Volume 235 — Missouri Reports

Louis City Circuit Court. — Hon. Daniel G. Taylor, Judge. (1) An action for the recovery of possession of land 'may be maintained against any person not having a better title thereto, in all cases .where the plaintiff claims possession thereof under or by virtue of a confirmation made .under the laws 'of the United States. R. S. 1909, sec. 2383; Janis v. Gfurno, 4 Mo. 458.

<p>For the reasons stated in St. Louis v. Blast Furnace Co., ante, page 1, the judgment in this case is affirmed.</p>

— Eon. Jesse C. Sheppard, Judge. (1) Plaintiffs chain of title is clear and unbroken from the United States down to plaintiffs for all of the northeast quarter of the southwest quarter of section 10 -which, includes the land in controversy. This is not questioned. (2) The defendant has shown no paper title to the land in controversy.

Louis Court of Criminal Correction. •— Ron. Wilson A. Taylor, Judge. (1) The bond or recognizance taken by tbe officer in charge, at tbe time, of tbe station was not sucb a bond or recognizance as he was authorized to take; and he had no power or authority to take any bond except such as was expressly provided for by the ordinance or charter.

<p>Appeal from St. Louis Court of Criminal Correction. ■ — Hon. Wilson A. Taylor, Judge.</p>

Louis Court of Criminal Correction. ■ — Hon. Wilson A. Taylor, Judge. The return simply states, “Executed the within writ in the city of St. Louis on this 26th day of October, 1906.” The name of the appellant is not mentioned, nor any statement whatever as to how it was executed.

<p>Appeal from St. Louis City Circuit Court. — Hon, Moses N; Sale, Judge.</p> <p>(1) Where an agency exists, coupled with an interest, such .agency is irrevocable. Lockart v, Forsythe, 49 Mo. App. 658; State ex rel. v. Walker, 88 Mo. 284; Hunt v. Rausmanier’s Admr., 8 Wheat. 174; Barr v. Schroeder, 32 Cal. 609; Coffin v. Landis, 46 Pa. St. 431; Blackstone v. Buttermore, 53 Pa. St. 266; South v. Kerman, 5 Weekly Law Bui. 145; Powell v. Road Co., 24 Ala. 441. This court in numerous cases held that where an agency is created, and although the agent has no property or interest in the agency, if the agent spent time and money thereon the agency cannot be revoked by the principal without liability therefor. Glover v. Henderson, 120 Mo. 368; McCray v. Pfost, 118 Mo. App. 535; Shell v. Railroad, Í32 Mo. App. 535; White v. Railroad, 202 Mo. 540. (2) Our statutes denounce -any agreement, arrangement or .combination made with a view to lessen, or which tends to lessen, full and free competition in the sale of any article. In order to vitiate a contract or combination, it is not essential that its result should be a complete monopoly; it is sufficient if it really tends to that end, and to deprive the public of the advantages which flow from free competition (United States, v. Knight Co., 156 U. S. 16), and the necessary effect of the agreement is the criterion, no matter what the intent was on the part of those who signed it. United States v. Freight Assn., 166 U. S. 342; Missouri v. Ins. Co., 152 Mo. 1; R. S. 1899, sec. 8978; Door Co. v. Feulle, 215 Mo. 462; Carew v. Rutherford, 106 Mass. 1; Van Horn v. Van Horn, 27 Vr. 218; Railroad' v. Penn. Co., 54 T ed." 730; Eeg. v. Druitt, 10 Cox Cr. Cas. 593; Bishop, New. Cr. Law, sec. 230; Desty, Cr. Law, sec. lib; Morris Run Co. v. Barclay, 68 Pa. St. 173; State ex inf. v. Standard Oil Co., 218 Mo. 359; Heim Brewing Co. v. Bellinder, 97 Mo. App. 64; Fink v. Granite Co., 187 Mo. 244; Walsh v. Plumbers Assn., 97 Mo. App. 280. The petition in this case stated a cause of action on both theories advanced.</p> <p>.(1) The alleged agreement between respondent and its carriers to the effect that the said carriers must not deliver the St. Louis Times while they were acting as carriers of the Post-Dispatch, was not in violation of section 8978 of the Anti-Trust Act of 1899. Whitwell v. Tobacco Co., 125 Fed. 454; Wood Co. v. Hardware Co., 75 S. C. 378; State ex rel. v. Associated’ Press, 159 Mo. 410; Virtue v. Creamery Co., 179 Fed. 115; United States v. Standard Oil Co., 173 Fed. 191; Phillips v. Cement Co., 125 Fed. 593; Weiboldt.v. Standard Fashion Co., 80 111. App. 67;' Houcks v. Wright, 77 Miss. 476; Walsh v. Dwight, 58 N. Y. Supp. 288. (2) The business of news-gathering or of printing and publishing a newspaper is strictly a private business and is not impressed with any public use whatsoever; and the Anti-Trust Statutes are not applicable to such business, or to such a contract as we have here. State ex rel. v. Associated Press, 159 Mo. 410. (3) Appellant cannot change his theory, or shift his ground, in this court, by claiming here for the first time that his petition states a cause of action for breach of contract; but he must stand or fall here on the same theory on which he tried the case in the lower court. Gordon v. Park, 202 Mo. 263; Fuess v. Kansas City, 191 Mo. 692; Smith v. Box Co., 193 Mo. 715; Bridwell v. Cockrell, 122 Mo. App. 196. (4) The Post-Dispatch had the right to stipulate'with its carriers for their sole and undivided loyalty, and to require them to give their undivided time and attention to Its business. Whitwell v. Continental Tobacco Co.. 125 Fed. 454. Such a rule was reasonable and commendable. Matthew, VI. 24.</p>

