Volume 175 — Missouri Reports

— Hon. D. H. Eby, Judge. (1) The court erred in admitting in evidence tire testimony of Robert A. Campbell that Dr. Whitaker, father of defendant, claimed to own the land. It was self-serving, made in the absence of the other heirs, as held by this court on the former appeal. Whitaker v. Whitaker, 157 Mo. 342. That ruling was res adjudicata on the last trial in the court below. May v. Crawford, 150 Mo. 504.

<p>Appeal from Chariton Circuit Court. — Row. John P. Butter, Judge.</p> <p>(1) The plaintiff is a bona fide holder of the bonds. The school board was the body whose duty it was, under the law, to ascertain and determine, before issuing the bonds, whether or not proper notice had been given of the election. It did determine this question and announced its determination by a suitable recital embodied in the bonds. The officers of the school meeting had •already embodied a like recital in the record of the meeting, which is required by law to be kept! In favor of the plaintiff these recitals are conclusive, and preclude the district from showing that the notices posted called for an election to be held on a day different from that on which the election was held. Laws 1881, pp. 200, 201; Town of Coloma v. Eaves, 92 U. S. 484; Commissioners v. Nichols, 14 Ohio St. 260; Commissioners v. Bolles, 94 U. S. 104; County of Warren v. Marcy, 97 U. S. 96; 1 Dillon, Mun. Corp. (4 Ed.), sec. 549; Catron v. Lafayette County, 106 Mo. 670; Stoins v. Franklin County, 48 Mo. 167; Knox County v. Aspinwall, 21 How. 531; Lexington v. Butler, 14 Wall. 282; Flagg v. Palmyra, 33 Mo. 440; State v. Saline County Court, 48 Mo. 390; Carpenter v. Town of Lathrop, 51 Mo. 483; Walnut v» Wade, 103 M. S. 683; Cumberland County v. Randolph, 89 Va, 614; State v. Board of Education, 27 Ohio St. 96; State v. Commissioners, 37 Ohio St. 526; Madison County v. Brown, 67 Miss. 684; Vicksburg v. Lombard, 51 Miss. 127; Cutler v. Madison County, 56 Miss. 123; Madison County v. Paxton, 57 Miss. 701; Society for Savings v. New London, 29 Conn. 192; Belo v. Forsythe County, 76 N. C. 489; Clapp v. Cedar County, 5 Iowa 54; Nolan County v. State, 83 Tex. 182; San Antonio v. Lane, 32 Tex. 405; Anderson County v. Railroad, 52 Tex. 228; Lane v. Town of Embden, 76 Me. 354; Jefferson County v. Lewis, 20 Fla. 980; Seymour v. Tacoma, 6 Wash. 427; Black v. Cohen, 52 G-a. 621; Coler v. County Commissioners, 6 N. Mex. 88; Nelson v. Haywood County, 87 Tenn. 781. (2) For like reason the district is estopped to deny that, on the 30th of August, the school board entered an order for obtaining the loan. Heard v. School District, 45 Mo'. App. 660; Mix v. The People, 72 111. 241; G-ibbs v. School Dist., 88 Mich. 334. (3) In determining the amount of bonds that could be issued by this district, the court should have taken into account the railroad property of the district. R. S. 1899, p. 106; Bank v. Lyon County, 90 Fed. 523. (4) Merchants’ stocks of goods should also have been taken into account in determining the debt-incurring capacity of the district. Const., art. 10, sec. 12; R. S. 1879, secs. 6318, 6319, 6315, 6316, 6314, 6685; “Assessment” Webster’s Dictionary; Black’s Law Die.; The Century Die.; Cooley on Taxation (1 Ed.), 258, 261; R. S. 1899, sec. 8546; Railroad v. Shacklett, 30 Mo. 559; State v. Railroad, 37 Mo. 265; State v. Railroad, 60 Mo. 149; Bailey v. Magwire, 22 Wall. 229; 2 Wag. Stat., chap. ■95; R. S. 1879, secs. 6870, 6871, 6872, 6818; State ex rel. v. Railroad, 116 Mo. 15; 2 Wag. Stat., p. 1167, secs. 47, 49; p. 1168, sec. 54; p. 1170, sec. 61; p. 1160, sec. 10; 1161, sec. 14; 1162, secs. 17, 19; 1193, sec. 166; 938, sec. '6; 1 Wag. Stat., p. 442, sec. 17; State v. Tracy, 94 Mo. :225; Kansas City v. Johnson, 78 Mo. 661; Cape Girardeau v. Riley, 72 Mo. 220. (5) Even if the court should conclude that some of the foregoing items are not to be counted, still the bonds should not be held wholly void; they should be scaled proportionately and held valid to the extent that the district could lawfully incur debt. , McPherson v. Foster, 43 Iowa 72; Bank v. Ter-rell, 78 Tex. 450; Gillim v. Daviess County (Ky.), 14 S. W. 838; Daviess County v. Dickinson, 117 U. S. 657; Daviess County Court v. Howard, 13 Bush. 101; School Town of Winamac v. Hess, 151 Ind. 229; Aubrey v. Donaldsonville, 33 La. Ann. 390; Ins. Co. v. Lyon County, 95 Fed. 330; Stockdale v. School District, 47 Mich. 227; Vaughan v. School District, 27 Or. 57; Seymour v. Tacoma, 6 Wash. 427; Waterworks Co. v. Carterville, 153 Mo. 128; City of Dawson v. Waterworks Co., 106 Ga. 735; Culbertson v. City of Fulton, 127 111. 30; Shirk v. Pulaski County, 4 Dillon 209; Quincy v. Warfield, 25 111. 317; Thompson v. School District,-102 Iowa 94; Parkinson v. City of Parker, 85 Pa. St. 313; Lewis v. City of Clarendon, 5 Dillon 329; State v. Allen, 43 111. 456; Mix v. The People, 72 111. 241; Allen, Treasurer, v. Railroad, 44 111. 85; Peltz v. Eichele, 62 Mo. 171; Carroll v. Campbell, 108 Mo. 550; Johnson v. Duer, 115 Mo. 366.</p> <p>' (1) The evidence showed and the court found that the election, recited in the bonds sued on, was not held in pursuance of any notice given therefor; the notice was that the election would be held on the 29th day of August, 1883 (without naming the place of holding the election) but the school record in evidence shows and the bonds recite that the election was held on the 28th day of August, 1883. The authority to incur the indebtedness and make and issue the bonds- could be conferred only by a vote of the electors of the district at an election duly called and twenty days’ notice given by the clerk of tbe school board posting bills stating the time of holding snch election. Const., art. 10, sec. 12; Laws 3881, pp. 199, 200, secs. 2 and 3. (2) Stocks of goods and merchandise in the school district are not to be included in ascertaining the aggregate taxable value of the property therein. State ex rel. v. Railroad, 116 Mo. 15; Prickett v. City of Marceline, 65 Fed. 474. (3) Railroad property was not taxable for the purpose of building or paying for the building of schoolhouses, at the time of creating or attempting to create the indebtedness in question, and was not taxable for that purpose until the year 1885. Laws 1885, pp. 229, 230; State ex rel. v. Railroad, 83 Mo. 395. (4) By “the assessment next before the last assessment for State and county purposes,” as used in section 12 of article 10, of the Constitution, is meant the assessment next before the last completed assessment, and does not refer to the last completed assessment, although another assessment may have been begun and in process of being made. Sec. 12, art. 10, Const.; Prickett v. City of Marceline, 65 Fed. 469 ; State ex rel. v. Railroad, 116 Mo. 24; Culbertson v. City of Fulton, 127 111. 30. (5) School bonds, issued in excess of the constitutional limitation imposed by section 12 of article 10 of the Constitution, are void; and the school district is not estopped from pleading such constitutional limitation by any recitals contained in such bonds; or by the certificate of registration indorsed on such bonds by the State Auditor ; or by both such recitals and such certificate. Sec. 4306, 1879; sec. 847, 1889; sec. 5167, 1899; Carpenter v. Town of Lathrop, 51 Mo. 483; Heard v. School District, 45 Mo. App. 660; Sturgeon» v. Hampton, 88 Mo. 203; Hedges v. Dixon County, 150 U. S. 182; Dixon County v. Field, 111 U. S. 83; Sntliff v. Lake County Commissioners, 147 IT. S. 230; Lake County v. Graham, 130 IT. S. 674; Litchfield v. Ballou, 114 U. S. 190.</p>

