Volume 202 — Missouri Reports

Louis City Circuit Court. — Son. Jos. E. Withrow, Judge. (1) The information, which was duly verified hy the affidavit of the assistant circuit attorney, is sufficient in form and substance. It is fully up to the requirement of the statute; and informations and indictments similar to it have been approved by this court. State v. Cave, 81 Mo. 450; State v. Huckeby, 87 Mo. 414; State v. Walker, 194 Mo. 369; R. S. 1899, secs. 2033, 2039; Kelley’s Crim. Law, sec. 821.

— Ho». John, T. Moore, Judge. (1) The court did not correctly define grand larceny in any instruction given in the case. If the defendant did not take the steer with intent of making it his own property and to permanently deprive the owner of the same, he would not he guilty of larceny, and that question should have been submitted to the jury.

- — Hon. Howard Gray, Special Judge. (1) Tlie information is fatally defective, in this, that there is no direct charge that defendant did ‘ ‘ discharge and shoot off, upon and against the deceased” the revolver described in the information.

— Hon. John T. Moore, Judge. (1) All of the defendant’s evidence was admitted, except in one or two instances, where the State’s objections to defendant’s questions were sustained. Without making any offer of proof, or stating what he expected to prove, defendant simply saved his exceptions. State v. Hodges, 144 Mo. 50; State v. Martin, 124 Mo. 514.

— Now. L. B. Wood-side, Judge. The court should have required the State to elect on which act of intercourse it would depend for conviction, as evidence of other acts as substantive offenses is not admissible. Smith v. Com., 60 S. W. 531; 16 Am. and Eng. Ency. Law, 139; 7 Ency.

— Ron. B. J. Casteel, Special Judge. (1) Tbe regular judge, Wofford, was not properly-disqualified; bence, there was no authority under tbe law for Casteel, special judge, who tried tbe case, to act. Secs. 2594, 2595, R. S. 1899. Defendant was the only proper person to make tbe affidavit. State v. Thomas, 32 Mo. App. 159; State v. Brownfield; 83 Mo. 452; State v. Shipman, 93 Mo. 157; State v. Sumner, 143 Mo. 228.

— How. N. M. Bradley, Special Judge. • (1) There was error upon the part of the trial court in sustaining the demurrer to defendant’s plea in bar. (a) That there was a previous acquittal upon the first count of the indictment (which, for the purpose of this case, must and will be considered a separate indictment) is apparent, not only from the plea in bar, but from the record proper in the case.

— Hon. Joseph J. Williams, Judge. (1) The court erred in refusing a new trial as moved for on the ground of the misconduct and disqualification of juror Lashley. (2) The action of the court in admitting evidence of the good general reputation of juror Lashley for “truth, integrity, honesty and general moral character, ’ ’ cannot he reconciled with a notion of orderly procedure. (3) The instruction on reasonable doubt, given by the court, is unintelligible.

— Hon. Nat. M. Shelton, Judge. Ajbtibmed. (1) The State is a proper party plaintiff in this suit. The revenue sought to be recovered belongs to the State. It is required to be paid into the State Treasury. The fact that it is. for the use of the game protection fund does not prevent this revenue from belonging to the State, and the State is the proper party to sue for it. State v. Ruby, 77 Mo. 610'; State v. Bank, 45 Mo. 528; State v. Killian, 51 Mo. 80; 44 Am. Dig.

<p>Appeal from St. Louis City Circuit Court. — Eon. James E. Withroiv, Judge.</p> <p>(1) Where the evidence in the case shows that the crime is either murder in the first degree or nothing, no instructions for murder in the second degree or manslaughter in the fourth degree should be given. State v. Pollard, 139 Mo. 220'; State v. Cochran, 147 Mo. 518; State v. Brown, 119 Mo. 538; State v. Williams, 141 Mo. 316; State v. Hopper, 71 Mo. 425; State v. Sund, 91 Mo. 559. And if a defendant is guilty of murder in the first degree or no crime at all, it is reversible error to instruct on murder in the second degree, if he is found guilty of .that offense. State v. Stoeckli, 71 Mo. 559'; State v. Mahly, 68 Mo. 315 ; State v. Alexander, 66 Mo. 160; State v. Phillips, 24 Mo. 480; State v. Punshon, 124 Mo. 457. (2) The court erred in defining “deliberately” in relation to murder in the second degree. To constitute murder in the second degree there must exist on defendant’s part, at the time of homicide, a “heat of passion,” engendered by a. “just provocation,” that will negative the existence of “deliberation.” State v. Ellis, 74 Mo. 207; State v. Weakley, 178 Mo. 413. And when there is evidence of a just provocation, engendering passion, it is the duty of the . court to declare, as a matter of law, whether the provocation sought to be established is such as will mitigate the homicide, and if so to leave to the jury whether such provocation and passion did in fact exist. State v. Ellis, 74 Mo. 220; State v. Taylor, 171 Mo. 477; State v. Donnelly, 130 Mo. 647. (3) The court should have instructed on manslaughter in the fourth degree. 2 Bish., New C'rim. Law, sec. 699; 1 McClain’s Crim. Law, sec. 336; Wharton on Homicide, secs. 430, 431; State v. Reed, 154 Mo. 130; State v. Bowles, 146 Mo. 15; State ■ v. Garrison, 147 Mo. 566; State v. McKenzie, 102 Mo. 632; State v. Weakley, 178 Mo. 413.</p> <p>(1) Defendant did not object to the instructions for any reason other than that they did' not fully instruct the jury on all of the law applicable to the case. This fact is further emphasized by the record recital that the court then asked defendant’s counsel upon what other points they desired to have the jury instructed. By restricting his objection to said instruction to1 one reason, and by assigning that one, the defendant cannot now complain of said instructions for any other reason. State v. McOarver, 194 Mo. 717. Again, if said instructions were not full and complete, it was defendant’s duty to state to the court wherein they were incomplete, and to give the court an opportunity to give additional instructions; a simple objection or exception on that subject was not sufficient. State v. Bond, 191 Mo. 563; 1 Bislmp’s New Crim. Proc., sec. 1061. (2) No error was committed in failing to' instruct the jury on the subject of manslaughter in the fourth degree. In the first place, defendant never asked any instruction on that subject, and did not specially save his exceptions to the failure of the court to instruct on that subject, at the time of such failure. In the second place, there was no evidence to warrant an instruction on the subject of manslaughter. State v. Bailey, 190 Mo. 257. (3) The State’s evidence was sufficient, if believed by the jury, to have justified the conviction of defendant of even murder in the first degree. As the jury convicted him of an offense less than he was really guilty, defendant cannot be heard to 'complain. State v. Todd, 194 Mo. 337; E. S. 1899, sec. 2369^</p>

