Volume 252 — Missouri Reports

— Eon. J. L. Fort, Judge. (1) The indorsement of the clerk’s certificate of acknowledgement upon a sheriff’s deed is an essential part of the deed, without which it is void. Ryan v. Carr, 46 Mo. 482; Adams v. Buchanan, 49 Mo. 64; G-raton v. Land & Lumber Co., 189 Mo.320. (2) This certificate of acknowledgement cannot be supplied by the clerk’s minutes. Samuels v. Shelton, 48 Mo. 444; McClurg v. McClurg, 53 Mo. 173; Lincoln v. Thompson, 75 Mo. 613.

Louis City Circuit Court. — Eon. Hugo Muench, Judge. (1) “If the merits of the case are adjudicated and passed upon, a judgment of reversal is final; if not, it is not necessarily final.” Strottman v. Railroad, 228 Mo. 154; Abbott v. Railroad, 232 Mo. 616; G-ragg v. Insurance Co., 140 Mo. App. 685. The judgment of reversal in the husband’s case was invalid, because at that time he was dead and human tribunals have no jurisdiction over the dead.

<p>1. SUIT ON SPECIAL TAX BILLS: Prlma-Facie Case: Burden of Proof. When, in a suit upon special tax bills, the bills themselves are regular upon their face, they make out a prima-facie case for plaintiff. That prima-facie case is subject to rebuttal, • but the burden is upon defendant to show the defect in the proceedings or work rendering the tax bills void.</p> <p>2. -: Width of Street: Plans and Specifications: Finding' of Trial Court. The resolution of the city council declaring the street improvement necessary, the ordinance providing for the improvement, the notice to contractors for bids on the work, and the contract for the work, each and all stated that the work should be done according to plans and specifications on file in the city clerk’s office. The evidence shows that the plan was filed in the office of the city clerk showing that the roadway portion of the street was twenty-four feet in width, and that the improvement made conformed to that dimension. Appellant’s abstract of the record does not contain a copy of the plan, but the trial court found that the plan was properly filed, that it “fixed the width of the improvement with sufficient certainty,” and that the work was substantially performed by the contractor. Held, that, absent a copy of the plan from the abstract, the finding of the trial court cannot be reviewed, and it will be presumed that the court properly and correctly found as stated.</p> <p>3.-: -: Material Designated: Engineer’s Power to Change. Tax bills based upon a general ordinance for macadam work are not, in the circumstances of this case, void because1 the ordinance reads, in part: “The macadam course having been finished, the space between stones shall be filled with clean mill tailings, or such other material as may be directed by the city engineer or street committee.” The evidence shows-that mill tailings were used in fulfilling the present contract, and it does not show that any attempt was made by the city engineer or street committee to change the material from mill tailings, and in the absence of any evidence tending to show that the contractors were misled in any way, or that their bids were based upon other materials, it is fair to presume that the bids were based upon mill tailings, which is the only material that the ordinance specifically designated for the binder course.</p> <p>4. -: Sec. 9255, R. S. 1909: Protest by Resident Owners: Constitutional Question. Section 9255, K. S. 1909, providing that “if a majority of the resident owners of the property liable to taxation therefor (for street improvements), at the date of the passage of the resolution, who shall own a majority of the front feet owned by residents of the city abutting on the street, . . . shall not, within ten days thereafter, file with the clerk of the city their protest against such improvements, then the council shall have power,” etc., to let the contract, is not unconstitutional because it gives the privilege of protesting to resident and not to nonresident owners.</p> <p>5.-: Cities: Contracting Away Power to Levy Special Assessments. Cities of the third class cannot contract away their power to levy special assessments for street improvements and thereby create an exemption from such assessments.</p>

— Mon. B. G. Thurman, Judge. Instructions numbered 1, 2 and 3, given at tbe instance of the plaintiff, are fatally erroneous under the rule laid down in Knight v. Railroad, 122 Mo. App.' 38, in that they permit the jury to enter the remote field of conjecture. The conrt committed reversible error in permitting the introduction of testimony and instructing the jury as to the rental value of the meadow land at the time of the fire and the cost of re-seeding.

