Volume 180 — Missouri Reports

Louis City Circuit Court. — Sow. D. D. Fisher, Judge. (1) It is beyond the power of a prosperous business corporation to convey away all of its assets without the consent of all the stockholders. Such action is a violation of the terms of the agreement between the stockholders themselves and the stockholders and the company, that the corporate property should be devoted to carrying on the corporate business.

<p>1. FEES OF MARSHAL: Fugitive from Justice. When the marshal of the Supreme Court executes a capias Issued by the court, he is entitled to the fees and expenses allowed -'to sheriffs in such cases. But the marshal does not act, and can not act, in his capacity as marshal, in going to another State and bringing hack a fugitive from justice. The writs of a Missouri court can only he executed within the jurisdiction of the court — that is, within the State of Missouri. Hence, the marshal, as such, is not entitled, under the Missouri statute, to fees and expenses incurred in going to another State and bringing back a fugitive from justice, whose judgment of conviction has been confirmed by the Supreme Court. In performing that service he does not act as marshal of the court.</p> <p>2. -: -: Messenger of Governor. Neither is there any provision of law prescribing the amount of fees or expenses to which a messenger, acting under the appointment of the Governor to make an arrest, is entitled for going to another State and arresting, and bringing back to this State and lodging in the penitentiary a person against whom a judgment has been affirmed by the Supreme Court.</p> <p>3. -: -: -: Mandamus. Since the statute authorizes the Governor to ascertain the fees and expenses to be allowed a messenger appointed by the Governor to go to another State and bring back a fugitive from justice, the Auditor can not be made to pay those fees and amounts until the Governor has determined how much shall be allowed the messenger for such service.</p>

Prohibition. The application for a writ of prohibition in this case is not premature because the board and court have taken every step possible unde the act, save to actually put the relators in jail. When that occurs, some other remedy than the one selected will have to be invoked.

Prohibition. • The trial court, notwithstanding it found that there was no equity in the bill, had the undoubted power by its decree to preserve the status quo pending the appeal in order that irremediable injury might not be inflicted upon the plaintiff.

— How. Gallatin Craig, Judge. (1) Plaintiff school district is not legally incorporated : 1, notices of the proposed change were not given as required by law; 2, the proposed new district contains, besides territory taken from old districts, unorganized territory, and the statutory provision for taking unorganized territory into a district is not followed; 3, no appeal was taken from the result of the election to the school commissioner by any party authorized to make. such…

Louis City Circuit Court. — How. H. D. Wood, Judge. (1) The charter of the city of St. Louis guarantees competition in the work of reconstructing streets, by declaring that such work shall be let to the lowest responsible bidder. Charter, art. 6, sec. 27.

Mandamus. (1) (a) No one, nor all, of the steps taken in the case of the railway company against relators, from the filing of its exceptions to the commissioners’ report down to and including the proceedings of the recent September term of respondent’s court, can affect the commissioners ’ award as the amount to which relators are entitled pending the litigation. Railroad v. Clark, 119 Mo. 373.

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

Louis City Circuit Court. — Hon. Selden P. Spencer, Judge. (1) The instruction given by the court is not the law as applicable to carriers of passengers.

Habeas Corpus. (1) Prom the face of the pleadings in the main case, the question as to whether the Crommers had title to the land sold the lumber company and conveyed by its deed of trust back to them, is directly involved; and the admission made by the lumber company, first, in its motion for a rule against the Crommers for contempt, “ that the notes and deed of trust . . . were sought to be cancelled and declared void after having been procured by fraud and without…

— Ro». Wm. L. Jarrott, Judge. There was no service upon the defendant insurance company, or any of the defendants. The court, therefore, erred in overruling the motion of appellants to quash and strike out the sheriff’s return, and the judgment should he reversed and the cause remanded. R. S. 1899, secs. 994, 995 and 996; Hoen v. Railroad, 64 Mo. 561; Railroad v. Hoereth; 144 Mo. 136.

Louis City Circuit Court . — Hon. Jacob Klein, Judge. (1) The demurrer to the evidence should have been sustained. The evidence for plaintiff disclosed that the car could have been seen by the deceased at least a block away, if he had looked. It could have been heard'if he had listened.

— Row. A. D. Burnes, Judge. (1) The undisputed proof shows that the plaintiff’s cause of action is barred by the statute of limitations. The deed from the Payton heirs to Samuel Pay-ton was sufficient to ripen into a complete title and fix and vest the same in defendant.

