Volume 264 — Missouri Reports

— lion. Joseph A. Guthrie, Judge. (1) It was the duty of the defendant, as owner of the premises, to provide his building with fire escapes, and he is liable for injuries to a lodger due to a failure to construct such fire escapes. Yall v. Snow, 201 Mo. 511; Johnson v. Snow, 201 Mo. 4501. (2) The plaintiffs could not justly be required to prove their case by direct and positive, evidence or beyond a reasonable doubt.

Jackson Circuit Court. — Hon. Joseph A. Guthrie, Judge. (1) The court erred in excluding parol evidence to show the circumstances surrounding the parties to this case, and Ferdinand Arn and Edward F. Arn, Sr., deceased, in aid and explanation of the construction of the writings offered in evidence' hy defendants; and in refusing to admit parol evidence to aid the writings, and to show the purpose and terms of the trust, after its existence had been established by written…

Louis City Circuit Court.- — Hon. George G. Hitchcock, Judge.

— lion. B. A. Breuer, ■Special Judge. (1) In an action for a breach of contract, the first point necessary for the court to ascertain is whether or not a valid contract was entered into between plaintiff and defendant. The evidence shows that the plaintiffs went to work under this contract, made a large number of the railroad ties, which were the subject of the contract, and that a large number of these ties were delivered to the defendant and paid for by him.

— Hon. James E. Goodrich, Judge. (1) The husband can only be jointly held with his wife, for the simple or personal torts of the wife. Merrill v. St. Louis, 83 Mo. 244; Flesh v. Lindsay, 115 Mo. 1; Writ v. Dinan, 44 Mo. App. 589; Bruce v. Bombeck, 79 Mo. App. 231; Rowe v. Smith, 45 N. Y. 230; Ball v. Bennett, 21 Ind. 427; Mahoney v. Roberts, 86 Ark. 130; Roberts v. Lisenbee, 86 N. C. 136; Woodmen v. Barnes, 46 Vt. 332; Keen v. Hartman, 48 Pa.

<p>For the reasons stated in the case of Boutell v. Shellaberger, ante, page 70, the judgment in this case is reversed.</p>

.Appeal from Cass Circuit Court. — Eon. A. A. WMtsett, Judge. (1) The city of Harrisonville was the proper party to sue in ejectment for streets and alleys dedicated to public use. California v. Howard, 78 Mo. 88; Columbia v. Bright, 179 Mo. 441; McCarty v. Clark ■County, 101 Mo. 182; Elevator Co. v. Railroad, 135 Mo. •366. Nor can laches be imputed to a city or its officers for negligence or delay in suing.

— Hon. John I. Williamson, Judge. (1) The envelope containing the money in question could not have been lost so as to constitute the plaintiff the finder thereof, because it was discovered upon a desk in defendant’s coupon room where it had been placed by a preceding occupant. Hoagland v. Amusement Co., 170 Mo. 342; Loucks v. G-allogly, 23 N. T. Supp. 126; McAvoy v. Medina, 93 Mass. 548; Lawrence v. State, 1 Humph.

Circuit Court. — Hon. A. H. Waller, Judge. (1) Appellant insists that the court committed no error in this case in giving or refusing instructions on behalf of the defendant, for the reason that the instructions all taken together clearly submit the only issues in the case, namely: Was the article libelous? Was that article true? (2) The respondent complains that instruction B especially is misleading and confusing.

— Hon. Charles A. Klein, Judge. (1) The dower in this case was merged in the homestead by the action of the commissioners, who found that the homestead value exceeded the dower interest of the widow in all the lands owned by the deceased; hence when homestead was destroyed by her remarriage the dower was also destroyed and lost. Chrisman v. Linderman, 202 Mo. 619; 20 Am. & Eng. Ency. Law (2 Ed.), 588.

— Ron. Walter A. Powell, Judge. (1) Courts of Appeals have no jurisdiction of appeals involving the construction of the Constitution of the United States, or of this State. Constitution of Missouri, art. 6, sec. 12, and Sec. 5. of the Amendment to said article.

— Ron. James R. Slover, Judge. (1) Counsel for defendant, in spite of objection by plaintiff, was permitted to make improper remarks in his argument to the jury. This was error. Nephler v. Woodward, 200 Mo. 187; Allen v. Lumber Co., 171 Mo. App. 506; Cain y. Wintersteen, 144 Mo. App. 5; Ramp v. Railroad, 133 Mo.

— Hon. G. H. Skinker, Judge.. (1) The court erred in finding for the plaintiffs,, as the evidence clearly shows that John H. Hart, under and through whom the defendant claimed his title,, had become the absolute owner of the land in controversy, and by his repeated acts of ownership thereof' and his continuous use and appropriation of the rents and profits for practically 25 years had ousted the' plaintiffs and each, of them and had acquired thereby the absolute right to the…

Louis City Circuit Court. — Hon. C. C. Allen, Judge. (1) To accuse one with, the commission of a felony, either directly or by innuendo, constitutes actionable slander. Sec. 4817, R. S. 1909; 18 Am. & Eng. Ency. Law, 868; 25 Cyc. 271; Webb’s Pollock on Torts, p. 289.

— Hon. W. N. Evans, Judge. (1) The petition introduced in evidence is insufficient to give the court or the clerk in vacation jurisdiction to issue an order of publication as to unknown interested parties; in other words, there is no sufficient allegation under the statute as to unknown interested parties. R. S. 1899, sec. 580.

— Hon. L. B. Wood-side, Judge. (1) Martha E. Stevenson was a non-resident of Missouri and was the owner of the land in dispute, and the deed records showed the title in her name. The tax petition, order of publication, proof of the publication, judgment, and deed were all against M. E. Stevenson; hence the judgment was void, and the deed conveyed no title.