— Hon. Nat. M. Shelton, Judge. (1) The trial court erred in refusing the instruction in the nature of a demurrer to the evidence offered by the appellant at the close of the evidence. Taking all the evidence together, appellant insists that the verdict of the jury was the result of passion and prejudice on their part, and should not stand.

— IIow. Won. H. Martin, Judge. (1) The court erred in failing to correctly announce the law of self-defense, (a) Defendant, under no view that can he taken, was guilty of any crime, if Ms brother, Ernest Darling, acted in self-defense. It was, therefore, incumbent upon the court to correctly instruct the jury upon this inestimable right. Instruction 9 is the only one pertaimng to the law of self-defense that was given in the case.

Transferred from St. Louis Court of Appeals. (1) If there is no substantial evidence of any fact which is essential to plaintiff’s right to recover, a judgment in his favor must be reversed. Hewitt v. Steele, 136 Mo. 335; Long v. Moon, 107 Mo-. 339; Moore v. Hutchinson, 69 Mo. 430; G-roll v. Tower, 85 Mo. 253; Bartley v. Railroad, 148 Mo. 141.

<p>1. INFORMATION: Statutory Charges. The allegations in an information based upon a statute, in order to properly charge the crime created by the statute, must be such as to specifically bring the defendant within all the material words of the statute. In all indictments and informations for felonies nothing can be left to intendment or implication.</p> <p>2. —--: Election: Registration: Election Precinct. An information which does not contain the essential allegation that the defendant fraudulently registered or offered to register in an election precinct, not having a lawful right to register therein, is fatally defective in a prosecution for fraudulent registration. And if the most that can be said is that it might be implied from the allegations that a certain named precinct was an election precinct, the information is bad.</p> <p>3. -: -: -: What Is? The information must allege acts which amount to a registration. It is not sufficient that it simply state that defendant fraudulently registered in an election precinct, not having a lawful right to register therein. Since section 11 of the Laws of 1903, p. 177, sets forth with particularity all the necessary acts to be. done in order to constitute a registration, the information should with sufficient particularity allege such acts as would constitute a registration within the meaning of that section.</p> <p>4. ELECTION: Fraudulent Registration: Evidence. Where a witness testifies that he knows that defendant lived at a certain number in another precinct, and in answer to a question as to whether or not his knowledge is based on hearsay, says, “I have known him to live there, I have seen him coming in and out of there during the day and night, I knew the rest of the family, but I have not seen where he sleeps,” the evidence is sufficient to convict defendant of registering in a precinct other than that of his residence, within the meaning of “residence,” as defined by section 4160, R. S. 1899.</p> <p>5. '-: Registration Act: Constitutional. The act providing for the registration of voters in cities of three hundred thousand and over, and prescribing punishments for fraudulent registration, is not unconstitutional, as being class legislation, or as having a defective title.</p>

— Row. Wm. R. Martin, Judge. (1) The verdict does not find defendant guilty as charged in the information. The verdict does not set forth the elements of any crime. It says, “We, the jury, find -defendant guilty and assess his punishment,” etc. Guilty of what? Must the information and testimony he read to determine? The verdict should be sufficiently definite to show of what offense defendant is found guilty.

Transferred from Kansas City Court of Appeals. (1) Appellant insists that there is no law in force in this State that requires him to obtain or take out a hunter’s license in order that he may hunt in the county in which he lives and that there is no law prohibiting him from hunting in the county in which he lives without first taking out a license. Neither is there any law fixing a penalty for so doing.

— Hon. A. H. Waller, Judge. (1) The court should have directed a verdict for plaintiffs because the- surface and the underlying coal having been severed by grant, the surface owners ’ possession did not carry with it the possession of the coal, and there was no other evidence of continued adverse possession. Manning v. Coal Co., 181 Mo, 359'; Cathie Coal Co. v. Lloyd, 176 111. 275; Caldwell v. Copeland, 37 Pa. St. 427; Armstrong v. Caldwell, 53 Pa. St. 284.

