Volume 215 — Missouri Reports

— Hon. D. H. Eby,. Judge. Tlie record shows the introduction of certain circuit court records and certain justice of the peace-records which tended to prove that defendant had been convicted of misdemeanors. Defendant insists that it was reversible error on the part of the court to admit: said records in evidence over Ms objections.

<p>1. BILL OF EXCEPTIONS: Special Judge: Signing After End of Term. The regular judge of another circuit who because of the sickness of the regular judge has been called in “to hold the remainder of the term,” has authority after the expiration of that term, to extend, in vacation, the time tor filing the bill of exceptions, and to sign and allow said bill. He does not lose his jurisdiction to sign the bill simply because the term at which the case was tried has expired.</p> <p>'2. MURDER: In Perpetration of Arson: Trial for Second-Degree Murder. Because tbe statute maltes a homicide committed in the perpetration of arson murder in the first degree only, and because the evidence shows if anything that the homicide was committed in the perpetration of arson, is no reason why the State cannot elect to prosecute for murder in the second de-' gree, and no reason why the jury cannot convict the defendant of that offense. In any case, under an information charging murder in the first degree, the defendant, although the evidence shows him to be guilty of murder in that degree or not guilty at all, may be convicted of murder in the second degree.</p> <p>■3. -: -: Distinct Offense. A homicide committed in the perpetration of arson is not a distinct offense. It is only one of the methods by which murder in the first degree may be committed.</p> <p>4. -: -: Classification. The statutes dividing murder into two degrees is a statute of classification, not of distinction. In murder committed in the perpetration of arson there may be a lower grade of homicide than murder in the first degree. .</p> <p>■5. -: Conspiracy to Burn House: Absent Conspirator. Where there is much evidence tending to show that defendant was the instigator of a conspiracy to burn the house of deceased, and a homicide was committed in the course .of the perpetration of that offense and in carrying out that conspiracy, defendant,' though not personally present when the arson was attempted and the homicide was committed, is as much guilty of the homicide as he would have been had he been personally present and fired the shot.</p> <p>¡6, -; Instruction for First Degree: Conviction of Second Degree. Notwithstanding the court required the jury to find facts which amount to murder in the first degree and instructed them that if they so found they could nevertheless convict defendant only of murder in the second degree, the instruction is not reversible error. If error at all, it was a favor to defendant and not to his injury, and he cannot complain.</p> <p>7. -: Instruction: Definition of Non-Constituent Elements. Where the jury were not required to find deliberation or premeditation or malice aforethought, it was not error- to define wilfully, feloniously, premeditatedly and malice aforethought, since defendant was in no manner injured thereby.</p> <p>5. INSTRUCTION: Corroboration: Not Defined. It is not necessary to define the word “corroborate” used in the usual instruction concerning the weight to be given to the testimony of an accomplice and the caution with which his testimony is to be received.</p> <p>9. -: Testimony Under Promise of immunity. It is not error to refuse an instruction that if any of the witnesses for the prosecution were induced or influenced to become witnesses and testify by any promise or intimation of immunity, from punishment, their testimony should be received with great caution, and the jury should take such facts into consideration. The instruction is a comment on the testimony, and the point is sufficiently covered by the usual instruction on the weight of the evidence and the credibility of the witnesses.</p> <p>10. -: Circumstantial Evidence. Where the killing and defendant’s connection therewith were shown by direct and positive testimony, and the State did not seek to convict him upon circumstantial evidence alone, or upon evidence principally circumstantial, it is not error to refuse an instruction on circumstantial evidence.</p> <p>11. -: Motive. Where there is evidence of motive, an instruction to the effect that the absence of any probable motive for the commission of the crime is a circumstance which must be considered in favor of the defendant, should be refused</p> <p>12. JUROR: Challenge. The defendant should challenge an objectionable juror for cause at the .time of his voir dire examination and state the ground of his challenge. It is too late to state for the first time the ground on appeal; and a mere challenge in the words, “We challenge this juror,” or a general challenge of certain jurors who had read newspaper accounts of the trial, without specifying any grounds of disqualification, is the same as no challenge at all.</p> <p>13. -: Qualification: Newspaper Reports. A person otherwise qualified to sit as a juror in a criminal case is not disqualified by reason of having formed an opinion as to the 'guilt or innocence of the accused from reading fragmentary newspaper accounts of a confession or statement made by one of the conspirators who testifies in the case, if he states on his voir dire that he can and will give the defendant a fair and impartial trial, notwithstanding such opinion.</p>

Louis City Circuit Court. — Hon. Geo. H. Williams, Judge. (1) The court should have given an instruction for manslaughter in the fourth degree, upon the theory that the jury may have concluded from the evidence that there was no absolute necessity for the killing, but that there was a demonstration of violence against appellant, accompanied with abusive language and a conditional threat, the effect of which was to produce that passion and hot blood which, is inconsistent…

— Eon. D. E. Eby, Judge. (1) (a) Defendant insists that under all the evidence, instruction 6, on second degree murder, should not have heen given. The evidence tends to prove murder in the first degree, or justifiable homicide, only. The case was tried on the theory, hy the State, that defendant “ brought on or provoked the combat.” This being the theory of the State, and supported as, it claims by'the testimony, this instruction should not have been given.

