Volume 229 — Missouri Reports

Louis City Circuit Court. — How. Geo. H. Shields, Judge. (1) The court erred in refusing to give the instruction in the nature of a demurrer to the evidence offered by defendant at the close of all the evidence. Grattis v. Railroad, 153 Mo. 380; Reichl v. Flynn, 196 Pa.

Louis City Circuit Court. — Mon. Chas. Claflin Alim, Judge. (1) There was no issue “made up” in accordance with the statute on which the opinion of a jury could be taken. R. S. 1899, secs. 691 and 692. What the statute contemplates is shown by Besshears v. Rowe, 46- Mo. 501. What the court really did was to try the whole ease by jury — a course sufficiently characterized by Bray v. Thatcher, 28 Mo. 129.

<p>Appeal from St. Louis City Circuit Court. — Eon. Chas. Claflin Allen, Judge.</p>

— Hon. Alomo D. Burnes, Judge. (1) Subdivision sixth of this will does not and did not invalidate, or set aside, or cancel or destroy; the title given by paragraph or subdivision two. This clause of the will is illegal and undertakes to create and establish a perpetuity in land titles.

— Eon. John G. Park, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. It is utterly impossible to undo what has been done. The defendant cannot be placed in statu quo. He only bought an undivided half interest.

Louis County Circuit Court.— Hon. Jno. W. McElhinney, Judge. (1) The court erred in refusing to give the peremptory instruction offered by appellant at the close of all the evidence, (a) Because there was no evidence to sustain any of the allegations of negligence contained in respondent’s petition, (b) Because the evidence clearly showed that the risk of riding on the elevator was assumed, by the respondent.

— Hon. C. A. ' Mosman, Judge. (1) After condition is broken and possession is taken by a mortgagee, the mortgagor cannot maintain ejectment against the mortgagee or Ms assigns, unless the mortgage debt is first paid, so as to cancel the mortgage. Pease v. Iron Co., 49 Mo. 128 ; Johnson v. Houston, 47 Mo. 227. Nor can he obtain relief in a court of equity. Kline v. Vogel, 90 Mo. 239.

<p>Appeal from Buchanan Circuit Court. — Hon. G. A. Mosmcm, Judge.</p>

Louis City Circuit Court. — Ron. Daniel G. Taylor, Judge. (1) “Exhibit A,” signed by defendant and filed with, and made a part of, his amended answer, containing the following stipulation: “And whereas it is the desire of all three parties to this contract that they should control and direct the affairs of said corporation, and that they should each be equally interested in said corporation,” is a conclusive admission of the existence of a confidential relation between them,…

Louis City Circuit Court. — Don. Daniel D. Fisher, Judge. (1) The provision of the will is a condition subsequent, upon the happening of which plaintiff’s estate is forfeited, that is, diminished from a sole ownership to that of a one-sixth interest; and being in general restraint of marriage, against public policy, and void, the estate vests in plaintiff free from the condition.

Louis City Circuit Court. — Eon. Bobt. M. Foster, Judge. (1) The taking of the bond is a requirement of the law. Charter of St. Louis, art. 6, sec. 27; 2 E. S'. 1899, p. 2514, and see. 6761. And the purpose of the requirement is to insure to the public the performance of the work contracted for. (2) • Where the condition is for faithful performance, the purpose of such a condition is “to secure the performance of the work in a satisfactory manner.” ' 1 Abbott on Mun.

Prohibition. The courts of one State will not exercise visitorial power over the internal management and control of a foreign corporation in a snit hy a member thereof who bases his rights upon his membership. 19 Cyc. 1236; Sidway v. Missouri Co., 101 Fed. 481; 13 Am. and Eng. Ency. Law, 849; Clark v. Association, 43 L. R. A. (Colo.) 390; Condon v. Association, 44 L. R. A. (Md.) 149; Taylor v. Association, 45 L. R. A. (Va.) 621; Howard v.. Association, 45 L. B>.

Mandamus. The effect of the Glascock plat and the effect of the dedications of the public ground dedicated by him upon the plat, have been before the Supreme Court in two separate cases, and in both of these cases the court upheld and sustained the effect and purposes of these dedications. Hannibal v. Draper, 15 Mo. 635; Hannibal v. Draper, 36 Mo. 332.

