Volume 173 — Missouri Reports

Saline Circuit Court. — Hon. Samuel Davis, Judge. (1) The error complained of is the action of the trial court in sustaining a demurrer to .plaintiffs’ evidence. The couid, in passing upon the question whether plaintiffs have a case for the jury, must give the most favorable interpretation to the facts that can reasonably be put upon them, and draw every fair inference in favor of the plaintiffs that' the evidence warrants.

<p>Appeal from Jackson Circnit Court. — How. E. P. Gates, Judge.</p>

— Hon. W. N. Evans,. Judge. (1) The tax deed, through which respondent-claims title to the south half and west half of the northwest quarter of section 14, township 24, range 13, is-void, because: first, it is based upon an assessment which was void for the reason that it violated the provisions -of the statute which provided that ‘ ‘ each tract, of land shall be valued and assessed separately, ’ ’ and,, second, the deed attempts to convey as one tract two Separate tracts…

— Now. Jas. D. Fox, Judge. (1) The charter of defendant expressly authorized the defendant by both its legislative body, the mayor and city council, and by its “city council,” to make such contracts as sued upon, and they were entered into with I. M. Davidson in strict accord with that authority; and the cost of the improvement contracted for, defendant’s charter provided should he paid from an assessment upon all the taxable property within the limits of the city.

Transferred from St. Louis Court of Appeals. .(1) The action is not barred by the statute of limitation, (a) Because twenty years bad not elapsed since it accrued. R. S. 1889, sec. 6796; Meyer to use v. Mohrhoff, 19 Mo. App. 684. (b) Even if tbe Act of 1895 bas application to prior judgments, tbe limitation runs only from tbe dates tbev went into effect. Seibert v. Copp, 62 Mo. 185’; Callaway Co. v. Nolley, 31 Mo. 398; Weber v. Manning, 4 Mo. 231.

— Hon. Paris G. Stepp, Judge. (1) The court erred in refusing to instruct the jury, at the close of defendants’'evidence, to find the will was not the last will of Mr. Southworth. First. The will was signed by Mr. Southworth and by the witnesses to the will in an unfinished state.

Louis City Circuit Court. — Hon. W. B. Douglas, Judge. (1) The court erred in refusing to give the instruction in the nature of a demurrer to the evidence offered by defendant at the close of plaintiff’s evidence in chief, and at the close of all the evidence.. The plaintiff in his petition claims that the collision in question .was due to the negligence of the particular agents of defendant in charge of the two cars that collided.

Louis City Circuit Court. — No». Belden P. Bpencer, Judge. (1) The court erred in refusing to give the instruction stating in effect that if the collision was due to mere accident the verdict of the jury must be for the defendant. Peary v. Eailroad, 162 Mo. 75. (2) The court erred in overruling defendant’s motion to set aside the verdict, on the ground that it was excessive.

Louis City Circuit Court. — flore. Wm. Zachritz, Judge. (1) Personal savings and profits made by the wife in her domestic management, which her husband allows her to apply to her own separate use, will be held to vest in her against the claim of the husband. Gentry v. McReynolds, 12 Mo. 533; Welch v. Welch, 63 Mo. 60; McCoy v. Hyatt, 80 Mo. 135; Thomas v. Thomas, 107 Mo. 462; 2 Story’s Eq. Jur., sec. 1375; Ingalls v. Ferguson, 59 Mo.

— Eon. W. N. Evans, Judge. (1)- “Upon every settlement, the executor or administrator shall show that every claim for which disbursements have been made has been allowed by the court, according to law. ’ ’ Sec. 224, R. S. 1899. Under the above statute, as amended, the respondent was not entitled to credit for the' $2,230.87, covering amount paid for the two notes which were never allowed by the probate court.