— Hon. B. J. Casteel, Judge. The bill of exceptions does not contain the motion for new trial; nor does it show that any exceptions were saved to the action of the court in overruling said motion. Consequently, there is nothing before the court except the record proper. State v. Libby, 203 Mo. 596; State v. Irwin, 171 Mo. 558; State v. Baker, 206 Mo. 695; State v. Gordon, 117 Mo. 387; State v. Griffin, 98 Mo. 672; State v. Price, 186 Mo. 140.

Habeas Corpus. (1) A State Legislature bas plenary power of legislation and may pass any and all laws not prohibited by the Constitution of the State or of the United States. Cass Co. v. Jack, 49 Mo. 196; Ex parte Roberts, 166 Mo. 207; Lewis’ Sutherland Stat. Con. (2 Ed.), sec. 5.

<p>1. APPELLATE JURISDICTION: Constitutional Question: When Raised: Motion in Arrest. A constitutional question, in order to give the Supreme Court jurisdiction of the appeal, should be lodged in the case at the earliest possible moment that good pleading and orderly procedure will permit. If it could have been raised in the pleadings or in the instructions and preserved in the motion for a new trial, it is too late to raise it in the motion in arrest. The motion in arrest is aimed only at some error on the face of the record which invalidates the pleadings, or is of such character that a judgment should not be rendered.</p> <p>2. -: -: -: -:'Local Option Law. The constitutionality of the Local Option Law cannot be so invoked in a motion in arrest as to give the Supreme Court jurisdiction over an appeal from a judgment adjudging defendant guilty of its violation in a county where it had been adopted and assessing his punishment at a fine of three hundred dollars.</p>

<p>1. NEGLIGENCE: Passenger on Railroad: Dangerous Alighting Place: Contributory Negligence. It is the duty of a railroad company to provide suitable and convenient means for passengers to alight in safety from its trains at the place of their destination. Where the train did not stop at the platform, but passengers were compelled to alight on the ground; the station had been called and the train stopped; the ground had been excavated by the company in double-tracking its road, and as a result the tracks were rough and uneven, and the distance from the steps to the ground was, because of the piles of cinders which had not been spread out, a foot in some places and six feet in others; the night was dark, and there were no lights, and no warning; the passenger occupied a seat three or four seats from the front door, and that door was not locked and no direction was given passengers when the station was announced to go out at the back door; the front door was the usual exit; no porter or brakeman was present to assist the passenger to alight or to warn her that the landing was dangerous; she testified that she expected to find a trainman there to help her alight, but finding none and fearing she might be .carried on to the next station, she thought she could 'get off in safety by herself, and by reason of the great distance to the ground, which she could not measure in the darkness, she fell, and was injured; and the conductor testified he was at the front door of the car with his lantern — it will not be held that she was guilty of such contributory negligence as bars a recovery for that she voluntarily chose a dangerous way when a safe one was open to her. If the conductor was at the door of the car she came out of, it was his duty to have warned her of the danger of alighting there and directed her to go to the other door; if he was not there, it was defendant’s duty to have someone there to warn her of the danger, or at least to have had the door locked.</p> <p>2. -: -: -: -: Notice. And where plaintiff testified that when she went to the station in the morning to take a train, she did not notice the uneven condition of the ground and had no occasion to do so, the fact that she remained there then seven minutes waiting for her train is not conclusive or even evidence that she had knowledge of the dangerous condition of the grounds.</p> <p>5. -: -: -: Instruction: Utmost Care. The railroad company is required to exercise the highest degree of care in providing a safe place for passengers to alight from its trains. The relation of passenger exists during the period needed for a safe exit from the train. The degree of care to be exercised by the carrier for a passenger’s safety while he is leaving the car is as high as that the carrier is required to exercise for the passenger’s safety while the passenger is in transit. Where the station is announced by thé train men and the train stops at an unusual place, and the landing place is dangerous, and the passenger is injured in the very act of getting off, and that injury is due to the rough and uneven grounds and the great distance from the steps to the ground, defendant is not excusable if it exercised only ordinary care, but it must exercise the highest degree of care. And in this case, plaintiff’s instructions did not put the emphasis upon the platform and surrounding grounds, but upon the dangerous exit.</p> <p>4. -: Evidence: Specific Injuries: Objective Symptoms. Where the allegations of injuries were specific, but there was none of injuries to plaintiff’s leg, it was not error to permit her to testify that her leg was giving out completely, if the petition charged that her entire nervous system was shocked and impaired by the injury, and the experts testified that an objective symptom of injuries to her nervous system and spine was the impaired use of her leg. She could not testify to injuries to the leg, but as the weakness of the leg was traceable to the injury to the nervous system, she could testify as to its impaired condition at the time of the trial.</p> <p>5. -: -: Condition of Health: Expert. A witness, though not an expert, who has lived in the house of plaintiff for a year or longer, with daily opportunity to see her, is competent to state her condition of apparent health. It is not improper for such witness to say that plaintiff's physical condition was very poor.</p> <p>6. -: Instruction: Contributory. Where every element of contributory negligence applicable to the case is included in instructions given, it is not error to refuse another instruction asked by defendant which attempts to set out with more detail what acts on plaintiff’s part would constitute contributory negligence, and includes therein certain acts upon which there was no evidence.</p> <p>.7. -: -: -: Knowledge: No Evidence. An instruction which seeks to defeat plaintiff’s recovery on grounds to support which there is no evidence, should be refused. Where there was no evidence that plaintiff saw on the morning preceding her injury the condition of the rough and uneven ground upon which she alighted in stepping off the train that evening in the dark, or that she knew that evening in the darkness that the train had stopped in an unsafe place for her to alight, the jury ought not to be told that such knowledge would defeat her recovery for injuries received in stepping off of the train down into a deep excavation at an unusual stopping place.</p> <p>S. -: -: Equal to Demurrer: No Light or Trainman. Where whether plaintiff amid all the circumstances surrounding her exercised ordinary care in alighting from the train was a question for the jury, the court should refuse an instruction which in effect amounts to a demurrer to the evidence and bars her recovery on the ground of contributory negligence. The instruction told the jury that if the passenger went out of the car at the front end, and when she opened the front door found the place was dark and no brakeman present to assist her in alighting, and in attempting to alight was injured, and such injury would not have occurred if the place had been lighted and there had been a brakeman present to assist her, she could not recover. Held, not to be the law, and properly refused. Not knowing that the place was dangerous, and not being able to see and having been invited by the announcement of the station and the stopping of the train to alight there, she had the right to presume that, with the exercise of ordinary care, she could alight in safety.</p> <p>9. -: Simulated Injuries. Where there was sufficient evidence, if believed by the jury, to justify a finding that plaintiff was seriously injured, the contention that she was not injured hut was simulating will not be sustained on appeal.</p>