<p>1. CORPORATION: Sale of Properties: Liability of Purchaser for Debts: Trust Fund. Where a corporation sells and conveys all its properties of every kind to another corporation and ' that company pays for the properties by paying the stockholders of the selling company a sound sum for each share of stock held by them,' with the understanding and agreement tha,t the directors of the selling company would convey to the purchasing company, without additional charge, all its properties, including its franchise, and that was done, neither the purchasing company nor its stockholders are liable to a subsequent judgment creditor of the selling company, but the money received by the stockholders of the selling company is a trust fund for the payment of its debts, judgments and obligations which were not liens at the time of the transfer.</p> <p>2. -: -: -: -: Non-lien Obligations. The doctrine of equity that “the capital and other property of a corporation are to be deemed, as between creditors and stockholders, a trust fund for the payment of debts, and when such property has been divided among its stockholders, leaving debts unpaid, the stockholders are in equity bound to refund,” has no application to a company which purchases, for full value, the properties and franchises of a solvent company, when the purchasing company is called upon to pay the judgment debt of a creditor of the selling company which was not a lien on the properties of the selling company at the time of the transfer — there being no question of the solvency of the selling company, and no claim that it disposed of its properties for the purpose of defrauding its creditors, and there being no pretense of its lack of statutory power to make the transfer, and the transfer not being by dissolution', but by bargain and sale. ,</p>

Louis City Circuit Court. — Row. John A. Blevins, Judge. (1) The court erred in overruling defendant’s demurrer to the evidence. When the evidence conclusively shows that the negligence of the injured party alone caused the injury, or when the evidence fails to disclose any negligence on the part of defendant, a demurrer to the evidence should be sustained.

■Transferred from Kansas City Court of Appeals. (1) Plaintiff’s theory of this case and the theory adopted by the court is that unless plaintiff permitted and consented for his cow to run at large, defendants could not impound her. This is error, for this is not a criminal proceeding. McVey v. Barker, 92 Mo. App. 498; Schell v. Murray, 49 Mo. App. 233; Sloan v. Hubbard, 34 Ohio St. 583; Paris v. Hale, 13 Tex. Civ. App. 386.

— Hon. Henry C. Riley, Judge. (1) The county court had no power to determine the rights of settlers under the contract of May 20, 1893, or to issue patents thereunder to- any one other than the Luce heirs, their executors, administrators or assigns.

<p>1. EQUITY: Submission of Issues to Jury: Peremptory Instruction. The finding of the jury in an equity case is only advisory. The chancellor is not hound by it. Hence no error is committed in instructing the jury to find for defendant on all the issues. submitted, if that is the finding the evidence authorizes, for that, in effect, is the chancellor’s finding.</p> <p>2. -: Chancellor’s Finding: Appellate Practice. While deferring somewhat to the chancellor’s finding of facts in an equity case, the appellate court will review the evidence and determine for itself whether or not he came to the right conclusion therefrom.</p> <p>3. FRAUDULENT CONVEYANCE: Necessary Showing. Before a creditor of the grantor in a deed can defeat the deed for fraud, he must show that it was made with a fraudulent intent, and that the grantee had notice of such intent when he accepted the deed. But while such intent must be proved, and can not be presumed, yet direct and positive evidence is not necessary to establish it. It may be inferred from facts and circumstances.</p> <p>4. --: Facts in Evidence: Notice to Grantee. One of the defendants and his brother borrowed of plaintiff bank $2,350 and ‘ executed their note therefor. Defendant at that time owned and resided on 140 acres of land, and the loan was made on the faith of his ownership of the land. After the note had run for several years and the bank wanted it settled, said defendant was in the bank to get the date and amount of the note, and was told by the bank that they wanted it settled, and he replied that, “We will attend to that all right in a short time.” Soon thereafter he conveyed the land by a quitclaim deed to his four children, the other defendants, one of whom was a minor, for the recited consideration of $1,500. thereby rendering himself hopelessly insolvent. Held, that the conveyance was made for the purpose of defrauding plaintiff, and the taking by the children of the quitclaim deed constituted them purchasers with notice.</p> <p>5. -: No Consideration. A conveyance by a father to his minor son. whom the father owed nothing, the son paying the father nothing, is void as to the father’s existing creditors.</p> <p>6. -: Insufficient Consideration. The conveyance by a father to his four minor children, to two of whom he owed nothing, to the other two of whom he owed $1,077, of land worth $2,766.66, in which he had a homestead, at a recited consideration of $1,500, the conveyance thereby rendering him insolvent, cannot be said to be supported by such an adequate consideration as to overcome the father’s manifest intent to defraud his creditors.</p> <p>7. -: To Daughter: To Pay Debt to Husband. A quitclaim deed by a father to a daughter, in payment of money loaned by her husband, and in payment of work done by the husband on the father’s barn while the daughter and her husband were living with the father, no showing being made of when the work was done or the money loaned or the value of the work or the amount of the loan, cannot be said to be supported by either an adequate or valuable consideration. Such evidence is too vague to be considered.</p> <p>8. -: Deposition of Grantee: Admission. The deposition of a .grantee in the conveyance, being party to the suit, taken by the adverse party, is admissible in evidence as an admission, although the deponent is in court when the deposition is offered. But the deponent will thereafter be entitled to have the entire deposition read, or at least so much of it as bears on the question in regard to which he was interrogated.</p> <p>9. ADMISSIONS OF PARTY: Witnesses. A party to a suit upon trial, although summoned as a witness by the adverse party, does not occupy the position of a witness not a party. The statements of the latter are only admissible for the purpose of contradicting or impeaching him, and then the usual foundation must be laid. But the statements of a party to the suit1 are admissible as original evidence against him.</p>

—Hon. John A. Snider, Judge. (1) Wherever a statutory duty is created, any person who can show that he has sustained injuries from the non-performance of that duty can bring ah action for damages against the person on whom that duty is imposed. Couch v. Steel, 3 El. & Bl. 402; Cooley on Torts, p. 788; Kelley v. Railroad, 101 Mo. 67; Dahlstrom v. Railroad, 108 Mo. 525; Gratiot v. Railroad, 116 Mo>. 450.