Louis City Circuit Court. — Hon. D. D. Fisher, Judge. Held: that the interposition of an equitable defense, with a prayer for the.reformation of the contract in issue, could not deprive plaintiffs of their right to a jury. Smith v. St. Louis Beef .Canning Co., 14 Mo. App. 522. The petition determines the character of the action. Joyce v. Monaghan, 17 Mo. App. 11.

<p>1. Religious Corporation: church school. A corporation established; purely for education in literature, arts and the sciences, is not a religious corporation, even though it be given into the care of a religious body which appoints its trustees. A corporation for its-.character is to be judged by the.objects of its creation as expressed' in its charter.</p> <p>2. Educational 'Corporations: duration or charter. Colleges and other educational corporations chartered by special acts of the Legislature, are in their nature designed to be perpetual, and the-general law limiting the life of all corporations to the time mentioned in their charters, or, if no time is mentioned, to twenty years, doe»' • -not apply to them.</p> <p>3.--: PEOPERTV EXEMPTED PROM: TAXES: IMPAIRMENT OF CONTRACTS. The Legislature by an act passed in 1857 declared that “all the property and effects” of Westminster College “shall be exempt from all taxation” and declared that this grant should'be irrevocable, and at that time the Legislature, under the then Constitution, had authority to exempt the property from taxation. Seld, that, as the corporation accepted the charter, it thereby became a contract between the State and the corporation, and the provisions of subsequent Constitutions putting limitations on the power of the General Assembly to exempt property froto taxation, were prospective only in their operations, and were not intended to impair the obligation of a contract into which the State had previously entered.</p> <p>4. -: -: WHEN USED FOR OTHER PURPOSES: /LNNUITT. 'An .educational corporation can not receive and hold property for any purposes except those mentioned in its charter, and if it does, that property is subject to taxation. But real estate held under a will which charges it with an annuity in favor of testator’s widow, is not held for other purposes, if there came with it also a large amount of personal property which yields an annual income in excess of the annuity out of which the annuity is paid.</p>

<p>The ease of State ex rel. v. Westminster College, p. 52 ante, is followed in this case.</p>

<p>Appeal from St. Louis City Circuit Court. — Ron. 8. P. Spencer, Judge.</p> <p>(1) The trial court erred in holding that the action of the commissioners in failing to assess any part of the damages against the city generally, and in assessing all the damages against the property-owners, as well as the taking of their property, did not invalidate the assessment, and that it did not render the condemnation proceeding fatally defective on its face, and the taxbills attempted to be issued, under the ordinances pleaded and city charter, irregular and void. Secs. 5 and 6, art. 6, city charter; Eyssell v. St. Louis, 168 Mo. 607. (2) Even if the court was right in holding that the city acquired a lien on defendants ’ lots under the proceedings in the condemnation suit, still the court erred in not holding that said lien had expired through the failure of the city to sue to enforce or keep alive the lien, within three years of the date when the lien took effect, which was either November 22,1893, the date of the final decree in the condemnation suit, or the date the city made the appropriation to pay the award, which was June 30, 1894. Eyssell v. St. Louis, supra; Martin’s Ex. v. St. Louis, 139 Mo. 246; Sublet! v. Railroad, 69 S. W. 475. (3) Under the undisputed evidence in the case, and under the issues made by the pleadings, the court should have found and held that the city had no lien to enforce therein at the commencement of the suit, nor at the time of the rendering of the judgment, and should have rendered judgment for defendants. Eyssell v. St. Louis, supra.</p> <p>(1) The final determination of the proceedings to widen Iron street under the provisions of the charter of the city of St. Louis is a final judgment. Eyssell v. St. Louis, 168 Mo. 607. (2) Defendants in this action to enforce the collection of the special benefits assessed in the condemnation suit can make no defense which could have been made in the condemnation suit. St. Louis v. Ranken, 96 Mo. 497; Eyssell v. St. Louis, 168 Mo. 619. (3) It follows that the question whether special benefits should have been assessed against the city of St. Louis can not be raised in this action to collect said assessments. Kansas City v. Bacon, 147 Mo. 278. (4) Not less than ten years instead of five years is the period of limitation for an action like the present to enforce the collection of an assessment of benefits made in a condemnation proceeding under the charter of the city of St. Louis. Charter of St. Louis, sec. 5; Eyssell 'v. St. Louis, 168 Mo. 621.</p>

Appeal'from Macon Circuit Court. — How. Nat. M. Shelton, Judge. (1) The crime, arrest, indictment and sentence in Macon county, of William Jones, raises the presumption that he was a resident and citizen of said county. The indictment recites that he was late of that county. The presumption, if not conclusive, is at least great. It should not be set aside by slight or indefinite evidence. Mere hearsay and the opinions of witnesses are wholly insufficient.