— Eon. A. H. Wallert Judge. (1) The will of D. S. W. Hathaway did not specifically devise his land and at his death the title to his land vested in his heirs or legatees and not in the administrator. The authority to sell the land of decedent is given by the statute, section 146, and this power cannot be exercised by the administrator without an order of sale by the probate court.

— Eon. D. E. Ehy, Judge. (1) Where the separate means of the wife are invested in land by the husband without her written assent, the title is held by him in trust for the wife, and at her death for her legal heirs, to the extent which her separate means contributed to the purchase price.

Louis City Circuit Court. — Hon. Won. M. Kinsey, Judge. (1) The withholding of the deed of May 8, 1902, by Michel, from the record, gave to Wheelhouse the mdicia of ownership of the property until Ritter entered into the contract of February 14, 1903, and discounted the note of June 19,1903, with the bank Upon that evidence of his solvency in the contract, Ritter was led to give him credit.

Louis City Circuit Court. — Ron. Matt. G. Reynolds, .Judge. (1) Plaintiffs’ evidence did not establish the fact that the city did any excavating at all, and the contract between the city and the contractor which plaintiffs introduced authorized the contractor to excavate in the alley alone. There was, therefore, as to the city, a failure of proof of the first assignment of negligence.

— Eon. Edward P. Gates, Judge. (1) There was nothing to preclude defendant from acquiring a valid tax title to plaintiff’s interest in the property. The taxes were assessed and became due during the life of Mrs. Kohle. There was no obligation, legal, moral or otherwise, resting on defendant to pay these taxes. When defendant acquired his tax title he was not in possession of the premises. Mr. Kohle, the life tenant, was in possession enjoying the rents and profits thereof.

— Hon. W. B. Teasdale, Judg’e. The court in which the petition was filed had jurisdiction to adjudge the corporation a bankrupt. Sec. 2, subd. 1, National Bankruptcy Law. “The filing of the petition in bankruptcy was a caveat to all the world. It was in effect a caveat and an injunction. Thereafter all the property rights of the debtors were ipso facto in abeyance until the final adjudication. . . .