Transferred from Kansas City Court of Appeals. (1) If tbe reason assigned' by tbe trial court in its order is insufficient to warrant tbe granting of a new trial, then tbe order must be reversed unless respondent affirmatively justifies tbe action of tbe court on some other ground; and, bence, counsel for tbe appellant here thought it unnecessary in the first instance to go beyond the reason given. Miller v. Cor. Co., 130 Mo. 517; Candee v. Railroad, 130 Mo. 142.

Transferred from Kansas City Court of Appeals. (1) The defense of ultra vires can not be successfully interposed by defendant in this .case for the reasons : first, the National Banking Act does not prohibit a national bank from entering into contract such as is contained in the two telegrams of May 18th and 19th, and the contract has been fully performed by the plaintiff; second, Clemons & Company are the real parties in interest, having indemnified the defendant and…

— How. A. D. Bwrnes, Judge. (1) The pecuniary punishment, imposed by the statute, for making a false assessment list, with intent to defraud, is a civil liability. The penal part of the statute is énforcible by indictment. State v. Cannon, 79 Mo. 346; State ex rel.. v. Moss, 69 Mo. 499.

Louis City Circuit Court. — No» D. D. Fisher, Judge. The terms of the loan were feed by the ninety-day collateral note and can not now be varied by parol testimony ; or, in other words, it can not be shown by parol evidence that it was the intention of the bank and Mr. Johnson to treat the real estate* note as the primary obligation.

— How. A. D. Burnes, Judge. (1) We can form no opinion as to the theory upon, which plaintiffs’ instruction for a verdict was refused or defendants’ instructions authorizing the jury to find that they had acquired title by adverse possession were given. The defense is an affirmative one, and unless there is evidence in the record tending to show that their possession has been continuous and uninterrupted during some one period of ten years, the verdict can not be sustained.

— Hbn. H. L. Mc-Cuné, Special Judge. (1) When the' eight-acre strip went entirely into the river, it never came back, though land may after-wards have formed within its. original lines. As long as any part of a tract remains it may gain accretion and grow larger, but after it has entirely disappeared it can never come again. Naylor v. Cox, 114 Mo. 243; Penker v. Canter, 62 Kan. 363; Welles v. Bailey, 55 Conn. 292; Wallace v. Driver, 61 Ark. 429; Cox v. Arnold, 129 Mo. 337.

— Hon. A. D. Burnes, Judge. The question is, Will an estate, limited to widowhood, and settled by contract before marriage, if unaccepted, bar dower, leaving out of view for the present the questionable character of such a contract between a man and a woman aged respectively seventy and thirty years? The ease is freed of all equitable considerations.

— Row. Edw. P„ Gates, Judge. (1) The interpleaders, Jones & Oglebay, can claim no right to the fund in controversy on the theory that the trust company interfered with their lease contract with the board of trade. Cooley on Torts, p. 497; Mc-Cann v. Wolff, 28 Mo. App. 447; Pollock on Torts, pp. 452-3.

— How. E. J. Broaddus, Judge. (1) The record neither shows specific objections, nor exceptions to any ruling on the trial below; this, is particularly essential as to record testimony; objections without exceptions are insufficient. The admission of evidence “subject to all legal objections,” where the record fails to show any subsequent ruling thereon or exceptions thereto, presents no question. for the appellate court to review.

Louis City Circuit Court.- — Hoto. D. • D. Fisher, Judge. (1) The court erred in refusing to give, at the close of the plaintiff’s evidence, and at the close of all the evidence, the instruction in the nature of a demurrer, asked by the defendant and refused by the court.

— No». Henry G. Riley, Judge. (1) The deed of trust dated September 20, 1892, signed by L. Kirkpatrick and purporting to be signed by Missouri Kirkpatrick, is absolutely void and conveyed no title at all to plaintiff. Finley v. Babb, 144 Mo*. 403. This conveyance did not even impart notice to purchasers for value, because the acknowledgment was defective, being forged.

Louis County Circuit Court. — No». John W. Booth, Judge. (1) The court erred in refusing to give the instruction in the nature of a demurrer to the evidence offered by defendants at the close of plaintiff’s evidence in chief, and also at the close of all the evidence, (a) There was no evidence of any negligence on the part of defendant.