<p>1. NEGLIGENCE: Carrier: Act of God: Burden of Proof: Instructions. Defendant’s train was stopped by a heavy snowstorm and was attempting to back into a near by town by ramming the snow, when the coach in which plaintiff was a passenger was derailed. His petition alleges that the car was •derailed on account of defendant’s negligence, and that he was injured thereby. His evidence tended to prove the charges, of the petition. Held, that, in the circumstances, an instruction was erroneous which told the jury the plaintiff must show that the injury resulted solely from the derailment of the car, and that such derailment was due to some defect or imperfection in the track, or to some want of care and caution on the part of the trainmen. That is so because, in this case, it is immaterial whether the snowstorm was so unprecedented or unusual as to constitute an act of God within the legal meaning of that phrase. It could not he said that the snow and ice was the sole cause of the derailment, but the derailment, as shown by the evidence, was more directly attributable to-the backing or “ramming” of the train into the snow and ice, the extent and character of which was known to the trainmen at the time. Whether, therefore, the defendant had shown a condition of facts which exempted it from the presumption of negligence arising from the prima-facie case made by plaintiff was a matter for the jury’s determination, and it was error to force the plaintiff to a proof of specific negligence on the part of defendant.</p> <p>2. APPEAL: “Verdict for Right Party:” Erroneous Instructions^ Unless the evidence would be insufficient as a matter of law to make out a case or a defense for the losing party below, the appellate court is not justified in saying as a matter of law that the verdict is for the right party and that hence errors, in instructions given at the reguest of the winning party below would not-work a reversal.</p>

— Hon. David E. Blair, Judge. (1) The only question to be determined in this cause by the court is, whether or not the trial court had the right to require the defendant .to pay into the office of the clerk of the circuit court a -filing fee of three dollars, before the defendant should have the right to a trial of its cause on appeal to said court, for the defendant had fully performed every other requirement of the law to perfect its appeal, except to pay this fee of three…

<p>1. CONSTRUCTION OF WRITTEN INSTRUMENTS: Intention: Gathered from Four Corners. The modern rule regarding the construction of instruments is that the intention of the grantor shall govern. That intention may he expressed anywhere in the instrument, and in any words, the simpler and plainer the better, that will impart it, and the court will enforce it, no matter in what part of the instrument it is found.</p> <p>2. -: -: -: Deed or Will. In a deed a present estate oí interest is passed, while in an instrument testamentary in character no part of the title treated is to pass until the death of the grantor. When the grantor’s intention appears to be that no estate or interest is to pass until his death, then the instrument is testamentary, and if not executed in the form and manner required of a will it is of no force or effect for any purpose.</p> <p>3. -: -: -: Deed of Express Trust: Revocation by Later Deed. An instrument purporting to deal in some manner with the title to certain land, in which are found the words, “and I do hereby give, grant and relinquish,” “the land hereby given and granted,” “the land hereby given, granted and disposed of,” and “herein disposed of,” and wherein the grantor requests that the trustee named, “at any time after my decease,” “shall select and sell eighty acres of the land,” “and it is also understood in regard to the land hereby given, granted and disposed of, that I reserve the right ... to sell or dispose of any or all of said land,” is held to be a deed creating an express trust with power of revocation, and not a will. A later deed conveying a part of the same land acted as a revocation of the trust as to that particular tract, divesting whatever title or interest the trustee and the destuis had, and passing the complete title to the grantee in the later deed.</p> <p>4. EVIDENCE: Deed: Description of Land: Reference. Evidence held insufficient to describe land conveyed by reference in a trust debd.</p>