Louis City Circuit Court . — Eon. Daniel D. Fisher, Judge. (1) The plaintiff’s deceased husband was guilty of such contributory negligence that as a matter of law the court should have instructed the jury to find for the defendant. The evidence shows that the deceased was walking along the railroad tracks without looking or listening for the. approach of the train thereon, and failed to heed the warning repeatedly given him by the operatives of the train.

— No». G. H. Skinker, Special Judge. (1) County courts have no implied power to levy taxes. The power must he expressly given by statute, and if conditions as to the exercise of the power are essential, they must be followed. When such conditions are made essential to the exercise of the power they must be observed before the power can be lawfully exercised.' State ex rel. v. Eailroad, 87 Mo. 239; E. S. 1899, secs. 9273-4.

— Hon. J. G. Sheppard, Judge. (1) The land in suit was placed on the market as public land. York having bought and paid for same in full, and having fully complied with all the requisites necessary to entitle him to a patent from the 'State, became the equitable owner, and any subsequent grant of the same land by Ripley county or Butler county after the change of county boundary, was absolutely void, unless the sale to saidYork had first been vacated or set aside.

Certiorari. (1) (a) “When the county court of Jackson county, under the direction of the Legislature, as contained in section 3805, R. S. 1899, divided Jackson county into eight justice of the peace districts, it discharged and exercised the authority confided to it by the Legislature. It created eight justice of the peace districts, the officers of which became constitutional officers.

<p>1. UNAUTHORIZED ACT: Reason Therefor. Where the county court had no power to make the order it did, no reason it may have assigned therefor is material or pertinent.</p> <p>2. REPRESENTATIVE DISTRICTS: Legislative Matter. The power to apportion Representatives among the counties, and to declare how many each county shall have, is a legislative power, and can he exercised, under the Constitution, only by the General Assembly; and that clause wherein it is said “senatorial and representative districts may be altered, from time to time, as public convenience may require,” does not mention tbe county or circuit court, but refers wholly to power reserved to the Legislature to enact legislation by which the district arranged at the end of each decennial period may, after the taking of a census, be altered; but .the clause is not self-enforcing, and the Legislature has provided no method by which such alteration can be made; and until it acts the county court cannot divide a county into Representative districts oftener than once in ten years, and it cannot do even that until the Legislature has declared how many Representatives the county can have, and the county having once been subdivided into representative districts in pursuance to an apportionment act cannot be redivided by the county court until another apportionment bill has been enacted.</p> <p>3. -: Unexercised Power in 1902. Where the Legislature in 1892 apportioned six Representatives to Jackson county, and the county court divided the county into six Representative districts, and again in 1901 the Legislature apportioned six Representatives to that county, and required the county court, “immediately upon the taking effect of this act,” to divide the county, and it did not do so, but permitted the districts to remain as they were, it had no power in May, 1910, to redistrict the county. If it had any authority at all under the Act of 1901 to redistrict the county, it was a power that should have been exercised promptly under legislative direction.</p> <p>4. -: When Made and How Often: Meaning of Word When. The word “when,” used in section 3 of article 4 of the Constitution, providing that “when any county shall be entitled to more than one Representative, the county court shall cause such county to be divided into districts,” etc., and used in section 6 of said article, providing that “when any county shall be entitled to more than one Senator,” means “at the time that”; and the power confided to the court by each section is dependent on prior legislative action, and the Legislature cannot, because of other clauses of the Constitution, make an apportionment to a county oftener than once in ten years, and that must be made at the session following the ascertainment of population by the United States census, and the subdivision of the county into districts by the court must be promptly made thereafter, and no other subdivision, in the absence of a special legislative act and a State census, can be made until the next decennial period.</p> <p>5.-: -: “From Time to Time”: Legislative Matter. The words “from time to time,” found in section 9 of article 4 of the Constitution, providing that “senatorial and representative districts may be altered, from time to time, as public convenience may require,” refer wholly to legislative power, and are a reservation to the General Assembly of power to provide a method by which the subdivision of a county into senatorial or representative districts may be altered after the county has been redistricted by the courts in pursuance to the decennial apportionment act — a power which the General Assembly has never exercised. If the said section 9 is considered as standing alone, and the words are not construed in connection with other sections, then they fail to confer any authority upon the courts, for it does not mention courts. The power conferred is a legislative one, and besides it is not self-enforcing. In any event, it does no't give the courts power to alter or change existing senatorial or representative districts until after the Legislature has acted.</p>

