Volume 255 — Missouri Reports

- — Hon. James H. Slover, Judge. (1) One of the defendants, Citizens Gas Company, is a foreign corporation, organized under the laws of Oklahoma, and doing business at Nowata, Oklahoma. The defendant corporation was lawfully served with process so as to give the court jurisdiction of such defendant. R. S. 1909, secs. 570, 995, 997; Newcomb v. Railroad, 182 Mo. 687; Painter v. Railroad, 127 Mo. App. 248; U. S. v. Telephone Co., 29 Fed. 37.

— Hon. Walter A. Powell, Judge. (1) The description of the land in the contract sued on is sufficient. The identification of the land is made certain by parol evidence at the trial of this cause. Keator v. Realty Co., 231 Mo. 676; Tetherow v. Anderson, 63 Mo. 96; Shewalter v. Pimer, 55 Mo. 218; Hammond v. Johnson, 93 Mo. 198; Marvin v. Elliott, 99 Mo. 616; Bacon v. Leslie, 52 Kan. 494; Bacon v. Leslie, 34 A. S. R. 134; Hurley v. Brown, 98 Mass. 545, 96 Am.

— Hon. Alfred Page, Judge. (1) Tbe court erred in submitting tbe first item of respondent’s case, to'-wit, tbe $320 less ten dollars, to tbe jury, for tbe reason that there was no evidence that said sum was furnished to L. L. Carmin, as a loan, but all the evidence was to tbe effect that tbe said Carmin was respondent’s agent, and that tbe said money was used 'in consummating tbe purposes of tbe agency.

Louis County Circuit Court. — Hon. John W. McElhinney, Judge. (1) “In order that a decision may operate as an estoppel on a subsequent appeal of the same case the question must have been fairly presented to the court as necessary to a decision in the case and directly considered and decided.

Louis City Circuit Court. — Hon. Matt. O. Reynolds, Judge. Tlie bill of exceptions, in accordance with the repeated declaration of this court, if not filed within the time allowed by the court will be ignored and the judgment affirmed.

<p>Appeal from St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.</p> <p>(1) The court erred in refusing to submit to the jury the question of testamentary capacity. Holton v. Cochran, 208 Mo. 314; Turner v. Anderson, 236 Mo. 523; Knapp v. Trust Co., 199 Mo. 640; Roberts v. Bartlett, 190 Mo. 680; Mowrey v. Norman, 204 Mo. 173. (2) The court erred in refusing to submit to the jury the question of undue influence. Mowrey v. Norman, 204 Mo. 173; Bradford v. Blossom, 207 Mo. 177; Meier v. Buchter, 197 Mo. 68. (3) The court erred in giving to the jury at the close of plaintiffs’ case the instruction directing* them to find the will and codicil in question was the will of Friedericke Wilde. Mowrey v. Norman, 204 Mo. 173; Holton v. Cochran, 208 Mo. 314; Roberts v. Bartlett, 190 Mo. 680; Bradford v. Blossom, 207 Mo. 177; Crum v. Crum, 231 Mo. 626.</p> <p>(1) The test of capacity to make a will is that the testatrix should have sufficient mental capacity to understand the nature and character of her property, the natural objects of her bounty and the disposition she is making of her estate by the will. The law does not require that high degree of intelligence that may be necessary in the execution of contracts or in administering upon estates. Current v. Current, 244 Mo. 429; Winn v. Greer, 217 Mo. 420; Archambault v. Blanchard, 198' Mo. 384; Roberts v. Bartlett, 190 Mo. 696; Hamon v. Hamon, 180 Mo. 685-; Southworth v. South-worth, 173 Mo. 59; Story v. Story, 188' Mo. 110; Hughes v. Rader, 183 Mo. 630; Crossan v. Crossan, 169 Mo. 631; Crowson v. Crowson, 172 Mo. 691; Sehr v. Lindemann, 153 Mo. 288; Cash v. Lust, 140 Mo. 630; Riley v. Sherwood, 144 Mo. 355; Rdggin v. Westminster College, 160 Mo. 570; Wood v. Carpenter, 166 Mo. 465; Brinkman v. Rueggesick, 71 Mo. 553; Farmer v. Farmer, 129 Mo. 534. (2) Where there is no substantial evidence (as' distinguished from scintilla of evidence) that the testatrix does not possess mental capacity to make a valid will, it is the duty of the court so to declare as a matter of law; and as the trial court has properly found, there was no such substantial evidence, this, appeal must be affirmed. Winn v. Greer, 217 Mo. 420; Catholic Univ. v. 0'’Brien, 181 Mo. 68; Hamon v. Hamon, 180 Mo. 685; Sehr v. Lindemann, 153 Mo. 288; Fullbright v. Perry County, 145 Mo. 432; Schierbaum v. Schemme, 157 Mo. 1; Martin v. Bowdem, 158 Mo. 379. (3) There is no evidence of any influence in this case, no evidence that influence was undue, no evidence that such influence was exercised or that it was present in active exercise. Turner v. Anderson, 236 Mo. 541.</p>