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

Louis City Circuit Court. — Row. John A. Blevins, Judge. (1) The court erred in overruling defendant’s challenge for cause to the juror Gustav Schoenberg, it being admitted that he had served as a juror within the twelve months next preceding the trial.

<p>1. TAXES: School: Minor: Where Payable. Where neither the minor nor his curator was, at the time the assessment for taxes was made against the minor’s estate, a resident of or domiciled in the school district in which the minor’s parents resided at the time of their death, the county collector cannot collect the school taxes for the benefit of that school district. Since the minor did not reside in that district after their death, the fact that he was regularly returned for years as a taxpayer of said ' district falls far short of establishing his residence or domicile in that district, .and did not prevent a change of his residence or domicile while he was yet a minor. But where the curator resided in one district, and the minor in another and went to school there, whether or not the district in which the minor resided was entitled to the school taxes, or the district in which the curator resided, is not decided in this case, because that issue is not before the court.</p> <p>2. -: Judgment in Favor of Another District: Responsive to Pleadings. Where the district for whose benefit the county collector sues the estate of a minor for school taxes, is not entitled to those taxes, he cannot complain because the judgment adjudges the district in which the minor resided and went to school to be entitled to those.taxes and for that reason is not responsive to the pleadings.</p>

— Ron. R. W. J ohnson, Judge. (1) All tbe evidence offered in tbe case is presented'in appellants’ abstract and this court will bear tbe case anew, and render sucb decree on tbe evidence and: tbe equities arising therefrom as is proper and right. Tbe verdict of tbe jury not being supported by tbe greater weight of fact, this court will reverse the judgment.

Louis County Circuit Court. — Now. John W. McElhinney, Judge. (1) The court erred in overruling defendant’s motion to compel plaintiff to elect on which cause of action she would proceed to trial. These causes of action required different evidence, and the measure of dainages is different.

Louis City Circuit Court. — Row. Jas. B. Kinealy, Judge. (1) The court erred in overruling defendant’s demurrer to the sufficiency of plaintiff’s petition.

<p>1. EXPRESS TRUST: Street Improvements: Suit by City for Breach of Contract. A city cannot, as the trustee of an express trust or otherwise, unless specially so authorized hy the contract, maintain a suit, for the use and benefit of the owners. of lots abutting on a street, against the contractor and his bondsmen, for damages to the property-owners caused by a breach of the contract to improve the street. And where the contractor abandoned his contract to pave the street, and the improvement, upon a reletting thereof, cost the abutting property-owners, in the way of special taxbills, the amount sued for in excess of the gross sum fixed by the broken contract, a clause in the bond providing for a faithful performance of the contract according to its terms does not make the city the trustee of an express trust with authority in it to sue for the use and benefit of the property-owners for the additional cost of the improvement in excess of the sum fixed by the broken contract.</p> <p>2. -: -: -: Third Parties: Not Named. Even if a city and a contractor and his bondsmen could make a contract to pave a street for the use of third parties, and those parties the owners of property abutting on the street to be improved, yet where the third parties are not named in the contract, they are to be ascertained by the intention of the contract, and that intention, where the contract is in writing, is to be gathered from the writing itself; and the third parties not being named in the contract made by the city to pave a street, it must be held that the third party is the public, and not the abutting property-owners who are assessed with special taxbiJls to pay the cost of the improvement, for the street belongs to the public, and the improvement is for a public use, and under the • Constitution the tax could not be imposed for a private way or a private use. And so, such a contract does not authorize the city to sue, for the use and benefit of the abutting property-owners, for a breach thereof, or for any additional money they have to pay for the improvement because of such breach.</p> <p>3. -: -: -: Charter Provisions. There is no express or implied authority to be found in the charter of the city of St. Louis to improve streets for the benefit of the adjoining lots, or for the benefit of their owners. Such* a provision, if it existed, would be to authorize the city to exercise the taxing power for private purposes, and would therefore be invalid, because the exercise of the taxing power for that purpose is expressly prohibited by the Constitution.</p> <p>4. -: -: -: Where Third Parties Are Named: Ex-pressio Unius, etc. The bond provided that the contractor “shall faithfully and properly perform the foregoing contract according to all the terms thereof and shall pay to the proper parties all amounts due for materials and labor used and employed in the performance thereof;” and that the bond “may be sued on at the instance of any material man, laboring man or mechanic, in the name of the city of St. Louis, to the use of such material man, laboring man, or mechanic, for any breach thereof.” Held, that the principle of ecspressio unius eatclusio alt-erius clearly applies, and the bond by expressly stating that the city could sue for the use of material men, laboring men and mechanics, clearly excluded the right of the city to sue for the use of abutting property-owners.</p> <p>5. ———: -: -: Power in City. In the absence of any express power in a city to make contracts for indemnifying its citizens from loss due to a breach of a contract with the city for the improvement of a street, the city cannot make a contract authorizing it to maintain a suit for the use and benefit of abutting property-owners against the contractor and Ms bondsmen for a failure to perform the contract.</p> <p>6. -: -: Intended Benefit. Whatever benefit may accrue to abutting property-owners as a result of a street improvement is purely an incident of the improvement, and not an object intentionally sought to be obtained by the contract which was made for the improvement. The primary purpose is not to enhance the value of property; that is an intended purpose, otherwise the validity of taxbills would rest exclusively upon benefits. But the enhanced value is a fund (as it were) which is first assigned to the contractor to pay the taxbills and does not become the property-owner’s until he pays the taxbills. But the city owes no duty to the property-owner to increase the value of his property; if that is done, it is an incidental result.</p> <p>7. -: -: -: City Agent of Property-Owners. The fact that the city is required in letting a contract for a street improvement to let it to the lowest bidder, does not constitute it the agent of the.owners of property abutting on the street to sue for damages to them for a breach of the contract. The city does not act for them in letting the contract. •</p> <p>8. -: ——: -: —:-: Third Parties. Where third parties have been permitted to recover upon a contract entered into for their benefit, said third parties had either adopted the contract or complied with its provisions relating to them, or the debt or duty which was owing to the third party had passed to or vested in the obligee of the contract before the suit was brought. Where the owners of property abutting on the street, for the improvement of which the city entered into contract with defendants, never adopted the contract, never performed any duty imposed by it upon them, and the city has not turned over to the defendants anything of value to the property-owners as a consideration for the contract, the city cannot sue for their use and benefit for a breach of the contract.</p>