<p>1. QUO WARRANTO: Finding of Facts. The finding of facts by the trial court, in a suit to remove a justice of the peace from office, where the evidence is conflicting, will not be reviewed on appeal.</p> <p>2. -: -: Justice of Peace: Residence of Petitioners. The only question in the case being one of fact, that is, whether or not the" petitioners who petitioned the county court to appoint defendant a justice of the peace, lived more than five miles from the nearest justice of the peace in the township, and the evidence on that point being conflicting, the Supreme Court will not review the finding of the trial court thereon.</p>

James Gibson, Judge. (1) The action of the trial court in declaring the law to be that under the pleadings and evidence the plaintiff could not recover was right. And it was error to set the same aside. The petition wholly fails to aver that the servants of the appellant were guilty of wantonness in not stopping the train after discovering the perilous condition of the deceased. R. S. 1899, sec. 592; 14 Enel.

— Ron. Jas. D. Fox, Judge. (1) The policy of the law is to uphold judicial sales. Strouse v. Drennan, 41 Mo. 297. (2) Where a deed contains two inconsistent descriptions, that description which the whole instrument shows best expresses the intention of the parties must prevail. Whitaker v. Whitaker, 74 S. W. 1031.

— Hon. Jno. P. Butler, Judge. The result of this case depends entirely upon the force and effect given to section 8791, Revised Statutes 1899. (1) Respondent was entitled to recover without regard to the fortunes of section 8791, Revised Statutes 1899, and would be entitled to judgment in the total absence of such an enactment.

Transferred from St. Louis Court of Appeals. (1) The testimony offered by the plaintiff and rejected by the court would have conclusively established the fact that the pretended decree was never rendered by the court. Courts of equity have power to set aside decrees obtained by such fraudulent and corrupt practices.

— How. E. B. McKee, Judge. (1) The specific performance of a contract, in equity, is a matter not of absolute right to the party seeking it but of sound discretion in tlie court, which may withhold or grant relief according to the circumstances of each particular case. Hence, it requires much less strength of case on the part of the defendant to resist a bill to perform a contract, than it does on the part of plaintiff to maintain a bill to enforce specific performance.

Louis Court of Criminal Correction.— Hon. Willis H. Clark, Judge. (1) The ordinance is void in so far as it imposes upon the agent of the owner the duty of removing or securing unsafe buildings, (a) Because the assembly has no power to impose such duty on the agent. St. Louis v. Weber, 44 Mo. 550; St. Charles v. Nolle, 51 Mo. 122; City of Tarkio v. Cook, 120 Mo. 9; City v. Eddy, 123 Mo. 557; Mt. Pleasant v. Beckwith, 100 U. S. 514; 1 Dillon, Mun.

— Hon. W. W. Graves, Judge. (1) Instruction 4, given at the instance of the plaintiff upon the measure of damages, was clearly erroneous. Goss v. Railroad, 50 Mo. 614; McGowan v. Ore & Steel Co., 109 Mo. 518; Carpenter v. McDavitt, 53 Mo. App. 403. (2) Instructions which assume disputed facts are erroneous. Linn v. Massilon, 78 Mo. App. 116; Robertson v. Drane, 100 Mo. 273.

— Hon. J. W. Alexander, Judge. (1) The plea is sufficient on its face and is not demurrable. It is in exact accordance with approved forms. Kelley’s Orim. Law, sec. 235; Henry v. State, 33 Ala. 403. The plea of autrefois acquit consists of matter of record and matter of fact. Of record, the indictment or information, and the acquittal; of fact, that the defendant is the same person, and that the offenses are the same. 9 Enc. PI. and Pr., 663; State ex rel. v. Edwards, 42 La.

Louis City Circuit Court.— Son-. H. D. Wood, Judge. (1) There is no equity in the hill. If the statements in the bill are true, plaintiffs have a full and complete right to make every defense at law in a suit upon the taxbills, and there is no necessity to ask equitable interference.