<p>1. INSTRUCTIONS: Burglary and Larceny: Receiving Stolen Goods. A defendant on trial for burglary and larceny is not entitled to an instruction “that the mere fact that he may have received a portion of the property alleged to have been stolen does not warrant the jury in finding him guilty.”</p> <p>2. EVIDENCE: Admissions: Competency: Illegal Arrest. Admissions made by 'a defendant while under arrest are not, if voluntary, rendered incompetent by a showing that the arrest was illegal.</p> <p>3. ARGUMENT OF COUNSEL: Objections and Exceptions: Ap-‘ peal. . When a defendant objects to remarks of the State’s counsel in his argument and the court after sustaining the objections asks the jury to disregard the statements, the defendant if not satisfied should ask such further action as he ■ desires and should except to the action of the court in not more severely rebuking the State’s counsel.</p> <p>4. -: Failure of Defendant to Deny Incriminating Statements. Counsel for the State has the right to comment on defendant’s failure while on the stand to deny incriminating statements attributed to him by other witnesses.</p>

— Eon. L. B. Woodside, Judge. (1) Tire information conforms to the requirements of the statute and properly charges the offense. R. S. 1909, sec. 4481; State v. Bond, 191 Mo. 567; State •v. Prendible, 165 Mo. 332; State v. Borton, 142 Mo. 453. (2) The complaint upon which the defendant was held charges him with malice aforethought to maim and hill and murder.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) Fraud, actual or constructive, is a necessary element to give the trustee in bankruptcy a right of action. The title which passes to the trustee is limited to such property as might have been recovered by creditors in whose right the trustee takes under the law of the State and as may be recovered by him under section 70e of the Bankrupt Act. Blake v. Meadows, 225 Mo. 27; Jardt v. Hub & Spoke Co., 112 Mo.

<p>1. DEED: Description: Mistake: Wrong Section. An executor’s deed which, through mistake, described land as in section 24 instead of section 23, did not pass the legal title to the land in section 23.</p> <p>2. EXECUTORS: Purchasing Estate Lands: Equity. An executor who, under a power in the will and under an order of the probate court, has sold lands of the estate, cannot come into equity and uphold a claim that the granjee in his executor’s deed took the legal title to hold for the executor. As executor he had no lawful right to purchase the lands of the estate directly or indirectly.</p> <p>3. EQUITY: Doctrine of Clean Hands: Invoked by Court on its Own Motion. The doctrine that he who comes into a court of equity must come with clean hands may be invoked by the Supreme Court on its own motion.</p> <p>4. EXECUTORS: Purchasing Estate Lands: Conduit to Pass Title: Not Aided in Equity. An executor attempted wrongfully to convey the legal title to estate lands to A to hold for himself, but made a mistake in the description so that the title did not pass. Afterward A conveyed the land in question to B and B. conveyed to the defendant. Held, that defendant stands in the shoes of A, who did not pay or agree to pay anything for the land and therefore had no equity in it. Moreover, as it is unlawful for an executor to purchase the estate land at his own sale, so it is unlawful for another to aid him in so doing by acting as a conduit to pass title, and having failed to get the title a court of equity will not aid him.</p>

— Hon. Alfred Page, Judge. Equity will not entertain jurisdiction where there is an adequate remedy at law. Thias v. Siener, 103 Mo. 314; Davidson v. Dockery, 179 Mo. 687. The plaintiffs had an adequate remedy at law. The defendants are admitted to be solvent. The laws give them an adequate remedy. Laws 1905, p. 173, sec. 3708. He-who seeks equity must do equity. Rnppel v. Savings. Association, 158 Mo. 622.

— Hon. Arch B. Davis, Judge. (1) The trial court erred in overruling appellant’s objection to the introduction of any evidence, for the reason that the petition did not state facts sufficient to constitute a cause of action against the defendant. Howsmon v. Water Co., 119 Mo. 308; Phoenix Ins. Co. v. Water Co., 42 Mo. App. 118; Manny v. Frasiers, 27 Mo. 419; Page v. Becker, 31 Mo. 466; Street & Johnson v. Goodale, Barger & Co., 77 Mo. App. 321; Harberg v. Arnold, 78 Mo.

Louis City Circuit Court. — Hon. ■ Daniel D. Fisher, Judge. (1) Plaintiff’s own testimony indisputably establishes that sbe was guilty of contributory negligence as a matter of law. Craine v. Railroad, 152 S. W. 24; Cohn v. Kansas City, 108 Mo. 387; Ray v. Poplar Bluff, 70 Mo.

