Volume 258 — Missouri Reports

— Hon. David H. Harris, Judge. (1) The act is not in violation of section 12 of article 2 and section 22 of article 2 of the Constitution of Missouri. These sections of the Constitution do not apply to the act in question for the reason that the care of and custody of a neglected and delinquent child and the superintending control thereof as exercised by the court is not a criminal prosecution.

— Hon. Samuel Davis, Judge. STATEMENT. The petition alleges a freight overcharge for one hundred and ten shipments of coal over the line of defendant railway and between the stations thereon of Myrick and Sedaba, a distance of fifty-seven miles, as contrasted with the rates charged for similar shipments over two other stations of defendant road, Liberal and Grandy, distant from each other seventy-seven miles.

Genevieve Circuit Court. — Hon. Charles A. Killian, Judge. (1) This proceeding is founded on a motion in the nature of a writ of error coram nobis, or rather the motion which, in modern practice, is substituted for it, whereby it is sought to set aside and vacate the judgment rendered for a fact which was well known to the court, the respondent and his attorneys at the time said judgment was rendered.

— Mon. O. A. Lucas, Judge. (1) The accident and death resulting therefrom, having occurred in the State of Kansas, the laws of that State determine whether or not any cause of action existed for and on account'of such death. Yost v. Railroad, 149 S. W. 577; Newlin v. Railroad, 222 Mo. 375; Root v. Railroad, 195 Mo. 345; McGinnis v. Car & Foundry Co., 174 Mo. 227; Fogarty v. Transfer Co., 180 Mo. 490; Chandler v. Railroad, 127 Mo. App. 34; Benedict v. Railroad, 104 Mo.

— Hon. Francis H. Trimble, Judge. (1) Without delivery, a deed passes no title.

<p>Appeal from Ray Circuit Court. — How. Francis II. . Trimble, Judge.</p>

— Hon,'Walter A. Powell, Judge, (1) There was no common law duty or obligation enjoined by law upon defendants to carry plaintiff’s liquors on the C. O. D. plan. McFichols v. Express Co., 12 Mo. App. 401; Fowler Com. Co. v. Railroad, 98 Mo. App. 210; Danciger v. Express Co., 154 Fed. 379.

<p>For tbe reasons stated in Rosenberger v. Pacific Express Co., ante, page 97, tbe judgment in tbis case is reversed.</p>

— Hon. David E. Blcdr, Judge. (1) Defendant, Robinson, agreed with Parker, before, and at the execution sale at Joplin, in October, 1908, that he would bid in the property for Parker, and allow him to redeem the same on repaying the amount required to purchase the same, his expenses, and a reasonable compensation for his time and trouble.

— lion. Louis Hoffman, Judge. (1) In an action for an accounting, the principal has the burden of showing the amount received and not accounted for, but it is not necessary for the principal to prove that the agent has not accounted for money he is shown to have received. The burden is upon the agent to show that he has accounted. Young v. Powell, 87 Mo. 128; Carter v. Primm, 52 Mo. App. 102; Bunker v. Hibler, 49’ Mo.

— Now. Joseph J. Williams, Judge. The deed created a contingent remainder. It is to the child or children surviving the life tenant.' Until termination of the life estate it could not be known who would take the remainder. Buxton v. Kroeger, 219 Mo. 224. ■ (1) In construction of deeds as well as wills the intention of parties should he considered, especially that of grantor. 13 Cyc. 601; Waddell v. Waddell, 99 Mo. 338 ; Tindall v. Tindall, 167 Mo. 224.

<p>1. APPEAL: Overruling Motion for New Trial: No Exception. Where no exception to the action of the court in overruling appellant’s motion for a new trial is shown by the original bill of exceptions filed in the cause, there is nothing before the appellate court for review except the record proper.</p> <p>2.--: Objection to Motion Untimely Filed: Fair Play. It does not seem consonant with professional ethics for a party to stand by and acquiesce to tbe making of an entry upon the record to the effect that a motion for a new trial has been' filed and overruled, and afterwards, after the term of court has expired, when such motion is actually filed, to raise the objection that it was not filed within the time required by the statute.</p>

— No». Walter A 4 Powell, Judge. (1) The plaintiff must establish, beyond reasonable doubt the facts necessary to constitute a resulting trust. Beed v. Sperry, 193 Mo. 173; Brinkman v. Sunken, 174 Mo. 715; Burdette v. May, 100 Mo. 16.