— Eon. D. E. Blair, Judge. (1) The order of the court striking the answer of the defendants from the files because of failure to produce certain books and papers for inspection was void and not authorized by law, since it does not appear that the defendants had refused at any time to furnish books and papers “designated by the plaintiff, ’ ’ and because section 1948, R. S. 1909, upon- the authority of which such order was made, does not authorize a pleading to be stricken…

- — Ron. William T. Ragland, Judge. (1) The pleadings and the evidence, and the findings of the court, show a voluntary partition as between Mary S. Lewis (under whom plaintiffs claim) and the other heirs of Benjamin M. Jones, deceased. Under this theory, the following authorities govern the case : Whitsett v. Womack, 159 Mo. 14; Snyder v. Elliott, 171 Mo. 362; Propes v. Propes, 171 Mo. 407; Sharp v. Sharp, 185 Mo. 529.

— Son. John T. Moore, Judge. (1) The petition was filed against Frances M. Worrell, and the summons was issued against Francis Worrell (the former a woman and the latter a man), and the summons was served on a person by the name of Franas W. Warroels, and judgment was taken by default. The court will take judicial notice that “Frances,” defendant named in the petition, is the name of a female, and that “Francis,” the name used in the summons, is the Christian name of a male.

— No». J. W. Alexander, Judge. Whether the judgment in the case of Stevens v. Fitzpatrick, or the case itself in any of its features, concluded and barred the plaintiff in the present ejectment proceeding was essentially a question for the decision of a jury upon the facts constituting such alleged estoppel. Gwin v. Waggoner, 116 Mo. 152; Thompson v. Bank, 132 Mo. App. 228; Bank v. Redfearn, 141 Mo. App. 386; Dyer v. Tyrell, 142 Mo.

<p>APPELLATE JURISDICTION: Claim to Personal Property. Whether the petition he a hill in equity or states an action at law, if it is not ejectment and asserts that the legal title is in plaintiff, and that defendants only claim possession of the farm until such time as their asserted interest in the increase of plaintiff’s stock and other personal property used in a joint farming arrangement, which is averred to he of the value of $2000, may he adjusted, the Supreme Court does not have jurisdiction of an appeal from a judgment sustaining an ohjection to the introduction of evidence under the petition on the ground that plaintiff has an adequate remedy at law.</p>

— Eon. W. 0. Thomas, Judge. (1) The Employee’s Hospital Association was created by tbe defendant company and not by its employees. It was tbe alter ego or at most tbe agent of defendant company under tbe sole control of defendant and was organized for defendant’s benefit. Phillips v. Eailroad, 211 Mo. 419; Haggery v. Eailroad, 100 Mo. App. 424.

<p>Appeal from Jasper Circuit Court. — Eon. D. E. Blair, Judge.</p>

— Hon. W. N. Evans, Judge. The proposition is, does plaintiff’s petition state a cause of action? Defendants filed a demurrer to plaintiff’s amended petition whicli admits that its allegations are true. Breimeyer v. Starr Bottling Co., 136 Mo. App. 84.

<p>1. APPELLATE JURISDICTION: How Determined. In determining appellate jurisdiction, the court is not restricted to the amount claimed in the petition, but will go into the whole record and from that determine the amount in dispute.</p> <p>:2. -: Replevin: Judgment and Damages: Waiver. Where judgment for $6000 for debt was rendered and execution levied on personal property, and the judgment debtor’s wife claimed the property as her own and brought suit in replevin against the judgment creditor and the sheriff, wherein she aslced for possession of the property and damages in the sum of $5000, and the jury found that plaintiff was not entitled to the possession of the property and assessed in favor of the sheriff the value thereof, at $6000, and one cent damages, and plaintiff at the trial made a clear disclaimer as to damages, the appeal is to the Court of Appeals; and, though her disclaimer of damages at the trial was not wholly unequivocal, yet, if on appeal her brief shows a clear abandonment of any claim for damages, the amount in dispute is $6000.01, and the Supreme Court does not have jurisdiction.</p>

<p>APPELLATE JURISDICTION: Agent’s Commissions for Selling Land. The Supreme Court has no jurisdiction of an appeal from a judgment sustaining a demurrer to plaintiff’s petition and dismissing his suit, brought against both vendors and vendee, wherein he alleges that, as a real estate agent in pursuance to a contract with the vendors to sell their land, he was to receive as his compensation all the purchase price above $5000, and that he did sell it for $7000, by a binding contract, which both vendors and vendee have repudiated and refuse to enforce, and asking for a judgment for $2000, and that it be made a lien on the land. Said suit does not involve title to real estate.</p>

Appeal.from' Oregon Circuit Court. — Ho». W. N. Evans, Judge. (1) The order of applying description of boundaries is: First, to natural objects; second, to artificial marks; third, to courses and distances given in the deed. Whitehead v. Ragan, 106 Mo. 236.

— Non. Guy D. Kirby, Judge. (1) The constitutional limitations on the rate of taxation under section 11, article 10, is self-enforceing as a limitation on taxation, by cities. But the Constitution of its own force confers no power upon cities to levy taxes. The taxing power in cities is derived from the General Assembly, and not directly from the Constitution.