Appeal, from Vernon Circuit Court. — Hon. B. G. Thurman, Judge. (1) Plaintiff has no interest in the subject-matter and had none at the time he commenced this suit. (2) Defendants, John C. Breckenridge, Geo. T. Bowman and Charles G. Safford, being remote grantees from the purchasers at the trustee’s sale, are innocent holders and take title even if the sale was defective, there being no evidence of actual knowledge of the defects.

<p>1. TERMS OF COURT: Judicial Notice. The court takes judicial notice of the number of regular terms of circuit court held in a county, and of the date they begin.</p> <p>2. BILL OF EXCEPTIONS: Untimely Filing: Act of 1911. A bill of exceptions not filed within the time prescribed by order of the court allowing the appeal, if the order was made and" the time had expired prior to the enactment of the statute of 1911, Laws 1911, p. 139, cannot be considered on appeal— for instance, if the appeal was taken at the March term, 1910, and appellant given leave to file bill of exceptions on or before the June term, 1910, and at that term no order was made or action taken in the matter, and without any extension of time the bill was filed in December, 1910. The Act of 1911 does not have a retroactive operation; and did not have the effect to revive a right already dead and extinct.</p>

Louis City Circuit Court. — Hon. George H. Shields, Judge. Not a single act of negligence was proved upon the part of the defendant in this case. The rule in this State that plaintiff must prove against the defendant the negligence alleged in its petition is imperative and admits of no exception. Yarnell v. Railroad, 113 Mo. 579; Looney v. Railroad, 200 U. S. 480. The same principle is.reiterated in later decisions of this court.

— Hon. James T. Neville, Judge. Defendant in error is guilty of laches. Its motion should have been filed before plaintiff in error had gone to the expense of abstract and brief. Gaar-Scott v. Nelson, 166 Mo. App. 51. Our contention is that there was no final judgment until April 13, 1909, when the motion in arrest was overruled. State ex rel. v. Ryan, 115 Mo. App. 421. The whole matter rested within the breast of the court until the motion in arrest was determined.

<p>ATTORNEY’S FEES: Allowance by Court: Notice to Clients. An attorney who has conducted litigation for a plaintiff and a number of intervenors, seeking to have a fund in the hands of defendant declared a trust fund, is not entitled, upon motion, to have attorney’s fees allowed to him by the trial court, out of the funds recovered, as against the intervenors, without notice to them. On the question of their liability for a fee, and the amount of it, they were entitled to their dayt in court.</p>

Louis Court of Criminal Correction.— Hon. Benjamin J. Klene, Judge. (1) The information charges no violation of law. In order to charge the offense under section 4835, the information should have alleged a sale, or offer of sale, of the imitation substitute for butter without packing the same in firkins, tubs or paper packages, with the true name of said imitation substitute clearly and Indelibly branded, marked or labeled tbereon.

— Son,. G. A. GaLvird, Judge. (1) Tlie section of the statute on which this proposition is bottomed is violative of section 28, article 4, of the Constitution, in that it contains matters not clearly set forth in the title thereto, and contains more than one subject which are not set forth in said title to said act.

— Ron. John T. Moore, Judge. (1) The information is good. Kelley’s New Criminal Law & Practice (3 Ed.), sec. 474; State v. ■Stacey, 103 Mo. 11; State v. Wilson, 172 Mo. 420. (2) The last assignment of error is that the court erred in failing to instruct on all questions of law in the case, and especially in failing to give an instruction on manslaughter in the fourth degree.

— Eon. Ralph 8. Latshaio, Judge. (1) The fact that the word “attorney” was interpolated into the information between the words “agent” and “collector” does not render the information defective. The term “agent,” as used in Sec. 4550, R. S. 1909, includes the relation of attorney.