— Eon. Wm. G, Ellison, Judge. (1) The legislative authority to enact drainage laws is derived from the police powers, the right of eminent domain and the taxing power of the State, and the test of their validity is in the object and purposes thereof. Duke v. O’Brien, 100 Ely. 710; Wurtz v. Hoagland, 114 U. S. 606; Gifford Drainage Dist. v. Shroer, 145 Ind. 572; State v. Polk Co., 87 Minn. 325; People v. Reclamation Dist., 117 Cal. 114.

Louis City Circuit Court. — Hon. Walter B. Douglas, Judge. (1) Judicial authority to declare a police ordinance void on the ground of unreasonableness is to be very cautiously exercised. McQuillin on Ordinances, p. 298; State v. Clifford, 128 S. W. 758; Wells v. Mt. Olivet, 102 S. W. 1182. All rights of every character are held subject to the police power. St. Louis v. McCann, 157 Mo. 308; Eichenlaub v. St. Joseph, 113 Mo. 404; St. Louis v. G-alt, 179 Mo. 16.

Prohibition. (1) The proceedings for the organization of drainage ditches in the county court under article 4, chapter 122, Revised Statutes 1899', is an independent, special statutory proceeding intrusted by the Legislature alone to the county court, as a body of men peculiarly interested in and acquainted with the needs of the locality, and the county court has exclusive authority to incorporate such districts.

Certiorari. (1) The proceedings of the probate court are null and void because the verdict was signed by only ten of the jurors. Sec. 474, R. S'. 1909', provides that inquiries of this character shall be “inquired into by a jury.” This means that the verdict of the jury must be unanimous. Sec. 28, art. 2, of the Constitution allowing a three-fourths verdict of the jury “in all civil eases” has no application to cases of this character.

Quo Warranto. (1) “The patriots who framed the Constitution and the people who adopted it must be understood to have used its. words in their natural sense and… Held: because the acceptance of the second ipso facto vacated, the first. State v. Draper, 45 Mo. 357. In this State an.officer has a constitutional right to> resign, and of course, settle and account before his term expires. Const., sec. 5, art. 14; ■ State v. Bus, 135 Mo. 331; Commonwealth v. Pyle, 18 Pa. St. 521.

— Hon.'1 Hermann Brumback, Judge. (1) The act of 1907, Laws 1907, p. 285> having been held unconstitutional (Merchants’ Exchange v. Knott, 212 Mo. 616), the prior statutes, which said Act of 1907 purported k> repeal, that is, the Statutes of 1899', art. 3, eh. 117, remained in force. Westport v. McGee, 128 Mo. 162; Copeland v. St. Joe, 126 Mo. 416 ; State v. Thomas, 138 Mo. 95.

Mandamus. (1) This ease is of sufficient magnitude and importance to justify the Supreme Court in taking original jurisdiction. Held: that section 12 of article 10 of the Constitution of Missouri prevents and prohibits the Des Moines and Mississippi Levee District No. 1 from becoming indebted in any manner, or for §ny purpose to an amount exceeding the amount of benefit, as estimated by the commissioners, yet the relator is within that provision of the…

Mandamus-. (1) When Judge McQuillin was transferred by order of general term from Division No. 6- to> Division No. 12 he lost jurisdiction of all causes belonging to Division No. 6, including the cause in question, which he, at the time of the transfer, held under advisement. This being true, there remained no alternative save that his successor in Division No. 6-, respondent herein, should reinstate said cause upon the docket for trial. State v. Mason, 82 Mo.