<p>1. PLEADING: Failure to State Cause of Action: Point Raised on Appeal. While a petition may be attacked at any time on the ground that it fails to state a cause of action, yet when the question is raised in due time by motion or answer, so as to facilitate and simplify the trial of the real issues, it will be received with greater favor, and permitted a wider field of operation, than when interposed after the labor, expense and delay of a trial.</p> <p>2. -: -: -: Action on Note: Plaintiff's Right to Sue: Trustee for Collection. In an action on a note, a petition which states that the note was indorsed for collection to a bank; that later the payees, W and L, transferred and assigned an interest in the note to the G. Company; that the note was placed in the plaintiff’s hands and he was authorized and directed to collect it and pay to the. G. Company its interest therein, states facts showing sufficient title in the plaintiff to maintain the suit as trustee for W, L, and the G. Company, the question not having been raised by motion or answer in the trial court.</p> <p>3. NEGOTIABLE INSTRUMENTS: Transfer: Indorsement for Collection: Suit by Trustee Appointed by Payees. Section 10001, R. S. 1909, providing that an instrument is negotiated when it is transferred so as to constitute the transferee the holder — if payable to bearer, by delivery, if payable to order, by indorsement followed by delivery — and Sec. 10004, declaring that a special indorsement specifies the person to whom or to whose order the instrument is to be payable, and the indorsement of such indorsee is necessary to the further negotiation of the instrument, do not attempt to provide an exclusive method for the transfer of such instruments, but apply only to such transfers as shall preserve “negotiability,” and accordingly where the payees of a note transferred it by indorsement to a bank for collection and that bank indorsed it to another for the same purpose (the banks gaining thereby no interest in the instrument except that of collecting it and accounting for the proceeds), one whom said payees have by written contract appointed their trustee for collection may sue upon the note although it bears upon its back the indorsement mentioned.</p> <p>4. -: -: -: -: Subsequent Indorsees. If any person who has indorsed a bill of exchange or note to another, whether for value or for purpose of collection, shall come into the possession thereof again, he shall be regarded, unless the contrary appear in evidence, as the bona fide holder and proprietor of such bill or note, and shall be entitled to recover, notwithstanding there may be on it one or more indorsements in full subsequent to the one to him, without producing any receipt or indorsement back from either of such indorsees, whose names he may strike from the instrument, or not, as he may think proper. [See, also, Sec. 10018, R. S. 1909.]</p> <p>5. -: -: -: -: Payees the Holders: Instructions. Where the payees of a note indorsed it to a bank for collection, and that bank indorsed it to another, and after the latter failed to collect it at maturity the payees appointed the plaintiff trustee to make collection and apply the proceeds, it is immaterial, in the plaintiff’s suit on the note, how the question of his right to sue was submitted to the jury, there being nothing in the case to rebut the presumption, arising from their possession, that the payees are the holders. [Sec. 10160, R. S. 1909.]</p> <p>6. ACTION ON PROMISSORY NOTH: Given for Mining Claims: Failure of Consideration: Appeal. Where the defendants to a suit on a note proceeded in the trial court upon the theory that failure of title to a part of the mining claims for which the note was given was a complete defense, and no evidence was given as to the value or relative value of the land to which the defective titles applied, they cannot upon appeal obtain a retrial on the theory that there was a partial failure of consideration. [See Sec. 9999, R. S. 1909.]</p> <p>7. -: -: -: Retaining Possession of the Land. Purchasers of mining claims, the title to a part of which proved defective, cannot, while holding possession of the land, defend against the payment of their note for the'purchase price as for failure of consideration.</p> <p>8. -: -: -: Burden of Proof. Since a promissory note imports a consideration, the burden of proving lack or failure thereof rests upon those resisting its payment, and where the answer to an action on a note admitted that its consideration was the transfer to the defendants of mining prop- . erty with a warranty of title, the burden was upon the defendants to show that the property had not been delivered to them or that they had been deprived of some of it on account of failure of title, the word “transfer” implying delivery of possession.</p> <p>9. -: -: -: -: Evidence. Even assuming, although the contrary is true, that the burden of proving a consideration for a promissory note rested with the one suing on it, the testimony of one of the defendants to an action on a note given for mining property, who replied to a question whether they had held the property ever since they received it, that he supposed that would be it, was sufficient evidence that possession had been delivered and that the defendants had not been deprived of any part of the property through failure or defect of title.</p>

<p>1. ADMINISTRATION: Order of Distribution: Res Adjudicata. Where the judgment of the circuit court, certified to the probate court and made a record in the latter court, even though certified at the instance of the distributees, provided that they should have the right to take certain bank stock in the hands of the administrator, or its value at that time as fixed by the judgment, they had the right, both by the terms of the judgment and the statute, to choose whether they would take the specific personal property or its value in money, and the administrator had no right to compel them to accept a settlement on a money basis, which omitted the dividend the stock had earned; and in a suit on his bond, after he has appropriated the stock and dividends, and paid nothing under the order of distribution, a judgment charging him and his sureties with the market value of the bank stock, and the dividends, which he has converted to. his own use, is not erroneous.</p> <p>2. -: -: Interest. Where the administrator has failed to distribute property of the estate as required by the law, or as required by an order of distribution, or has converted it to his own use, he is guilty of maladministration, and is properly chargeable with interest.</p>

Clark Circuit Court. — Hon. N. M. Pettingill, Judge. (1) The trial court erred in overruling the motion filed by defendant to quash the ’ information and discharge defendant. State v. Wear, 145 Mo. 162; Ex parte Jilz, 64 Mo. 205. (2) The trial court erred in refusing to give the instruction asked by defendant at the close of the evidence directing the jury to find the defendant not guilty. There is no substantial evidence to support the verdict.

— lion. E. E. Porterfield, Judge. (1) The conduct of the assistant prosecuting attorney, in his closing argument to the jury, was of the most flagrant and reprehensible type. It was calculated to and did arouse the passions and prejudice of the jury, and inflamed their minds, and it was highly prejudicial and injurious to the rights of this defendant, and constitutes reversible error in this case.