<p>1. MISJOINDER OF CAUSES: Motion to Elect: Waiver. A motion to elect, based on a misjoinder of two separate causes of action, is waived by answering over to the merits.</p> <p>2. -: Set Up As a Defense in Answer. A misjoinder of parties and causes of action cannot be raised by pleading misjoinder in tbe separate answers of defendants, at least where the petition on its face discloses such defect.</p> <p>3. -: Setting Aside Trustee’s Sale and Deed: Joint Enterprise. Where the suit is to set aside a trustee’s sale under a deed of trust of certain lands, the whole being sold at one sale and one bid, with deeds made — in furtherance of the common enterprise and joint venture of two defendant purchasers — ■ of one part to one of them and another part to the other, they can be joined in one suit depending on the same evidence.</p> <p>4. EQUITY: Admissibility of Evidence. In an equity case the admission or exclusion of evidence is rarely reversible error on appeal.</p> <p>5. -: -: Compromise. It will be assumed on appeal that the rights of appellant in the equity suit were not prejudiced by the admission of testimony looking to a compromise.</p> <p>6. -: -: Suit to Set Aside Mortgage Sale: Additional Security. In the suit to set aside the trustee’s sale under a deed of trust of certain lands, the exclusion of testimony offered by defendants that the mortgagors gave a mort-gage on other land and that the deed of trust under which the land was sold was additional security, is not reversible error. If material, there was better evidence of it than oral testimony.</p> <p>7. -; — : -: -: Testimony of Antecedent Cloud on Title. A defendant, in the suit to set aside a mortgage sale, should not be permitted to testify that there was a cloud upon the title at the time of the sale — for two reasons: First, because its tendency is to permit the opinion of the witness to take the place of the fact itself, and if the clould existed there is a better way to prove it; and, second, because no man should be permitted to retain land acquired at an invalid and unfair sale by disparaging title through assumption.</p> <p>8. SETTING ASIDE MORTGAGE SALE: Decree: Restoring Bid Money. A decree which sets aside a sale under a deed of trust and the trustee’s deed to the purchasers is not equitable unless it restores to them the money paid by them at the trustee’s sale. They are entitled to be put in the same situation they were before the sale, as far as practicable. And where the amount of the bid was tendered to the plaintiff beneficiary and not accepted, the decree should require plaintiff to pay to the purchasers the expenses of the sale paid by them.</p> <p>9. -: Clean Hands. The fact that on the day of the sale under the deed of trust the beneficiary’s agent, in the absence of his principal and of his own motion, tried to induce the purchasers to deed the property to the beneficiary for a bonus of $25, does not show that the beneficiary who seeks to have the sale set aside comes into court with unclean hands. If the proposition had been accepted, and the mortgagor were complaining, a different question might be present.</p> <p>10. -: Duty of Trustee. The trustee making the sale in the foreclosure of a deed of trust is the agent both of the mortgagor and the cestui que trust. His primary and bounden duty is to make the sale to their interests — not to drum up crowds of speculators in lands and make the sale at a time that best suits them, in disregard of the interests of his principals.</p> <p>11. -: Untimely Hour of Sale: Inadequacy of Price. Inadequacy of consideration as a general rule is not of itself a sufficient ground for setting aside a foreclosure sale under a deed of trust; but when the sale was made at 11:15 in the morning when the usual hour was between one and three, and the mortgagor testified that he was not present because of the untimely hour, and the cestui qui trust, detained by late trains from arriving at the place of sale until 11:40, notified the trustee over the telephone on the previous day to postpone the sale until his arrival and that request was ignored, and the trustee made the sale at the untimely hour at the request of the purchasers and to suit their pretended convenience, which' is shown to be a mere pretext and cloak, and the property was permitted to pass to their hands at a very small per cent of its real value and at a sum much less than the debt secured, the sale is unconscionable and will be set aside at the suit of the cestui qui trust. In sucn case the sale was not made in the interests of the trustee’s principals, but in collusion in the form of a wrongful combination for an improper purpose.</p> <p>12. DEMURRER: No Exception: Waiver. It is not necessary to save an exception to the overruling of appellant’s demurrer to the petition, in order to have it considered on appeal. But defendant by answering over waives every objection raised by the demurrer to the petition except the question of jurisdiction and the objection that the petition does not state facts sufficient to constitute a cause of action.</p> <p>13. -: No Cause of Action. But where the grounds of the demurrer are that there is a-misjoinder of parties in the petition and a misjoinder of causes of action, coupled with the added clause that “it appears by the plaintiff’s own showing by said bill that she is not entitled to the recovery or relief prayed for by the bill against these defendants,” the demurrer does not with certainty make the objection that the petition does not state facts sufficient to constitute a cause of action. The purpose of the statute governing demurrers was to sharply direct the trial court’s attention to the precise ground of objection relied upon.</p> <p>14. SUIT TO SET ASIDE MORTGAGE SALE: By Mortgagee: Pleading: Solvency of Mortgagor: Equity: Jurisdiction. Whether or not it was necessary for plaintiff, the beneficiary in a deed of trust, in her suit to have the foreclosure sale set aside as improper and in fraud of her rights, to allege in her bill that the payor of the secured notes was solvent,, is a jurisdictional question, for its determination involves a determination of the question of whether or not she had an adequate remedy at law, and in consequence the sufficiency of the petition can be raised for the first time on appeal. But to maintain such a suit it was not necessary for her to allege the mortgagor’s insolvency. The suit is to re-establish the lien of a deed of trust exhausted and lost by an unfair and wrongful sale, and to vest out of the purchasers at such sale and to vest into the trustee the legal title to the land, to be held by him as security for the payment of the secured notes, whose owner has no legal remedy to that end. Nor does it lie in the mouth of the purchasers who got the title unfairly, to insist that she can sue on the notes and obtain judgment and execution in a court of law against the payor of the debt. She is entitled to both remedies and should not be deprived of either. Whether the debtor is solvent is a necessary matter neither of pleading nor proof.</p>