— Eon. James D. Barnett, Judge. (1) The court in the information on which defendant was tried, charged the defendant at the county of Lincoln on the 20th day of February, 1908, with making an assault upon one Lizzie Gleason and did use and employ a certain instrument .... and did thrust and force said instrument and advise, cause and force the said instrument to be inserted, thrust and forced into the body, womb and private parts of the said Lizzie Gleason . . . . from the…

— Hon. Henry L. Bright; Judge. (1) Instruction 91 is bad. Tbe evidence showed that statements made by defendant were made while defendant was delirious from the wound in his head, and under such circumstances it was erroneous to instruct the jury that statements by defendant against himself are presumed to be true. The instruction should have been qualified to require the jury to find that the defendant was in a condition of mind that he understood the statements when made.

—How. Charles A. Benton, Judge. (1) The court erred in permitting the defendant to prove by the witness Dr. Chastain that defendant stated to him that she shot deceased by accident, and, then, over the defendant’s objection, permitting the witness to testify that tbe deceased, while the defendant was in the same room, said to him, “She knows better than that,” and that defendant made no reply at all.

— lion. F. G. Johnston, Judge. (1) The undisputed evidence in the case showed that the venue of the crime, if any had been committed, was in Pennsylvania, as the prosecuting witness testified that was the place where he and his wife signed the deed.

Louis Circuit Court. — Eon. Eugene McQuillin, Judge. (1) Tire offense, if any, committed by defendant was murder in the second degree, or it was a case of justifiable bomicide. There was no element of manslaughter in the case and no evidence justifying the court in submitting an instruction defining manslaughter to the jury.

— Hon. John T. Moore, Judge. Where a man is convicted of a crime and sentenced to the penitentiary for a term of years, and afterwards becomes insane and is transferred upon a warrant properly issued by the Governor to one of tbe asylums of this- State, all that is necessary to make the county from which he is sent liable for his keep at the asylum is “that he was a citizen of that county at the time of his -conviction and sentence, has since become insane, and is…

<p>1. WILL: Life Estate: To Trustees. One clause of the will said, “I give and bequeath to my son John W. Guy, to be placed in the hands of trustees,” named, one hundred acres of land. A subsequent clause read: “I desire that all the rest of my estate, both real and personal, be sold and equally divided between my wife and children,” one of whom was John; and, “I desire that whatever may be coming to my son, John W. Guy, shall be placed in the hands of his trustees for his benefit and support.” Held, that the will did not vest a life estate in John in the “rest” or remainder of the estate, but was a devise of the residue to the widow and all the children of the same character of title.</p> <p>2. -: Devise to Trustee: Purchase by Trustee: How Attacked. A purchase from the beneficiary by the trustee of land devised to the beneficiary to be “placed in the hands of his trustees for his benefit and support” is not void, but only voidable at the instance of the injured party or someone standing in his shoes, by a direct attack. It is very doubtful whether in an ordinary action at law for the partition of real estate such a deed can be assailed.</p> <p>3. --: -: -: Spendthrift: No Showing of Inequity. Where the devisee, whose devise by the will was “placed in the hands of his trustees for his benefit and support,” was a spendthrift and required the care of both physicians and nurses because'of his excessive use of intoxicating liquors, and after he had taken the “whiskey cure” there seemed to be a fair prospect that by giving him something to do he might be changed into a useful citizen, and thereupon the trustees bought his interest in the land at a price admitted to be all it was worth, and used a part of the money to set him up in a suitable business, and tbe balance for his support till he died, and no denial of any of these things is made or shown, it would be inequitable to set the deed aside, even if it were directly attached by a bill in equity. 1</p> <p>4. PARTITION: Awarding Claim Not Demanded. In a partition suit the court cannot award to defendants a claim against the estate which they do not by their answer directly or indirectly claim, even though the proof shows it to be just and due. So that where the will devised to the widow and four children 590 acres of land to be equally divided among them “after giv-' ing” to one of them $900, and the defendants, -who are the heirs of that one, file only a general denial to plaintiffs’ petition in partition, they cannot be allowed the $900.</p>