<p>1. CONDEMNATION: Correcting Commissioners’ Report: Relates to Time of Filing Original. The circuit court of the city of St. Louis has the right to direct a correction of errors of form in the report of commissioners in condemnation proceedings; and the correction or amendment when made should he held to relate hack to the filing of the report, not to change the-report into a new one.</p> <p>2. -: -: -: Report to City Council. By the-charter of St. Louis it is provided that when the report of commissioners in condemnation proceedings is filed the circuit court shall give the city, upon application of the city counselor, reasonable time to report the result of the same to the assembly. Held, that such provision does not require a second report of a commissioners’ finding after it has been corrected as to form merely, and, aside from that, since in this case no such application was made by the city counselor after the correction, the failure of the court to grant, on its own motion, additional time,, is not a weapon appealing property-owners can use to destroy the judgment.</p> <p>3. APPEAL: Non-prejudicial Error. An appellant cannot complain of an error by which he is not prejudiced.</p>

<p>1. BILL OF EXCEPTIONS: Time of Filing: Amendment of 1911. Since the amendment of 1911 to Sec. 2029, R. S. 1909, time is no longer of the essence in the filing of a hill of exceptions. Where a timely order was made in November, 1908, granting to appellant leave to file his bill of exceptions on January 3, 1909, and no bill was filed within that time and no extension of the time in which to file was made, such bill may be filed at any time before the appellant shall be required by the rules of this court to serve his abstract upon respondent, or even thereafter upon compliance with the second proviso of said amendment. [GRAVES, J„ with whom LAMM, C. X, and WALKER, J., concur, dissenting, for the reasons stated in Craig v. Railroad, 248 Mo. 270, and Ottumwa Bridge Co. v. Corrigan, 251 Mo. 667.]</p> <p>2. CERTIORARI: Supreme Court: Superintending Control Over Court of Appeals. Upon a reconsideration of State ex rel. Curtis v. Broaddus, 288 Mo. 189, it is again held that the Supreme Court has power, by its writ of certiorari', to quash the judgment of a court of appeals, and to compel that court to proceed to retry a cause in accordance with an opinion previously rendered therein by the Supreme Court on a former appeal.</p> <p>3. APPELLATE JURISDICTION: Former Decision: Act of 1911. The Act of 1911, Laws 1911, p. 190, declaring that “the Supreme Court shall retain and have full, exclusive appellate jurisdiction in any case pending in which the Supreme Court has made any decision or ruling,” gave the Supreme Court appellate jurisdiction of every cause pending in any court at the time of the passage of the act in which the Supreme Court prior thereto had made any decision or ruling.</p> <p>4. PARTNERSHIP: Dissolution: Not Denied Under Oath. An allegation in the petition that defendants were partners at the time the contract sued on was made and at all times mentioned in the petition, unless put in issue by an affidavit filed by defendant with his answer, is taken as admitted, and no burden rests upon plaintiff to prove it, even though between the making •of the contract and the time it was to be performed and was breached the partnership had been dissolved.</p> <p>5. -; -: As to Existing Obligations. A partnership dissolved as to all the rest of the world is not dissolved as to a plaintiff who held a joint subsisting contract as to its members, so as to prevent one partner being bound by dealings with or notice and tender made to another partner.</p> <p>6. -: -: Waiver: Notice. Notice to one partner is notice to his copartners, and waiver of tender by him is likewise binding upon them.</p> <p>7. CONTRACT: Breach: T-o Purchase Land: Time of Essence. Where the members of a partnership entered into a contract with plaintiff for the purchase of land, with a condition that, if on October 6, 1890, he so desired, they would, upon a recon-veyance of the land to them, pay him back all he had paid for the land, with interest, time was not of such essence of the contract as required plaintiff to tender a deed on October 6, 1890, but such tender could have been, and was, waived, by letters from plaintiff to one of the partners, written shortly prior to said date, notifying him that he elected to reconvey, demanding the money due, and asking them to send him the money, along with a deed for him to execute, all of which were-received by said partner, whose replies simply denied his ability ' to repay the money.</p> <p>8. -: Hardship. Where the parties to a contract were-adults at the time it was made, and there was no fraud or mistake, the law simply enforces the contract as made, and does not attempt to make one for them, or to relieve either from the-performance of its plain terms.</p>