<p>1. JURORS: Conscientious Scruples Against Death. Penalty. The-trial court does not err, in excusing from the array jurors otherwise qualified who state upon their voir dire examination that they have conscientious scruples against finding a defendant, guilty of an offense punishable with death.</p> <p>2. -: Newspaper Opinions. Jurors who state upon their voir dire examination that they have formed opinions in regard to the case from having read newspaper reports, but that they will not be influenced by them in finding a verdict according to the law and the evidence, are not disqualified.</p> <p>3. GENERAL OBJECTION: Equivalent to No Objection. An objection to proffered testimony that it is “incompetent, irrelev- . ant and immaterial and that it tends to prove no issue in the case” will not suffice to support an exception to its admission, unless the testimony offered is inadmissible for any purpose.</p> <p>4. IRRELEVANT TESTIMONY: Non-Prejudicial. Although testimony admitted is irrelevant and the time of the court is unnecessarily taken up in its introduction, yet if, upon a reasonable construction, it is not prejudicial, its admission will not constitute error.</p> <p>5. -: Murder: Unquestioned Guilt: Appellate Rule. In the presence of the unquestioned guilt of a defendant charged with first-degree murder, only errors which, upon a fair interpretation, tend to prevent an impartial trial, will work a reversal.</p> <p>6. CROSS-EXAMINATION OF DEFENDANT: Presence in Neighborhood of Crime: Immaterial Matter. Where defendant has: testified that he and his codefendant were in the neighborhood of the shooting the night the policeman was shot, and that they fled when they saw him coming out of a certain drug store, the State was authorized in asking defendant on cross-examination why he was in the neighborhood, and in eliciting or attempting to elicit from him all the facts relative to his presence at the place the homicide was committed at or about the time it was. committed. It is not error to cross-examine a defendant concerning a matter referred to in his examination in chief; and even if not referred to in his examination in chief, if it be concerning a matter that is principally immaterial, his cross-examination in regard thereto is not prejudicial.</p> <p>7. EVIDENCE OF OTHER CRIMES: Relevant Matter: Intent. In making proof against a defendant in a criminal case, the prosecution may introduce in evidence all relevant facts and circumstances which tend to establish any of the constitutive elements of the crime for which he is on trial, although it may be developed by such evidence that he has committed other crimes; and evidence of the possession by him of lethal instruments with which the crime was committed may be admitted to show an intent or purpose to commit the crime with which he is charged, although such evidence may implicate him in another and different crime.</p> <p>8. -: -: -: Carrying Concealed Weapons at Another Time and Place. Where defendant while on the stand has admitted and his counsel in his opening statement has said that defendant “pulled his gun out of his pocket and started to hand it to the police officer” whom he is charged with having murdered, thereby confessing himself guilty of carrying concealed weapons, the admission of the testimony of certain wit-, nesses that defendant and his co-indictee on the night of the homicide and prior thereto had pistols in their possession or were carrying concealed weapons, was not error, even though ■ it tended to prove another and distinct crime.</p> <p>9. MURDER: Sufficiency of Evidence. The evidence in this case, and in its companion case of State v. Tatman, ante, page 357, authorized a verdict of murder in the first degree.</p> <p>10. ARGUMENT OF PROSECUTOR: Extraneous Matters: Status, of Public Mind. . Prosecuting attorneys should confine their arguments to the jury to a legitimate discussion of the facts developed at the trial and to the instructions. But that does not mean that they may not discuss the prevalence of crimes such as that for which defendant is on trial, or state their conclusions as to the state of the public mind in regard to crime generally or the particular class of offenses under consideration. The remark of the prosecuting attorney in his argument to the jury in a murder case that “the people of Jackson county do not believe in highwaymen, bullies or murderers.” was but a statement of a truism, was not denunciation, and was not prejudicial. ■</p>

Louis City Circuit Court. — Hon. William M. Kinsey, Judge. (1) The court erred in refusing to give the peremptory instruction offered by the defendant at the close of the State’s case. The evidence offered by the State placed the commission of the alleged offense in the county of St. Louis. The indictment was found by the grand jury of the city of St. Louis and trial had in said city. The court did not have jurisdiction of the ease.

— Hon. Ralph 8. Latshaw, Judge. (1) The weapon used, if any, was not described to the jury and it was not introduced in evidence so they could view it, so that there is no evidence in the case proving or tending to prove that the defendant used a dangerous and deadly weapon.

— Eon. James D. Barnett, Judge. (1) The corpus delicti of arson in the third degree was not proven: first, a criminal act; second the defendant’s agency in the production of a criminal act. State v. Jones, 106 Mo. 302. (2) The alleged confession of defendant was not supported hy independent proof of the corpus delicti. State v. Young, 237 Mo. 170; Rohinson v. State, 12 Mo. 592; State v. Scott, 39 Mo. 424.

<p>1. INDICTMENT: Conclusion: Murder: Stating Name of Person Killed: Common Law. The common-law rules governing the proper form for closing an indictment for murder apply in Missouri, and therefore the name of the person alleged to have been killed must be stated in the conclusion of the indictment. ■'</p> <p>2. -: -: -: -: --: Information. The rules of the common law concerning indictments for murder are also applicable to informations charging murder.</p> <p>3. -: -; -;--:--: -: Cause Reversed and Remanded. A judgment of conviction for murder, under an information that failed to state in its conclusion the name of the person killed, will be reversed and the cause remanded. The Statute of Jeofails (Sec. 5115, R. S. 1909) does not cure the error.</p>

Washington Circuit Court. — No». E. M. Bearing, Judge. (1) The admission of the statement of witness Foard, that on July 23, 1911, while they were discussing some trouble between two women, and a fight that some one had with Robert Edsell, that defendant said, “If he got in trouble with any of them, they would never have any trouble when he was through with them,” was prejudicial error. It was not a threat nor •any expression of malice or ill will.