<p>1. RESULTING TRUST: Deed to Husband: Bought With Wife’s Choses: Reduction to His Possession. Where the only consideration for the individual deed from the administrator of the estate of the wife’s father to her husband was a release of her share of the personal estate, a trust resulted to her the moment the deed was executed, whereby she became the equitable owner of the property, and the legal title in her husband was held by him in trust for her as the beneficial owner, unless her interest in her father’s personal estate was actually or constructively reduced to his possession jure mariti by the husband before or contemporaneously with the making of the deed to him.</p> <p>2. -: -: -:--: Intention. A husband exercising his common law right during coverture to acquire title to his wife’s choses in action must intend, by the act by which he possesses himself of her property, to make it his own. If his intention is not to so exercise his marital right as to make the property his own, but to act only for and on behalf of her, then an act which otherwise under the common law would amount to a reduction to his possession will not have that effect.</p> <p>S. -: -: -: -: -: Giving Joint Receipts. Where the wife and husband gave a joint receipt to the administrator of her father’s estate for her interest in his personal estate, and a similar joint receipt to the sheriff to cover the wife’s interest in the proceeds of sale in partition of her father’s land, but in neither case was any money received by either, and the evidence is clear and positive that their intention in so doing was that the receipts might be used by the administrator and sheriff in full acquittance of payments of money to her and her husband, and that this money was to be-the purchase price for the land in suit, and the individual deed! of the administrator was made to the husband and recorded,, and was found among the grantor’s papers after his death, and the husband testified that he never bought any land from the-grantor, and never paid anything for the land conveyed, and never knew the land had been conveyed to him until after the-grantor’s death and until after his indebtedness to plaintiff had arisen, it will be held that the husband had hot reduced the-wife’s choses in action (her interest in her father’s estate) to his possession, and that a resulting trust in the land in favor of the wife existed from the time the deed to the husband was made.</p> <p>4. -: -: -: Laches: Estoppel: No Knowledge. Where the land, bought with the wife’s money, was conveyed to her husband in 1868, and the deed was recorded, hut kept by the grantor until after his death, and the husband paid the taxes and the family lived upon the land, recognizing it as hers, and she had no knowledge that the deed named her husband as grantee until after plaintiff’s claim against him as surety on a note had originated, and she promptly asserted her title at public outcry when the sheriff in 1901 undertook to sell the land under plaintiff’s judgment against her husband, and set up her title as soon as she was made a party to the litigation, she is not barred either by laches or estoppel to assert her equitable title against plaintiff.</p>

Pemiscot Circuit Court. — No». Henry G. Riley, Judge. (1) The ex-sheriff had power and authority to make said amended deed without any order of court, at the time he did, under the facts in the case, and this amended .deed related hack to the day of sale. L. & L. Co. v. Franks, 156' Mo. 673; Porter v. Mariner, 50 Mo. 364; Bush v. White, 85 Mo. 339; Boyd v. Ellis, 107 Mo. 394. (2) .

— Hon. F. C. Johnston, Judge. (1) Every will shall be in writing, signed by the testator or by some person by his direction, in his presence; and shall be attested by two or more competent witnesses subscribing their names to the will in the presence of the testator. R. S. 1899', sec. 4604. This statute is imperative. Catlett v. Catlett, 55 Mo. 330.