— Hon. Ralph 8. Latshaw, Judge. (1) Tire court erred in permitting State to cross-examine defendant concerning Ms refusal of positions offered. No such matter liad been referred to in defendant’s evidence, and tMs method of cross-examination, taken in connection with the prosecuting attorney’s opening statement and closing argument, to the effect that defendant was a wortMess fellow — an idler who lived off of the vices of a fallen woman, was prejudicial error.

Louis City Circuit Court. — Hon. Leo S. Bassieur, Judge. (1) The sole issue submitted to the jury was that of removing and concealing mortgaged property, the issue of disposing of mortgaged property having been eliminated from their consideration.

— Hon. Ralph 8. Lalshaw, Judge. (1) The amendment of the information by inserting after the words ‘ ‘ from the person and against the will of the said B. J. Franklin” the words: “and in the presence of the said B. J. Franklin,” was not such as to cause any surprise to the defendant or to jeopardize his defense.

— Hon. David H. Harris, Judge. (1) There is no evidence that the defendant was the keeper of the game and the peremptory instruction should jhave been given. State v. Miller, 234 Mo. 588; State v. Solon, 247 Mo. 672; Nelson v. IT. S., 28 App. D. C. 32; Howard v. State, 91 S. W. (Tex.) 785; Blum v. State, 47 S. W. (Tex.), 1002. First: There is no evidence that defendant set up, kept or furnished the table. Second: There is no evidence that defendant kept or furnished the dice.

Louis City Circuit Court. — How. Leo 8. Rassieur, Judge. (1) The failure of the court in its instruction to the jury requiring the receiving to have been done with an unlawful and felonious intent was reversible error. 1 Bish. New Cr. Law, sec. 567-71; 4 Black. Comm. 132; Hughes’ Crim. Law, sec. 665; 1 Wharton, Crim. Law, sec. 88; State v. McAdoo, 80 Mo. 219; 1 McClain’s Cr. Law, sec. 717; Rapalje on Larceny, sec. 311-316; 2 Bish. Cr.

— Ron. John T. Moore, Judge. There is nothing in this case for the court to review but the record proper, (a) The abstract of the record proper contains no entry evidencing the filing of a motion for a new trial.

(1) A mass of papers purporting to be a bill of exceptions but not signed by the judge cannot be considered as such by the court on appeal. State v. Griffin, 249 Mo. 624; State v. Watts, 248 Mo. 494; State v. Brown, 216 Mo. 377; State v. Collins, 196 Mo. 87; State v. Brown, 164 Mo. 726; Reno v. Fitzjarrell, 163 Mo. 411; Roberts v. Jones, 148 Mo. 368.

— Hon. David H. Harris, Judge. (1) It is evident by the wording of tbe information that the prosecuting attorney meant to charge only one of the defendants with the actual cutting. There was only one cut and it was physically impossible for one strike to be made by all three of the defendants. All three could not have held the knife in “their” hands. The charge being a physical impossibility as to all could not be and is not a specific charge as to any one of the defendants.

— Ron. Arch B. Davis, Judge. At the April term, 19ÍS, of the court, appellant applied for a continuance on account of the absence of material witnesses. The court overruled the application because two of the alleged absent witnesses, Jack Hodges and Floyd Baker, were present in court, and because the testimony of Joe Waltz and Cecelia Campbell, the other alleged absent witnesses, was merely cumulative.

Louis City Circuit Court. — Hon. Moses N. Sale, Judge. (1) Where a lot is assessed as an entirety, the collector can not be compelled to receive taxes on a part of that lot. (2) Even if the statute could be so construed, it does not require him to mark that part paid; to release that part from the lien of the taxes, or to give a receipt specifying value of the property, etc. Constitution, art. 10, sec. 4; R. S. 1909, sec. 11459.

Thomas J. Seehorn, Judge. (1) The plaintiff did not owe a cent to any Missourian, and his canse of action in suit was the only asset claimed by his guardian, and by the comity of nations, the plaintiff, by his guardian, had a right to sue, in the courts of this State to recover a debt due the plaintiff from the defendant, no creditor of the plaintiff objecting, and the action of the trial court in granting the defendant a new trial, solely on the ground that plaintiff did…

— Hon. Alfred Page, Judge. The county court of Greene county is and was of statutory origin, and exceeded its powers, prescribed by the laws and the Constitution of the State of Missouri. Laws 1907, p. 401; Sec. 48, art. 4, Constitution; Sec. 8, art. 14, Constitution; State ex rel. Stevenson v. Smith, 87 Mo. 158; Sec. 35, art. 6, Constitution.