Transferred from St. Louis Court of Appeals. (1) The circuit court had no jurisdiction over the subject-matter of this case.

— Wo». Frank B. D earing, Judge. (1) The referee’s report stands as the verdict of a jury and will not be disturbed when supported by substantial evidence. Western Benev. Ass’n v. Kribber, 48 Mo. 37; Singer Mfg. Co. v. Givens, 35 Mo. App. 608; Donnovan v. Barnett, 27 Mo. App. 460; Dunlap v. Elks’ Social Club, 25 Mo. App. 180; Darling v. Potts, 118 Mo. 530; Girnbel v. Pignero, 62 Mu. 240. This last case was a. bill in equity.

<p>1. Appellate Jurisdiction: real estate: obstruction to roadway: to recover $500 damages, does hot involve title to real estate. And as affected by answer. A suit against a railroad to compel it to! remove obstructions to a certain roadway to plaintiff’s lands and an answer which asserts that the land was bought from plaintiff’s curator by deed in which was reserved a roadway to his other lands, but that no such reservation was included in the order of the probate court authorizing the sale, and praying that plaintiff be compelled to elect under which he will claim, the deed of his curator or the order of the court, and if he elects to claim under the order oí the court that the reservation of the roadway in the deed be annulled, does not contain anything on which to build a decree affecting title to real estate, for those averments in the answer do not amount to a statement of an equitable counterclaim.</p> <p>2. -: -: -: MUST BE AFFECTED BY JUDGMENT ITSELF. In order to bring a case within the appellate jurisdiction of the Supreme Court on the ground that title to real estate is involved, the judgment rendered in the case must affect title to land. It is., not sufficient that the title be the subject of collateral inquiry in .the trial.</p>

— No». Jos. D. Perkins, Judge. (1) Plaintiffs’ evidence was ample to submit tbe case to tbe jury. It showed that plaintiffs promoted the enterprise of organizing the Chitwood company to whom defendant conveyed the land for a consideration ■of $150,000, acknowledged by defendant to have been received. None of the stock of the Chitwood company was put in the control of the defendant.

— So». W. N. Evans, Judge. (1) The evidence in this case did not authorize the court to decree specific performance of a contract. Taylor'v. Williams, 45 Mo. 80; Glass v. Rowe, 103 Mo-. 513; Lapham v. Dreisvogt, 36 Mo.

Louis City Circuit Court. — Hon. O’Neill Ryan, Judge. (1) Where a motion for new trial is granted'on the ground that the verdict is against the weight of the evidence, such action will not he sustained where it plainly appears that injustice has been done or the discretion of the trial court has been unsoundly or arbitrarily exercised. Parker v. Cassingham, 130 Mo. 348; Bank v. Wood, 124 Mo. 76; Van Liew v. Barrett Co., 144 Mo. 509; Taylor v. Railroad, 163 Mo. 183.

<p>1. KTonsuit: failure to prosecute. Dismissal of a suit for failure to prosecute is a nonsuit within the meaning- of the statute which permits another action to be brought for the same purpose by the same plaintiff within one year after nonsuit.</p> <p>•2. -: same plaintiff. In order to save the second action from the bar of the statute permitting a suit to be brought within one year after nonsuit, the cause of action and the plaintiff must be the' same in both actions. The plaintiffs in both actions need not be the same in name, but they must be substantially ’the same in fact, that is, they must sue in the same right.</p> <p>3. -: -: ejectment. The defendant and plaintiff claimed title under a common grantor. One Albert had become the purchaser at an execution sale against such common grantor, and afterwards defendant entered into possession. One year later Albert died, by his last will leaving all his property to his widow, and seven years later she instituted suit in ejectment against defendant, but this suit had not been tried at the time of her death eight years later. Then the suit was revived in due time in the name of her heirs, but before it was tried the land was sold under an order of the probate court for debts of Albert, and plaintiff became the purchaser and received an administration deed therefor, and then the suit by Albert’s heirs was dismissed for want of prosecution, but within a year thereafter,'but nineteen years after defendant s admitted adverse possession began, this suit was brought. Held, that there is no identity of right between plaintiff in this suit,, who claims by reason of his purchase from Albert’s executor, and the plaintiffs in the first suit, who claimed as heirs of Albert’s devisee, nor are the plaintiffs the same, but, on the contrary, the interests of the plaintiffs in the two suits are antagonistic, and hence plaintiff can not institute a suit within one year after .a nonsuit in the other.</p>

Louis City Circuit Court. — Ho». Jacob Klein, Judge. (1) The petition stated facts -which, if proved, were sufficient to entitle the plaintiff to relief. Their truth was admitted by the demurrer. They were statements of facts and not conclusions of law. Bliss, Code Pleading, sec. 210; Kansas City v. Johnson, 78 Mo. 661; Long v. Armsby Co-., 43 Mo. App. 253.

'Appeal from St. Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. (1) The court erred in refusing to give on behalf of defendant; an instruction in the nature of a demurrer to the evidence, offered at the close of all the evidence, .(a) Because the evidence shows that plaintiff himself was guilty of' negligence which directly contributed to cause the collision in question.

Louis County Circuit Court. — No». John W. Booth, Judge. 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 plaintiffs’ evidence in chief, and at the close of all the evidence, (a) The evidence of plaintiffs clearly showed that Howard C. Campbell was guilty of negligence that directly contributed to cause his death.