Louis City Circuit Court. — Ho». Jas. E. Withrow, Judge. (1) The due execution of the alleged will was not proven. R. S. 1899, sec. 4604. (2) Upon the whole evidence the verdict and judgment are for the wrong parties. R. S. 1899, sec. 4604; Muller v. St. Louis Hospital Ass’n, 5 Mo. App. 390, 73 Mo. 242.

Louis City Circuit Court. — Ho». Jno. A. Talty, Judge. (1) The court erred in refusing to give the instruction in the nature of a demurrer to the evidence offered by the defendant at the close of plaintiff’s evidence in chief, and again at the close of all the evidence.

— Row. A. M. Woodson, Judge. To say that though the contract has been performed the court may not enforce the obligations imposed is to warrant the city through the judiciary to impair the obligation of the contract and to deprive the contractor of its property, contrary to section 10, article 1, and the fourteenth amendment of the Constitution of the United States and of section 15, article 2 of the Constitution of the State of Missouri.

— Hon. G. O. . Tichenor, Special Judge. (1) Under section 5983, Revised Statutes 1879, and section 5856, Revised Statutes 1889, no policy of insurance on life, issued by any life insurance company authorized to do business in this State on or after August 1, 1879, after payment on it of two full annual premiums, could be forfeited by reason of the non-payment of premium thereon, but would be entitled to the benefits prescribed in said sections.

Quo Warranto. The Missouri statute, article 1, chapter 143, Eevised Statutes 1899, has been passed upon by this court and held valid and constitutional. State ex inf. Firemens’ Fund Insurance Co., 152 Mo. 45. Such laws have been-adjudged constitutional by the United States Supreme Court. United States v. Trans-Missouri Freight Association, 171 U. S. 558.

Quo Warranto. Quo warranto is proper remedy to try right of foreign corporations to do business in Missouri. There can be no doubt of the right and power of the General Assembly to prescribe the terms and conditions upon which foreign corporations can do business in Missouri. Foreign corporations only exercise their franchises or powers within this State by comity or legislative consent.

Certiorari. (1) In this case, of course, no appeal lies from the Kansas City Court of Appeals to this court, nor writ of error from this court to that court. Where this is the case, the proper grounds existing, certiorari lies. Ex parte Couch, 14 Ark. 337; 4 Ency. PL and Pr., 34; State v. Moniteau Co. Court, 45 Mo. App. 387.