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

Charles A. Killian, Judge. (1) In the construction of the will, the court will endeavor from a consideration of the whole instrument to ascertain the intention of the testator. R. S. 1909, sec. 583; Burnet v. Burnet, 244 Mo. 491; Threlkeld v. Threlkeld, 238 Mo. 459; Dameron v. Lanyon, 234 Mo. 627; Cox v. Jones, 229 Mo. 53; Settles v. Shafer, 229 Mo. 561; Stewart v. Jones, 219 Mo. 614.

— Hon. B. G. Thurman, Judge. The court erred in refusing the defendant’s demurrer to the evidence, (a) The Attorney’s Lien Act of February 25, 1901 (Laws 1901, p. 46), contains no emergency clause and inasmuch as the Legislature at that session adjourned March 18, 1901, the act took effect ninety days thereafter, to-wit: June 16, 1901.

Louis City Circuit Court — Ho». W. B. Homer, Judge. (1) Tbe evidence offered by plaintiff failed to make a prima-facie case, because it does not tend to prove: (a) That ber injuries were due to tbe negligence of tbe driver of tbe wagon; (b) that tbe driver was in defendant’s employ; or (c).tbat tbe driver, if in such employ, was acting Avitbin tbe scope of bis employment at tbe time of tbe injury.

Louis City Circuit Court. — Hon. Hugo Muench, Judge. (1) The trial court erred in holding that, upon the death of Joseph L. Curby, Jr., without issue, be-’ fore he arrived at the age of thirty-five years, his share in the trust funds given to the three trust companies, under the seventh clause of the will, passed to Clarence E. Curby, .sole surviving residuary beneficiary; and in refusing to adjudge in the decree that Joseph L. Curby, at the death.of the testator, became the…

— Ron. Walter A. Powell, Judge. (1) Under the pleadings and evidence deceased Frederick Powell was shown not to he a passenger and the court should have directed a verdict for defendant. The clause in the pass which provided that the holder of said pass when using same should not occupy the relation of passenger and carrier was a valid stipulation and was a contract about a private and not a public matter, and no rule of public policy was violated by said clause.

— Hon. Samuel Davis, Judge. (1) Where from a reading of the facts disclosed by the record, it is apparent that the verdict is exces.sive and beyond reason, and so gross as to shock the sense of justice, and it can be accounted for upon no. other theory than that of passion and prejudice, the ends of justice will be subserved by a new trial. Partello v. Railroad, 217 Mo. 66; Chlanda v. Railroad, 213. Mo. 244.

<p>1. JUDGMENT: Writ of Error Coram Nobis: Insanity of Defendant: Fact Kown. The purpose of a motion in the nature of a writ of error cormn nobis to set aside a judgment, is to call to the attention of the court some vital fact which at the time of the entry of the judgment was not known to the court. If the record shows that such fact was brought to the knowledge of the court before entry of judgment, for instance, if it was revealed by the petition therein, the motion will not lie, nor can a petition attacking the judgment be considered as such motion. For instance, if the petition stated that the defendant was insane, the fact of his insanity was before the court, and the entry of a judgment against him may be an error of law, but not an error committed by reason of the absence of knowledge of a determinative fact which would have prevented the entry of judgment, and hence a motion in the nature of a writ of error cormi nobis, based on the fact that defendant was insane at the time said judgment was entered, will not avail to annul said judgment.</p> <p>2. PLEADING: Cause of Action: Vesting Title to Wife’s Land Deeded to Husband in Partition: Duress. A petition charging that, in an attempt at friendly partition, between a wife and her brothers and sisters, of lands inherited by them from their father, she was coerced by the duress of her husband to have her coparceners deed the land to him, states a cause of action for divesting the title out of him and vesting it in her, if the facts stated amount to duress.</p> <p>3. -: -: -: Allegation That Process Was Served on Insane Person Only: Demurrer. A petition to set aside a judgment, which charges that the petition therefor charged that the defendant therein had been adjudged insane and that the summons was served on him alone and that he had no guardian, must be taken as true when a general demurrer thereto is filed; and the court cannot assume that a guardian ad Utem was appointed for said insane person, there being no such allegation in the petition, although the petition in the original suit asked that a guardian ad Utem be appointed for him. Such a petition is good as against a general demurrer. A demurrer admits facts well pleaded in the petition, but it does not admit facts not pleaded; nor can any fact not pleaded be considered in passing on the demurrer.</p> <p>4. INSANE DEFENDANT: Summons: Guardian Ad Litem. Where a defendant has been adjudged insane and a guardian has been appointed for him, the summons should be served on such guardian; where no such guardian has been appointed, the summons should be served on the lunatic personally, and upon suggestion of his insanity a guardian ad Utem should be appointed for him, to conduct his defense under the supervision of the court, and then the court has power to render judgment affecting the title of the lunatic’s property. But a judgment rendered against an adjudged lunatic, whose legally appointed guardian has not been brought into court, or for whom no guardian ad Utem is appointd, after suggestion of his insanity has been made, would smack of legal if not actual fraud; and a petition so charging states a cause of action for setting aside the judgment, and is good as against a general demurrer. If a guardian ad Utem was in fact appointed, and that fact was not stated in the petition, that fact should be stated in an answer.</p>