— Row. A. B. Burnes, Judge. (1) The land in controversy accrued to Mrs. Pease by conveyance in the year 1894. It, therefore, became her separate legal estate, which she could, in her own name, without her husband joining her, engage to sell; and such engagement the courts will respect and enforce. R. S. 1889, secs. 6864, 6869; Bank v. Hageluken, 165 Mo. 443.

— ■ Eon. D. E. Eby, Judge. (1) The respondent claims as tenant by the curtesy, and the question to be determined is whether in the face of the provisions of chapter 51 of the Revised Statutes of 1899, in which the provisions of the statutes of 1889 were, re-enacted, Ms rights as tenant by the curtesy vest until the debts created by the wife, such as funeral expenses, borrowed money and taxes, have been paid.

Louis City Circuit Court. — Row. Jos. R. Kinealy, Judge. Although the evidence amply justifies the conclusion that the Crommers directly participated in the fraudulent scheme of raising the price, it is entirely . immaterial under the facts of this case- whether or -not either one of them so participated or had any knowledge that a fraud was being committed.

<p>1. FOREIGN CORPORATION: Business in this State: Transfer to Agent. Where a contract for the sale of personal property is void, because the vendor being a foreign corporation had never complied with the law authorizing it to do business in this State, and for that reason the title to the property never passed to or vested in the purchasers, yet if plaintiff was the agent of suoh corporation in the sale and delivery of the property and was familiar with all the facts and circumstances surrounding the transaction, he was not, when by bill of sale executed by the foreign corporation in the foreign State the property was transferred to him, an innocent purchaser, but acquired just such title and interest in the property as his vendor (the foreign corporation) had, and no more.</p> <p>2. -: -: Reasonable Statute. The statute, approved April 21, 1901, which requires a foreign corporation which comes into this State for the purpose of doing business for a profit, to first file with the Secretary of State a copy of its charter or articles of incorporation and to open and maintain an office in this State, with one in charge thereof, haying authority to accept and receive process, and requiring it to pay into the revenues of the State a reasonable sum of money for the right or privilege of doing business here, is not harsh or oppressive. Its purpose is to raise revenue and have someone present in the State to represent it in case litigation should arise between it and the citizens of the State. It is a reasonable and constitutional statute.</p> <p>3. --: -: Recovery of Property Illegally Sold: Holding on to Money Received: Transfer to Agent: Status Quo: Estoppel.Neither a foreign corporation, nor a citizen of this State, nor an agent of the foreign corporation to whom was transferred the property sold and the notes received by the foreign corporation with full knowledge that the transaction was void, should be permitted to hold onto the money received in part payment of the property, and nevertheless recover the property illegally sold. Before the property which has been partially or fully paid for can be recovered, the status quo must be restored. Both the corporation and its assignee with notice are estopped to repudiate the contract or set up rights in opposition to it while retaining the money received under it.</p> <p>4. -: -: Constitutional Statute: Due Process of Law, etc. The statute which requires foreign corporations, wishing to do business in this State, to file their charters with.the Secretary of State and have an office in this State, etc., makes all transactions by the foreign corporation, in violation of the statute, null and void, and contracts made by it for the sale of goods, wares and merchandise to citizens of this State are mere nullities; the title to the property sold does not pass to the purchaser, but remains in the vendor, and hence the act does not violate the constitutional provision which prevents the taking of property without due process of law, be- - cause it does not take the property, nor give it to another; and if it has parted with it under a void contract, it can re>cover it in the courts, just as a resident citizen might, and hence the act does not deny to such corporations the same rights, immunities and privileges that are are accorded to citizens of this State, nor deny to such corporation equal protection of the laws.</p> <p>5. -: -: -: Private Property for Private Use. Nor does such act take private property for private use. The title to the property remains just where the foreign corporation placed it, subject to the equities created against it hy the conduct of the parties at the time of the void sale of the property to citizens of this State.</p> <p>6. -: -: Purchase by Citizen of This State: Illegal1 Contract: Not Enforcible As to Either Party. A citizen of this State has the right to go to a foreign State and purchase from a corporation of that State property previously illegally sold and delivered by the corporation to citizens of this State. The contract of sale was void, because the foreign corporation had not complied with the laws of this State authorizing it to do . business here, but the purchase in that State by a citizen of this State of the property delivered to residents of this State in pursuance to said void contract, is not void, and hence the courts will not be controlled by the principle, when such citizen brings suit to recover the value of the property sold, that, the contract being illegal and void, aid will not only be denied to those seeking to enforce it, but assistance will not be given to those attempting to escape from it, for that principle is not applicable; but, the citizen’s purchase of the property from the foreign corporation being valid, he will not be permitted to recover the property until he restores to defendants the money they paid for the property under the void contract with the corporation, of which he had full knowledge.</p>