<p>Transferred from Kansas City Court of Appeals.</p>

<p>1. Marriage Engagement: elements: pleading. A proposal of marriage by the man and an acceptance by the woman, both parties being free to marry, constitute a valid contract to marry. And a petition which sets forth these things is not demurrable on the ground that it does not show any promise to marry.</p> <p>2. -: BREACH: DEFINITE TIME: 'OBJECTION AFTER TRIAL BEGUN. Where the attention of the court has not, in the demurrer to the petition which charges it with failing to state a cause of action, been called to an omission of an allegation of a definite time in which the marriage was to be consummated and of a request by plaintiff before suit that defendant marry her, and no objection of that kind is made to the petition until the trial has begun, it should then be overruled, if the petition can be [construed as fairly implying what ought to have been expressly averred. And in this ease it is held that objections to a petition, which alleges that defendant informed plaintiff that he did not intend to marry her and that he had abandoned her, that it did not charge a definite time for consummating the promise and a request by her before suit, came too late after the trial began, since those things may be implied in those allegations. The petition in such case states a cause of action defectively, but not a defective cause of action.</p> <p>3. -: pleading: elements op damages. Plaintiff is not required to specify in her petition those elements of her damage that follow naturally a breach of the contract.</p> <p>■4. -: breach: instruction. Where defendant is alone responsible for the introduction into the case of an element of damages, to-wit, an attempt to blacken plaintiff’s character by charging her with unchaste conduct, and has failed, he has no right to complain that it was made an element of damages in an instruction for plaintiff, although not so made by the pleadings.</p> <p>■5. -: -: character of action. A suit for breach of marriage contract is not an action in tort, although it partakes somewhat of the characteristics of such an action, since injury to the plaintiff’s reputation is one of the elements of damage. Freedom to make any just defense he may have should be extended to thé i defendant, but if in doing that he • adds to her other injuries a further injury to her reputation for chastity, without any reasonable cause for the attempt, actual damages for that injury should be added by the jury.</p> <p>6. --: visiting assignation houses. Instructions to the effect that the jury are warranted in inferring that the purpose of plaintiff’s visits to assignation houses was illicit intercourse with men should not be given if they leave out of view the evidence that plaintiff, visited them without knowing their character or for a legitimate purpose.</p> <p>7. -:-: excessive award. The petition asked only for compensatory damages for a breach of the contract to marry • plaintiff, but at the trial defendant’s speech was flippant, and abounded in indecent insinuations, and volunteered the innuendo that he had seduced her, but she made no such charge and denied the fact, nor did the instructions authorize the jury to figure the element of seduction into their award. Held, that the jury should not have permitted his conduct to control the amount of their verdict, but their award of $25,000 is so out of proportion to the means and condition of the parties as to strongly indicate that the jury had it in mind to punish him for making the hurtful insinuations, and therefore the judgment is affirmed only on condition that plaintiff file a remittitur of $12,500.</p>

— Hon. Jno. P. Butler, Judge. (1) If any fact, word or circumstance which forms a necessary ingredient in, or a material description of, the offense he omitted in the information, such omission vitiates the information, and of such vitiation the defendant may advantage himself by motion in arrest.. State v. Hagan, 164 Mo. 659.

— Hon. A. M. Woodson, Judge. (1) The deed was made in 1883 while Mrs. Peter was under the common-law disability of coverture. At that time the real estate of the wife could only be conveyed by the joint deed of the husband and wife, properly acknowledged and certified.

<p>1. Doan Associations: usurious interest: auction bids: statement oe secretary.- Where the borrower from a building and' loan association was present and publicly bid for' the loan made-to him, although he was the only bidder, a previous statement by the secretary that he would have to bid fifteen per cent for the loan in order to get it, in consequence of which the borrower bid the amount suggested by the secretary, can not be construed into-an agreement between the association and the borrower to the effect that he was to have the loan at the premium bid by him, but as merely an expression of opinion by the secretary of the amount of premium the borrower would have to pay in order to get the loan.</p> <p>2. -: -: ARBITRARY RATE FIXED BY BY-LAW. A by-law of a building and loan association which fixes a minimum premium of ten per cent makes loans by such association subject to the defense-of usury. Such a by-law is inconsistent with the statute which, requires free and open competition. Nor does the fact that the association got a larger bid than the usurious rate arbitrarily fixed: by the by-law, relieve the association of its illegality.</p> <p>3. Interest: “legal rate.” The usury statute in using the expression “legal rate of interest” means the statutory rate which obtains in the absence of a contract; it does not mean the rate which may be legally contracted for. Likewise the words “legal rate”' mean, in this State, the rate which the lender may charge in the absence of a contract, and the words “contract rate” mean any rate-above the legal rate which parties are permitted by law to fix upon, in their contracts.</p> <p>4. Building and Loan Associations: premium rates: constitutionality of statute. The Supreme Court will not pass upon, the- constitutionality of a statute unless to do so is necessary to a proper disposition of the ease in hand. Although the appellant may challenge the constitutionality of the building and loan statute as being a special law, in providing that the premiums for a loan bid in accordance with the requirements of the statute shall not be considered interest or render the loan usurious, the court will not pass on that question if it finds that the premiums bid were not made in accordance with the statute and were therefore-usurious.</p> <p>8. -: deed oe trust: trustee. An officer of a building and loan association may be the trustee in a deed of trust given to secure a loan made by the association.</p> <p>6. -: -: foreclosure : inadequacy oe bid. Mere inadequacy of price, in the absence of other considerations, is no ground for setting aside a foreclosure sale under a deed of trust, unless it be so gross and unconscionable as to shock the moral senses.</p> <p>7. Deed of Trust: validity oe sale: estoppel: no pleading: waiver. It is, as a rule, necessary to plead that the mortgagor is estopped from questioning the validity of the foreclosure sale, by the fact that he was present at the sale, and interposed no objection thereto or the manner in which the property was being sold. But the pleading thereof may be waived by the mortgagor’s proceeding with the trial of the case without objection as if the estoppel relied on had been actually pleaded.</p> <p>0. ———: -: -: BUILDING AND LOAN ASSOCIATION: USURIOUS premium. Although the by-law of a building and loan association which fixes a minimum premium of ten per cent renders loans by such association usurious, yet if according to the terms of the deed of trust there has been a default in the payments of the interest and premium dues and the property covered by such deed of trust is put up and sold, and the mortgagor (or borrower) solicits others to attend the sale and bid on the property, and does himself attend and makes no objection to the validity of the loan or the manner of sale, he will be estopped from asking that the sale be set aside, and the purchaser will take the title.</p>

— Hon. W. W. Graves, Judge. (1) The demurrer to the petition should have been sustained. The defendant claimed no present interest, hence, no cloud existed upon plaintiff’s title at the time of filing this suit. Dunklin Co. v. Clark, 51 Mo. 60; Clark v. Ins. Co., 52 Mo. 272; Yerdin v. St. Louis, 131 Mo. 157; Fontaine v. Hudson, 93 Mo. 66; Colline R. E. & B. Ass’n v. Johnson, 120 Mo. 299.