<p>1. Swamp Land: act of consress: title: relation. The act of congress of 1S50, granting to Missouri in fee simple all the swamp lands embraced within her borders, the proceeds of which “whether from sale or direct appropriation in kind” were to “be applied exclusively, as far as necessary, to the purpose of reclaiming said lands by means of levees and drains,” was a grant in praesenti, and vested the title of said lands in the State from the date of the act, and tne patent issued by the Secretary of the Interior in obedience thereto related back to the passage of the act.</p> <p>2. -: VESTED IN COUNTIES: RESTRICTION ON SALE. The SWamp lands were by the act of the General Assembly of November 4, 1857, vested “in full title” in the counties in which they lay, and by the Act of 1855 the several county courts were “authorized to sell and dispose of swamp lands within their respective counties, either with or without draining and reclaiming the same as in their discretion they might think conducive to the interests of said counties.” Prior to the Act of 1868, there was no restriction of the sale of these lands to public sales by the sheriff. But by the Act of March 10, 1869, there was an unmistakable purpose to restore to the county courts the power of private sale which they had prior to the Act of 1868, and hence, a deed made in May, 1869, by a commissioner duly appointed for the purpose, in pursuance of a sale of swamp lands by the county court, was not void.</p> <p>3. -: sale under act of 1869. By the Act of March 10, 1869, the counties were empowered to convey swamp lands just as they could any other lands owned by them, and the limitation as to the price of $1,25 per acre applied only to public sales by the sheriff, the county courts being authorized to sell such lands at private sales-for less than $1.25 per acre. (Following Pool v. Brown, 98 Mo. 675, and Linville v. Bohanan, 60 Mo. 554, and overruling State ex rel. v. Crumb, 157 Mo. 545).</p> <p>4. -: HOW FAR HELD IN TRUST BY COUNTY: RESCINDING SALE. The-swamp lands devised to the State by Congress in 1850, and by the-State to the counties in 1855, 1857 and 1869, were not held by said counties under a trust which “ran with the lands.” A county which has disposed of its swamp lands under said acts of the Legislature-can -not rescind its contract on the ground that it was a violation of the trust imposed by the act of Congress. It was entirely competent for the State to grant these lands to the several counties, either with or in disregard of the trust, and for the State to designate, which the act did, that the only trust, so far as the public schools were concerned, was upon “ the net proceeds” of such lands after deducting all expenses and costs of drainage, reclaiming, surveying and selling the same. The State has full power to compel the counties to account for “the net proceeds” of the sales, but the county can not repudiate a sale made thirty years ago by the county court in conformity to the statutes, if no fraud is charged, although irregularly or defectively executed, on the ground that the price received was less than $1.25 per acre.</p> <p>5. --: COMMISSIONER’S DEED: REGULAR -ON ITS FACE. If the COUnty court had authority to appoint a commissioner to make conveyance of the county’s swamp lands and his deed is regular upon its-face, that deed is valid until set aside by appropriate proceedings. If his want of authority to make the patent was due to some compromise made by the county court, to which no reference was made in the-patent, and which was not required by law to be and was not recorded in the recorder’s office, notice of such irregularities is not to be imputed to persons who have acquired from the patentee the title conveyed by the commissioner in the patent regular upon its face. Nor was it necessary, in such case, for the commissioner to recite the power under which he acted. (Distinguishing Sturgeon v. Hampton, 88 Mo. 203.)</p> <p>6. -: -: NOTICE: EXAMINATION oe county court records. Where the county court has authority to appoint a commissioner to make a deed to purchasers of the county’s lands and his deed or patent is regular on its face, they are not required to investigate and examine the various orders of the county court authorizing such conveyance, unless there is some recital in the deed itself which would induce a prudent person to make such examination. Such orders of the county court are not muniments of title.</p> <p>7. -: orders of county court. A county has no standing in a court of equity after thirty years to question the validity of orders of the county court out of which grew the sale by. a commissioner of lands belonging to the county.</p> <p>8. Ladies: applicable to municipalities. The doctrine of laches applies to a county or other municipal corporation, the same as to individuals.</p> <p>9. -: counties: the doctrine. Where a county court is charged by law with the performance of certain duties in reference to a particular subject-matter, and that court undertakes, in good faith, to execute its powers, but fails to observe certain requirements of law, so that its acts in that regard are irregular, such acts, if acquiesced in, will become binding upon the counties as completely as if they had been regular and in strict conformity to legal prescription. But if the Legislature has never conferred upon the county court the power, and the court nevertheless undertakes to exercise it, no subsequent action of the county can ratify the unauthorized act of the court.</p> <p>10. -: -: swamp lands: estoppel. Where the Legislature authorized the county court to sell the county’s swamp lands and the court undertook to do so more than thirty years ago and has since acquiesced in the sale, it is but exercising the power conferred qpou it by the Legislature, and is estopped to question the regularity of the sale, whether the law gave the court the power to sell the lands by public or private sale, or at a price less than $1.25 per acre.