— Eon. C. A. Mosman, Judge. (1) Defendant’s demurrer should have been sustained. Plaintiff’s petition was fatally defective in that it did not allege a willingness on the part of the plaintiff to refund to the defendant all money necessary to place him in statu quo. Wells v. Mutual Benefit Association, 126 Mo. 638; Jamison v. Culligan, 151 Mo. 416; McKenzie v. Donnell, 151 Mo. 456; Rhoades v. Fuller, 139 Mo. 179.

Habeas Corpus. (1) In certiorari, it is proper for a superior court to exercise its supervisory powers (1st) where the inferior court has acted without jurisdiction;.and (2nd) where, having jurisdiction, it has acted in excess thereof; or (3rd) where.it appears on the face of the record that the trial court rendered a judgment which it had no right in law to render. Railroad v. Board of Equalization, 64 Mo. 308; State ex rel. v. Neosho, 57 Mo.

<p>For the reasons stated in In re Breck; Tebbetts, Petitioner, v. Rickart et al., ante, page 302, the writ of certiorari issued herein, as ancillary to the writ of habeas corpus, is quashed.</p>

ProMbition. The right to resign without the consent of the appointing power is settled. Sec. 5, art. 14, Constitution of Missouri; State ex rel. v. Bus, 135 Mo. 325; Eeiter v. State ex rel., 51 Ohio St. 74, 23 L. E. A. 684; Olmsted y. Dennis, 77 N. Y. 378. (2) A referee may resign in- the absence of a statute forbidding it. 34 Cyc. 809; Brooklyn Heights Railroad v. Brooklyn City Railroad, 93 N. Y. Supp. 849.

— Hon. Nat M. Shelton, Judge. (1) Full and complete power and authority is expressly conferred by law upon Chariton Drainage District No. 1 and the hoard of commissioners thereof to construct and maintain a bridge at the place described in plaintiff’s petition. See. 5511, E. S. 1909; Laws 1911, p. 211; Secs. 5516, 5519, 5526, 5503, 5505, E. S. 1909.

Certiorari. (1) The St. Louis Court of Appeals is a court of limited and special jurisdiction and has no jurisdiction except such as is conferred upon it by the Constitution. (2) The jurisdiction of the St. Louis Court of Appeals in all matters except the issuance of extraordinary writs within the territory over which it has jurisdiction is solely and only appellate and it has no original jurisdiction in disbarment proceeding^.

<p>Appeal from Greene Circuit Court —Eon. James T. Neville, Judge.</p> <p>(1) Under the pleadings, law and evidence, judgment should have been for appellant, for the reason respondent failed to prove that he was entitled to the possession of the premises at the institution of this shit. Tarlotting v. Boken, 95 Mo. 544; Sec. 2382, R. S. 1909. (2) Under the present contract respondent is required to take two steps in order to terminate the tenancy: First, he must declare the contract forfeited and apply the payments as rent; second, he must then demand peaceable possession at some definite time. 1 Cyc. 56-G. (3) The contract makes seven per cent interest on all deferred payments the penalty for not making payments promptly, not forfeiture. (4) Equity will not consider time as of the essence of a contract. And this is especially so where the parties themselves have not so construed the contract. Tetley v. McEl-murry, 201 Mo. 393; Moberly v. Trenton, 181' Mo. 646; Sease v. Foundry Co., 141 Mo. 496; Watson v. Cross, 112 Mo. App. 620; 36 Cyc. 707, 717, 734. (5) Where time is of the essence of a contract it may he waived. Melton v. Smith, 65 Mo. 322; Scannell v. Soda Fountain Co., 161 Mo. 62; Mastín v. Crimes, 88 Mo. 485; 36 Cyc. 717, 734. (6) “If vendor objects to the tender at the time it is made on specific ground he waives possible objections to it on other grounds.” 36 Cyc. 704-F. (7) No consideration is necessary to support a waiver. May also he waiver by conduct. Griffith v. Cillum, 31 Mo. App. 41; Tetley v. MeElmurry, 201 Mo. 394; Polk v. Assurance Co., 114 Mo. App. 519; McCollum v. Fire Ins. Co., 61 Mo. App. 354; 36 Cyc. 717. (8) Equity abhors forfeitures, never aids forfeitures, and grants relief from them in all cases, except where it would he inequitable to do so. Tetley v. MeElmurry, 201 Mo. 394. (9) ’ Appellant having paid more than one-half the purchase price, and having tendered the balance with interest, and the respondent having failed to enforce a forfeiture according to the terms of the grant, justice, equity and good conscience demand that he accept the' tender and execute a deed. O’Fallon v. Kennedy, 45 Mo. 127. (10) Assignee of vendee may enforce assignor’s right to specific performance. Melton v. Smith, 65 Mo. 320; Majors v. Maxwell, 120 Mo. App. 281; 36 Cyc. 758.</p> <p>If this court should consider the evidence is properly before it, we are satisfied that after examining the same the court will find that the trial court was right in its finding; and as the law in the case is well fixed, we will simply call the court’s attention to the case of Avery v. Railroad, 113 Mo. 561, on the point that ejectment is the proper remedy, and that the contract being forfeited by nonpayment of the payments, this is the proper action, and that under the facts in the case and the law, no demand is necessary before the bringing of the action. Brooks v. Gaffin, 192 Mo. 253.</p>

