur any license tax on steam laundries located in Independence, or upon agents of such laundries, is in violation of section 3 of article 10 of the Constitution of Missouri. State v. North & Scott, 27 Mo. 464; St. Louis v. Spiegel, 90 Mo. 587; Kansas City v. Grush, 151 Mo. 128.

Louis City Circuit Court.- — Hon. H. D. Wood, Judge. (1) The affidavit attached to the petition in this case is not in accordance with the statute nor the rules of pleading applicable to such eases. Sec. 4463, R. S. 1899; Pattison’s Forms for Missouri Pleading, sec. 458.

- — Hon. D. W. Shackle-ford, Judge. (1) Tbe lower court wholly failed to specify of record the ground or grounds upon which the new trial was granted, as expressly required by the statute in such cases. R. S. 1899, sec. 801; Candee v. Railroad, 130 Mo. 153. (2) Plaintiff was not entitled to a new trial on the ground that error was committed in the admission or exclusion of evidence.

Louis Court of Criminal Correction. — Son. Willis S. Glark, Judge. The information is bad pleading.

— Hon. A. D. Burnes, Judge. (1) .The evidence offered by plaintiff was amply sufficient to show a disaffirmance by the guardian of Samuel Mattbis, Sr., of the deed of said Samuel to Ada L. Mattbis. McAnaw v. Tiffin, 143 Mo. 667, especially opinion oil rehearing at 143 Mo. 681; Craig v. Van Beber, 100 Mo. 584; s. c., 18 Am. St. Bep. 667; Eaton v. Parry, 29 Mo. 269; Leitendorfer v. Hempstead^ 18 Mo. 269; Singer Mfg.

— Son. W. M. Boulware, Special Judge. (1) . Tbe laws of the land require that “every will shall' be in writing, signed by the testator . . . and attested by two or more competent witnesses subscribing their names to the will in the presence of the testator.” R. S. 1889, sec. 8810; R. S. 1899, sec. 4604.

Louis City Circuit Court. — Hon. Wm. ZachritZj Judge. (1) In no case should expert or opinion testimony be received except it be based upon facts already established and asked of witnesses duly qualified as experts. 2 Eice on Evidence, 328, 358; Kaiser v. Eailroad, 66 Mich. 390; Van Wycklen v. Brooklyn, 118 N. Y. 430; U. S. v. Pendergast, 32 Eed. 201; Ilopt v. Utah, 120 U. S. 437; Senn v. Eailroad, 108 Mo. 150; Euss v. Eailroad, 112 Mo. 48; Colb v. Sandwich Co., 36 111.

Louis City Circuit Court. — Hon. Jas. H. Withrow, Judge. (1) The statements of assured in his application and examination being by contract made warranties, if untrue in any respect, no recovery can be had on the policy. 1 Beach on Ins. sec. 456; 1 Bacon Ben. Soc. (2 Ed.), sec. 197; Whitmore v. Sup. Lodge, 100 Mo. 47; Hanford v. Mass. Ben. Ass’n, 122 Mo. 50; Oobb v. Cov. Mut. Ben. Ass’n, 153 Mass. 176; Jeffries v. Ins. Co., 22 Wall. 47; Ins. Co. v. France, 91 H. S. 510.

— Hon. Jno. P. Butler, Judge. (1) The constitutionality of an act of the General Assembly will be presumed. State ex rel. v. Yancey, 123 Mo. 391; State ex rel. v. Wofford, 121 Mo. 61. Every reasonable intendment should be made to sustain the act. Murnane v. St. Louis, 123 Mo. 479; Wells v. Railroad, 110 Mo. 286; State ex rel. v. Simmons, 109 Mo-. 118; 'State ex rel. v. Jackson, 102 Mo. 531; State v. Hope, 100 Mo. 347.

— Hon. Jno. P. Butler, J udge. (1) It is submitted, whether or not the decree of the trial court, upon a fair construction of the same, has in law, set aside the deed from John T. Needles to his wife, Sylvia J. Needles, of date July 6, 1891. If it has not been set aside, then the decree rendered can not stand on any grounds whatever, for in that case the widow as purchaser was entitled to possession, and all rents and profits of the land.

— Ron. A. D. Burnes Judge. (1) The Act of 1897 (sec. 650, R. S. 1899), did not repeal or alter the previously existing statute relating to suits to quiet title. Negrotto v. The City of Monett, 49 Mo. App. 286 ; State v. Daly, 49 Mo. App. 184; State ex rel v. Draper,-47 Mo. 33.

Louis County Circuit Court. — Hon. Rudolph HirzelJudge. (1) The death of Henry 0. Lay terminated the power granted to George J. Davis to sell and convey the land. The power had elapsed at the time of the attempted conveyance. 1 Sugden on Powers, side p. 147; 1 Sugden on Powers, side p. 319; 18 Am. and Eng. Eney. Law, p. 878; 1 Hernán, 402. (2) The testatrix did not devise this residue to Davis.