— Hon. H. G. Riley, Judge. (1) Plaintiff’s purchase of the land in controversy was not pendente lite. It purchased and recorded its deed on April 24, 1902, and summons in the Stone condemnation case was not served on Mrs. Finley until April 28tb, nor on Mr. Stone until April 29, 1902. Hence, when defendant purchased, the court had no jurisdiction over its grantors, and the condemnation suit was not lis pendens.

— Eon. Jas. D. Barnett, Judge. (1) The defendant Kinloch Telephone Company’s demurrer should have been sustained. Plaintiff failed to prove any act of negligence charged against said defendant and relied upon for a recovery. Said defendant’s requested peremptory instruction should have been given, because said defendant’s undisputed evidence conclusively disproved any theory of liability for plaintiff’s injuries.

<p>1. FRAUD AND DECEIT: Necessary Elements: Selling Land. False representations of tlie vendor on material facts leading up to tke sale, with, his knowledge of their falsity and a present intention that they are to be believed and acted on by the vendee, coupled with the vendee’s ignorance of their falsity and his reliance and acting on such representations to his resulting damage, make up the constituent elements of a typical case of actionable fraud and deceit.</p> <p>2. -: Selling Land: Representations as to Acres. False statements and representations made by tbe vendor, positively and as of his own knowledge, as to tbe number of acres in a certain tract of land, wben tbe tract is being negotiated by tbe acre, are not regarded as expressions of opinion, but are considered statements of fact, and as sucb constitute fraud. [Disapproving Mires v. Summerville, 85 Mo. App. 183.]</p> <p>3. -: -: -: Emptor Caveat: Patent Facts. It is only where tbe fact falsely represented by tbe vendor is open and patent to tbe senses of a vendee exercising ordinary business care and attention, that tbe rule of emptor caveat applies. Tbe fact that tbe vendee went upon tbe irregular tract of land twice before purchasing it and viewed it, does not entitle tbe vendor to invoke tbe rule of emptor caveat wben sued by tbe vendee for damages for falsely and positively stating tbe number of acres tbe tract contained to be more than it in fact contained, for tbe falsity of that statement is not patent and open. It is a matter of common knowledge that one cannot view an irregular tract of land and arrive at an accurate estimate of its contents.</p> <p>4 -; -_■ -; -; Measuring. Where tbe vendor, who knows, falsely and positively represents tbe tract to contain a certain number of acres, tbe vendee, who goes upon tbe tract and views it before purchasing, is not required to measure it in order to ascertain tbe number of acres. He is only required to use that business circumspection that prudent men usually exercise in like transactions; and where positive representations are given by tbe vendor of tbe number of acres, ordinary business prudence, though be sees tbe irregular tract and might have caused a survey to be made, does not require tbe vendee to measure tbe tract.</p> <p>5. -: -: -: Taking Advantage of Own Rascality. Where fair dealing is departed from by tbe vendor making false statements of fact as of bis own knowledge, tbe falsity of which is not palpable to the purchaser, tbe vendee has tbe undoubted right to rely implicitly upon sucb statements, and tbe vendor wben sued for fraud and deceit is in no position to avail himself of the vendee’s lack of care and attention. Tbe law will not, in such case, permit tbe vendor to escape bis duty to recoup tbe vendee for the damage resulting from bis false representation, by urging tbe folly of tbe vendee, or by admitting that be himself was a knave and a scoundrel, or by averring that tbe defrauded vendee was negligent and careless in believing and trusting tbe falsehood of tbe vendor.</p> <p>6. -: -: Misrepresentations of Agent: Liability of Principal. Although, the owner of the land took no part personally in the fraudulent representations of his agent as to the number of acres in the irregular tract, yet if he became aware of the fraud being perpetrated on the vendee in time to have prevented it, but instead of doing so deliberately became a party thereto by executing a deed purporting to convey more land than he owned or claimed to own, and took an obligation from his agent to protect himself in the event the fraud should be discovered and he should be called upon for reimbursement on account thereof, he is liable for damages, in the vendor’s action for fraud and deceit, for the injury done by the false representations of his agent.</p> <p>7. -: -: -: -: Scope of Agent's Authority. It is within the scope of the authority of an agent to sell land, to represent the acreage of a tract in his hands for sale; and when he makes false representations as to the number of acres they bind his principal, although the principal had no personal knowledge of them, especially where the principal ratifies and adopts them.</p> <p>8. DEFECT OF PARTIES: Raised by Answer. An objection that the suit is not being prosecuted by all the parties in interest may be raised by the answer where the defect is not disclosed in the petition.</p> <p>9. -: Fraud and Deceit: Vendee’s Agent. In a suit by the vendee of land against the vendor and his agent, for fraud and deceit, based upon fraudulent representations of the vendor’s agent that the tract contained more acres than were conveyed to and paid for by the vendee, the agent of the vendee, with whom the trade was made, and who furnished none of the purchase money and will not receive any profit for his services unless the land is sold at a profit, is not a necessary party plaintiff. If it was the vendee’s money that the vendor or his agent received by the fraud, the vendee’s agent is not a necessary party, although in a final adjustment of the matters pertaining to the transaction he may be entitled, from his principal (the vendee), to some money as his share of the profits, and is that far interested in the result of the suit. But it is no concern of the vendor or his agent that the vendee may share in that profit. It is res inter alios acta as to them..</p>