- — Hon. E. M. Bearing, Judge. The court erred in failing to instruct on manslaughter, for it was the duty of the court to instruct on all the law in the case whether requested to do so or not, and the fact that one of the counsel for -the defense said that it should not be given could not -be invoked when the counsel who conducted the trial was not present and knew nothing about the transaction or conversation between the court and the counsel referred to.

— Ro». E. M. Bearing, Judge. (1) Testimony, taken at a coroner’s inquest of one who is afterwards prosecuted for the homicide is inadmissible against him, where he acted without counsel and was at the time suspected of having committed the crime, and the examination was made to obtain criminating circumstances against him.

<p>1. TAX DEED: Prima-Facie Proof of Regularity. A tax deed which on its face appears fair and sufficient is only prima-facie proof of proper proceedings.</p> <p>2. CONVEYANCE: Names: Orvin Creason for Owen Creason: Ancient Deed. The original Government patent dated in 1859 granted the land to Owen Creason, and a deed signed Orvin Creason and dated in 1860 conveying the land to another was offered in evidence. Held, that, though seemingly a palpable error in the copyist in recording the instrument, in the absence of some showing beyond the bare record itself, no conveyance can be presumed from the mere single fact of the antiquity of the transaction, and the deed did not convey title out of Owen Creason.</p> <p>3. TAX DEED: Idem Sonans: Judgment Against Greason: Conveyance of Interest of Creason. A judgment against Owen Greason in the tax suit will not support a sheriff’s deed which purports to convey the interest of Owen Creason, although the Government patent showed a grant to Owen Creason and he owned the land when the judgment for taxes was rendered. “Greason” is not idem sonans with “Creason,” and the deed was void.</p> <p>4. DEFAULTING DEFENDANT: Subsequent Participation in Case: Affirmative Relief. A defendant who has been constructively served and who has neither pleaded nor appeared, is ordinarily not entitled, after judgment by default has been rendered against him, to take part in the subsequent proceedings in the case, until he has appeared and procured, upon a timely and proper showing, a vacation of the default against him; except that, in spite of the default and in spite of a failure to have it vacated, he may appear at the hearing, in an inquiry of damages, and show facts' in mitigation of damages, and, in any case, may appear on the question of the taxation of costs. But so long as such default judgment stands, he cannot have affirmative relief.</p> <p>5. -: -: -: Quieting Title in Defaulting Defendant. Where suit to quiet title was brought against Owen Creason and others, and Creason neither pleaded nor appeared, but the other defendants did appear and answer, and the proof shows that neither plaintiff nor said other defendants have the title, and that it is apparently in said Creason, a decree vesting the title in said Creason cannot stand. Having defaulted, he is not entitled to affirmative relief. The decree, in such case, should make a general finding against plaintiff, dismiss his petition and render costs for defendants, and go no further.</p>

<p>1. APPEAL: Motion for New Trial: No Assignment of Point Relied on. Where plaintiff sued the city, a landlord and his tenant for damages for personal injuries due to the falling upon her of a rotten fence as she walked along the sidewalk, the city on appeal will not he heard to contend that the verdict in favor of the tenant released the city from liability, unless said point was made a specific ground of its motion for a new trial; and a ground stated in the motion that “the verdict is against the law and against the law under the evidence,” or that “the verdict in favor of the tenant is against the law and the law under the evidence,” is not sufficient to raise the point that the verdict in favor of the tenant released the city from liability. Besides, the proper practice in such case was for the city to file a motion in the trial court for judgment non obstante veredicto.</p> <p>2. -: -: Statute. Section 1841, B. S. 1909, governs motions for a new trial, and requires them to he specific. Section 2022 does not undertake to designate what the motion for a new trial shall contain, but merely designates some of the grounds for which a new trial may he granted, leaving to the ■appellate court to determine by section 1841 whether or not the motion is sufficiently specific to call to the attention of the trial court the errors it has committed.</p>

<p>Appeal from Buchanan Circuit Court. — Hon. W. H. Haynes, Judge.</p>

Circuit Court. — Ron. W. K. Amick, Judge. (1) The trust agreement pleaded and proved by plaintiffs is valid and binding: (a) Because'of the ■decisions in Howard v. Brown, 197 Mo. 36 and 52. (b) B'ecause nothing has been shown that cancels, ■destroys or abrogates it. (c) It is not pretended that it has been carried out.

<p>1. EJECTMENT: Description of Land. The petition in ejectment must describe the land so definitely that the officer who executes the writ of possession will know to what land plaintiff is entitled.</p> <p>2. -: -: Insufficiency Cured by Statute of Jeofails. The Statute of Jeofails will not cure a defective description in a petition in ejectment so lacking in certainty as not to describe comprehensively any land, even though an attack on its sufficiency is not made until after judgment for plaintiff,</p> <p>3. -: -: -: This Case. A petition in ejectment alleging plaintiff is the owner of “Lot 23 and the east ten feet of Lot 22” in a certain block and city, and that “defendant entered into said premises and took possession of a strip off of the N. 50 feet of the west eighteen inches of same,” is too uncertain to support a judgment, it being impossible to say to what the word “same” refers, or from which lot the “same” is to be taken, or the width of the strip which is to be carved “off of the N. 50 feet of the west eighteen inches of same”; nor, even though an attack on the sufficiency of the description was not made until after judgment, is its insufficiency cured by the Statute of Jeofails.</p> <p>4. -: -: Aided by Abandoned Petition. An abandoned petition is no longer a record matter, but only evidentiary, ordinarily available only to the defendant as an admission. To be considered on appeal it must have been offered in evidence at the trial and preserved in a bill of exceptions, and if there is no bill it cannot avail to aid the defective description in the amended petition.</p>