<p>The judgment in this case is affirmed on the authority of Wisker v. Rische, ante, p. 522.</p>

<p>1. Cities: The city of Hannibal is not a political subdivision of the State.</p> <p>2. Appellate Jurisdiction: suit fob city taxes. The appeal in a suit by a city for back city taxes, asking for $2,113, and ten per cent attorney’s fees to be taxed as costs, is to the Court of Appeals.</p> <p>3. -: -construction oe revenue laws. The construction of the statute providing “for the collection of taxes levied on personal property by cities organized or existing under a special charter,” does not so involve the construction “of the revenue laws of this State,” as to alone give the Supreme Court jurisdiction of an appeal in a suit for back city taxes.</p>

— Hon. W. W. Wood, Judge. (1) Tbe undisputed evidence shows that at the sheriff’s sale all the property was knocked down by the sheriff to Alice A. Eish; and that Strother was not a purchaser of any of the property at that sale, and that the sheriff made no deed to Alice A. Eish. The deed of conveyance from the sheriff to Strother, purporting to convey the interest and title of Jacob Walter, is without authority of law and is void.

<p>The judgment in ejectment for possession of the premises, based on the sheriff’s deed in attachment, which, in Walter v. Scofield, 167- Mo. 537, was adjudged invalid, is, on the authority of that case, reversed, and the premises restored to the defendants herein.</p>

— Hon. E. J. Broaddus, Judge. (1) Where the relation of confidence and trust exist between the grantor and grantee, and the grantor is weak and feeble of mind and body, slow to understand, easily persuaded and influenced, the deed must be held to be the result of undue influence and illegal. Ennis v. Burnham, 159 Mo. 499.

Louis City Circuit Court. — Hon. Horatio D. Wood, Judge. (1) The contract between Hoffman, Miltenberger and McOasland constituted them partners in the business of “purchasing, handling and selling” Beacon Heights. 1 Bindley Partn., p. 13; Snyder v. Burnham, 77 Mo. 52; Getty v. Devlin, 54 N. Y. 403; Chester v. Dickinson, 54 N. Y. 1. (2) Hoffman, McOasland and Miltenberger were joint tortfeasors; each is liable to plaintiffs for all money received by them and each of them.

Louis City Circuit- Court. — Hon. Wm. Zachritz, Judge. (1) Tbe court ruled correctly in the trial of the above cause, in excluding the testimony of Evans. It would have worked a great injustice to defendants had the court ruled otherwise, and such action would have been a manifest abuse of judicial discretion.

Louis City Circuit Court. — Hon. P. B.. Flit craft, Judge. (1) (a) The giving of instruction 10 was error because it placed upon plaintiff’s intestate a^ higher degree of care than is required of a fireman in responding to an alarm of fire, and declares as a matter of law a failure to look and listen is under all circumstances negligence.

— Hon. Jno. P. Butler, Judge. (1) The report of the commissioners should have been set aside, because they gave defendant for life, one-third of the whole estate in actual value. No homestead was set out by the commissioners at all, but its value, as found by them, was added to the value of the dower. Their first duty was to set out the homestead in value, and deduct it from the value of the dower (the homestead being less than the dower).

— Hon. A. D. Burnes> Judge. (1) Failure to fence or to use tbe entire length of its right of way by a railroad will not destroy its title to that portion thereof not fenced or used. Inv. Co. v. Railroad, 108 Mo. 62; Morrill v. Railroad, 96 Mo. 174; Slocumb v. Railroad, 57 la. 675; Barlow v. Railroad, 29 la. 276; Brown v. Railroad, 101 Mo. 484.

Louis County Circuit Court. — Hon. Rudolph Hirzel, Judge. (1) There was no evidence adduced, upon the trial which led to this appeal, as to the quantity of oil, if any, which got into the sewer. But if the proof had shown the presence of a large body of oil, it also showed that there was no practical, feasible method by which the city authorities could have removed it, the mouth of the sewer being submerged by high water in the Mississippi river.

Louis Court of Criminal Correction. — Hon. Willis H. Glarle, Judge. (1) (a) We are dealing in this case with the right of property and not with the question of nuisance, (b) A dairy or cow stable has never been considered or treated as a nuisance per se, or prima facie. If complained of as a nuisance, that question must be tried in a proper proceeding as a question of fact.

<p>Appeal from St. Louis Court of Criminal Correction. — Mon. David Murphy, Judge.</p>

— Hon. Roland Hughes, Special Judge. (1) “Tbe terms of a special law are not ordinarily regarded as repealed by a later law of a general nature on tbe same subject.

— lion. W. W. Graves, Judge. (1) The paragraph of the Act of 1899 granting to the city central committee of one political party, to the exclusion of all others, the special right and privilege of naming three persons from whom the election commissioner should be chosen, contravenes section 53 of article 4 of the Constitution of this State, which declares: “The General Assembly shall not pass any local or special law, granting to any corporation, association, or individual…