Transferred from St. Louis Court of Appeals. (1) An easement upon a railroad right of way cannot be obtained by prescription. Railroad v. Tot-man, 149 Mo. 657; Railroad v. Smith, 170 Mo. 327; Costello v. Railroad, 70 N; H. 403. (2) The user in the case at bar was not under a claim of right, nor adverse to the railway, company, but was permissive and therefore could not ripen into an easement by prescription.

— Eon. Wm. E. Martin, Judge. (1) Pigott’s acts from the death of Trigg were not authorized, and he is entitled to no compensation for services rendered since then. The giving of a bond, as required by the judgment of the circuit court, was “a condition precedent to his occupancy of the trust.” Tracy v. Railroad, 13 Mo, App, 299 ; Davis v. Bank, 78 Minn. 409.

— Hon. L. B. Woodside, Judge. (1) The possession of coterminous proprietors under a mistake or ignorance of the true line and without intending to claim beyond the true line will not work a disseizin in favor of either. Finch v. Ullman, •106 Mo. 255; Sehad v. Sharp, 95 Mo. 573; Crawford v. Ahrens, 103 Mo. 88; PIoux v. Batteen, 68 Mo. 84; St. Louis University v. McCune, 28 Mo. 481; Battner v. Baker, 108 Mo. 311; Schwartzer v. Gebhardt, 157 Mo. 99.

— Hon. Jas. H. Stover, Judge. (1) The verdict of the jury is conclusive that there was no contributory negligence on the part of plaintiff. That finding is abundantly supported by the evidence. Railroad v. White, 67 F'ed. 481; Young v. Waters-Pierce Oil Co., 185 Mo. 666; Railroad v. Gee, 92 Fed. 318; Murphey v. Railroad, 115 Mo. 125; Railroad v. Nichols, 85 Fed. 945; Carpenter v. Railroad, 56 Fed. 451; Railroad v. Allen, 88 Pac. 966; Whipple v. Railroad, .35 Atl. 305.

<p>1. MONOPOLY: Persona! Service. At common law, personal service — an occupation — could not be the subject of a monopoly; and while labor organizations might be proper subjects of legislative control and regulation, the General Assembly of Missouri has not prescribed such control and regulation.</p> <p>2. -: —:-: Labor Organizations: Quitting Work: Injunction. Individuals have a legal right to form labor organizations for the protection and promotion of the interests of the laboring classes, and the courts have no power to enjoin the members of such organizations from peaceably withdrawing from the service of their employer.</p> <p>3. -: -: -: Combinations. A brotherhood of carpenters and joiners and their allied associations do not constitute an unlawful combination in restraint of trade, if confined within proper bounds.</p> <p>4. BOYCOTT: Labor Organization. A boycott carried on by a carpenters’ and joiners’ union, through its executive officers, having for its purpose and end the intimidation of contractors and builders 'from purchasing and using in any building to be constructed by them, building material manufactured by the plaintiff in the conduct of its planing mill, by prohibiting the carpenters and joiners belonging to the union from working on any and all buildings in which, plaintiffs materials are being used or to be used, is a conspiracy and an unlawful combination to injure plaintiff — the purpose of the boycott being to compel plaintiff, by this indirect interference with its beneficial business, to discharge all its non-union laborers.</p> <p>5. -: -: Injunction: Pleading: Demurrer. And a demurrer to a petition that charges those necessary elements of a boycott, while it does not admit the conclusion of law that it is unlawful, admits all the allegations of fact well pleaded, and if they together amount to a charge of an unlawful con- ■ spiracy to injure the trade, business or occupation of plaintiff, the petition states a cause of action for injunctive relief.</p> <p>6. -: Definition. This definition by the Supreme Court of Minnesota, in Gray v. Building Trades Council, 91 Minn. 1. c. 179, is accepted: “A boycott is a combination of several persons to cause a loss to a third person by causing others against their will to withdraw from him their beneficial business intercourse through threats that, unless a compliance with their demands be made, the persons forming the combination will cause loss or injury to him; or an organization formed to exclude a person from business relations with others by persuasion, 'intimidation, and other acts, which tend to violence, and thereby cause him through fear of resulting injury to submit to dictation in the management of his affairs.” Such acts constitute a conspiracy, and may be restrained by injunction.</p> <p>7. -: Unlawful Conspiracy: Injunction. A combination to injure or destroy the trade, business or occupation of another by threatening or producing injury to the trade, occupation or business of those who have business relations with him, is an unlawful conspiracy, regardless of the name by which it is known, and can be restrained by injunction.</p> <p>8. PROPERTY: Occupation. A person’s occupation or calling, by means of which he earns a livelihood and endeavors to better his condition, and to provide for and support himself and those dependent upon him, is property within the meaning of the law, and entitled to protection as such; and as conducted by the merchant, capitalist, contractor or laborer, is, 'aside from the goods, chattels, money or effects employed or used in connection therewith, property in every sense of the word.</p> <p>9. BOYCOTT: Threats: Injunction. To prohibit a labor union and its executive officers from continuing in force a boycott theretofore declared, or to enjoin them to declare a threatened boycott against plaintiff’s business, plaintiff is entitled to injunction.</p> <p>10. -: To Discharge Non-Union Men. Combinations between the officers and members of a labor union, or between such union and its executive officers and kindred associations, having for its direct object the immediate effect to injure and damage the business of persons at whom they are directed, and thereby to compel them to discharge their non-union employees and replace them with members of the union, and thereby incidentally and indirectly to benefit the parties to the combination, is an unlawful conspiracy.</p>