— Eon. E. P. Gates, Judge. (1) The law imputed to plaintiff a knowledge that this train did not carry passengers and hence the engineer was not bound to anticipate any person would be upon the platform for the purpose of taking passage. 5 Am. and Eng. Ency. Law (2 Ed.), 571; Logan v. Railroad, 77 Mo. 667; Sira v. Railroad, 115 Mo. 127; Henry v. Railroad, 76 Mo. 288; Railroad v. Nuzum, 50 Ind.

— Row. D. II.' Ely, Judge. (1) The husband of appellant was never seized of an estate in fee of the premises in question. He merely held them in trust for another. (2) The property was conveyed by deed of general warranty by the husband of respondent in 1830, which was not executed by the wife, and her inchoate right of dower, if she had any, constituted a breach of the covenant at the time it was made.

<p>Railroad: indemnity against eibe: power to contract. A railroad company can by contract indemnify itself against loss by fire communicated from its locomotives to an elevator which, under the terms of said contract, has been constructed on its right of way. It is true that a common carrier can not contract against its own negligence, for such a contract would be void as against public policy, but the fact that the railroad is a common carrier has no1 place in the trial of such a case, because the owner of the elevator does not sustain the relation of passenger, shipper or employee to such railroad.</p>

— Hon. Henry G. Pepper, Judge. (1) In an action to recover damages for false and fraudulent representation, the intentional deceit is necessary to be found. But this appears from knowingly misstating a material fact, knowing that it was acted on from a belief in its truth, without any fault or negligence on the part of the person so acting. The known falsity of a representation is strong evidence of a purpose to practice a fraud. Brookin v. Shinn, 25 Mo.

Louis City Circuit Court. — No». P. B. Flitcraft, Judge. (1) A widow is entitled to a partition after filing her election and it is not necessary that there should have been a final settlement of the estate. Plaintiff need not plead that there is sufficient other property or that the estate is closed; this is matter of defense. Rhorer v. Brockhage, 15 Mo. App. 22.

— Hon. Frank Ii. Hearing, Judge. ' (1) A judgment obtained in a back tax suit on an order of publication against “the unknown heirs of David Bollinger” is void, and the sheriff’s deed purporting to convey the interests of such unknown heirs received for the land sold under such judgment, is also void.

Louis City Circuit Court. — Rom. D. D. Fisher, Judge. (1) A municipal corporation is only “bound to> keep tbe streets and highways in a proper state of repair, free from obstructions, so that they will be reasonably safe for travelers.” Smith v. St. Joseph* 45 Mo. 449. (2) Those not using the streets for purposes of travel can not complain of their condition. The liability of the corporation extends only to travelers injured thereon.

Francois Circuit Court. — No». Jas. D. Fox, Judge. (1) The statute upon which, plaintiff grounds the second count of this cause of action is unconstitutional, for the reason that it seeks to take defendant’s property without due process of law, and denies to railroad corporations the protection of the laws as guaranteed to them under the fourteenth amendment to the United States Constitution, and is also in contravention to that clause of our Constitution which provides that…

— No». Edward P. Gates, Judge. (1) The circuit court had no jurisdiction. The copy of the ordinance, filed, and which was the foundation of the entire proceeding, nowhere showed that the street to be graded or the property to be affected by such grading is situated in Kansas City, Missouri, or even in Jackson county, Missouri. Kansas City v. Smart, 128 Mo. 272; Kansas City v. Vineyard, 128 Mo. 75; McKinney v. Harral, 31 Mo.

— No». Jas. I. Neville, Judge. (1) Under the bill and answer in this case, the court having rendered' judgment dismissing the bill, could not at the same time, render a decree divesting plaintiff of all right, title and interest in the lands, and the decree that the legal and equitable title thereto be; fully aid completely forever vested in the defendant in fee simple, as her separate property and estate, for this was more than defendant asked by her answer, which was only…