<p>1. SPECIAL TAXATION: Power. Special assessments for local improvements are referable to the taxing power.</p> <p>2. —-: Manner of Assessment. It is within the power of the Legislature to create a special taxing district, and to charge the cost of a local improvement, in whole or in part, upon the property in said district, either according to valuation, or- superficial area or frontage.</p> <p>3. -: -: Constitutionality. The provisions of article 10 of the Missouri Constitution in regard to maximum rates of taxation, are applicable only to taxation in the ordinary acceptation of the term, and are inapplicable to special assessments to pay the costs of local improvements.</p> <p>4. -: -: -: Uniformity. So also are provisions of the Missouri Constitution in regard to uniformity of taxation inapplicable to special assessments to pay the costs of street improvements or other local improvements.</p> <p>5. -: -: -: St. Louis Charter. The amendments to the charter of the city of St. Louis in regard to special taxation for paying the costs of street improvements, are not unconstitutional.</p> <p>6. -: Due Process of Law: Notice. No notice is required by the Constitution to be given to property-owners respecting those matters which the Legislature determines, or delegates to a ■ municipal assembly. Publication of notice to the property-own-' ers, and the giving of an opportunity to them to be heard before the tribunal upon which is devolved the duty of ascertaining the facts and acting therein in a special assessment procedure for improvement of a street, satisfies the constitutional requirement and is due process of law as to those matters which are to be passed upon by that tribunal.</p> <p>7. -: -: Apportionment of Cost: Benefit Conferred. When the taxing district has been fixed by valid legislation, and when the apportionment of the cost of the improvement upon the property of the district has been so fixed, the owner of the property in the district can not be heard to contend in court, in a suit in equity to cancel the taxbills, that his property was not in fact benefited, or to the amount assessed in accordance with such apportionment.</p> <p>8. -: Charter of St. Louis: Force and Effect. The charter of St. Louis adopted by a vote of the people in obedience to an express grant of the Constitution has, with respect to municipal matters, including special assessments for local improvements, all the force and effect of an act of the Legislature.</p> <p>9. -: Front Lot: Exceptions. The words “the property or lot fronting on the street to be improved,” as used in the amend-1 ment to the St. Louis charter, where the lot to be assessed with three-fourths of the cost of the improvement is an unplatted tract and fronts on a street other than that to he improved, refer only to such property as actually fronts or faces upon the street to be improved. Unless, the property fronts on the street to be improved, it does not fall within the exception made in the charter.</p> <p>10. -: Fronting, Adjoining and Abutting. The words “fronting,” “adjoining” and “abutting,” as used in the charter amendments, are not synonymous. They are by the amendments made to refer to distinct subjects or conditions.</p> <p>11. -¡Unplatted Lots: Midway Rule. Where property has not been divided into lots, whether platted and recorded, or divided into lots not platted and recorded, then the exception that the cost of the improvement of a street other than that on which the property fronts, may be assessed against the entire property, has no application, but the “midway” rule must govern, and only half of the property or tract can be taxed with three- . fourths of the cost of the improvement.</p>

— Hon. A. D Burnes, Judge. (1) The unlawful exemption of the Act of 1883 (Laws 1883, p. 37) rendered the power to extend void, for the reason that it can not be supposed that the Legislature would have passed the act at all without this exemption clause in it, and, therefore, the whole act must fall because of this unconstitutional provision. Copeland v. St. Joseph, 126 Mo. 428.

— Eon. Geo. F. Longcm, Judge. (1) The petition does not state facts sufficient to constitute cause of action. The “Exhibit” is no part of the petition. Kearney v. Woodson, 4 Mo. 114; Had-wen v. .Ins. Co., 13 Mo. 473; Hall v. Harrison, 21 Mo. 227; Chambers v. Carthel, 35 Mo-. 374; Deitz v. Cor-win, 35 Mo. 376; Curry v. Lackey, 35 Mo. 389; Baker v. Berry, 37 Mo. 306; Dyer v. Krayer, 37 Mo. 603; Bowling v. McFarland, 38 Mo.- 465; Kerr v. Ins.

Louis City Circuit Court. — How. D. D. ■ Fisher, Judge. (1) The court erred in refusing’ to give the instruction in the nature of a demurrer to the evidence asked by defendant at the close of all the evidence. This instruction should have been given: (a) Because the evidence shows conclusively that plaintiff, in stepping upon defendant’s track, immediately in front of an approaching car, was guilty of contributory negligence.

— Now. Jno. W. McElhmney, Judge. The court erred in refusing defendant’s instruction in the nature of a demurrer to the plaintiff’s evidence: Because such evidence showed that the injury was caused by the act of a fellow-servant, (a) It is the act, and not the rank, of Edwards which determines-whether he and Fogarty were fellow-servants at the time of the injury.

— So». E. M. Hughes, Judge. (1) The judgment entered in the case of Roden v. Helm et al. is void for lack of description of the property in mortgage. Jones on Mortgages, secs. 65 and 66. (2) The judgment of foreclosure in that case and the sheriff’s deed thereunder is void. Mcllvaine v. Smith, 42 Mo. 45; Lackland v. Garesche, 56 Mo. 269; Lackland v. Smith, 5 Mo. App. 153; Lambert v. Haydel, 96 Mo. 439; Partridge v. Cavender, 96 Mo. 542; Block v. Morrison, 112 Mo. 343.