<p>Appeal from Saline Circuit Court. — Eon. Samuel Davis, Judge.</p> <p>Specific performance may not be decreed herein. Under the pleadings and the evidence plaintiff has no standing in a court of equity to ask such court to require -defendant to construct and maintain a culvert such as is described in plaintiff’s petition, for several reasons. In the first place, it is certainly an elementary proposition that before a court of equity will undertake to enforce tbe specific performance of any contract on bebalf of any complainant the court will be sure that such complainant has a contract to be enforced. In the case at bar plaintiff has not shown that he has any contract with defendant or with any other railroad company. The only pretense made by plaintiff as to the existence of any contract regarding this culvert is the quitclaim deed from plaintiff’s mother, Elizabeth Swisher, to the Kansas City, St. Louis & Chicago Railroad Company, by which deed said Elizabeth Swisher quitclaimed her interest in the land in question to that railroad. Plaintiff acquired no interest in the land in question from his mother, said Elizabeth Swisher, and by the deed in question said Elizabeth Swisher did not pretend to convey to the railroad company any other interest in this land than her own. It appears that the interest of Elizabeth Swisher was only her right of dower, and such interest of course absolutely terminated with her death, which occurred in 1885. It is well settled that the interposition of a court of equity cannot be invoked by a mere volunteer to enforce a contract* to which he was neither party nor privy. Beardsley Co. v. Foster, 36 N. Y. 561; Morris v. Lewis, 33 Ala. 53; Lyfo-rd v. Railroad, 92 Cal. 93; Ashcroft v. Railroad, 126 Mass. 196. In the second place, it' appears both from the pleadings and the evidence that the covenants expressed in said deed have been fully performed. In the deed the railroad company was not required to maintain this culvert for any particular length of time. As the deed pretends to convey only the estate and interest of said Elizabeth Swisher, and as it appears that her interest terminated absolutely ■with her death in the year 1885, it cannot be that the railroad company was obligated by this deed to maintain the culvert longer than the existence of the estate and interest conveyed by the deed. Ashcroft v. Railroad, 126 Mass. 196'. In the next place, if plaintiff were a party to the contract claimed to exist under the quitclaim deed from Elizabeth Swisher to the Kansas City, St. Louis & Chicago Railroad Company no adequate reason has been presented to put in motion, the extraordinary powers of a court of equity. Pomeroy v. Fullerton, 131 Mo. 581; Johnson v. Steffens, 54 111. App. 193; Burke v. Railroad, 291 Mo. App. 370; Powers y. Railroad, 71 Mo. App. 540; Harrelson y. Railroad, 151 Mo. 482; Baker v. McDaniel, 178 Mo. 468.</p> <p>(1) The only possible relief to grant plaintiff was of an equitable nature. Biddle v. Ramsey, 52 Mo. 153; Byers v. "Weeks, 105' Mo. App. 72; Powell v. Railroad, 215 Mo. 339. The plaintiff could not have compensation in damages, for the injuries are continuous, and effect a passway through an underground crossing. An ejectment suit could not avail as the sheriff could not take possession of the land without damaging the walls of the culvert. Barrington v. Ryan, 88 Mo. App. 85. (2) Counsel for the railroad confound the relief sought, that is, the abatement of a nuisance, with one for specific performance of a contract. The deed in question contains the ordinary covenants of “grant, bargain and sell,” and the further covenant that the railroad would build the culvert ten feet wide, ‘ ‘ suitable for a wagon to pass through and for stock to go to and from the spring for water.” These are such covenants as run with the land, and the deed from Mrs.' Swisher is admissible in evidence to show how- the railroad went into possession. The deed contains the statutory words, “.grant, bargain and sell,” and therefore contains the express covenants of title in fee and for further assurances which run with the land. Mag-wire v. Riggin, 44 Mo. 514; Dixon v. Desire, 23 Mo. 151;' R. S. 1899, sec. 907; Allen v. Kennedy, 91 Mo. 324; Jones, Real Estate, sec. 952; Loan Co. v. Fuller, 114 Mo. App. 633. Even though the grantor had no title. Loan Co. v. Fuller, 114 Mo. App. 638. Such covenants are muniments of title, and run with the land; and covenants which run with the land operate as estoppels. Boyce'v. Longworth, 11 Ohio 235; Harman on Estoppel, sec. 672; Foote v. Clark, 102 Mo. 406'. Privity of contract is not essential to sustain an action of equity in this case. Stillwell v. Railroad, 39 Mo. App. 221; Miller v. Billingsley, 41 Ind. 4891. The plaintiff was fully cognizant of the contents of the deed. He witnessed it and appended his affidavit that he saw the grantor sign it, and he heard her declare the same to be her act and deed. He afterwards became the absolute owner of the full title to the land, and then ratified, approved and accepted the title and used and enjoyed the easement and passway for nineteen years, with full knowledge and agreement of the facts. He thereby made himself a party to the agreement. Drakely v. Gregg, 75 U. S. 242. The benefits of the covenants inured to him. The acceptance of a deed, whether poll or inter partes, containing a covenant on the part of the grantee, is equivalent to an agreement on his part to perform the same. 11 Cyc. 1045, 1051. (3) Easements appurtenant inhere in the land, concern the premises, and are necessary to the enjoyment thereof. Such easements are incapable of existence, separate and apart from the particular messuage or land to which they are annexed, there being nothing for them to act upon. They are in the nature of covenants running with the land, attach to the land, to which they are appurtenant, and pass by a deed of conveyance. 14 Cyc. 1140, 1141, 1155, 1165; Hamlin v. Railroad, 160' Mass. 459:' The deed in this suit is a grant or reservation of a right of way by a prescribed underground crossing, and imparts notice to the defendant of plaintiff’s claims; and the right of way is a vested right in plaintiff; and being continued for the prescribed period it becomes an easement by prescription. Power v. Dean, 112 Mo. App. 288; Anthony v. Building Co., 188 Mo. 704; Anderson’s Law Die., p. 391; Roanoke Co. v. Railroad, 108 Mo.' 50; Powell v. Railroad, 215 Mo. 339; Spurlock v. Dornan, 182 Mo. 242. (4) In an action for a private nuisance it is not necessary to allege or prove any special damage. Smith v. McConathy, 11 Mo. 518; Baker v. McDaniel, 178 Mo. 447; Burgenstock v. Drainage Dist., 163 Mo. 198; Smith v. Sedalia, 182 Mo. 1; Gray v. Graff, 8 Mo. App. 334. Anything constructed on a person’s premises, which of itself, or by its intended use, directly injures a neighbor in the personal use and enjoyment of his property, is a nuisance. Webb’s P'ollock on Torts, p. 484; Cooley on Torts, p. 565; Powell v. Brick Co., 104 Mo. App. 713; Webb’s Pollock on Torts, p. 491, 494 ; 3 Blackstone’s Com., 216; Paddock v. Somes, 102 Mo. 226.</p>