<p>Appeal from Butler Circuit Court. — Hon. Jno. G. Wear, Judge.</p> <p>(1) The amended petition stated a cause of action essentially different from that stated in- the original petition and requiring different or additional proof. Evidence which would have been sufficient to establish the facts alleged in the original petition would not have been sufficient to prove those alleged in the amended hill. Consequently, defendant’s motion to strike out, ihe amended petition should have been sustained. Lumpkin v. Collier, 69 Mo. 171. (2) (á) The court -erred in finding that the distilling company, after it ac■quired the notes secured by the deed of trust and prior to the sale of the personal property under said deed, did voluntarily release and surrender the personal property covered by said deed to Miles and his wife. There was no evidence to support said finding, (b) The evidence did not show even a verbal release or discharge. The sale did actually take place, (c) The trust was created by deed and the release or discharge could have been effected only by an instrument in writing. 1 Jones’ Mortgages (5 Ed.), sec. 972; Lippold v. Pleld, 58 Mo. 213. (3) The court erred in ordering in its decree that the value of the personal property, even if it was released by defendants, should be credited on the debt secured by the deed of trust. There is no rule establishing any order of precedence. There is no rule that personal property included in a deed of trust with real estate should first bear the burden of the debt and the real estate go free. When a deed of trust covers several pieces of property there is no rule by which the burden is thrown on- one piece to the protection of the others. The order iñ which they should be sold is a matter of judgment or discretion. The only limitation is that when enough is realized to pay the debt the power of the trustee terminates and he can sell no more. (4) The distilling company did not want the property ; it only wanted payment of its debt. It bid in the property and a balance still remained unpaid, and it is entitled to payment out of the remaining security. Parkey v. Yeatch, 68 Mo. App. 67; Martin v. Turnbaugh, 153 Mo. 172; Walker v. Goodsill, 54 Mo. App. 631; Hall v. Morgan, 79 Mo. 47.</p> <p>(1) Theré was no error in the court overruling the defendants’ motion to strike out the amended petition in this cause. The Conduct of the defendants made the amendment necessary. Even if the amended petition did, as insisted by counsel, state a different cause of action, and was a clear departure from the original petition, yet defendants, after their motion to strike. out was overruled, filed their answer to the amended petition, admitting some of its allegations, denying others, and setting up new matter by way of avoidance, and on the issues tendered went to trial. By so doing they accepted the amendment and waived all objections they may have had to it. Mathews v. Per-due, 79 Mo. App. 149. By answering over after their motion to strike out had been overruled, defendants waived their right to have the action of the court in overruling the motion reviewed on this' appeal. Bungenstock v. Drainage District, 64 S. W. 155; Thrasher Co. v. Donovan, 147 Mo. 622; Walser v. Wear, 141 Mo. 443; Williams v. Railroad, 112 Mo. 463; Scoville v. Glassner, 79 Mo. 449; Ely v. Porter, 58 Mo. 158; Gale v. Foss, 47 Mo. 276. (2) (a) Defendants’ attorney, at the sale and in presence of others, declared that they owned the property and were closing the mortgage to clear it up. The inevitable result of this language was to deter others from bidding at the sale. Anything by a party in interest that chills a sale and prevents free competition among bidders will, on complaint, cause such sale to be set aside. Carson v. Law, 2 Rich. Eq. 296; Herndon v. Gibson, 20 L. R. A. 553; Cocks v. Izzard, 7 Wal. (U. S.) 559. (b)' The evidence is clear and unmistakable that so far as the personal property is concerned, there was a combination between Davis, the attorney for defendant, and Miles, to prevent bidding. The conduct of Davis at the sale, beyond question, had the effect of preventing, absolutely, any competition in bidding at the sale. Such conduct invalidates the sale. Jones, on Mori, sec. 1912; Dover v. Kennerly, 48 Mo. 148. (c) Heie the Morris House property, admitted by defendants to be worth $10,000, was sold and bought in by defendant for $4,591.25, after their attorney, Davis, had publicly declared that it owned both the' mortgage and the property, and were having it sold in order to clear it np. This was sufficient to warrant setting aside the sale. Jones on Mort., sec. 1915; Stoffel v. Schroeder, 62 Mo. 149. (3) The uncontradicted testimony of Miles is, that the personal property in-eluded in the deed of trust was worth $1,200 at the time of the sale. His testimony is also uncontradicted, to ■the effect that defendants’ attorney, Davis, solicited him not to bid on the personal property, and he, Davis, would bid it off, at a nominal figure, and make Mrs. Miles a present of it in consideration that they (Miles and his wife), would dismiss certain suits they then had pending against the Nelson Distilling Go. It was so bid off for $10, and given to Mrs. Miles. This not only operated as a release of the personal property to Miles and his wife, but it was a clear diversion of the trust property from the purposes of the trust. Jones on Mort. (3 Ed.), secs. 1620,1621, and 1631; Calvo v. Davis, 73 N. Y. 216; Boone v. Clark (111.), 5 L. E. A. 288; Inglehart v. Crane, 42 111. 261; Birnie v. Main, 29 Ark. 595; Hoy v. Bramhall, 19 N. J. Eq. 563; Davis v. Briscoe, 81 Mo. 37; Martin v. Jones, 72 Mo. 26; Buck v. Halloway, 2 J. J. Marsh. 124. (4) The court required that defendants give credit on the debt secured by the deed of trust for the value of the personal property so released. This action of the court was right, and abundantly supported by authority. Jones on Mort. (3 Ed.), sec. 1631; Boone v. Clark (111.), 5 L. E. A. 288; Inglehart v. Crane, 42 111. 261; Birnie v. Main, 29 Ark. 595; Hoy v. Bramhall, 19 N. J. Eq. 563.</p>

— Hon. Samuel Davis, Special Judge. (1) As the petition fails to charge defendant with wanton, willful or reckless negligence, and as there is not a syllable of evidence sustaining such charge, plaintiff is not entitled to recover. Davies v. Railroad, 159 Mo. 8; Holwerson v. Railroad, 157 Mo. 242. (2) Deceased was a trespasser upon defendant’s track, which contained cattle guards and a Warning sign, and which was fenced on each side with a wire fence.

— No». L. B. Wood-side, Judge. (1) The judgment and finding of the court in sustaining the will in this case is against the law and not supported by the testimony, (a) Because the proponents failed to place upon the witness stand all the witnesses to the will of Caroline Wash. The heir has* the right to have the condition and mental capacity of the testator to make a will proved by all the witnesses that the- statute has placed about the testator. Odenwaelder v. Schorr, 8 Mo.

Transferred from St. Louis Court of Appeals. (1) Even if-the debt from Wendell Scborle to bis brother, Leopold, was a valid one, and even if Wendell Scborle transferred tbe Kurtz notes in payment of, or security for, sucb debt, yet, if Wendell Scborle further intended, in making tbe sale to Kurtz, to binder, delay or defraud bis other creditors, and if Kurtz participated in sucb intent, then tbe sale as to Kurtz was void, although Leopold Scborle neither knew of nor…