</p> <p>11. -: -: —-: payment by county warrants: innocent purchaser. Nor will the fact that the lands were paid for by county warrants which at the time were worth only thirty or forty cents on the dollar, affect the equities of such a holding, for in the hands of the county these warrants were worth par. Especially should this be the holding if the school board is not a party to the proceeding. And in any event this must be the ruling in a proceeding against innocent purchasers from the patentee, if the county’s patent did not disclose that the payment was made in county warrants.</p> <p>12. -: -; -; necessary parties. The county is the i only necessary party to a proceeding to set aside a sale by the county * court of the county’s swamp lands.</p> <p>13. -: -: -: ratification:-conduct-and delay: estoppel: laches. A county court authorized by law to sell the ¡ county’s swamp lands, sold them at private sale, and for more than ; thirty years acquiesced therein, the commissioner’s patent disclosing no infirmities on its face and containing no recitals that would induce ; a prudent man to look further for muniments of title. The patentee I sold them to defendants, who placed .their deeds ,of record and have had such possession as the lands were susceptible of, and have at all times claimed to be the owners, and have been regularly assessed for taxes, which they have paid. The county brings suit to set aside the commissioner’s deed, but does not offer to return the money originally received for the lands. Held, that, if the county has any ; rights in lands growing out of the irregularity of the sale, her long silence, her acceptance and retention of the money paid her, her continuous acceptance of taxes and efforts to enforce the collection of taxes levied, now estop her by reason of laches from asserting such claim.</p> <p>14. Swamp «Lands: power of legislature over: counties. A county is a mere subdivision of the State; it is simply a part of the State; and all its powers and duties are'derived from the Legislature and are to be exercised in subordination thereto. It holds the swamp ■ lands lying within its borders in subordination to the power of the State, which may change, as occasion may require, the method by which the county may dispose of them.</p> <p>15. --: -: -: IRREGULAR SALE: LEGISLATIVE CONFIRMATION. If the county has exercised in an irregular way the power vested in it by the Legislature to sell its swamp lands, the Legislature may, by special act, render its acts valid, by way of legislative confirmation, if by doing so no vested right of individuals is interfered with.</p> <p>16. --: -: -: -: -: SWAMP LAND: ACT OF 1901. The Swamp Land Act of 1901, providing that “in all cases where the county courts of this State have, prior to 1880, sold or disposed-of any swamp lands in their respective counties, and issued or caused to be issued patents for the same, and the patentees or those claiming under them have been claiming such lands and .paying county and State taxes thereon for more than twenty years, such grants shall be deemed and held to be good and valid,” does not impair any vested rights of individuals, nor undertake to validate void instruments, but is based on equitable grounds, its purpose being to render valid the acts of a political subdivision of the State which derived its powers from the Legislature and to cure any irregularity or informality in the attempted execution of that power. It does not make valid a patent that recites a consideration that would make it void. That act is valid.</p> <p>17. ---: -: •-: -: -: -: PASSED AFTER appeal: invokable. That act may be invoked on appeal from a judgment rendered before its enactment.</p> <p>18. Applicability of Act Passed After Appeal. If, subsequent to a judgment in the trial court and before the decision in the appellate court, the Legislature passes a curative act which positively changes the rule which governed at the trial, that act, if valid, must be obeyed by the appellate court in disposing of the appeal.</p> <p>PER BRACE, J., DISSENTING, ROBINSON, C. .1-, AND MARSHALL, J., CONCUR RING. WITH HIM.</p> <p>1. Swamp Lands: sale by county court. Under the Act of 1868 swamp lands could only be sold by the sheriff, at public sale, on sixty day’s notice, for not less than $1.25 per acre, by order of the county court. The county court had no authority to authorize them to be sold to be paid for in county warrants. And a sale by a commissioner in pursuance to such an order was void.</p> <p>2. -: COUNTY AS TRUSTEE: TRUST RAN WITH LAND. The Swamp lands were vested in the county to be sold at not less than $1.25 per acre, the proceeds to be held for the use of the public school fund, and this trust as to the county ran with the lands.</p> <p>3. -: general judgment: against county. The holder of a deed to swamp lands from the county founded on a general judgment against the county, can not show by parol evidence that such judgment was founded upon “swamp land script” or warrants issued by the county for constructing a levee and drains.</p> <p>4. -: -: paid by swamp lanps. The swamp lands were never the property of the county, nor subject to its obligations as a county, and could not be sold to pay a general judgment against the county, nor could the county court trade them off in payment of any general judgment against the county. And any deed made by the sheriff for such purpose is void.</p> <p>5. --: limitations of county powers: notice. All persons are required to take notice of the limitations of the powers of a county court, and that all acts done by it in excess of such powers are void.</p> <p>6. : laches. The doctrine of laches is not applicable where the person' invoking it claims under a deed, from a county, which is void because the county had no power to make it.</p> <p>7. -: -: -: taxes: estoppel. Nor is the county es-topped from asserting such deed to be void by reason of the fact that for more than twenty-nine years the patentee therein, and those claiming under him, have paid taxes assessed against the lands.</p> <p>8. -: act oe 1901. The Act of 1901, concerning swamp lands, can not on appeal be invoked in aid of a judgment of the circuit court rendered before its passage.</p>