— Ho». Joseph J. Williams, Judge. (1) Under tbe undisputed facts in evidence, appellant and those under -whom he claimed the lands in controversy, had been in the actual, visible, continuous and adverse possession of the lands for more than ten years before the institution of the suit, and it was error to refuse appellant’s declaration of law.

— Ron. Henry C. Riley, Judge. (1) A court of equity will not decree the reformation of a written instrument, unless there was a mutual mistake. The mistake of the scrivener is not a- mutual mistake in the absence of proof that be was tbe agent of both parties to tbe contract. Benn v. Pricbett, 163 Mo. 572; Dougherty v. Dougherty, 201 Mo. 228. .

— Hon. L. B. Woodside, Judge. (1) The right to take by will or inheritance is not a natural right, but is a statutory right and is within the control of the Legislature. State v. Henderson, 160 Mo. 190; Dawson v. Godfrey, 4'Cranch (U. S.) 321; Magoon v. Trust Co., 170 U. S., 283; Curry, v. Spencer 61 N. H., 624; In re Sanford, 126 Cal., 112; In re Speed, 216 Illinois, 23; Frey v. Campbell,-110 Iowa, 290. (2) Francis-1.

<p>1. QUIETING TITLE: Appellate Jurisdiction: Validity of Special Taxbill. Wliere the only question to be adjudicated, according to the pleadings, and the only question actually adjudicated in the trial court, was the validity of a special taxbill for $618.13, and whether or not it constituted a lien on plaintiff’s land, the title to which he asserts, and defendants admit, to be in him, the Supreme Court has no jurisdiction of the appeal, although the suit is brought under section 650, Revised Statutes 1899, to quiet title. Since plaintiff could not by a direct bill in equity to cancel the taxbill make a case to come to the Supreme Court, he cannot accomplish the same result under the guise of a suit to quiet title when his title is not disquiet.</p> <p>2. -: -: Things Considered. In determining the matter of jurisdiction the court looks to the real issues in the case, the real question to be decided, and not to abandoned or fictitious issues.</p> <p>3. --: -: Special Taxbill:• Cloud on Title. The Supreme Court lias no jurisdiction of a suit to cancel a special taxbill for an amount within the appellate jurisdiction of court of appeals, on the theory that such • taxbill is a cloud upon the plaintiff’s title.</p>

Louis Court of Criminal Correction. — . Hon. Wilson A. Taylor, judge.' (1) Defendant’s demurrer to the complaint should have been sustained. (2) The trial court erred in admitting in evidence section 1518, clause 1, of Ordinance No. 22,902, because no such ordinance was pleaded in the complaint. (3) There was no evidence upon which to convict the defendant. Kansas City v. Whitman, 70 Mo. App. 633. The ordinance must be alleged and proved as alleged.

<p>Appeal from St. Louis Court of Criminal Correction.— Hon. Wilson A. Taylor, Judge.</p>

Louis City Circuit Court.— Hon. James E. Withrow, Judge. (1) Prior possession by the plaintiff or his grantors under a claim of the fee raises a presumption of title sufficient to make a prima facie case in ejectment. The duty then' devolves upon the defendant to overcome plaintiff’s prima facie case by showing paramount title.