Louis City Circuit Court. — Hon. George H. Shields, Judge. (1) Partition of personal property is authorized by statute. R. S. 1909, sees. 2619-2621. (2) A general allegation of joint ownership of the personal property sought to be partitioned is sufficient on demurrer. Bank v. Ragsdale, 158 Mo. 681; Hayes v. McReynolds, 144 Mo. 348.

<p>1. APPELLATE JURISDICTION: Raised by Court Sua Sponte. Tbe appellate court, when a case is appealed to it, will of its own motion ascertain whether or not it has jurisdiction, since the jurisdiction of the Supreme Court and that of the courts of appeals are defined by the Constitution.</p> <p>2. -: -: Conferred by Stipulation. Jurisdiction of the subject-matter cannot be conferred upon a court either by stipulation or by acquiescence of parties.</p> <p>•j -; Action to Foreclose Deed of Trust. An action to foreclose a deed of trust in the nature of a mortgage, and to establish a lien in favor of plaintiff upon defendant’s land, .defendant’s title therein or the validity of the deed of trust being in no wise disputed, does not involve title to real estate.</p> <p>4. -: -: To Reestablish Mortgage. Plaintiff and her brother-in-law each loaned $500 to defendant, upon an alleged agreement that he would execute to each of them ■ his separate promissory note for the amount, and secure the same by a deed of trust in the nature of a mortgage upon his land. No note was executed to plaintiff for the $500 loaned by her, but in lieu thereof defendant executed to her brother-in-law a single note for $1000, and secured the same by a deed of trust, and thereafter defendant paid $620 to the brother-in-law, and he entered a release upon the land records, purporting to fully release and discharge the land from the lien of the deed of trust, and this suit is to reestablish that deed of trust and foreclose the same, because the defendant had not paid to plaintiff nor to her said brother-in-law the balance due her on said loan. The defenses pleaded are the Statute of Limitations, the Statute of Frauds and laches. Held, that the action does not involve title to real estate, and the Supremé Court does not have jurisdiction over an appeal from a judgment in favor of plaintiff.</p> <p>5. -: Constitutional Question: Not Timely Raised: By Motion in Arrest. If to permit the plaintiff to sue and recover judgment upon a note and deed of trust in which she was not specifically named as the payee or beneficiary deprives defendants of their property without due process of law, in violation of the Constitution, then that defense could have been raised by demurrer or answer, and not having been so raised, but raised for the first time in the motion in arrest, it was raised out of time, and must be disregarded, and hence jurisdiction was not thereby conferred upon the Supreme Court.</p>

Louis City Circuit Court. — -How. W. B. Homer, Judge. (1) The verdict is insufficient to support the judgment or to support any judgment in this cause. Sec. 3060, R. S. 1899; Sec. 2389, R. S. 1909; Caldwell v. Stephens, 57 Mo. 589. (2) The verdict is the result of passion and prejudice and therefore should be set aside. Duty v. Steinberg, 25' Mo. App. 328; Kaeltz v. Bleekman, 46 Mo. 320; Creve Coeur Lake v. Tamm, 90 Mo. App’. 202; Meerberger v. Scharff, 51 Mo. App. 109.

— Hon. William G. Ellison, Judge. The correctness of appellant’s abstract is not challenged and in such cases the court will accept it as correct and look to it alone for the record of the case. When there is no counter-showing made, the' court is bound by the recital of the appellant’s abstract. Ricketts v. Hart, 73 Mo. App. 648.

— Hon. A. A. Johnson, Judge. (1) The information charges robbery in the first degree, sufficiently follows the statute and is in a form approved by this court. Sec. 4350, R. S. 1909; Kelly’s Criminal Law & Procedure (3 Ed.), 625; State v. Jenkins, 38 Mo. 372; State v. Farrar, 38 Mo. 457; State v. Calvert, 209 Mo. 280.