<p>1. Conversion: possession of goods. Where goods have been delivered by a shipper and consignee or his agent to a railroad company, and he receives a bill of lading in .due form, whereby the common carrier agrees to transport the goods to a distant city and to redeliver them there to such consignee, such shipper has the possession of the goods and by virtue of that possession he has the right to recover the goods or their value from any person who seizes them on the route except the true owner, and if any -other person wrongfully obtains possession of them he can not defeat the -shipper’s action of trover and conversion for the value of the goods by showing title in another without connecting himself with the right of such other person. That connection may be established by a showing that the true owner had fraudulently sold or transferred the goods to the shipper and consignee for the purpose of hindering or delaying his creditors, and such creditors may attach them in transit whenever they come within the jurisdiction of the court wherein the attachment writ is sued out.</p> <p>2. -: -: attachment. Tlie title of one in the actual possession of goods is not in anywise affected by attachment suits which are not prosecuted to judgment.</p> <p>3. -: -: -: RELEASE: TRANSFER OF GOODS TO ANOTHER state and attachment there. Where a plaintiff, having a legal' right to attach goods in transit, by means of attachment brings them within the jurisdiction of a court, the sheriff has no right to-deliver them to the plaintiff or his agent, and if he does plaintiff acquires no legal possession over them. And if plaintiff subsequently dismisses the attachment suit his possession thereafter is . illegal, and is no defense to an action for conversion by the shipper who was in legal possession, whether that possession was bona fide, or obtained as a result of an effort by the true owner to delay or defraud his other creditors. And if plaintiff in that attachment suit after the goods have been turned over to him by. the sheriff and his suit was dismissed, transports the goods to another State, and there sues out an attachment which he prosecutes to a judgment, that court never had any jurisdiction over the subject-matter of the suit, and, hence, its judgment is no defense to a suit against the plaintiff therein by the shipper in legal possession for conversion.</p> <p>4. -: -: ATTACHMENT: DISMISSAL: TRESPASSER: JURIS- ' dichón. The legal possession of goods seized under a writ of attachment issued out of a court having jurisdiction over them, is in the sheriff, and when that is dismissed it is in the defendant in the attachment, although they may be actually in the possession of the plaintiff. And although the sheriff may have turned them over to such plaintiff, yet the plaintiff is a trespasser from the dismissal of the suit, and if he holds them until another attachment is sued out at his instance his possession is illegal and he continues a trespasser and is liable for conversion,</p> <p>5. -: -: REMOVAL TO ANOTHER STATE: ESTOPPEL. Where the creditor of the actual owner of goods, who has turned them over to another who delivers them in his own name to a railroad to be shipped to himself as consignee to another city, attaches such goods in transit, and then induces the sheriff to turn them over to him, and transports them across the line into another State and there, having dismissed his first attachment, sues out another, however honest and valid'may be his claim as a creditor against the true owner, and however fraudulent may have been the transfer of the goods to the shipper, the court does not acquire any jurisdiction by the last attachment, and the shipper in a subsequent suit in this State for conversion is not estopped from questioning the jurisdiction of a court of a foreign State obtained in’ such a manner.</p> <p>6. --: defense: attachment. A defendant who has taken possession of property under an attachment and dismissed the same, but retained the goods and sold them, without the court in pursuance to whose orders they were sold ever having obtained jurisdiction over his suit, can not in a subsequent suit for conversion be heard to justify the seizure and possession of the goods by showing that the transfer thereof by the true owner, who was his creditor, to the person in whose possession they were at the time of the attachment, was fraudulent as to the creditors of such true owner, and done to hinder or defeat them.</p> <p>7. -: -: freight charges. The lien of a common carrier on goods for freight charges for transporting them, is not transferable, can not be sold or assigned, and if a creditor of the true owner pays the freight charges, and the carrier’s lien is assigned to him, and he thereby gets the goods into his hands, that lien will not be available to him as a defense in a subsequent suit by tha shipper, who1 was also the consignee, against him, for conversion.</p> <p>8. -: ESTOPPEL: SEIZURE OE GOODS: PREFERRED CLAIM: TRESPASSER. A purchaser of goods said to defendant that he owed plaintiff $2,100, who would not trouble him for the debt, nor permit her claim to interfere with the payment of the claims of other' creditors, and thereupon defendant sold him a bill of goods, and afterwards wrote to plaintiff about the purchaser’s statement, who replied that it was correct, and soon thereafter this purchaser shipped to plaintiff a large amount of goods, which defendant stopped in transit, and had them sold under the process of a court which never acquired jurisdiction over them, and thereupon plaintiff sued in conversion for the value of the goods so seized. Held,.. that the statement of the purchaser and the letter of the plaintiff, did not operate to estop plaintiff’s, suit, since her assurance was not given until after defendant had sold and delivered the goods, there being no binding agreement between her and defendant not to enforce her indebtedness against the interests of defendant, and she had no agreement with the purchaser’s creditors not to collect her debt or to give them any preference, and the defendant had not sold the goods on the strength of her assurance. Held, second, that defendant can not invoke such representation in estoppel because in seizing the goods defendant was a trespasser.</p> <p>9. Estoppel: general rule. There can be no estoppel unless the party alleging it relied upon the representations of the other, and was induced thereby to take some action to his own injury.</p>

— Hon. Jno. P. Butter, Judge. (1) If $359.70, the amount of the judgment was retained by defendants as a credit due plaintiff on account of interest, it was by mistake. .However, the total sum of $722.77 was paid to the county treasurer by defendants covering the entire term of two years from May 4, 1897, to May 2, 1899, at four and one-twentieth per cent interest on all daily balances, which were paid to said county monthly, accepted and received by him as such treasurer,…

<p>Appeal from St. Louis City Circuit Court. — Eon. Waller B. Douglas, Judge.</p>

<p>1. Special Juries: drawn by lot. The right to have a special jury-drawn by lot is nowhere guaranteed by the statutes of Missouri. Tire very object of the statute authorizing a special jury is to allow the officer who selects the jurors to exercise his special judgment instead of drawing at random from the whole list of jurors.</p> <p>2. Evidence: privileged communication to lawyer. A communication made to a lawyer in an effort to enlist his services in inducing a briber to disgorge a certain fund put up by him as the price of certain legislation, is not a privileged communication, and he is not incompetent to testify the facts communicated to him by defendant in that connection.</p> <p>3. -: exclusion: NO objection. After a witness has- testified for the State and defendant has cross-examined him, without objection, it is too late to exclude his testimony as incompetent.</p> <p>4. Perjury: aeter indictment in main charge. The examination of a witness concerning his knowledge of a certain bribery is rendered none the less material, and his false answers are none the less perjury, because that examination was made after the grand jury had voted to return, but had not returned, indictments against the two main offenders in that crime. It was the duty of the grand jury to ascertain all the competent witnesses to the bribery, and their inquiries were not shut off by voting to return the indictments.</p> <p>5. -: collateral evidence. Any evidence that sheds light on the motive for tne crime charged, is competent. For instance, where defendant is being tried for perjury, for falsely swearihg he ¡¿new nothing of a bribery transaction between a certain member of the Municipal Assembly of which he was a member and certain street railway officials who desired a franchise, it is competent to prove the existence of the corruption fund, and the pending of the franchise ordinance for which the bribe was put up, and the fact that the other house of the assembly was enjoined from passing it, and that therefore the bribery agreement failed.</p> <p>6. --:' SELE-INCRIMINATION: GRAND JURY: EXAMINATION OE SUSPECTS. -It is against positive constitutional guaranties and conflicts with man’s instincts of fairness, right and propriety, that the person whose conduct is under investigation by a grand jury should himself be called as a witness without being advised that his conduct is being investigated. Nor can any incriminating evidence thus obtained from him be used against him on his trial for a crime which his evidence in that way obtained tends to prove. But because the grand jury or even the court erroneously requires him to testify concerning a conspiracy between himself and other confederates to commit a crime, he is none the less guilty of willful and corrupt perjury if he testifies falsely. His course is to plead the constitutional right not to be compelled to testify against himself.</p> <p>7. -: perjury: bribery: conspiracy. A witness before a grand jury which is investigating a charge of bribery against nineteen members of a city council, is not justified or excused for falsely swearing he knew nothing about any of the facts which would have proved that said nineteen members, himself being one of them, had entered into a conspiracy to sell their votes for a franchise to a street railway; nor were his false answers any the less perjury, because an attempt was made at the trial to prove that his testimony was perjured by showing such conspiracy to exist and that he was a confederate therein. He should have claimed his right under the Constitution which does not permit a witness to be compelled to testify against himself in a criminal cause.</p> <p>8. -: -: compulsory testimony. Because a witness is wrongfully compelled to testify concerning a crime in which he participated, it is neither true nor sound to say that he is thereby compelled to commit perjury.</p> <p>9. -: -: -: admissions before grand jury. If a witness, because of his connection with tne crime being investigated by the grand jury, is wrongfully compelled to testify, his admissions against himself can not be used against him on 'a subsequent trial for the offense about which he was compelled to testify.</p> <p>10. -: habeas corpus. A witness who is aware that he is suspected of being connected with the crime then being investigated by the grand jury can refuse to testify in furtherance of that investigation on the ground that his testimony would tend to incriminate'him, and if the jury persists and he is committed by the court, he may be released under habeas corpus.</p> <p>11. -: knowing and hearing: instruction. .Where a defendant is indicted for falsely swearing he did not know of the existence of a certain bribery corruption fund, the instructions should not permit him to be convicted if “he had ever heard” of such fund.</p>