— Eon. James D. Barnett, Judge. ■ (1) Under the statute the plaintiff is empowered to acquire and hold such real estate and buildings only as may he necessary for assembly, library, laboratory and other rooms requisite for its purposes. Sec. 3443, R. S. 1909; Sec. 1405, R. S. 1899; Sec. 2833, R. S. 1889; Sec. 982, R. S. 1879.

— Eon. Alonso D: Burnes, Judge. (1) Tlie trial conrt had jurisdiction of neither the parties nor the subject-matter of the action, and was without power to render a binding judgment therein. Stone y. South Carolina, 117 IT. S. 432; Carson v. Hyatt, 118 U. S. 279; Railroad v. Dunn, 122 IT. S. 513; Crehore v. Railroad, 131 IT. S. 240; Railroad v. Wan-gelin, 132 IT. S. 599; Railroad v. Daughtry, 138 IT.

<p>1. ORDINANCE: Reasonableness: Judicial Matter. The courts of this State have the right to inquire into the reasonableness of any city ordinance, though duly enacted; and are not compelled to accept its enactment by the city as a determination that it is a necessary or reasonable exercise of the police power.</p> <p>2. -: Power of City to Enact. Kansas City has express authority to enact ordinances to suppress nuisances or to preserve the public health.</p> <p>3. -: -: When There is Special Statute: Cemetery. If a cemetery is a nuisance and deterimental to public health, Kansas City has the power by ordinance to stop burials therein, although it was incorporated by a special act of the Legislature which set aside its grounds for a graveyard, and the city charter says its provisions and all ordinances shall be consistent with and subject to the laws of the State. Such special act has no more force and effect than the general corporation law, and if the cemetery had been incorporated under that law, burials could have been prohibited therein in the interest of the public health, if actually dangerous thereto. To abate a nuisance dangerous to the public health is a police power which neither the city nor the State can surrender or bargain away.</p> <p>4. UNREASONABLE ORDINANCE: To Suspend Burials in Cemetery. An ordinance which prohibits future burials or interments of the dead in a certain large and well-established cemetery will be held to be invalid and an unreasonable exercise of the police power, if there is no testimony that the cemetery was in fact injurious or dangerous to the public health, and the facts show that the origin and passage of the ordinance were the results of demands and desires of certain citizens in its vicinity whose real estate would be enhanced in value if said cemetery were in effect abolished and opened up to streets.</p> <p>5. APPELLATE PRACTICE: New Issues: Regulation of Cemetery. The Supreme Court, in a suit brought to it on appeal in which a certain incorporated cemetery seeks by injunction against the city to have a certain ordinance forbidding further burials in the cemetery declaréd unreasonable and void, has no jurisdiction to entertain a request, from intervenors who are lot owners in the cemetery, that the court by its decree require the officers of the cemetery to set aside a certain fund for preserving and beautifying the graves and grounds and establishing sanitary sewers, for the reason that no such request was presented to the trial court or is embraced within the pleadings.</p>