Louis City Cirquit Court. — Ho». Daniel D. Fisher, Judge. (1) Appellant’s operations in this State do not constitute doing business within the meaning of statutes relative to foreign corporations. The following points cover the whole scope of appellant’s activities in this State: (a) The soliciting of enrollments for courses of instruction is not doing business. Beard v. Publishing Co., 71 Ala. 60; Steel Tube v. Biehl, 9 Pa.

— Ro». Jas. D. Barnett, Judge. (1) The verdict is excessive. 1 Joyce on Damages, secs. 39, 100, 101, 214 and note 72 where will be found a large collection of cases on excessive and reasonable verdicts. Sawyer v. Railroad, 37 Mo. 240; Adams v. Railroad, 100 Mo. 555; Brady v. Railroad, 206 Mo. 509; Rodney v. Railroad, 127 Mo. 676 ; Stolze v. Trust Co., 188 Mo. 581; Devoy v. Railroad, 192 Mo. 197.

— Eon J. G. Sheppard, Judge. (1) The title of a purchaser under a judgment for back taxes cannot be defeated by showing that the taxes for which the judgment was rendered had been paid before the judgment was rendered. Evarts v. Lumber Co., 198 Mo. 433; Hill v. Sherwood, 96 Mo. 125; Jones v. Driskill, 94 Mo. 190'; Gibbs v. Southern, 116 Mo. 204. (2) Plaintiff’s petition wholly failed to state a cause of action and was insufficient to support the judgment rendered.

<p>1. WILL: In Restraint of Marriage: Void. Testatrix, having seven children, devised all her property to two daughters, Kate and Julia, in equal parts, and provided that “in case of the marriage or the death of either of said daughters, the share of the one marrying or dying shall go to the other. In the event of the marriage of both, said property shall be divided equally among all my children. In the event of the death of both of my said daughters before marriage, said property shall be divided equally among my surviving children.” Held, that that part of the will in restraint of the daughters’ marriage is void, and is to be construed as if the words and conditions in reference to marriage were not in it; but that part eliminated, the will is to be construed as providing that in case of the death of either the estate should go to the othér, and in case of the death of both before marriage the property should he divided equally among testator’s “surviving children.”</p> <p>2.--: In Case of Death Before Marriage. It is not in restraint of marriage, and therefore not unlawful, to devise property to one of several children and provide that in case the child shall die before marriage the property shall go to another or others.</p> <p>3. -: —:-: Interest of Other Children. Under this will the other five children can have no interest in the property devised to the two daughters until both die without either having been married.</p> <p>4'. -: Contingent Remainder. The remainder is contingent if the event on which it is to take effect is contingent, or if at the time of creating the estate the person who is to take is not ascertained. Both these contingencies are present in a will of a testatrix having seven children by which she gives all her property to two daughters, and provides that “in case of the death of either of said daughters, the share of the one dying shall go to the other. In the event of the death of both before marriage, said property shall he divided equally among all my surviving children.” Both being now alive the event on which the remainder (if it he a remainder) is to take effect, is the death of both without having married, which may never occur, since either may marry; and which of the other five children will he “surviving” in case of the death of both daughters is also uncertain.</p> <p>5. -: --: My Surviving Children: When Vested. The general rule is that if an estate is given by will to the survivors of a class to take effect on the death of the testator the word “survivors” means those living at the death of the testator; hut if a particular estate is given and a remainder is given to the survivors of a class the word “survivors” means those surviving at the termination of the particular estate. So that where the testatrix had seven children, one of whom was Lise, and gave all her property to Kate and Julia and provided that “in the event of the death of both of my daughters Kate and Julia before marriage, said property shall he divided equally among my surviving children,” the remainder will vest in such of testatrix’s children as are living upon the death of Kate and Julia before marriage, and hence, Julia and Kate being yet alive and unmarried, the child of Lise took nothing upon her death.</p> <p>6. -: -: Executory Devise. But the will did not create a contingent remainder. The estate given to the two daughters Kate and Julia was an absolute estate in fee simple except that it was subject to be determined upon the death of both of them unmarried. But a remainder cannot follow a fee, it follows a particular estate. Since the devise was to take effect upon the determination of the fee, it was an executory devise, and if testatrix’s other five children should die and after their death Julia and Kate should die unmarried, there would be no person im. esse to take the fee upon their death, and the fee will not revert to testatrix or her heirs, but remains, since there is nothing else in the will to show that the intention of testatrix was that the fee should then determine absolutely, and hence the fee would not be cut down, but remain in Kate and Julia. Therefore, in no event, can the child of Lise, now deceased, ever have any estate in the property.</p>