Louis City Circuit Court. — Eon. George E. Shields, Judge. (1) Defendant railroad’s solid embankment across Aurora avenue, totally obstructing’ it, is a public nuisance which, the city did not and could not authorize.

— Hon. G. A. Mosman, Judge. (1) The trust deed to Anlyffe- C. Hyde, although signed and acknowledged by the wife of George W. Young, to-wit, Cynthia Young, is insufficient to bar her dower. Golden v. Tyer, 180 Mo. 200; McPadden v. Eogers, 70 Mo. 421; Bradley v. Bailroad, 91 Mo. 493; 14 Cye. 954. (2) The trust deed executed by George W. Young did not convey the entire estate.

<p>1. APPELLATE JURISDICTION: Constitutional Question. In order to bring an appeal within the jurisdiction of the Supreme Court on a constitutional ground it must appear that a determination of a constitutional question is essential to a proper decision of the case.</p> <p>2. -: -: Must Be Ruled Below. Usually in order to give the Supreme Court jurisdiction of an appeal on a constitutional ground it must appear from the record that a con-' stitutional question was not only raised in the trial court but was ruled on to the disadvantage of the party appealing.</p> <p>3. -: -: Special Tax Bill: Uniformity of Taxation. The ■section of the. Constitution declaring that taxes “shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and all taxes shall be levied and collected by general laws, does not apply to special benefit assessments for street improvements. Special assessments for local improvements, while, in a broad sense, referable to the taxing power, are not taxes for public purposes or taxes at all within the purview and sense of the article of the Constitution pertaining to revenue and taxation. This has been the uniform ruling of this court in numerous cases, and the point that a suit on a special tax bill involves the construction of the clause of the Constitution providing for uniformity of taxation is so far classed as stare decisis as to deprive the .Supreme Court of jurisdiction, on constitutional grounds, of an appeal in a suit on a special tax bill for a few hundred ‘ dollars.</p>

H. Slover, Judge. (1) The legal title to the strip of land sued for vested in the plaintiff on March 29, 1891. (2) The alley vacated was a strip of land 16 feet wide east and west and 140 feet long north and south, of which the land sued for in this case is the west one-half.

— Hon. W. S. CL Walker, Judge. (1) The homestead could be sold at the time it accrued to the widow and children in 1884, for the payment of… Held: enjoyed and treated the same as a homestead; and that said widow, Louisa P. Wilson, together with the plaintiffs herein, his said children, continued to reside on said real estate from and after his death until the-day of-, 1902, at which time one 'L. W. Myracle, as administrator of the estate of the, said W. H. Wilson, deceased,…

Louis City Circuit Court. — Hon. George H. Williams, Judge. (1) In considering the action of the court in directing the verdict the plaintiff is entitled to every inference of fact which the jury might have drawn from the evidence. Lee v. Geo. Knapp & Co., 137 Mo. 385; Barth v. Elevated Ry. Co.,. 142 Mo. 536Young v. Webb City, 150 Mo. 341. (2) If the representations were made it was for the jury to say whether the representations were false and fraudulent.