<p>ABSTRACT: Insufficient: Nonsuit: No Exception Preserved. Where at the conclusion of plaintiff’s evidence, defendant demurred thereto, whereupon plaintiff took a nonsuit and later moved to set the same aside, and the abstract of the record proper does not show that the motion was overruled, or that a bill of exceptions was filed, and that part of the abstract which purports to set out matters of exception neither contains nor calls for the motion to set aside the nonsuit, the exceptions cannot be reviewed on appeal; and if no errors are assigned or apparent on the record proper, the judgment will be affirmed.</p>

— Hon. Wm. H. Martin, Special Judge. (1) The evidence offered by plaintiff as to its plan of construction of its railway over the land of defendant was proper. The court should have admitted same so that the jury could have the whole matter before them in arriving at the amount of damage sustained. Railroad v. Clark, 119 Mo. 357; 121 Mo. 195.

— Hon. W. N. Evans, Judge. (1) To entitle plaintiff to judgment in this action it was necessary only that plaintiff show a better, title derived from the agreed common source than the title claimed under the common source by defendants. Machine Works v. Brown, 200 Mo. 219; Graton v. Holliday Klotz Co., 189 Mo. 322; Gage v. Cantwell, 191 Mo. 698.

Louis Court of Criminal Correction; — ■ . Hon. W. A. Taylor, Judge. The charge of the information is a violation by the defendant of a city ordinance. The only ordinance offered in evidence, claimed by the city at the trial to have been violated, is contained in sections 1553, 1554, 1555 and 1557, of the general ordinances of the city. The defendant was convicted solely for an act claimed to have been a violation of this ordinance.

<p>Appeal from St. Louis Court of Criminal Correction.— Hon. Wilson A. Taylor, Judge.</p>

— Hon. W. N. Evans, Judge. (1) The petition does not state facts sufficient to constitute a cause of action for injunctive or other relief. There are no allegations that plaintiff has suffered eviction, that defendant is insolvent, nor that plaintiff has no adequate remedy at law. Sec. 3649, E. S. 1899; Connor v.' Eddy, 25 Mo. 72; Jones v. Stanton,. 11 Mo. 433; Barton v..

— Hon. Nat M. Shelton, Judge. (1) There is no averment in the petition that the plaintiff had a right to believe the alleged statements or that he acted prudently in believing them. MeNealey v. Baldridge, 106 Mo. App. 11; Funding Co. v. Heskett, 125 Mo. App. 531; Davis v. Ins. Co., 81 Mo. App. 267; Cahn v. Reid, 18 Mo. App. 115; Lovelace v. Suter, 93. Mo. App. 438; Bank v. Trust Co., 179 Mo. 648.

<p>1. ABSTRACT: Evidence Not Preserved. A deposition admitted and read in evidence, but not set out in the abstract, which contains nothing of either its contents or substance, cannot be considered on appeal, neither can the court take into account 'what counsel state the witness testified.</p> <p>2. DEED: Delivery: Grantee as Witness. The grantee in a deed, under which she claims a life estate in the land sought to be partitioned, is not a competent witness to prove that the deceased grantor delivered the deed to her, although she be his widow.. In such case the deed is “the contract in issue and on trial.”</p> <p>3. -: -: Deposited in Place to Which Grantee Had Access. An instrument intended to be a deed is not a deed until the grantor delivers it to the grantee or to some other person for the grantee. It is essential to a valid delivery that the grantor part with the possession of the instrument without reservation and with the intention that it take effect at that time and operate as a transfer of the title. An instrument granting, bargaining and selling certain lands to grantor’s wife, and reciting that it is “not to go into effect until after the death of the said” grantor, placed by him in a tin box, on which his name was printed and.in which he kept his valuable papers and which he placed for safe keeping in the vault of a bank where he kept his bank account, and to which she always had access, and the key to which she carried, and- from which she as administratrix took it after his death, cannot be said to have been delivered to her.</p> <p>4. -: Testamentary In Character. A deed reciting on its face that it is not to take effect until after the grantor’s death, even though it be delivered, is testamentary in character, and not being executed according to the requirements of law for the execution of a will, is invalid, both as a will and as a deed of conveyance. A deed takes effect immediately upon its execution or not at all. It may be delivered to a third person to be delivered by him to the grantee, and it is valid although not delivered to the grantee in person until after the death of the' grantor, but in such case the deed takes effect from the first delivery and passes the title at that time. ■</p>

— Hon.-, Judge. (1) Sarah M. Emerson took only a life estate under the will of her husband. John W. Emerson, because the will clearly shows the intention of the testator was tp make provision for both his wife and his brother to enjoy this estate in turn, and when this is the case there may be a power of disposal in fee by the first taker, yet he has only the life estate.

— Hon. Henry C. Riley, Judge. (1) The plat shows on its face that it was not a gift to the county of the land in question, but a conditional offer to give to the county, the condition being that the county use the land for court house purposes, that is,, place a court house on this land, and until the offer was accepted by the county on the terms on which it was offered, the title did not pass to the county.