<p>APPELLATE JURISDICTION: Transfer to Supreme Court: All Judges Concurring. .Where all the judges of the Court of Appeals agree to a decision which they say is in conflict with the last previous ruling of the Supreme Court, the case should not he transferred to the Supreme Court, on the theory that the last previous decision was in conflict with a prior decision Oi the Supreme Court which was not overruled hy the later one. The Supreme Court does not hy such transfer acquire jurisdiction. The Court of Appeals cannot compel the Supreme Court to harmonize its opinions hy raising the question of conflict itself and then certifying it to the Supreme Court for determination. The duty of the Court of Appeals is to follow the last previous decision of the Supreme Court, even though all of its judges consider that decision in effect though not expressly overruled a prior decision of the same court.</p>

— Hon. D. H. Eby, Judge. (1) The second count for the taxes for 1897 is disposed of by the decision of this court in State ex rel. v. Railroad, 196 Mo. 523. Held: as contended by the appellant, that the clause “where a charge is made for crossing the same” refers also to bridges of this character, then the evidence in the record brings the bridge in this case within that definition.

Transferred from Kansas City Court of -Appeals. The demurrer of defendant Cook should not have been sustained. (1) Because the Statute of Limitations cannot be raised by demurrer. Smith & Kinzer v. Dean, 19' Mo. 63; Cooksey v. Railroad, 17 Mo. App. 141; Maddox v. Duncan, 62 Mo-. App. 474; State to use v. Bird, 22 Mo. 473. It does not appear on the face of the petition that the claim is barred in any event and without any exception.

— Hon. J. H. Blover, Judge. (1) It was error to permit defendant’s witnesses to give their opinion as to whether appellant Knapheide was damaged or benefited and the amount of damages or benefits. This was a question for the jury. Gregory v. Chambers, 78 Mo. 294; Hurt v. Railroad, 94 Mo. 255; Railroad v. Stock Yards Co., 120 Mo. 541; Wiggins v. Railroad, 119 Mo. App. 492.

— Hon. Jno. P. Butter, Judge. (1) It was error to set aside the verdict of the jury and grant plaintiff a new trial. Where the verdict and finding of the jury is for the right party and where plaintiff’s own evidence shows that she is not entitled to recover, the order granting a new trial will he set aside whether the instructions are right or wrong.