James D. Barnett, Judge. * (1) Under and by virtue of the terms of the deed from Barnett to plaintiff’s ancestors, and from the fact that the grantees in said deed furnished the purchase price for the land, the grantees took a title in fee simple to said lands. Draper v. Minor, 36 Mo. 290.

J. L. Fort, Judge. (1) Respondent’s source of title is an inoperative and void sheriff’s deed. The burden was on respondent to prove a prima-facie title. Wheeler v. Land Co., 193 Mo. 291. Respondent’s source of title is the sheriff’s deed of November 15, 1860, purporting to sell these swamp lands under an execution. The nature of the judgment on which the execution was issued does not appear and the presumption is that it was based on an ordinary county indebtedness.

Jesse C. Sheppard, Judge. (1) The judgment is for the wrong party, for the reasons: (a) The cause of action herein, was barred by the Statute of Limitations. Sec. 11506a, R. S. 1909; Laws 1872, p. 130, sec. 222; Bird v. Sellers, 122 Mo. 23.

— Hon. James D. Barnett, Judge. (1) The county co.urt in ordering the commissioners to amend their report and then confirming the same without notice to these defendants acted without authority. The defendants’ default or failure to object to the report of August 9, 1904, gave the court no power without further notice to them to so change the plan of work as to deprive them of rights as given in that report.

<p>Appeal from Lincoln Circuit Court. — Hon. James D. Barnett, Judge.</p>

<p>1. DRAINAGE DISTRICT: Allowance for Private Levee: No Reason. Where a landowner was allowed by the commissioners a credit of $600 for a levee constructed by him as a credit upon benefits assessed against his land, and in the readjustment by the county court of the assessments made necessary by an extension of the boundaries of the district and the construction of drains and levees this credit was disallowed, the appellate court will not hold that was error if his counsel on appeal assign no reason why it was disallowed and none can be found assigned in the record.</p> <p>2. -: -: -: Complicated and Confused Record. Where three suits on tax bills issued by a drainage district were tried separately in the circuit court, but all were appealed together, and one record sent up, and there is only one abstract ' and brief, and there is no designation therein of the evidence pertaining to each, or of the propositions of law particularly applicable to each case, the appellant cannot complain if the court fails to segregate and apply the evidence to any particular point.</p>

— Hon. John T. Moore, Judge. (1) Three things must concur to raise a trust: Sufficient words to create it, a definite subject, and a definite object; and to these may be added another, viz., that the terms of the trust should be sufficiently declared. In re Sonlard, 141 Mo. 664; Banking Co. v. Miller, 190 Mo. 670; Crowley v. Crowley, 131 Mo. App. 183; Kramer v. McCaughey, 11 Mo. App. 429. (2) What are sufficient words to create a trust?

— Hon. Hermann Brumback, Judge. (1) If the specifications were not prepared and on file prior to the passage of the ordinance, the tax hills, sued on, are void. Sec. 10, art. 9, Kansas City-Charter of 1889; Dickey v. Holmes, 109 Mo. App. 721; Dickey v. Orr, 132 Mo. App. 416 ; Independence to use v. Knoepker, 134 Mo. App. 601; McCormick v. Moore, 134 Mo. App. 669; Biehardson v. Walsh, 142 Mo.

— Hon. Edward E. Porterfield, Judge. A sheriff has power to levy and sell real estate under an execution based on a transcript of a justice of the peace judgment, which through a clerical error recites only that he shall levy of the goods and chattels of the judgment debtor. R. S. 1909, secs. 7527-7528; Scharff v. McGaugh, 205 Mo. 355; Carter v. Exposition Co., 124 Mo.