Mandamus. (1) The court ordered that “said exceptions be stricken out, which is accordingly done, leaving in each of the cases only the… Held: owned and used by a corporation organized for private gain, is no defense to tbe right of condemnation, and tbe same principle is declared even where tbe property sought to be condemned is held and used by a corporation possessing tbe power of eminent domain and using tbe same for public purposes.” Coal Co. v. Coal and Mining Co.,…

<p>■ 1. Perpetuities: test: alienability. If, under a deed conveying lands to trustees which restricts their use ip a particular way and subjects them to certain burdens, the various interests and estates, present and future, vested and contingent, can, by releases or conveyances, be consolidated in a common grantee, and the consolidated estate thus formed, is, of necessity, the absolute fee in possession, there is no such restraint, of alienation as makes the estate a perpetuity. It is only when there are no persons in being who cojild convey an absolute fee in possession, discharged of a future use or estate, that there is a perpetuity.</p> <p>2. -: -: -: DEED TO TRUSTEES EOR IMPROVEMENTS: lots, streets and pabks. The owners of land, in order to lay it out into streets, blocks, lots and parks, and to improve and dispose ' of the lots, dedicated the streets and parks to public use, and eon- veyed the lots to trustees, empowering them to improve the streets and parks and to pay all taxes, public and local, and to collect from any party liable to pay the same any assessment on said lots levied by law or pursuant to the terms of the deed having for their object the improvement of said lots, streets or parks, and made these burdens run with the land, and made them a first lien on the lots in favor of the trustees named or their successors, with power in the trustees to prosecute suits for the collection of any such assessments. Held, that this deed did not create a perpetual trust in the parks and streets in favor of the lotowners as beneficiaries, but that at any time the trustees and lotowners can convey the lots to a common grantee, and thereby the lots, streets and parks will be freed from the trust estate, and therefore there is no such restraint of alienation as constitutes the estate created by the deed a perpetuity, and hence the trustees can maintain suit for such assessments.</p>

Saline Circuit Court. — Rom. Samuel Dar vis, Judge. (1) Defendant was not an insurer of the absolute safety of the handle of the hand car. It was only bound to use ordinary care to furnish plaintiff with a handle, reasonably safe for his use in propelling the hand car. Gutridge v. Railroad, 94 Mo. 474; Krampe v. Brewing Asso., 59 Mo. App. 277; Corey v. Railroad, 84 Mo. 635; Blanton v. Dold, 109 Mo. 64.

Louis County Circuit Court. — How. B. Hirzel, Judge. Appellant contends that the trial court erred in holding that the promise of defendants was within the statute of frauds,, and in granting defendants a new trial for that reason.

<p>Appeal from Polk Circuit Court. — Now. 'Argus Cox, Judge.</p>

Louis County Circuit Court. — Eon. B. Hirzel, Judge. (1) The decision and findings of the court below ■are contrary to the evidence, and the weight of the evidence ; and, as the case is one in equity, this court will review the findings of facts.