— Hon. Frank It. Bearing, Judge. (1) Suits to establish resulting trusts have been of frequent occurrence in Missouri and elsewhere. While each ease rested upon the view taken of its own particular facts, the principles of decision in the several jurisdictions have been remarkably in unison and well settled.

Louis City Circuit Court — New. W. B. Douglas, Judge. (1) The only evidence admissible as to the alleged defective condition of the’sidewalk was as to its condition at the time of the alleged accident. Alcorn v. Railroad, 108 Mo. 90; Hipsley v. Railroad, 88 Mo. 354; Bowles v. Kansas City, 51 Mo. App. 419; Colyer v. Railroad, 93 Mo. App. 152.

— Hon. E. M Hughes, Judge. (1) Under the deed there was never any seizin or right of seizin in the grantee, either legal or constructive, and as she died before the life tenant there can be no curtesy. Right to actual possession by the wife during coverture is a necessary condition to the right of the husband to curtesy. Seizin is in the life tenant; during the whole period of the life estate.

Louis County Circuit Court. — Hon. Jno. W. McElhinney, Judge. The court erred in refusing to give, at the close of plaintiff’s evidence and at the close of all the evidence, an instruction in the nature of a demurrer to the evidence, asked by defendant: (a) Because there was no evidence of any negligence on the part of defendant. State v. Brooks, 99 Mo. 137; Peary v. Railroad, 162 Mo. 75; Erwin v. Railroad, 68 S. W. 91; Holmes v. Lédding, 69 S. W. 323.

<p>Appeal from Buchanan Circuit Court.— Hon. A. M. Woodson, Judge.</p> <p>This ease should be certified to the Kansas City Court of Appeals under the following authorities: Guy v. Sav. & Bldg Assn., 149 Mo. 606; Price v. Blankenship, 144 Mo. 203; Rothrock v. Lumber Co., 146 Mo. 57 ; Edwards v. Railroad, 148 Mo. 513; Bonner v. Lisenby, 157 Mo. 165; Bradley v. Ins. Co., 163 Mo. 553; Vandergrif v. Brock, 158 Mo. 681.</p>

— No». J. E. Slover, Judge. (1) The United States court by the foreclosure proceedings and other proceedings therein, and particularly by the filing of plaintiffs’ intervening petition, having first obtained complete jurisdiction over the subject-matter and the parties to this controversy, the trial court should have refused to entertain jurisdiction, or at least should have stayed proceedings until the intervening petition of plaintiffs pending in the United States court…

— No». L. B. Wood-side, Judge. (1) The sheriff’s deed under which plaintiff claims title recites that the sheriff levied upon all the right, title and interest of Ludwig… Held: that though the aforesaid conveyance was void, the court should, while rendering judgment for plaintiff for possession of the land, also award the defendant the value of the permanent improvements put on said land by defendant, together with the purchase money paid by him to plaintiff for said land.

Daviess Circuit Court. — No». Frank Sheets, Special Judge. (1) The plaintiffs, Mrs. Johnson and Mrs. Roberts, are to be considered creditors of tbe deceased David Murphy, who was a surety on tbe bond of tbe trustee of their estate, from tbe date of tbe bond, even though tbe breach of the bond may not have occurred until long after its execution. Wait on Fraud. Conv. & Cred. Bills (3 Ed.), secs. 90, 91; Krueger v. Vorbauer, 164 Mo. 156; 14 Am. and Eng. Enc.

— Hon. G. 0. Tichenor, Special Judge. The deed being voluntary and the grantor being insolvent it was void as to existing creditors, among others, for the following reasons: (a) No consideration was paid therefor, (b) The consideration was fictitious, (c) The assumption of the mortgage does not aid it.

— Ho». Gallatin Craig, Judge. (1) Contracts involving the commission of acts mala prohibit a are illegal and void. Buckingham v. Fitch, 18 Mo. App. 91; Friend v. Porter, 50 Mo. App. 89; Swing v. Cider & Vinegar Co., 77 Mo. App. 397; Penn v. Bornman, 102 111. 523.