<p>Appeal from Jackson Circuit Court. — Mon. W. 0. Thomas, Judge.</p> <p>(1) The nnassigned dower interest of Mary E. Barrel, formerly Mary E. Griffin, in the property in question, as the widow of Thomas Griffin, passed by quitclaim deed from her to John Bing and from John Bing to the plaintiff. Sec. 346, R. S. 1909; Phillips v. Presson, 172 Mo. 24; Rohrer v. Oder, 124 Mo, 24; Chrisman v. Linderman, 202 Mo. 615. (2) The widow’s unassigned dower interest in the premises in question is not barred by tbe Statutes of Limitation. Robinson v. Ware, 94 Mo. 678, 688; Sberwood v. Baker, 105 Mo. 477; Null v. Howell, 111 Mo. 273; Harrison v. McReynolds, 183 Mo. 533; Brewing Company v. Payne, 197 Mo. 431; Chrisman v. Linderman, 202 Mo. 615; Johns v. Fenton, 88 Mo. 64. (3) Neither the Act of March 22, 1887, as originally passed, nor the amended Act of 1889, has any application in this ease. Robinson v. Ware, 94 Mo. 683; Beard v. Hale, 95 Mo. 16; Long v. Stock Yards Co., 107 Mo. 304; Null v. Howell, 111 Mo. 273; R. S. 1889, sec. 6797; R. S. 1866, p. 749, sec. 32,; Cranor v. School District, 151 Mo. 123; Stephens v. Bank, 43 Mo. 388; Paddleford v. Dunn, 14 Mo. 522; Laws 1887, p. 177, sec. 1; R. S. 1889, vol. 2, p. 2229; Walker v. Deaver, 79 Mo. 677; Kimmerly v. Insurance Co., Ill Mo. 206; Sherwood v. Baker, 105 Mo. 476; Mainwaring v. Lumber Co., 200 Mo. 732; Rice v. Fleming, 173 Mo. 49; State ex reí. v. Woodson, 128 Mo. 497. (4) The Statute of Limitation cannot be interposed as a defense by an heir claiming title under a deceased person in an action for dower by the widow of such deceased, or those claiming under such widow, or by tenants in common. Livingston v. Cochran, 33 Ark. 294; Down v. Allen, 78 Tenn. 652; Guthrie v, Owen, 18 Tenn. 339; Cockrell v. Curtis, 83 Tex. 105; Robinson v. Ware, 94 Mo. 687; Sutton v. Casselleg’e, 5 Mo. Ill; Long v. McDow, 87 Mo. 197; LaPeyre v. Paul, 47 Mo. 586. (5) Defendants failed to prove that they, or any of them, had been in adverse possession of the premises for ten years immediately preceding the commencement of this suit. Dalby v. Snuffer, 57 Mo. 294; Ivy v. Yancey, 129 Mo.. 501; Robinson v. Clagett, 149 Mo. 153; Johnson v. Pruitt, 32 Mo. 553. (6) The dower interest of the widow, Mary E. Barr ell, formerly Mary E. Griffin, in the premises in question was not abandoned by her and her title was not divested by any act on her part shown in evidence. Putnam v. Tyler, 17 Pa. St. 585; Barrett v. Coal Co., 70 Kan. 665; Kreamer v. Yoneida, 62 Atl. (Pa.) 518; Norman v. Corbley, 79 Pac. (Mont.) 1059; Sharkey v. Candiana, 85 Pac. (Ore.) 219; Hoffman v. Bell, 61 Pa. St. 444; Bear v. Dewart, 95 Pa. St. 72; Coal Co. v. Wiggin, 68 Fed. 446; Philadelphia v. Riddle, 25 Pa. St. 259; Bramwell v. Adams, 146 Mo. 70; Trust Co. v. Horn, 83 Mo. App. 114; Petring v. Christer, 90 Mo. 649; 16 Cyc. 732.</p> <p>(1) Plaintiff’s action is barred by the act entitled, “Dower; Time for Instituting Suit,” Laws 1887, p. 177. R. S. 1889, sec. 6607; Harrison v. McReynolds, 183 Mo. 533. (2) Plaintiff’s action is barred under Sec. 391, R. S. 1909. Callaway County v. Nolley, 31 Mo. 393; Seibert v. Copp, 62 Mo. 182; Tice v. Fleming, 173 Mo. 49; Cranor v. School District, 151 Mo. 119; Bick v. Robbins, 131 Mo. App. 670; Brewster v. Brewster, 32 Barb. (N. Y.) 429; Martin v. Martin, 35 Ala. 560; Sohn v. Waterson, 17 Wall. (U. S.) 596; Ross v. Duval, 13 Pet. (U. S.) 45; Lewis v. Lewis, 7 How. (U. S.) 776; Railroad v. Laramie Stock Yards Co., 231 U. S. 190. (3) Plaintiff’s action is barred by the general Statute of Limitations applicable to real actions, being Sec. 1879, R. S. 1909, to the effect that “no action for the recovery of lands . . . shall be commenced . . . unless it appear that the plaintiff, his ancestor, predecessor, grantor or other person under whom he claims was seized or possessed of the premises in question within ten years before the commencement of such action.” (a) Neither the plaintiff nor any of its predecessors were seized or possessed of the premises in question within ten years before the commencement of this suit. 4 Kent Com. (13 Ed.) 61; Brannock v. Magoon, 216 Mo. 722; Robinson v. Ware, 94 Mo. 678; Kennedy v. Duncan, 224 Mo. 662; 2 Scribner on Dower (2 Ed.), sec. 27, ch. 20. (b) Defendants and their predecessors have been in adverse possession of the property for more than ten years before the institution of this suit. The possession of the administrator was adverse to the widow in respect to her dower. R. S. 1909, secs. 367, 369, 372, 375. The possession of the heirs was adverse to the widow with respect to her dower. Conover v. Wright, 6 N. J. Eq. 613; Berrien v. Conover, 16 N. J. L. 107. (4) The widow’s dower, if any existed, was extinguished and conveyed by the city tax deed to P. N. Phelps. He thereby acquired the fee simple title to the lot in question, and that title by mesne conveyances was well vested in the defendants. This tax deed preceded in time the quitclaim deed from the widow under which plaintiff claims and it follows that the defendants and not the plaintiff are the transferees of the widow’s dower. Rohrer v. Oder, 124 Mo. 24; Kansas City Charter 1889, art. 5, sec. 62; Chrisman v. Hough, 146 Mo. 102; Jones v. Devore, 8 Ohio St. 430. (a) • The widow is not a tenant in common or joint tenant in respect to her dower with the heirs of the deceased husband and the purchase of this lot from Phelps by Adams and the heirs did not inure to the use of the widow. McClanahan v. Porter, 10 Mo. 746; Walker v. Doane, 131 111. 27; Hamby v. Hamby, 165 Ala. 171; Long v. Stock Yards Co., 107 Mo. 298; Robinson v. Ware, 94 Mo. 678; 4 Kent Com. (13 Ed.) 61. (b) There was no fiduciary relation between Adams and the widow, nor was he under any obligations to her, and the purchase by him of an undivided one-half of this property and the conveyance of that interest by Phelps to him did not inure to the use of the widow.</p>