<p>1. NOTES: Payment or Assignment: Release of Deed of Trust. Where the payee and holder of notes secured by a deed of trust, in his lifetime, wrote on the back of said notes that for value received he thereby assigned them without recourse to the maker’s widow, and signed his name thereto, and the trustee in, the deed of trust testified that the payee’s signature thereon was his genuine signature, and the evidence shows that at .a sale under the deed of trust the widow became the purchaser, the finding of the trial court that the notes were not paid off but purchased by the deceased wife, will not on appeal be disturbed, notwithstanding the fact that thereafter the executor of the payee released the deed of trust on the record, and the trustee testified that in his opinion the notes had been paid but had no personal knowledge of the payment.</p> <p>2. -: Assignment: Subsequent Release. If the payee of the notes assigned them in his lifetime to the maker’s widow, then the payee’s executor had no authority after the payee’s death to release the lien of the deed of trust securing their payment. The assignment of the notes carried with it the deed of trust, and all control over the deed of trust by the payee or his executor was thereafter lost, and any attempted release hy either was void.</p> <p>3. LIMITATIONS: Deed of Trust: Act of 1891. The Act of 1891, requiring suits or proceedings to foreclose an existing mortgage which secured a debt itself barred, to be begun or had within two years, applies only to those mortgages or deeds of trust whose debts were barred at the time of the passage of the act. So that where the deed of trust was dated April 1, 1880, and was given to secure three notes payable in one, two and three years, the last becoming due on April 1, 1883, the Act of 1891 did not prevent the foreclosure of the deed of trust on August 12, 1893, for at the time of the passage of the act in 1891 at least two of the notes were not then barred.</p> <p>4. DEED OF TRUST: Purchase By Life Tenant: Contribution. Where the mortgaged premises were a homestead, and after the maker of the notes died, his widow purchased them and at a foreclosure sale bought in the homestead and received a deed therefor, she in law purchased for the benefit of herself and her heirs, the remaindermen, subject to their right to enjoy the benefits of such purchase by contributing their share of the purchase price. But they cannot share in the purchase until they do make contribution. The life tenant’s purchase and deed are not void.</p> <p>5. -: -: -: Theory at Trial. Where after the purchase of the homestead hy the homesteader’s widow under the deed of trust, she died, leaving a will hy which she devised the property to one of her children, and plaintiff brought suit on the theory that the mortgage debt had been paid and not the notes purchased hy her, and that therefore the title descended to the mortgagor’s heirs and that he had at execution sale bought the share of one such heir and was entitled to partition, but neither he nor the remainderman whose interest he bought had ever offered to contribute his share of the purchase price, plaintiff will not he heard to contend on appeal that contribution is a privilege of the heir, since he tried the case below on the theory that the widow had paid the notes and thereby extinguished the deed of trust.</p>

— Hon. W. E. Barton, Special. Judge. In an action under Sec. 650', R. S. 18991, when the validity of a judgment is called in question, the attack upon the judgment is collateral in its nature. Evarts v. Lumber & Mining Co., 193 Mo. 433; Johnson v. Realty Co., 167 Mo. 325.

— Hon. J. H. Slover, Judge. (1) Defendant’s-demurrer to the evidence should have been sustained at the close of plaintiff’s case, and at the close of the whole ease, (a) There is no evidence tending to show that defendant was negligent with reference to the number of men furnished to do this work. Jackson v. Railroad, 104 Mo. 457.

Pike Circuit Court. — Hon. D. II. Eby, Judge. The first question presented is: Did Simeon Sky acquire suck interest wken tke property was sold under partition proceeding as entitled kim' to ke keard ky tke trial court on a motion to set aside tke skerifFs report of sale? We insist tkat ke did. Wauckope v. McCormick, 158 Mo. 6601; Good v. Crow, 51 Mo. 212.

<p>SPECIFIC PERFORMANCE: No Evidence. .Where there is no evidence contained in the record which describes or attempts to describe the land involved in the suit for specific performance, and the letter relied upon by plaintiff as taking the contract of purchase out of the Statute of Frauds was not introduced in evidence or its contents proven, the judgment for defendant will be affirmed.</p>

Louis City Circuit Court. — Now. O’Neill Ryan, Judge. (1) Appellant’s demurrer to the evidence should have been sustained at the close of the whole case. Bartley v. Railroad, 148 Mo. 124; Williams v. Railroad, 78 S. W. 45. The negligence charged consists of the doing of two- distinct and separate things, namely, the sudden start without warning, and the stop within a few feet with a sudden jerk and shock, whereby deceased was caused to fall and be thrown.

Buchanan Criminal Court . — Hon. A. D. Burnes, Special Judge. (1) It is settled law in this State that no person can be convicted of a crime npon his extra-judicial admission alone. There was a failure to prove a corpus delicti in this case. The corpus delicti must be proved by evidence independent of the extra-judicial confession or admission.

Louis County Circuit Court. — I-Ion. Jno. W. McElhinney, Judge. (1) The court erred in refusing to give, at the close of all the evidence, the peremptory instruction offered by defendant. Brands v. Car C'o., 112 S. W. 511; Forbes v. Dunnavant, 198 Mo. 193; Bradley v. Tea & Coffee(Co., Ill S. W. 919. (2) The court erred in giving instruction 1 offered by plaintiff. (3) The court erred in giving instruction 16 at the instance of plaintiff.

— No». Samuel Davis, Judge. (1) A contractor working under a contract providing that he is to be paid only on the completion of the work, and, if he quits, the owner may complete building at the contractor’s cost and recover all excess, if any, off of the contractor, may nevertheless, upon termination of the contract, either by himself or the owner, sue in quantum meruit or quantum valebat for the amount of work done and material furnished before the work is completed, - and…