— Now. L. B. Wood-side, Judge. (1) If respondent was entitled to subrogation to tbe rights of Howell county, she could only hold the lands as a mortgagee in possession and was not entitled to the absolute title to the same. Ailey v. Burnett, 134 Mo. 313. And, if entitled to subrogation, she could only claim an interest in tbe lands equal to tbe amount sbe paid toward disebarging tbe mortgage. Ailey v. Burnett, supra; Smith v. Stephens, 164 Mo. 615.

Louis City Circuit Court. — Bow. Wm. Zachrits, Judge. (1) Defendant’s demurrer to plaintiff’s evidence and to all the evidence should have been sustained. A landlord is not bound to keep leased premises in repair in the absence of an agreement to do so. Eyre v. Jordon, 111 Mo. 424; Gordon v. Peltzer, 56 Mo. App. 604; Ward v. Fagin, 101 Mo. 669; Peterson v. Smart, 70 Mo. 34. (2) The verdict was for the right party, and should not have been disturbed for that reason.

<p>1. APPELLATE JURISDICTION: Suit for Taxes: Motion to Set Aside Sale and Judgment. The Supreme Court has no jurisdiction of an appeal from the .order of court overruling defendant’s motion to set aside a sheriff’s sale of defendant’s lands for city taxes due against the lands, and to set aside the judgment against defendant for such taxes, if the amount of the judgment against him is only $22.50. Such a judgment does not involve title to real estate; neither does the order of the court overruling the motion to set the sale aside, filed before the sale was approved. (Overruling, on this point, McAnaw v. Matthis, 129 Mo. 142.)</p> <p>2. -: -: Assumption of Title. A suit to collect taxes due against real estate is a suit to fasten a lien on the defendant’s real estate, and it necessarily assumes that the title is in the defendant. It is simply an action in personam. Hence, neither the judgment therein against defendant, nor an order overruling a motion to set aside the sale of the land under execution to satisfy the judgment, and to quash the execution, involves title to real estate in the sense to give the Supreme Court jurisdiction over an appeal from the court’s order overruling the motion.</p>

.Louis City Circuit Court. — Ho». D. D. Fisher, Judge. (1) Appellant, the Halpin Eeal Estate Company, claims that the evidence shows that James Halpin, at the time he conveyed the lot in question to the Halpin Eeal Estate Company, on January 2, 1900, was indebted to that company in a sum in excess of $1,250, the price at which he sold and conveyed the lot to that company, and that this being so the trial court erred in rendering judgment in favor of plaintiff.

— Hon. J. II. Stover, Judge. (1) In an equity case this court will examine the evidence, and render such judgment as, in its opinion, should be rendered, regardless of the finding of the trial court. Sheridan v. Nation, 159 Mo. 27; Robertson v. Sheppard, 165 Mo. 360; Iíoellér v. Haffner, 155 Mo. 589; Dunivan v. Dunivan, 157 Mo. 157; Blount v. Spratt, 113 Mo. 48; Lins v. Lenhardt, 127 Mo. 271; Warren v. Ritchie, 128 Mo. 311.

— Hon. A. D. Burnes, Judge. (1) When the formal execution of a will according to tlie requirements of the statute is shown, as was done in this case, and the subscribing witnesses testify to the sanity of the testator and he is of proper age to make a will, a prima facie case in favor of the will is made, and it then rests upon the contestants to overcome the prima facie case by substantial evidence.

— Hon. Jas. T. Ne-ville, Judge. On February 19, 1901, and sis days prior to tbe delivery of tbe sheriff’s deed to Mr. Hamlin conveying tbe land in controversy, L. B. Perkins received his final discharge in bankruptcy. On February 26, 1902, Mr. Hamlin goes to the sheriff’s office, and pays for this deed and records same, and the only consideration paid by him for the deed was the Yandiver judgment.

— Hon. N. M. Shelton, Judge. (1) Tlie petition does not state facts sufficient to constitute a cause of action against defendant. The petition seeks to set the deed aside. The only causes stated are that plaintiffs are the only children of Margaret Coulson, that defendant was not related to her, that the deed was never delivered, that neither plaintiffs or defendant knew of it until after the death of Margaret Coulson.

— How. Jos. D. Perkins, Judge. (1) The power to levy taxes is purely statutory and must he clearly given, otherwise it can not he exercised. State ex rel. v. Railroad, 149 Mo. 635; Carondelet to use v. Picot, 38 Mo. 130; State ex rel. v. Short-ridge, 56 Mo. 126; State ex rel. v. Railroad, 87 Mo. 236. The power to collect taxes is purely statutory and the collector can take no step which is not provided for by the statute. McPike v. Penn, 51 Mo. 63.