<p>1. EQUITABLE ESTATE: In Lands Not Described in Deed: Trust Relation. When the owner of lands made a warranty deed to his daughter, conveying the lands in suit, for a recited consideration of $21,000, none of which was paid, and on the same day filed it for record, and she executed a deed of trust on the lands to secure her note for $9000, given him, not in payment for the lands, hut that he might obtain a right to buy them from the county in case he was sued by the county for the purchase price, whatever title her father had in the lands passed to her, either as an executed gift or an advancement determinable by the intention of the parties and the attendant facts; and if she and her father subsequently conveyed other lands of the same character and acquired in the same way, and he by a separate deed, in which she did not join, attempted to convey the lands in suit, his deed did not convey her interest therein and he had no equitable estate therein to convey, unless his warranty deed to her was not what it purported to be, but simply evidenced a trust in the property in her father’s favor as beneficiary, and that it was such can be established only by clear, cogent and convincing proof. And statements made by her father, and conduct on his part in which he dealt with the lands as if they were his, all without her knowledge, and without any showing of ratification by her, are not sufficient to establish an equitable ownership in him.</p> <p>2. CONVEYANCE: Mutual Mistake in Description of Lands:' Omission. Where there was no previous agreement between the owner of the lands in suit and the grantee named in a deed as to what lands were to be conyeyed; where said owner had never been asked by said grantee to sell said lands, and she had never had any written or oral communication with him or his agent; where said grantee knew she owned the lands in suit, and there was no evidence that the scrivener made a mistake in writing the deed or that he was her agent, the omission of the lands in suit from a deed conveying other lands to said grantee executed by her and her father, cannot be said to be the result of mutual mistake; nor is that conclusion altered by the fact that on the same day her father, by a deed executed by him and his wife alone, attempted to convey to said grantee the lands in suit, which had been previously conveyed to her by her father without any consideration paid.</p> <p>3. SALE OF SWAMP LANDS: Paid For By Drainage Ditch and Embankment: Void Patents. Swamp lands belonging to a county may be paid for by the construction of drainage ditches to drain the lands, and if the ditches dug in pursuance of the contract of sale are so located and of sufficient size to drain and reclaim the lands from the overflow waters to which they are exposed, and if the cost of the ditches is reasonable and not less than the minimum price fixed by the statute for such lands, the patents are not void or voidable; but if no ditch is dug, and the excavation work done results in no drainage system adequate to carry off periodical overflows, but consists only of a succession of holes in the ground, made by throwing up earth to construct an embankment upon which a railroad track is laid, and which is entirely worthless for drainage or reclamation purposes, the conveyance rests upon no consideration, and is a mere gift; and if the patents or the records to which they refer reveal no consideration, they are void; but if such infirmity must be established by alhm.de evidence, they are only voidable.</p> <p>4. -: Regular on Face and Records. Where the patents to the swamp lands recite that the patentee “has made full payment according to the terms of the record of the said sale made by the court by its proper order entered of record on the second of September, 1891, for the land,” and the record referred to was an offer to pay $1.25 per acre for the land, the payment to be made by the construction of an ample drainage ditch, and the acceptance of said ofie'r, the patents were not void on their face, nor would their invalidity appear from an examination of the records to which they referred; for the construction of a drainage ditch adequate to drain the lands would have been a valid and legal consideration, and that the drainage system was not constructed, and that the consideration for the patents therefore failed, can be shown only by oral testimony or proof outside of the patents and records referred to. Hence, the patents are not void, but only voidable, and can be avoided only by a suit in equity to rescind, brought against the patentee or persons claiming under him who are not innocent purchasers, for value, without notice.</p> <p>5. -- — >: Voidable Patents: Suit by Grantee of Subsequent Legal Patentee. But notwithstanding said patents might have been avoided by a suit'in equity brought by the county against the patentee or his grantees with notice, because of a total failure of consideration, they cannot be avoided by a suit in •equity brought by the grantee, for value, of said patentee, who knew that the consideration had not been paid, and when he and the patentee were sued by the county, settled the matter by paying the county $1.25 per acre for the swamp lands and receiving new patents; nor can they be avoided by the grantees of said subsequent patentee, unless it be shown that the patents assailed were designed to. defraud such purchasers and • that this intent was shared by the county court and the first patentee. The fact that such subsequent patentee, before he acquired his patents from the county, obtained a deed for the lands in suit from the first patentee alone, who had previously conveyed them by recorded warranty deed to his daughter, and that such subsequent patentee conveyed them to plaintiffs, affords them no ground upon which to ha-ve the first patents declared void, the evidence clearly showing that there was no intention to defraud them.</p> <p>6. -: -: Innocent Purchaser: Fraudulent Conveyance. The statute (Sec. 2882, R. S. 1909), debars a second purchaser from a grantor, who made a prior fraudulent conveyance, from any attack upon such conveyance if it is recorded when he bought and paid for the land or if he then knew of its existence, unless he can prove that such conveyance was made to defraud him. It will not be sufficient to show it was voluntary or prejudicial to the rights of other persons.</p>