— Hon. G. H. Skinker, Judge. (1) The court refused to allow defendant to testify relative to Abbott’s testimony in a pistol case, wherein defendant herein was defendant. Abbott’s attitude in that case would tend to show his animus in this, and the evidence was competent. (2) The giving of instruction 5 was error.

— Hon. G. H. Bkinker, Judge. (1) The information follows the language of the statute -and sufficiently charges the offense. Sec. 4472, R. S. 1909; State v. Hunter, 171 Mo, 439; State v. McCullough, 171 Mo. 576; State v. Eubanks, 199 Mo. 123; State v. Harney, 168 Mo. 167. (2) The verdict of the jury reads: “We, the jury, find the defendant guilty as charged,” and is in accordance with'the statute.

— Hon. Ralph Latshaw, Judge. (1) Considering the fact that defendant was a colored man, twenty-three years old, his mental qualifications, his surroundings, and the fact that nine police officers were “sweating” him for nearly twelve hours, the court erred in admitting the purported confession in evidence, especially after it appeared that the police officers had told defendant that “it would be best for him to tell the truth,” and “it would help him to tell the truth.”…

Louis City Circuit Court. — Now. James E. Withrow, Judge. The defendant specifically asked for an instruction on the doctrine of self-defense.

<p>1. CARNAL KNOWLEDGE: Information: Stating Age of Child: Redundancy. While it is necessary to a criminal charge under the statute making carnal knowledge of a female under fifteen years of age a felony, where her exact age is not stated, that the information contain an allegation that she was under fifteen years of age, yet where her age is stated and is stated to be less than fifteen years, the allegation as to age is sufficient, and the further allegation that her age was within the maximum statutory limit is a mere redundancy. .</p> <p>2. -: Two Offenses: Election. The general rule in regard to requiring the State to elect upon which offense it will rely for a conviction is, that the election should be made as soon as it can be done intelligently, the application of the rule depending upon the development of the facts in each particular case, and the time of the election being left largely to the discretion of the trial court, and where it does not appear that such discretion has been abused the defendant cannot complain of the court’s refusal to compel an earlier election. Where accused was charged with carnal knowledge of a female child twelve years of age, on May 26th and again on July 14th, and it does not appear that he was prejudiced by the court’s failure to compel the State to elect upon which offense it would rely, immediately after the opening statement of the prosecuting attorney, during which he made reference to each offense, it will be held that no error was committed in not compelling an election until the close of the State’s case.</p> <p>3. REMARKS OF PROSECUTING ATTORNEY: Defendant’s Failure to Testify. It was not prejudicial error for the prosecuting attorney in his argument to the jury to say that “there was not a single word coming from a witness in. the witness chair contradicting anything that the little girl testified to.” Only hy a strained construction could those words he held to refer to defendant’s failure to testify, and to so construe them would do violence to their plain meaning.</p> <p>• 4. CARNAL KNOWLEDGE: Sufficiency of Evidence: Corroboration. It is not required that the testimony of the prosecutrix he corroborated in a carnal knowledge case, hut it must not he of a contradictory nature, hut must he convincing and leave the mind of the court free from douht; and although only the prosecutrix testified to the assault, yet if no facts or circumstances rendered her testimony uncertain, a verdict of guilty will not he set aside on the ground that the evidence was not sufficient to sustain it.</p>

<p>1. RECEIVING STOLEN GOODS: Embezzlement. The charge of receiving stolen goods is not sustained by proof that the goods received by a defendant were only embezzled.</p> <p>2. -: -: This Case. The evidence for the State Strongly tended to prove that a transfer company intentionally committed three cases of cigars of the value of $74 to the possession of one Guthrie, one of its teamsters, with instructions to him to deliver them to a railroad company for shipment, and that he feloniously embezzled them and sold them to defendant for $30. Held, that the proof would not sustain a charge of receiving stolen goods, knowing them to be stolen, although the crime of knowingly receiving embezzled goods is very similar to the crime of knowingly receiving stolen goods.</p>

Louis County Circuit Court. — Hon. O. A. Wurdemcm, Judge. (1) Section 28 of article 4, of the Constitution, which declares that no law enacted by the G-eneral Assembly shall relate to more than one subject which shall be clearly expressed in its title, is mandatory and when a law is clearly and palpably in opposition to it, there is no other • alternative but to pronounce it invalid.