<p>Appeals: serving transcript in another case. Where there is a stipulation between the parties to suits somewhat alike as to the introduction of evidence in the trial court, the appellate court will not, in the absence of any reference to a disposition of the causes therein, look through, a transcript which has been prepared for both appeals for such evidence as it may deem applicable to each. It is incumbent upon appellant to incorporate in separate records the evidence which he and the trial judge considered applicable to the cause in which a reversal of the judgment is asked. In such case, this court will dismiss the appeal if appellant files in this court, not the abstract or transcript in this case, but the’abstract or transcript made in another, in which the pleadings were dissimilar and different judgments were rendered.</p>

— No». James Gibson, Judge. (1) In this State it is improper and illegal in any contest over a will or in any proceedings to probate a lost will to prove by oral declarations of the testator the fact that a will was either made- or revoked by him.

<p>1. Negligence: railroad bridge: construction: allegations. In a suit against a railroad for damages sustained by the falling of a passenger train through a bridge, an allegation that the bridge was a “pile bridge, when it should have been a span bridge,” without more, does not charge any negligence on the part of the railroad. But if this allegation, is followed by others which show, -if true, why it was hot the proper kind of a bridge for the particular place, and not reasonably safe, the petition will not be held to fail to state a cause of action in that particular.</p> <p>2. -: -: -: -: duty or company to employees. It is the duty of a railroad company to its employees in its train service to construct and maintain reasonably safe bridges over branches and creeks crossed by its tracks, and if it fails to do so, and in consequence of such failure a conductor in charge of the train which falls through such bridge is injured, the company is liable to him in damages for such injury. But it is not the duty of the company to furnish those in charge of its trains any particular kind of a bridge, if the one furnished is reasonably safe.</p> <p>3. -: -: evidence: prima racie case. The fact that a railroad bridge went down under a train and the conductor was injured, does not make out a prima facie case of negligence against the railroad. It is incumbent on plaintiff to show how and why the accident occurred.</p> <p>4. -:--: prima racie case. The plaintiff makes out a prima facie ease for a recovery of damages for his personal injuries by showing he was the conductor on defendant’s passenger train which, in crossing a bridge, went down and injured him, and that the bridge was a pile one, which, on account of the character of the stream and the country drained by it, was not a reasonably safe bridge at that locality; or, that the piling which supported the bridge had become rotten, unsouna and defective, and therefore was not reasonably safe; or, that there was not sufficient earth around some of the pilings to hold them, in proper position, and for that reason it was not reasonably safe; or, that for any or all these reasons it fell, and injured plaintiff, and that defendant knew, or by the exercise of reasonable care and diligence might have known, of its unsafe condition before the arrival of the train.</p> <p>5. -: -: -: how overcome: act oe god. When plaintiff has made out a prima facie case entitling him to go to the jury, it devolves on defendant to overcome it and to show by the weight of the evidence to the satisfaction of the jury, that the accident was attributable to some other cause. This it may do, in the case of the breaking down of a bridge through which a train fall, by showing that the water from a suddgn, unforeseen, unprecedented storm, flood or waterspout, purely local in its character and not to be foreseen or provided against, had only a few brief minutes previously swept the bridge away. But where there is contradictory evidence that there was no such storm, that defense is for the jury.</p> <p>6. -: -: construction: INSTRUCTION. In a suit by a, conductor to recover damages from a railroad for personal injuries caused by the plunging of his train through a bridge, it is proper to instruct the jury that the company was bound to maintain a reasonably safe bridge, and to submit to them whether or not a pile bridge, in view of the character of thei stream and the 'area of country drained by it, was such a bridge.</p> <p>7. Instructions: how considered. An instruction should be considered as an entirety, and not by certain parts or words taken from it.</p> <p>8. ITegligence: prior physical condition. Unless plaintiff’s prior diseased condition had some connection with his injuries for which he sues, there is no reason why that prior physical condition should be considered by the jury in mailing up their verdict.</p> <p>9. -: injuries: elements. In a suit for damages for physical injuries the jury should take into consideration any physical injuries to plaintiff resulting directly or indirectly from the accident.</p> <p>10. -: EORMER TRIAL: READING NEWSPAPER ACCOUNT. After the jury had retired to consider of their verdict a juror secured a newspaper which said: “Gopeland is suing the Wabash railroad for $35,000 for injuries received in the wreck at Missouri City where eight men were killed. A coffin was bought for Gopeland, but he recovered. A trial last term of court resulted in a hung jury. One of the jurors was for nothing, and hung to the last, while one of the others was for $20,000, two for $15,000 and eight for $10,000. There is much interest in the case.” Eeld, that the fact that some of the jurors pending the trial read this article furnishes no ground for reversal of a verdict for $15,000.</p> <p>11. Verdict: excessive. A verdict for $15,000 ior personal injuries sustained in a railroad wreck, is_ held in this case not to be excessive.</p>

— Now. A. M. Woodson, Judge. (1) The decree in this case can not be sustained because it is not responsive to the issues made by the petition. Ross v. Ross, 81 Mo. 84; Reed v. Bott, 100 Mo. 62. (2) The petition is an ordinary bill to set aside an alleged fraudulent deed and to subject certain real estate to the lien of plaintiff’s judgment. No allegations are made which justify, a personal judgment.