— Hon. N. D. Thurmond, Judge. (1) If plaintiff lias the right to maintain these proceedings, such authority must come from a statute, plain and unmistakable in its terms, which must be strictly followed. Statutes authorizing condemnation proceedings are to be strictly construed, and every prerequisite to the exercise of the jurisdiction observed. .School District v. Dorton, Jgg Mo. 439; St. Louis v. Koch, 169 Mo. 587, 15 Cyc. 567; State v. Farrelly, 36 Mo.

<p>1. SUSPICION: Affidavit Unnecessary. It is not necessary to swear to a suspicion. Where the movers for an investigation say they suspect fraud and collusion between adversary parties, an oath would not strengthen their suspicion.</p> <p>2. -: Collusion Between Nominal Adversaries: To Gain Jurisdiction in Supreme Court: Interveners' Motion to Investigate: Prohibition. Miller had obtained judgment against the Transit Company for $5000, and relator had bought it, and filed a suit in equity .against the United Railways Company seeking to hold it'liable for its payment. The suit was on behalf of himself and all other creditors similarly situated who might choose to come in and participate in the litigation. The cause came on to trial and relator’s right to payment from the United Railways Company was duly contested. The hearing being ended, the court took the decision under advisement, and while it was being so held relator purchased another judgment for $4000 against the Transit Company, and came into court with an application for leave to amend his petition and add this other judgment to his suit and submit the two judgments on the evidence that had already been taken, and the United Railways Company consenting the amendment was made. Five days after relator had bought the Miller judgment the motion for a new trial and in arrest therein were dismissed, and at that time the appeal therefrom would have been to the Supreme Court. The two judgments, amounting to $9000, came within the appellate jurisdiction of the Supreme Court, but at the time the application to amend was made an appeal from a judgment in the equity suit, on either separately, would have been to the Court of Appeals. Before any decision was delivered in the consolidated equity case, five attorneys filed a motion that an investigation be made, charging that they suspected that the equity suit was not being prosecuted in good faith; that relator and United .Railways Company were not actually adversary parties, but in collusion; that the Court of Appeals had held in another like case that the United Railways Company must pay judgments against the Transit Company; that relator and United Railways Company had combined for the purpose of giving them an appeal to the Supreme Court, and to oust the jurisdiction of the Court of Appeals, and that if they succeeded in this the movents might not be able to collect their judgments in a number of other cases if the Supreme Court should take a different view of the law. Reid, first, that the United Railways Company had a perfect right to use all lawful means to speed a case to the Supreme Court in the hope that said court might take' a different view of the law from that taken by the Court of Appeals, and its desire to accomplish that purpose affords a palpable reason for the withdrawal of a motion for a new trial in the Miller case and for its consent to allow relator to amend his petition in the equity suit and add the second judgment, thereby expediting that suit, and while there was an interested motive on the company’s part there was no fraud in it; second, the fact that relator applied to amend by adding the second judgment for $4000, and that the company consented, affords no ground to suspect fraud on the part of either, if he was the bona fide owner of the judgments, and he so stated under oath in his reply to the motion and that oath is not controverted by any fact, for the agreement was in the interest both of the relator and of the company; third, the trial court had no jurisdiction to sustain the motion and proceed with the investigation, and a writ of prohibition issues.</p> <p>Bold, by LAMM, J., dissenting, first, that when suggestions are made by reputable attorneys impeaching the good faith of a pending action for that it is conducted for the ulterior purpose of affecting other real litigation, or has substantial earmarks of being in other respects a feigned suit, a judicial duty arises to investigate, and the court’s discretion in such case should not be interfered with by prohibition; and, second, the facts in this case justified the court in ordering an investigation.</p> <p>3. -: -: Observations of Judge. If the judge trying a charge of collusion against a plaintiff with defendant intends to take into consideration his observations of the conduct of attorneys for defendant and what the clerk told him concerning inquiries made by them, he should notify the accused party and give him an opportunity to meet that phase of the case.</p> <p>4. COLLUSION OF PARTIES: Investigation. The circuit court has jurisdiction, when a proper showing is made, to investigate the question of good faith in the prosecution of a cause pending before it; but it exceeds its jurisdiction when it requires one to answer a bill of impeachment founded on mere suspicion, tying one’s hands from prosecuting a suit, and placing upon one a stigma.</p>