<p>ORDER OF PUBLICATION: Published Five Times a Week for Four Weeks: Sec. 3500, R. S. 1879. Under Sec. 3500, R. S. 1879, which, with no distinction between weekly newspapers and others, provided that orders of publication against nonresident defendants should be published four weeks successively, the last insertion to be at least four weeks before the commencement of the term to which they were to appear, publication five times a week for four weeks, beginning on June 29, and ending on July 26, was' sufficient for an order requiring appearance at the term beginning September 1.</p>

<p>1. PROCEEDING TO ESTABLISH ROAD: Petition: Resident Owners of Land: Description of Holdings: Jurisdiction. While in the matter accompanying a petition to establish a public road, under Sec. 9414, R. S. 1899, it would no doubt be good practice, after having stated the names of the resident persons owning land through which the proposed road is to run, to describe the particular tract owned by each, yet the failure to include such description does not deprive the court of jurisdiction to entertain the proceeding.</p> <p>2. -: -: -: Trustee and Beneficiary in Deed of Trust: Jurisdiction. The trustee and beneficiary in a deed of trust, as such, are not owners within the meaning of Sec. 9414, R. S. 1899, and the failure to list them as among the resident owners of property through which the proposed road is to run does not affect the court’s jurisdiction.</p> <p>3. -: Record of County Court: Commissioners to Assess Damages: No Showing They are Not of Kin to Landowners, or that they were Sworn: Jurisdiction. The facts that the record of the county court in a proceeding to establish a road failed to state that the commissioners to assess damages were not of kin to any of the parties asking damages, and that their report failed to show they were sworn before viewing the premises, do not deprive the circuit court of jurisdiction on an appeal from an award of damages in the county court.</p> <p>4. -: Jurisdiction: Appeal to Circuit Court. In a proceeding to establish a road the county court acquires jurisdiction when the petition in due form is filed and the required statutory notice given; irregularities in the proceedings in the county court after jurisdiction is once acquired will not deprive the circuit court of its jurisdiction on appeal.</p> <p>5. -: Assessing Damages: Special Benefits. Where the appellant and 'three others, a part of whose land a proposed road will take, will by its establishment be given their only outlet to a public road, the other landowners affected having connection already with a public road, such outlet is a special benefit to the appellant’s land and can be set off against his damages, despite the fact that the three others mentioned will also be given an outlet.</p> <p>6. -: Attacking Jurisdiction: Questions Requiring Extrinsic Evidence. While as a general rule questions of jurisdiction over the cause of action may be raised at any stage of a proceeding, yet the better practice demands that such defects as require the hearing of testimony should be raised before the trial is ended, so that the testimony may .properly become a part of the bill of exceptions, and so that any error with reference thereto may be called to the trial court’s attention in the motion for a new trial.</p> <p>7. -: -: --: This Case. Where a landowner . through whose property a proposed road will run has testified at the trial to assess damages that he is the owner of the land, he will not be permitted, after judgment, to file a motion attacking the court’s jurisdiction on the ground that another person, whose name did not accompany the petition for the road, was the resident owner of an undivided half of the land which he had testified he owned.</p>

<p>ACTION: After Final Judgment on Merits. Where plaintiff sued a railroad company for damages and recovered judgment for $5000 and that judgment on appeal to the Court of Appeals was reversed outright, he cannot maintain another action for damages for the identical tort upon the identical facts involved in the cause at the first trial. And it is doubted that differences in the facts of the first action and the facts in the second, even though alleged, would serve to alter the rule.</p>

<p>1. DEEDS: Identity of Parties: Shown by Parol. The identity of a person named in a deed may he shown by parol evidence.</p> <p>2. -: -: -: Suit to Quiet Title. In a suit to quiet title, where the plaintiff claimed under a tax deed in a proceeding against Isaac D. Critton, the record owner under a deed from Aaron Casad, and the defendants claimed as the heirs of Isaac D. Chritton and asserted that their ancestor was the grantee in the deed mentioned and had died before the tax proceeding was instituted, the evidence is held sufficient to support a finding for the defendants, on the ground that Isaac D. Chritton, ancestor, and Isaac D. Critton, grantee, was one and the same person.</p>