Louis City Circuit Court. — -New. Walter B. Douglas, Judge. (1) The court erred in overruling defendant’s motion to require plaintiff to elect whether she would stand upon common law negligence or ordinance negligence, because both inconsistent assignments of negligence could not properly be joined in the same count. Clancy v. Railroad, 192 Mo. 640; McHugh v. Railroad, 190 Mo. 85; Behen v. Railroad, 186 Mo. 430.

— Ho». Nat. ill. Shelton, Judge. (1) The instrument executed by Charles Aldridge is plainly testamentary in its provisions and passed no present interest. It was expressly made subject to the payment of his debts, plainly meaning his debts at his death.

— Hon. J. H. Slover, Judge. (1) The trial court erred in giving instructions requested by the plaintiff, (a) Instruction 1 both enlarges and restricts the issues tendered by the pleadings, is unsupported by evidence, and contradictory of other instructions given in the case.

<p>Error to St. Louis City Circuit Court. — How. Robert M. Foster, Judge.</p> <p>(1) The mortgage was on the fee simple title; being prior to the lease its foreclosure ended and determined not only the lessor’s title, but extinguished the lease. Consequently, under plaintiff’s own showing he was not the owner of the lease and defendant was not a tenant holding over after the expiration of the lease, January 9, 1904. Culverhouse v. Worts, 32 Mo. App. 419; Vaughn v. Locke, 27 Mo. 290-; Cook v. Ba Som, 164 Mo. 594; Robinson v. Troup Min. Co., 55 Mo. App. 662; Corrigan v. Chicago-, 144 111. 537; Stout v. Merrill, 35 To. 47; Den v. Ashmore, 22 N. J. L. 261; Wolff v. Johnson, 30 Miss. 513. (2) The sale on July 21, 1899, under the deed of trust given June 23, 1898, covering the property in controversy, extinguished the lease, dated January 9, 1899, so far as it affected the property in controversy. Kane v. Mink, 64 Io. 87; Jones v. Landlord and Tenant, sec. 703; Culverhouse v. Worts, 32 Mo. App. 419; Oakes v. Aldridge, 46 Mo. App. 11; Barclay v. Pickles, 38 Mo. 143; Burr v. Stanton, 43 N. Y. 462. (3) After the lease became extinguished by the foreclosure of the prior mortgage the relation of the purchaser (plaintiff) and the former tenant (defendant) became under force of the statute, section 4110, Revised Statutes. 1899, that of tenant from month to month, and could be terminated only by one month’s notice. R. S. 1899, sec. 4110; 18 Am. and Eng. Eney. Law (2 Ed.), 183; Qnilgns v. Lewis, 8 Mo. App. 339; Griffith v. Lewis, 17 Mo. App. 613; Yogley v. Robinson, 20 Mo. App. 199; Lehmann v. Nolting, 54 Mo. App. 549; Grant v. White, 42 Mo. 444; Finney v. St. Louis, 39 Mo. 177. (4.) The rule prohibiting a tenant from denying the landlord’s title does not forbid a tenant from showing that the landlord’s title has expired, or has been extinguished since the tenancy commenced. Robinson v. Troup' Min. Co., 55 Mo. App. 662; Pence v. Ruester, 44 Mo. 447; Chapin v. Brockmeyer, 33 Mo. App. 92; Jones on Landlord and Tenant, sec. 703; Cook v. Ba Som, 164 Mo. 600'.</p> <p>A sale, under a deed of trust, operates to extinguish a lease made subsequently to such deed, only where the lessee, or a stranger acquires the title; and in the event of such acquisition by a stranger, the lessee is evicted, or attorns under statutory conditions. The record shows that the lessor at no time parted with its title, that no stranger acquired such title, and that the tenant at all times knew there was no change in the title. 1 Washburn on Real Property (6 Ed.), sec. 721; Gray v. Rogers, 30 Mo. 258; Green v. Stern-berg, 15 Mo. App. 35; Lindenbauer v. Bentley, 86 Mo. 519; Smith v. Aude, 46 Mo. App. 634; R. S. 18991, secs. 4112, 4136, 4137; Wash. Real Prop. (6 Ed.), sec. 721; Simers v. Saltes, 3 Denio, 214; Whalin v. White, 25 N. Y. 462. The record shows conclusively that there was no change in the real title at any time, and that the tenant knew this to be the fact. There was no point made at the trial such as is now sought to be raised by the appellant.. There was no demurrer to the evidence. There was no instruction asked upon the point. There was no suggestion of any such point made in the motion for a new trial. The case was tried solely upon two points of alleged defense — one that the term] was extended two- days — the other that the tenant was holding over pending a treaty for a new lease. Appellant now endeavors to raise an issue, which it did not raise below, which it did not call to the attention of the trial court and as to which, had there been error below, the trial court was not asked to make the proper correction. To permit a review of a record, as to -this point, will be to violate rules of procedure on appeal as old as the court itself. Alexander v. Hayden, 2 Mo. 171; Boyce v. Burt, 34 Mo. 74; Claflin v. Sylvester, 90' Mo. 276; Haniford v. Kansas City, 103 Mo. 172; St. Louis v. Sieferer, 111 Mo. 662; Hubbard v. Fuchs, 164 Mo. 426.</p>