— Row. W. N. Evans, Judge.. There was no instruction given upon the subject of reasonable doubt and this was reversible error. State v. Gullett, 121 Mo. 447. The only place in all the instructions where the words “reasonable doubt” are used is in instruction nine in connection with the subject of defendant’s good character. In all the other instructions the subject of reasonable doubt is prejudicially omitted, notably in instruction three.

<p>1. CONSTITUTIONAL STATUTE: Title: Inclusion of One Class: Exclusion of Others. The title to an act may be general in its terms and omit reference to or an expression of matters .germane to the substantive purposes of the act, and if its general terms are broad enough to embrace those purposes, it will not be violative of the constitutional requirement that the subject of an act must be clearly expressed in its title. But if the title extends itself into particulars and specifies a certain class of persons or things as included within the provisions of the act, the body of the act, in so far as it includes others not so included and specified in the title, is invalid.</p> <p>2.--: -: -: Herding Cattle by Non-residents: Does Not Include Residents. The title to an act which is “Herding Cattle By Non-residents” is not broad enough to indicate that the body of the act includes a section making criminal the herding of cattle by residents, but as definitely as words can convey their meaning limits the application of the act to non-residents. Therefore Sec. 794, R. S. 1909 (and in consequence the amendment thereto in 1911, Laws 1911, p. 59), declaring that “it shall he unlawful for any person” to take or drive from one county to another, any neat or horned cattle, mules, horses or sheep, for the purpose of herding or grazing them upon any of the unimproved or uninclosed lands of this State, is, in so far as it includes residents, invalid, since the title of the act when first enacted in 1874 was, “An Act . to prevent non-residents from herding or grazing their cattle on certain lands in this State,” and thereafter the act was carried forward in the Revised Statutes with the title, “Herding Cattle by Non-residents,” and with that title was amended in 1889 by making it apply to residents as well as non-residents, and all attempts at amendment since then used the same-title..</p>

Laclede Circuit Court. — Him. L. B. Woodside, Judge. (1) The statements attributed to the witness, Parrick, were at most only the opinion of the witness, without any acts, statements, or declarations made by the defendant — a conversation in which he is not present and takes no part and could not possibly have heard the accusations — -and the question being repeated three times in the presence of the jury, was extremely damaging and prejudicial, besides it was wholly…

— Hon. William T. Ragland, Judge. (1) When the appeal does not operate to stay the proceedings, the duty of filing a transcript in this court is east upon the appellant. The punishment assessed against the defendant, namely, ten years imprisonment in the State Penitentiary, does not bring this case within that class which by virtue of the character of the sentence pronounced of itself operates to stay the execution of the judgment of the trial court.

— Ho». Joseph D. Perkins, Judge. (1) The matter of postponement of the trial in order to give the defendant an opportunity to procure the presence and the benefit of the testimony of witnesses, rested largely in the discretion of the court and’ the judgment should not be reversed unless it clearly appears that such discretion was abused, and unjustly exercised. State v. Newsum, 129 Mo. 162.

B. 6r,. Thurman, Judge. The court erred in refusing to grant defendants a new trial upon their motion and showing that there had been no arraignment or waiver of the same and that the record failed to disclose any arraignment or waiver. The arraignment of one accused on a criminal charge is an indispensable prerequisite to a legal trial. State v. Witherspoon, 231 Mo. 706; State v. Moss, 164 Mo. App. 379; State v. Mikel, 125 Mo. App. 289.

John T. Moore, Judge. The judgment in this case cannot stand since there was no allocution. E. S. 1909, sec. 5263; State v. Kile, 231 Mo. 50. (1) The motion for a new trial having been filed after judgment and sentence, there is nothing before the court for review but the record proper.