— Hon. E. W. Hinton, Special Judge. (1) The passing of an absolute interest in personalty is favored. “Although a life estate may be lawfully created in personal property, it is clear that the rule which favors the vesting of absolute estates in real property under a general devise, applies with additional force to bequests, and that where a reasonable construction of all the terms of a will discloses no contrary intention, an absolute interest passes to the legatee.” Page…

<p>1. FRAUDULENT CONVEYANCE: Burden of Proof. Where plaintiff charges that the note was fictitious and the deed of trust and notes were fraudulent and without consideration, the burden is on him to prove the fraud.</p> <p>2. -: Preferred Creditor: Brother. A debtor in failing circumstances may prefer one creditor over another, even though the preferred creditor be the debtor’s bachelor brother, living in the same house, and helping him at times in the support of his family; and even though the effect of the preference is to delay other creditors, yet if the deed of trust and note were to secure the payment of a valid indebtedness due the brother, amounting to no more than what he actually owed him, they will not be set aside at the suit of such other creditors.</p> <p>3. DEED OF TRUST: Delivery. The recording of a deed of trust and then placing it in the hands of another to be delivered to the oestui qui trust, especially where the latter is told by the maker that it is in the hands of the depositary for him, is a constructive delivery, at the least.</p>

Louis City Circuit Court. — ifow. D. D. Fisher, Judge. (1) On the death of Mary E. Lane in November, 1865, the trust created by the deed from William L. Ewing to William Glasgow, Jr., terminated, and the legal title vested in Mrs. Lane’s heirs, Sarah L. Glasgow and Anne E. Lane. O ’Brien v. Ash, 169 Mo. 283; Schiffman v. Schmidt, 154 Mo. 204; Walton v. Drumtra, 152 Mo. 489; Baker v. Hall, 591 Mo. 265; Roberts v. Moseley, 51 Mo. 282.

— Eon. Alonzo D. Burnes, Judge. (1) The burden was upon the proponents to establish the due execution of the will. This fact was put in issue by the petition. They must also establish the sanity of the testator in order to make a primafacie case. They failed to do this and there was nothing for the jury to pass upon. There was no will. Harris v. Hays, 53' Mo. 96.

— Row. E. E. Porterfield, Judge. (1) The court erred in sustaining the objection to ' the evidence of witness Webb, as to the receipt for $500; Strange v. Crowley, 91 Mo. 287; Kleimann v. Giselmann, 114 Mo. 437. (2) The court erred in permitting the evidence of Langsdale, Reynold, Murphy and Lee, as to the defendant being arrested in Texas and as to other charges against him. R. S. 1899*, sec. 4680.