— Now. Jas. T. Neville, Judge. The interpleader was a competent witness, in his own behalf, to refute the alleged conversations, that he claimed he had with witnesses Powell, Ben Kersey, Delaney and Watson, alleged to have taken place since the death of Thomas W. Kersey. Cases at common law, ex necessitate rei,” and is therefore competent under the statute. 1 Greenleaf on Evidence, sec. 348, p. 461, note 1; Angel v. Hester, 64 Mo. 144; Fish v. Hoy, 42 Mo.

— Now. Argus Cox, Judge. (1) The testator’s understanding of the words used in his will must be adopted in construing the will without reference to lexicographers or adjudicated cases. Dugans v. Livingstone, 15 Mo. 234; Reinders v. Koppelman, 94 Mo. 343; Small v. Field, 102 Mo. 129; Garth v. Garth, 139 Mo. 465; Long v. Timms, 107 Mo. 519. (2) The testator understood that the word“heirs” as used in the will meant “children,” and the words should be so construed.

Genevieve Circuit Court. — Now. Jas. D. Fox, Judge. (1) The court erred in holding and deciding that appellants’ petition did not state facts sufficient to constitute a cause of action against respondents; and erred further in holding that appellants’ petition, on its face, showed that the parties plaintiff had no interest whatsoever in the property sued for.

— If on.' Frank B. Bearing, Judge. (1) Bespondents had full and actual notice, of appellant’s title as cotenant, in fee, and homestead, with their immediate grantor. Loring v. Groomer, 110 Mo-. 632; Patterson v. Booth, 103 Mo. 402; Tidings v. Pitchers, 82 Mo,. 379; Speck v. Biggins, 40 Mo. 405; Mildrow v. Bobin, 58 Mo. 331; Meir v. Blum, 80 Mo. 179; Widdecomb v. Childers, 84 Mo. 382; Mason v. Black, 87 Mo. 329; Knox v. Brown, 103 Mo. 103; Taaffe v. Kelly, 110 Mo. 127.

— How. Frank B. Bearing, Judge. (1) The relations between cotenants, as owners of the fee in lands are those of trust and confidence, and are in no sense antagonistic. Jones v. Stanton, 11 Mo. 433. (2) ' The removal of any incumbrance, be it of whatever nature or kind, enures to the benefit of all, and the possession of one is the possession of all the cotenants.

— No». R. Eirzel, Judge. (1) The trial court committed error in striking out, on motion of plaintiff, over the objection of defendants, that part of defendants ’ answer averring that the note in controversy was executed by Mary Larkin without any consideration.

Louis County Circuit Court. — No». Rudolph Eirzel, Judge. (1) After the exclusion of the ordinances there was nothing left in the petition, and defendant’s demurrer to the evidence should have been sustained. Waldhier v. Railroad, 71 Mo. 516; Schneider v. Railroad, 75 Mo. 595; Watson v. Railroad, 133 Mo. 246; MeManamee v. Railroad, 135 Mo. 440; McCarty v. Rood Hotel Co., 144 Mo. 402; San Antonio Gas & El. Co. v. ■Speegle, 60 S. W. 884.

— Ho». John A. Hooka day, Judge. (1) The pretended transcript from the circuit court of Callaway county was not properly or legally certified by the clerk of that court. The certificate of said clerk did not state that the transcript contained “a full transcript of the record and proceeding in the .cause.” R. S. 1899, sec. 2586.

Louis Comity Circuit Court.- — So». R. Hirsel, Judge. (1) - The court erred in permitting witness Montgomery to testify that certain facts assumed by him to be true “would indicate that the car was then moving at a higher rate of speed than ten or twelve miles an hour, or that the motorman didn’t apply the brakes or reverse power properly at the time the accident occurred.” Ferguson v. Hubbell, 97 N. T. 507; Muff v. Railroad, 22 Mo.