Transferred from Kansas City Court of Appeals. A widow who remarries does not lose dower in her former husband’s lands. West v. McMullen, 112 Mo. 405; Westmyer v. Grallenkamp, 154 Mo. 28. But does a widow who remarries thereby lose and forfeit dower in lands of her former hnshand which was his homestead, and the only lands he possessed?

<p>1. ABSTRACT: Rules of Court: Application and Construction.. The rules of the court in reference to'the contents of an abstract and time of filing and serving the same are reasonable, easily to be followed and are to be applied without respect to the case or person, and while they have been and will continue to be liberally construed, yet the construction should not be so liberal as to annul them, nor can the court give a strained construction of them in one case and a more liberal one in another.</p> <p>2. -: Contents. The abstract, as applied to the record, must be complete enough to show that the questions presented for review have been properly preserved in the case. Applied to the record proper, it does not mean that, the entire pleadings must be set out, unless some question urged requires that, but it does mean that it should show, that pleadings were filed in some lower court at some particular time, and their character, so that the issues raised may be readily ascertained therefrom; and that it show the judgment or a concise statement thereof, its date, the fact that a motion for a new trial or in arrest had been filed and the time thereof, so that the court may see that it was filed within the four days prescribed by statute; and'that it show the overruling of said motion or motions, leave to file a bill of exceptions, the approval and filing of said bill according to the order of the court, and the filing in proper time of the transcript in the appellate court. It is not necessary to print these orders and record entries in the abstract in haec verba, but the abstract thereof or abridgement of the record should show every material fact necessary for a complete understanding of the case.</p> <p>3. -: Resort to Record. An abstract which does not make a resort to the record unnecessary is insufficient.</p> <p>4. -: Filing Motion for New Trial. An abstract which simply says, “Within four days after the rendition of said judgment defendants filed the following motion for a new trial,” with nothing more, is insufficient. It cannot be determined therefrom whether or not the motion was filed during the same term of court.</p> <p>5. -: Copy of Record. It is not necessary that a copy of the record he printed in the abstract, but the record entries should be so abstracted as to show a continuous and connected history of tbe case, and that tbe appeal was taken in tbe time prescribed by law.</p> <p>6. -: Overruling Motions. An abstract which does not state when or at what term tbe motions for a new trial and in arrest were overruled is insufficient.</p> <p>7. -: -: Reference to Transcript. Tbe court will not refer to tbe transcript to ascertain when the motions for a new trial and in arrest were filed, or whether or not in term time, or when overruled, even though tbe transcript be a complete one, and tbe transcript is cited in tbe abstract.</p> <p>8. -: Judgment. Where tbe form of tbe.judgment is not itself in issue upon appeal, it is not necessary that tbe judgment be set out in full; it is better that it be so abstracted as to give the court all necessary information in regard thereto, such as, a judgment record, tbe date and term of its rendition, the substance thereof, etc.</p> <p>9. -: Bill of Exceptions. Where tbe abstract does not show a bill of exceptions approved by tbe judge of tbe trial court, or whether or not one was filed, or if filed whether filed by order of court, it is insufficient.</p> <p>10. SUPPLEMENTAL ABSTRACT. A supplemental abstract, filed out of time and without leave of court, is unavailing to cure tbe defects in a wholly insufficient abstract filed and served in time. If filed without leave of court, it will not be considered. Nor should such leave be granted after tbe respondent has served bis brief or other writing calling attention to defects in appellant’s first or original abstract.</p> <p>11. -: Motion for New Trial. A supplemental abstract -which shows no record entry of the filing or overruling of the motions for a new trial and in arrest, and tbe most that can be said of it is that it shows memoranda from which upon a proper application a proper nunc pro tunc order could have been obtained, even if filed in time and after leave, is insufficient.</p> <p>12. -: -Matters of Record. Tbe filing of tbe motions and tbe action of tbe court thereon must appear from tbe record proper; it is not sufficient that tbe bill of exceptions contains recitals of their filing.</p>

Louis City Circuit Court. — Eon. John A. Blevins, Judge. (1) It was manifest error to admit in evidence the portion of the answer of the appellant, which the court permitted to he read. 1.