<p>CITIES: Public Improvements: Benefit Districts: Streets. Section 14, article 6, of the Charter of St. Louis provides that no ordinance for street improvement by benefit districts shall be passed unless recommended by the board of public improvements, and that such board shall call a public meeting to consider the proposed improvement, etc., and if, within fifteen days after the meeting, the owners of the major portion of the land made taxable, etc., shall file their remonstrance, the board shall consider such remonstrance, etc. Held, that the boundaries of a benefit district should be fixed when it first becomes necessary that its exact extent be known, and hence at the time within which the property owners may protest, since, if the district be not known, it would be impossible to determine the owners of a major part of the land made taxable.</p>

<p>Appeal from St. Louis City Circuit Court. — Ho». James E. Withrow, Judge.</p>

— Hon. James E. , Goodrich, Judge. (1) Upon the execution of this deed, the grandchildren did not take a fee simple. Long v. Timms, 107 Mo. 512.

<p>1. EVIDENCE: Presumptions: Laws of Other States: Illinois. In the absence of proof to the contrary it will be assumed that the common-law rules as to marriage were in force in Illinois in 1905, when the alleged marriage in controversy here is claimed to have taken pla'ce.</p> <p>2. DIVORCE: Appeal: Findings Below. Appellate courts in Missouri are 'not absolutely bound by the facts as found by the trial court in divorce cases, yet where the evidence does not greatly • preponderate in favor of either party, but presents sharp conflict, the ascertainment of the ultimate fact depending largely upon the credibility of the respective witnesses, the appellate courts must necessarily defer largely to the finding of the trial court.</p> <p>3. --: Evidence: Common-Law Marriage. Evidence in a divorce suit held to sustain a finding that there was no common law marriage.</p>

<p>1. APPEAL: No Bill of Exceptions. In the absence of a bill of exceptions the Supreme Court cannot review findings on evidence.</p> <p>2. FRAUDULENT CONVEYANCE: Possession by Mortgagor. Conceding that possession by a debtor after an absolute conveyance by him may be a badge of fraud, yet such is not ordinarily the case where the debtor puts a deed of trust on his land. Possession is generally retained by the mortgagor as a matter of course.</p> <p>3. -: -: Evidence. Even if it be conceded that possession by a grantor in a deed of trust alleged to have been made in fraud of creditors was a fact to be considered as bearing upon the character of the conveyance, still such possession was only one fact to be considered with all the evidence.</p> <p>4. EQUITY: Complete Relief: Jurisdiction. Where a suit in equity is brought to have certain conveyances of land declared void, a defendant having a claim against the property will not be relegated to the probate court for relief.</p> <p>5. THEORY OF CASE IN TRIAL COURT: Appeal. Where a case has been tried as if an answer had been filed to a cross-petition, the Supreme Court on appeal must treat the case as if an answer had actually been filed/</p> <p>6. MORTGAGE: Foreclosure: Judgment Liens: Priority: Notice. One who lends money upon the security of a deed of trust executed by the purchaser of the property at a foreclosure sale under a former' deed of trust, has a lien superior to that of a judgment creditor whose liens attached after the making of the first deed of trust and before the second, provided the lender had no notice that the purchaser at the foreclosure sale .may have bought for the original owner and mortgagor.</p> <p>7. -: Assignee: Notice: Purchase with Notice from InnO' cent Holder. An assignee of a mortgage note from a holder without notice, takes the title of his assignor even though the assignee himself have notice.</p> <p>8. -: Notice: Fraud. One who in good faith makes a loan secured by deed of trust, may foreclose the deed and purchase the property at the foreclosure sale even though in the meantime she has learned of a fraud affecting the debtor’s title to the mortgaged land.</p>