— Hon. Henry C. Riley, Judge. (1) To create a resulting trust, the purchase money must be paid by the cestui que trust, and the title taken in the name of the alleged trustee. 15 Am. & Eng. Ency.

Louis City Circuit Court.— Hon. Robert M. Foster, Judge. (1) Without distinction as to whether an agency be one for hire, or undertaken gratuitously, it is incumbent on the agent to bring to the discharge of his duties the utmost of good faith — a full and frank disclosure to' his principal of every material facto coming to his. knowledge and affecting his principal’s rights and interests. Reinhard on, Agency-, see. 231; Eddy v..

— Hon. J. L Fort, Judge. (1) The court erred in sustaining respondents* motion for a new trial. The original verdict and finding of the court was for the right party and should not have been disturbed. It has long been the law in this State that a deed of conveyance, absolute on its face, if in fact intended merely as a mortgage, or security for a debt, will in equity be treated as a mortgage, the real intention of the parties in such case being the true test.

— Hon. Henry C. Riley, Judge. The finding and judgment of the court is against the lavrand the evidence. No common source of. title was admitted in the trial, none was agreed upon and none was proved; respondents claim no title,by adverse possession, in fact they never had any possession of the land; therefore, if respondents recover at all, they must recover upon their paper title, which must show in them a legal or fee simple title.

— Hon. A. D. Burnes, Judge. (1) In construing maps of official survey, courts give effect to the meaning expressed by their outlines as •well as their language. St. Louis v. Railroad, 114 Mo. 13; Columbia v. Bright, 179 Mo. 441; Campbell v. Wood, 116 Mo. 196. (2) The sale to the defendant and her grantors was designated as lots one and eight, block one, as shown by the plat of the town of Mays-ville.

Louis City Circuit Court.— Hon. George H. Williams, Judge. (1) Upon receipt of plaintiff’s certificate of stares of stock by defendant Scullin in response to the telegram of April 24, 1902, to her, it became his duty to exercise judgment, discretion, vigilance and zeal in her behalf. He was bound to see that the terms of the offer that he transmitted to her, and under which she sent her stock to him, were complied with before he surrendered her stock.

— Hon. Hugh Dabbs, * Judge. (1) Tire court erred in excluding Circular No. 12, issued by Theodore Gary Investment Company. The evidence shows that Gary is the president of the respondent Home Telephone Co. and president of Theodore Gary Investment Co. It shows that the net earnings of the Telephone Co. for the year preceding the statement were $50,135.

Louis Court of Criminal Correction.— Hon. Benjamin J. Klene, Judge. (1) The ordinance expressly provides that it shall apply only to cases of “adulteration” not included within the “methods of adulteration prohibited by the Revised Code of St. Louis.” Defendant is charged with mixing with or adding ‘ ‘water” to skimmed milk.

Louis Court of Criminal Correction.— Hon. Benjamin J. Klene, Judge. (1) Ordinance 24582, although, in thé form of an amendment, is, in reality, and as a matter of law, but a repeal by implication of section-505 of the Revised Code of St. Louis. It nowhere repeals the said prior ordinance in express terms, as required by the Charter. City v. Sanguinet, 49 Mo. 581.

Louis Court of Criminal Correction.— Hon. Benjamin J. Klene, Judge. (1) This case is brought under ordinance 24297, for adulterating skimmed milk with “water.” Said ordinance is a general one, and applies to all ‘ ‘milk and cream” offered for sale in St. Louis. It also applies .generally to the sale or offering for sale of all kinds of milk when adulterated by mixing any substance or substances whatever with it.

Appeal- from St. Louis Court of Criminal Correction.— Hon. Benjamin J. Klene, Judge. (1) At the time this prosecution was begun, the State law required that skim milk, to be saleable in this State, should contain not less than 9.25 per cent of total solids, saying nothing about the percentage of water, non-fatty solids .or ash.

Louis Court of Criminal Correction.— Hon. Benjamin J. Klene, Judge. (1) Ordinances which assume directly or indirectly to permit acts or occupations which the State statutes prohibit are uniformly declared null and void.

Louis Court of Criminal Correction.— ■ Hon. Benjamin J. Klene, Judge. What the statute denounces and prohibits, the ordinance can not permit and authorize, and what the statute sanctions, permits and authorizes, the ordinance can not prohibit. There is such a conflict here between this ordinance and the statute, that one or the other must give way. An ordinance can not legalize an act that is committed in violation of a general law of the State.