<p>1. CONDEMNATION: Corporation’s Property. Corporations, under the Missouri Constitution, hold their property under the same guaranty of inviolability that individuals do — no greater, no less. As the individual holds his property subject to the right of eminent demain, so does the corporation.</p> <p>2. -: Telephone Company. The State has delegated to a telephone and telegraph company the right of eminent domain.</p> <p>3. -: -: Over Railroad’s Easement. A telephone and telegraph company has by statute been given the right to condemn and appropriate an easement along the right of way of a railroad, to erect and maintain its poles and wires — the right to appropriate, however, being rigidly limited to such use as shall not materially interfere with the uses the railroad corporation holding the property is authorized to put it to, or does put it to, by law.</p> <p>4. -: ,-: -: Determination of Expediency: Interference. When an easement for a public use is to he condemned in an existing easement for a public use, the new easement (not being superior to the former) must not destroy or he materially detrimental to the prior use. But with that limitation, when the Legislature delegated to telephone and telegraph companies the power of exercising the right of eminent domain in their own behalf it granted to them by necessary Implication (barring malice and fraud) the discretion of selecting the route. The company is to determine the necessity and propriety of exercising the delegated right of eminent domain, and that right, in the absence of had faith, a malicious motive, or that the taking of a particular route would entail a great loss which might readily he avoided, will not be interfered with by the courts.</p> <p>5. -: -: -: -: Extraneous Matters: Question of Propriety, etc. Issues relating to the good taste, the expediency and propriety of plaintiff in intruding itself on defendant’s right of way, instead of buying or condemning a right of way over other lands, or using the public roads as it (a telephone and telegraph company) has the right to do under the statute, are extraneous to the condemnation case.</p> <p>6. -1 — : Public Corporation: Destroying Easement. A public corporation cannot condemn a secondary easement for a public use which destroys or materially interferes with the public use of the first easement, especially where the second easement is not a public use superior to the first.</p> <p>7. -: -: Public Use: Determined by Judge. Whether or not the use to which the proposed easement is to be put is a public use, is to be determined by the court, and not by the •jury, whether the character of the use is plainly ascertainable from the petition alone, or from both the petition and evidence. And that determination is made by overruling a demurrer to the petition, or an answer that amounts to a demurrer, or by overruling a demurrer to the evidence.</p> <p>8. -: -: -1 — : -: Demurrer to Petition. Where the petition shows the Western Union Telegraph Company has a line of poles and wires along one side of defendant railroad’s right of way, and the easement plaintiff telephone and telegraph company seeks to condemn is a corresponding right on the other side, and where a condition of things is shown by the petition in the proposed distance of plaintiff’s poles from defendant’s track, in the size of the poles, in guys, braces, cross-arms, pins, wires and insulators, and in reservations to defendant of the right to change the grade, to take dirt, stone and other material, from which it is not apparent, as a matter of law, that the public use in defendant’s easement will not be destroyed or materially interfered with by plaintiff’s use, the court should overrule a demurrer to the petition, and thereby determine judicially by an inspection of the pleadings that the proposed use is a public use.</p> <p>9. -: -: -: Description. While the property to be appropriated must be definitely located and described in the petition and judgment, yet where the location and description are as definite as the subject-matter will permit, they are sufficient.</p> <p>10. -: -: -: -: Reservations: Run With Land. Reservations, stipulations, promises and limitations made and placed on the easement by the petition and judgment, may be likened to covenants running with land, and do run with the easement, and are binding on plaintiff and its successors.</p> <p>11. ->: -: -: -: Flexibility. The statutory rule limiting the right under the second appropriation to such, use as shall not materially interfere with the uses imposed on the primary easement, demand a flexibility in the petition and judgment that will subserve the useful purpose constituting the life of the statute; and a lack of absolute definiteness in location and description is really but another name for this flexibility.</p> <p>12. -: -: -: Measure of Damages: Confusing Instruction. It is not reversible error to refuse an instruction offered by defendant in a condemnation case on the measure of damages, which is vague and argumentative and as likely to confuse rather than enlighten the jury.</p> <p>13 -: -; -; -; Nominal: Instruction. An instruction in a condemnation case, which told the jury that defendant’s damages were nominal, was reversible error, under the evidence in this case, where defendant had gone to great cost in grading and clearing of timber its right of way, and where if plaintiff is given an easement to construct a telephone and telegraph line of poles and wires along defendant’s right of way, defendant’s right to construct another like line is gone, and where the expense of keeping the right of way free from weeds, bushes and inflammable matter is laid on defendant.</p> <p>14. -; -; -; —-: -; False Measures. The fact that defendant railroad company will be benefited by competition in the transmitting of telegrams if plaintiff’s telegraph line is constructed on and along the right of way, is no reason why plaintiff should not pay damages for the easement. There is no reason why plaintiff should confer benefits on defendant against its will. Neither is the fact that defendant must keep its tract fenced and free from inflammable matter, and would have to do those things whether or not plaintiff is given the easement, any reason for saying defendant’s damages are nominal.</p> <p>15. --: -: -: True Measure. The measure of damages is the amount the right of way of the railroad company, for railroad purposes, is diminished in value by the proposed easement of the telegraph and telephone company.</p>

Louis Court of Criminal Correction. — Hon. E. M. Hughes, Special Judge. (1) Whatever right the defendant had, if any, to the use of the- street on which its property abutted was subject to the police power of the State as delegated to the city. 2 Dillon on Municipal Corporations (4 Ed.), sec. 656 a; Allen v. Boston, 159' Mass. 335; Loth v. Columbia Theatre Co., 94 S. W. 847; Westport v. Mulholland, 84 Mo.

Transferred from Kansas City Court of Appeals. (1) The court erred in refusing -to give our declarations of law which fully set forth our theory on monopoly. The facts in the record bring this case squarely within the doctrine of Shoenberg v. Field, 68 S. W. 945, and the lower court erred in refusing to follow and apply said doctrine in this case.