<p>1. EVIDENCE: Admissions. A statement by an automobile driver who had run down a boy, that he would do all in his power to help the boy’s mother and would be responsible for all debts in the case, is not an admission of liability, and it is not competent testimony in the suit for damages for the ■ injuries.</p> <p>2. NEGLIGENCE: Automobiles: Evidence: Prima-Facie Case. Where plaintiff’s evidence tends to show that he, a boy ten years old, ran behind a street car as it passed a crossing and then suddenly darted out and ran for the sidewalk, but was struck by defendant’s automobile, and there is no showing that the speed of the machine was excessive, a demurrer was rightly sustained to plaintiff’s evidence as failing to show any negligence on the part of defendant,</p>

<p>1. EJECTMENT: Adverse Possession: Limitations: Widow’s Quarantine. Where a defendant in ejectment, claiming under ,an administrator’s deed, has been in adverse possession long enough for the Statute of Limitations to run in his favor, he will prevail against the heirs of the intestate, even though dower had never been assigned to intestate’s widow, and her right of quarantine, had she or some one claiming under her been' in possession, might have prevented the running of the statute against the heirs and in favor of one who claimed, as this defendant does not, under the widow.</p> <p>2. -: Order of Publication: Renewal of Order of Sale. The recital in the prohate court’s order of sale, that the order of publication made at a previous term had been duly published according to law, is presumed to be true in the absence of a showing to the contrary.</p> <p>3. -: —--: -: Part of Land Sold. When after due publication an order of sale of real estate to pay debts has been made, and part of the land sold, a renewal of the order is sufficient for the sale of the remainder, without" further publication.</p> <p>4. -: -: -: -: Renewal Order. The fact that a renewal order of sale of lands to pay debts directs 'tie sale of all tke lands- included in the original order, whereas in fact a part of these lands had been sold under a prior order, does not invalidate the sale of the remainder under the renewal order.</p> <p>5. -: -: -: -: Report of Sale: Presumptions as to Purchaser. Where the record entry approving the last sale does not show to whom the land was sold, nor describe it, it will be presumed, in the absence of a showing to the contrary, that the report showed that the land was sold to the person to whom a deed was immediately made.</p> <p>6. -: -: Notice. In a proceeding in 1864 to sell lands to pay debts, notice in the order of publication to “all persons interested in the estate” of the facts required by Sec. 25, R. S. 1855, p. 145, was sufficient notice to the heirs, being the only notice then required by law.</p>

<p>1. EVIDENCE: Homicide: Accused’s Reply to Accusation Soon After the Killing. A -witness who had seen the accused shoot deceased, at once went up to the accused and said, “What did you shoot that man forf’ Accused said, “He was going to kill me!” The witness then said, “He had no idea of hurting you,” and the accused exclaimed, “Lord, Lord, what have I done!” Held, that the conversation is admissible — that portion of it whereby the witness told the accused that the deceased had no idea of hurting him, as explaining the answer made thereto by the accused. Furthermore, when the conversation occurred, the accused was not under arrest or restraint and hence the accusation made against him, together with accused’s silence, demeanor, or the answer made by him, other than a denial of the charge or accusation, were properly admissible as evidence, the probative weight and effect of the same to be determined by the jury.</p> <p>2. REMARKS OF COUNSEL: Objection Sustained: No Exception: Appeal. Where, in the trial of a criminal case, accused’s counsel objected to remarks made by the State’s attorney in his argument, and thereupon the court fully sustained the objection and instructed tbe jury to disregard the remarks, and counsel made no further request and saved no exception, there is no ground for reversal under the circumstances of this case.</p> <p>3. -: Calling Deceased Father of Family. Where upon the trial of accused for murder, it appeared that deceased was the acting head of the family, his father living away from home; that just prior to the killing a quarrel was in progress in the yard of deceased’s home between, the accused and other members of deceased’s family; that during this quarrel deceased’s sister screamed and called the accused a liar, and that, immediately thereafter, deceased came rushing out of the house and lost his life while advancing toward the accused, the State’s attorney did not exceed the bounds of legitimate argument when he said, “This young man, a young man in the prime of life, the little father of that family, has given up his life for the good name of his family.”</p>

<p>SUIT TO CANCEL DEED: Fraud: Fiduciary Relation: Mining Lands. Evidence in a suit to cancel a deed held not to show fraud in the grantee, who was the agent and fiduciary of the grantor, in procuring such conveyance, including lands which afterward grew in value from discoveries of mineral.</p>

Louis County Circuit Court. — Hon. (1) By the trustee’s sale and deed to Mrs. Terry, she acquired no title as against her children, either to the undivided third in which she had1 a life estate and her children the remainder in fee, or to the undivided third vested in her children, hut subject to her fiduciary control.