Louis City Circuit Court. — Ron. Moses N. Sale, Judge. Held: that appellant is entitled only to credit for the net amount received by respondents on the sale of appellant’s land,-and not for the market value of the land. The petition is clearly a petition for an accounting of the proceeds of the Kehlor sale, and for nothing else.

— Hon. Nat. M. Shelton, Judge. - (1) The engineer testified that lie saw deceased in a perilous position in plenty .of time to warn him of Ms danger and that he did warn him; other witnesses testified that no warning was given; thus when defendant’s engineer admitted that he saw and realized the danger of the deceased and these witnesses testified no warning was given, the case should have been submitted to the jury.

— Eon. W. C. Ellison, Judge. (1) The court erred in sustaining the motion of the plaintiff to strike out certain portions of defendant’s answer, by which the court struck out all that part of the answer referring to the failure of G-illi-gan Company to procure a license to do business in the State of Missouri.

,L. B. Woodside, Judge. The law of 1895 left the remainder after the homestead subject to the payment of the homesteaders’ debts. Broyles v. Cos, 153 Mo. 242; In re Powell’s Estate, 157 Mo. 151. Under the Law of 1875 the probate court could sell the remainder after homestead before the expiration of homestead.

— Ron. William T. Ragland, Judge. (1) The sheriff had no authority or power to take or accept the recognizance, nor to fix the- amount thereof, the charge being a felony, and the prisoner being held under a commitment issued by a justice of the peace, the commitment not having specified thereon the amount of bail required. Sec. 5126, R. S. 1909; State v. Holt, 234 Mo. 598; State v. Crosswhite, 195 Mo. 1.

■Appeal from St. Louis City Circuit Court. — Hon. George H. Williams, Judge. (1) “A city owns and controls its streets as a' trustee for the public. It, therefore, stands charged by the law with the primary and bounden duty of keeping them free from nuisances, defects, and obstructions caused by itself or by third parties if it (in the latter instance) had actual or constructive notice thereof in time to abate the nuisance, remove the obstruction or repair the defect.

— Hon. Arch B. Davis, Judge. (1) The true intention of the testator is the cardinal rule to be observed in the construction of wills. R. S. 1899, sec. 4650; Cross v. Hoch, 149 Mo. 325. .But the intention must be clearly and definitely expressed by the testator in his will, and not in contravention of any fixed rules of law; “for while it is the duty of courts to construe wills, they cannot make them.” G-arth v. Garth, 139 Mo. 456; Lehnhoff v. Theine, 184 Mo. 346.

— Hon. Charles D. Stewart, Judge. (1) While statutory will contests are in a sense sui generis, they are on the same footing as ordinary lawsuits and the trial judge may direct a verdict where there is no substantial evidence to sustain a certain issue, and may direct a verdict one way or the other based upon the existence of uncontradicted' testimony on an issue or on the absence of proof on such issue.

Buchanan Circuit Court. — Hon. C. A. Mosmcm, Judge. (1) Tlie use of the word “heirs” in the premises vjf the deed carries no special significance and in nowise militates against the well-settled rule that wherever such words are used they are intended and presumed to he intended to be words of limitation and not words of purchase. It is very appropriate that these words should appear in the premises or granting clause of the deed. 3 Washburn on Eeal Property (5 Ed.), par. 6.

— Eon: Arch B. Davis, Judge. (1) This being an equity case, the court is not bound by the finding of the trial court, but will examine and weigh the evidence to ascertain whether it is sufficient to justify the decree. Collins v. Harrell, 219 Mo. 279; Lacks v. Bank, 204 Mo. 455; Plummer v. Knight, 156 Mo. App. 333; Russell v. Sharp, 192 Mo. 291; Wad-dington v. Lane, 202 Mo. 415'.