<p>1. INFORMATION: Verification: Waiver: Offer of Evidence. The statute permits a verification of the information by the prosecuting attorney upon his information and belief, and defendant waives the point that it was verified by the prosecuting attorney only, and not upon the affidavit of any witness, by failing to challenge it by a motion to quash. Such an objection cannot be made for the first time at the time the State offers to introduce testimony.</p> <p>2. EVIDENCE: Statements of Defendant Under Arrest. Voluntary statements made by defendant at the time of his arrest are com- • petent testimony, although he was not advised he was under arrest, and although they were made in answer to questionings by the officer.</p> <p>3. -: Reputation. To ask a witness if defendant is not “a hard-working, industrious, honest colored boy” is not the proper way to prove his reputation for peace and quietude.</p> <p>4. -: -: Turbulence: Individual Cases. It is not error to refuse to permit defendant, even on cross-examination of the State’s witnesses, to show individual cases of turbulence and fighting on the part of deceased.</p> <p>5. -: Good Behavior Since Arrest. Where there is no question of flight in the case, it is not error to refuse to permit the sheriff to state defendant had given no trouble since his arrest or while confined in jail.</p> <p>6. -: Defendant as Witness: Cross-Examination. Where defendant has testified that he shot and killed deceased in self-defense, it is not error to permit the prosecuting attorney to ask him on cross-examination if' he “shot to kill” or “intentionally shot deceased.”</p> <p>7. -: Scattering Shot: Experiments. To exclude the result of experiments made with the gun with which deceased was shot and with shells taken from the same box, where there is no evidence that the shells contained the same amount of lead and powder as the one used when deceased was shot, is not to do defendant a substantial wrong, where the purpose is to approximate defendant’s distance from deceased by the scattering of the shot, and where the witness is permitted to testify that the greater the distance from deceased the more the shot would scatter, etc.</p> <p>8. MURDER: Instruction. Where defendant was convicted of murder of the second degree, an instruction on murder of the first degree is not for review.</p> <p>9. -: -: Weighing Testimony-. It is not error to refuse an instruction asked by defendant in regard to the weight to . be given to his own testimony, if the court has already given a correct instruction on the subject for the State.</p> <p>10. -: -: No Testimony. It is not error to refuse an instruction on any subject where there is no evidence to support it.</p> <p>11. INFORMATION: Preliminary Hearing. It is not necessary that the information in a murder trial show upon its face that a preliminary examination was accorded to defendant; and there is no merit in a contention that the prosecuting attorney had no authority to file the information, where the record before the justice of the peace shows that he expressly waived a preliminary hearing.</p> <p>12. REMARKS OF COUNSEL: No Exceptions. Unless exception's were saved to the action of the court in regard to the remarks of the State’s counsel complained of, that action is not for review on appeal.</p> <p>13. EXCLUSION OF REGULAR PANEL: Remarks of Judge. A remark by the trial judge, in excluding the regular panel, directing them not to remain in the court room during the progress of the trial, and assigning as a reason therefor that there was another case on the docket to be tried next, in the trial of which some of the evidence offered in this case would be introduced, could have had no bearing on the trial, and the court was clearly acting within its jurisdiction and line of duty.</p> <p>14. JUROR: Prejudice Against Negro Race. The fact that a juror on a certain occasion refused to take a drink at the same counter of a saloon at which a negro was drinking, and a personal difficulty with the negro followed such refusal, did not show such prejudice against the negro race as disqualified him from serving as a juror in the trial of another negro for murder of a fellow negro.</p> <p>15. QUESTION FOR JURY: Murder in Second Degree. Where from the evidence defendant was guilty of murder in the second degree or entitled to an acquittal on the ground of self-defense, the issue, there being no error in the instruction or the admission of evidence, is for the jury, and their verdict will not be disturbed by the Supreme Court.</p>

— Hon. Ralph 8. Latshaw, Judge. If fair play on cross-examination of prosecutrix had been permitted, and the transcript of her evidence in the preliminary had been admitted, prosecutrix would herself have plainly shown that these two men, with herself and cousin, near three a. m., went down into a draw amongst small trees to partake of the “forbidden sweet,” and hearing a noise on the hill and seeing a light she screamed “Rape!” believing her guilt was discovered.

— Hon. William G. Ellison, Judge. (1) The indictment is founded upon section 2 of the act, and contains the allegations of the offense in certain, concise and specific language. No legal objections can be alleged as to the form and substance of the indictment. It follows the statute and is sufficient.

— Hon. L. B. Wood-side, Judge. (1) The defendant was forced by the court to testify to the very thing op which the jury convicted him. It was clearly error to rule that defendant must testify as .to whether he ever, at any time, had sexual intercourse with the prosecutrix. A defendant in a criminal prosecution, who testifies in his own behalf, can be cross-examined only upon matters brought out in his examination in chief.

— lion. G. A. Mosmcm, Judge. (1) The court committed error in refusing to give instructions asked' by appellant. Each of said instructions contains a correct statement of the law involved and necessary to a proper decision of this case.