— Hon. Ralph S. Latshaw, Judge. (1) Whenever an officer attempts to arrest a citizen in such a threatening and menacing manner, or by such unnecessary means and force as to reasonably induce an apprehension on the part of the citizen that he is in danger of his life or of great bodily harm at the hands of such officer, the officer becomes a trespasser and invites resistance, and the citizen even though he knows the officer to be fully authorized to make the arrest may repel…

— Hon. Francis H. Trimble, Judge. (1) Tbe strip of land now in question could not be sold by tbe sheriff in any event, because tbe court bad no jurisdiction to order it sold. Tbe pleadings in tbis case admit that appellant alone was in possession adversely of tbe strip sued for when tbe partition suit of Cbappell v. Garner was filed.' Therefore, not being held in common, and tbe other parties having no possession in said strip, it could not be sold in paxtition.

<p>lii/IONEY HAD AND RECEIVED: Notes. Where out of money deposited in the names of two brothers, but claimed by one, loans were made on notes payable to the other in order that, if he should survive, he would have support, and in case his brother should survive the notes would be his, the claiming brother surviving would have no action against the payee’s estate for money had and received, while the notes are in existence.</p>

— Son. Charles ZL Stewart, Judge. Instruction 3 for defendant is erroneous in assuming as matter of law that it was the duty of deceased to discover and repair or report all defects in the defendant’s wires.

Mandamus. . (1) The so-called Non-partisan Judiciary Act of 1913 is unconstitutional because it violates article 4, section 28, of the Constitution, in that it purports to repeal existing laws without any indication of such repeal in its title.

<p>For the reasons stated in State ex rel. v. Roach, ante, page 541, the peremptory writ of mandamus prayed, for herein is denied.</p>

— Hon. Samuel Davis, Judge. (1) Mary Margaret Smith, even though non compos mentis, was capable of taking as grantee in the deed to her from her mother and father, Nancy J. and Paschal E. Smith. 'Washburn on Real Property (3 Ed), p. 240; Tiedeman on Real Property, sec. 797; 91 Am. & Eng. Ency. Law (2 Ed.), p. 131.

<p>APPEAL: Lost Petition. Where the original petition, filed in a ease has been lost, it is the duty of appellant to make timely application for leave to file a substituted petition, or at least to have abstracted the'petition; and if neither is done, the appeal must be dismissed.</p>

George W. Wanamaker, Judge. (1) .The trial court erred in its action dismissing plaintiffs’ petition and in finding as a matter of fact that the defendant, Samuel W. McClanahan, was not a trustee holding in trust for the use and benefit of the heirs of H. T. McClanahan, deceased, the legal title to the west half of the southwest quarter of section 16, and entering its finding and decree that the legal title to said lands is in the said Samuel W. McClanahan, for the reasons:…

— Hon. John T. Moore, Judge. (1) The burden is on the party asserting the mental incapacity of the grantor at the time of making the deed. Cutler v. Zollinger, 117 Mo. 92. (2) If a person understands the nature of the business and the effect of what he is doing his acts are valid, and this is true though the mind of such person may be impaired by old age and disease.

— Hon. W. N. Evans, Judge. The contract made and entered into between plaintiff and defendant on January 8, 1909, fully and completely abrogated the first contract and canceled all and singular each and every liability of either party whether based on oral or written contracts or obligations, and the note and deed of trust being a part of the first contract and having been entered into prior to January 8, 1909, was also settled, abrogated, annulled, canceled and set aside.

Louis City Circuit Court — Hon. Leo. S. Bassieur, Judge. (1) Where one claims through a judicial sale, the jurisdiction of the court under whose decree the sale is made can always be attacked. Windsor v. McVeigh, 93 U. S. 282; Caffery v. Mining Co., 95 Mo. App. 174; McCrory v. Hall, 104 Ga.- 668.

— Hon. J. T. White, Special Judge. (1) The agreement signed-' by the parties on July 7, 1908, and the deed and check executed on same day, all should be considered together, and when that is done they constitute a valid contract between the parties and fully comply with the statute in regard to the sale of real estate. Y. M. C. A. of Kansas City v. Dubach, 82 Mo. 475; Peycke Bros. v. Ahrens, 98 Mo. App. 456; 20 Cyc. 263;' Eyan v. United States, 136 U. S. 447.

Louis City Circuit • Court — / ron. Daniel D. Fisher, Judge. Mere irregularities in the bid would not affect the contract subsequently executed in due form between the Modern Cement Products Company and the city of St. Louis. The provisions for bidding are directory merely. Asphalt Co. v. Hunt, 100 Mo. 22;.Dillon on Mun. Corp., sec. 464; Devers v. Howard, 88 Mo. App. 253; Water Co. v. Aurora, 129 Mo. 540; State ex rel. v. Milling Co., 156 Mo. 620; Abbot on Mun.

John T. Moore, Judge. (1) The court committed manifest error in giving the peremptory instruction directing a verdict for the defendant. The contract of marriage and the breach thereof are both admitted, so that there is no question of liability. In addition to other damages, the plaintiff .testifies that she was put to $250 expense in' preparing for her marriage, besides giving up two years’ employment at .$300 per year at defendant’s request.

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. (1) Insurance contracts, when unambiguous, aré construed and enforced as other contracts, and courts cannot make a new contract for the parties. Ins. Co. v. Fletcher, 117 U. S. 619; Merriwether v. Ins. Co., 127 Mo. App. 100; Steinberg v. Ins. Co., 49 Mo. App. 264; Jewett v. Life Ins. Co., 112 N. W. (Mich.) 734; Assurance Co. v. Association, 182 U. S. 308; Methvin v. Ins. Co., 129 Cal. 251; McConnell v. Life Ins.

— Hon. Walter A. Powell, Judge. (1) The testimony failed to show that the alleged defects in the switch caused the injury, and the demurrer to the testimony should have been sustained. Sexton v. Street Railway Co., 245 Mo. 254.

— Hon. David E. Blair, Judge. (1) The ten-year Statute of Limitations in actions on domestic judgments against residents of the State, prescribed by section 1888 or section 1912 (if constitutional), is tolled by defendants departure from and residence out of the State of Missouri after the cause of action had accrued. See. 1897, R. S. 1909; McMurray v. McMurray, 180 Mo. 526; Sauter v. Leveredge, 103 Mo. 615.

— Hon. C. A. Calvird, Judge. (1) A. C. Mitchell, trustee named in the deed of trust in question, being a non-resident of the State at the time he was named as trustee, and continuing to be such up to and including the time of advertisement and sale, was incompetent to become such trustee by virtue of the provisions of See. 2859, R. S. 1909, and there having been no trustee in the first instance, the contingency upon which the sheriff could become substituted trustee,…

— Hon. James D. Barnett, Judge. (1) The deeds executed by appellant’s testate were voidable as to her.' Moore v. Moore, 67 Mo. 198. (2) The life estate of appellant’s testate, which turned out to be a phantom (Pollman v. Schaper, 158 Mo. App. 615), not being given in lieu of dower, is no bar to same, and if it had been the consideration has failed. Dudley v. Davenport, 85 Mo. 463; Pollman v. Schaper, 158 Mo. App. 615. (3) The question of estoppel cannot arise in this case.

— Hon. L. B. Woodside, Judge. (1) The court erred in hólding that the deed of A. C. Robertson to Martha E. Robertson was effective to convey the title of the land to her and admitting said deed in evidence over objection of plaintiff. Seibel v. Higham, 216 Mo. 131; Huey v. Pluey, 65 Mo. 689; Givens v. Otte, 222 Mo. 395; 9 Am. & Eng. Ency.