<p>1. APPEAL: No Assignment of Errors. Where appellant’s brief contains no assignment of errors and no point suggesting specific error, the appeal will, upon motion of respondent, be dismissed - — dismissal, where the judgment is for plaintiff, seeming to be a shade the better practice than affirmance.</p> <p>2. -: -; Points in Lieu. Although appellant in his brief makes no formal collective assignment of errors, if he separately assigns error specifically in distinct subheads of points and authorities, this will be accepted on appeal as a substantial compliance with the statute requiring assignments. But where there are neither assignments nor points, and all that appears in the brief are the words following the statement that “the court found against the intervenors and this is the only error assigned by appellants,” there is no such compliance with the rules and statute as permits a review of the rulings of the trial court leading up to a judgment on the merits.</p>

<p>1. WILL: Precatory Trust: Will or Wish? Precatory words in a will, that is, words of expectation, hope, desire, recommendation, etc., owing' to their context or the use of different kinds of words in other parts of the will, have been given different meanings by the courts, and even hy the same court. Whether or not they are imperative and create a trust, or are a mere expression of a wish, must he determined from an examination of the whole will and an ascertainment of testator’s intention. In every case the question arising from the use of such words as “wish” or “desire” or “recommend” or “entreat” or similar words is whether they express merely the testator’s wish or express his will. A trust is created if it clearly appears that the words were used in an imperative sense; hut not otherwise. The intent of the testator is the thing to he ascertained, and in doing that the ordinary and usual rules of law applicable to the construction of wills are to be observed.</p> <p>2. -: -: Absolute Estate; Cut Down By Succeeding Words. Where the will, after providing for the payment of testator’s debts, said: “I give, bequeath and devise to my wife, Julia Lemp, all my property, real and personal or mixed, wheresoever situated or by whatsoever title held, absolutely,” he created an absolute estate in his wife, in plain and unequivocal language, and a subsequent equivocal and indefinite clause did not cut down or modify that estate; and a subsequent clause, reading: “I make no gift here to my children . . . and I make no gift here to my grandchild . . . having perfect confidence that my wife will without any request on my part, and none such is here made, do best for them,” even if admitted to express an intent to create a precatory trust, did not unequivocally do so, and was not as affirmatively strong as the preceding clause creating in the wife an absolute estate, and did not therefore convert that estate into such a trust.</p> <p>3. --: -: Intent: Gift: Trustee’s Fees In Lieu of Bequest. A trust estate is the subject of a gift; and where the testator gave all his property “absolutely” to his wife, and then added: “I make no gift here to my children” (naming them) “and I make no gift here to my grandchild” (naming the only child of a deceased son), “having perfect confidence that my wife will without any request on my part, and none such is here made,, do best for them,” he expressly excluded the idea of making a gift, by the will, to either children or grandchild; and that he-did not intend the property devised to be held by the wife in trust for them is evident, not only from that fact; but from the-fact that, if the will created a trust at all, it created one for his entire property and for all his children and grandchild and left the wife without anything whatever, and from the further fact that he expressed absolute confidence in her to dispose of the property justly and wisely. Nor does the fact that from her fees as trustee of the immense estate his wife would have a very large income, justify a holding that his intention was to-deprive her of otherwise sharing in a property which had been built up by their joint labors; for such compensation (Woodson, C. J., in a separate opinion) is in no sense a bequest under a will.</p> <p>L -: -: Violation By Trustee. If the will gave all testator’s property absolutely to his wife, she had the right to. dispose of it as seemed proper to her, and that issue having been determined in the affirmative what disposition she made of it is of no concern.</p>

<p>1. WIDOW’S PERSONAL ESTATE: Child’s Share: In Spite- of Will. A devise of real estate by a husband to his widow does not preclude her from claiming her share in his personal estate equal to a child’s part given her absolutely by section 349, Revised Statutes 1909; and no election to take under the will, nor any renunciation thereof, by her, is necessary to authorize her to claim that share under that statute. -Where the law gives a widow absolutely a certain share in her husband’s estate at his death, he cannot deprive her of it by will, and if in such case the law does not say that she must within a certain time make a formal renouncement of the will, she need not do so, but may simply ignore the will, and claim what the law gives her. [Following Egger v. Egger, 225 Mo. 1. c. 141.]</p> <p>2. -: Share in Leasehold: Ejectment. Where testator by his will devised his real and personal estate to his widow and two children in equal proportions, a leasehold for twenty years held by him, being personal property, passed, upon his death and a settlement of his estate undisposed of, to his said widow and children, as distributees, and a conveyance of said leasehold by the widow to plaintiff conveyed to said assignee the title of one of the three joint owners. [Following Orchard v. Store Co., 225 Mo. 414.]</p> <p>3. -: —.-: -: Against Lessee of Void Lease. One cannot question a title given by himself, or hold possession of . land in the face of his own deed. So that, the assignee of said lessee, having succeeded to the one-third interest which vested in the widow at the close of the administration, is entitled to recover possession of the leasehold property in ejectment against the same lessor and the lessee of a subsequent void lease, and neither can wholly defeat the action on the sole ground that the two children, who, with plaintiff, are the only rightful claimants under the original lease, are not made parties; but the said children should be made plaintiffs.</p>

<p>1. COUNTY LINE: Judicial Notice. The court should take judicial notice that all that part of section 7 in township 24 of range 13 lying west of Little river was in 1869 in Stoddard county. By whatever name Whitewater, made the boundary between New Madrid and Stoddard counties in that vicinity, is now known, somewhere along its course it becomes Little river, and was the river by which the boundary line between the two counties was fixed by the Act of 1868, until it was changed by the Act of 1872, by which the county line was'removed to the west line of said section 7.</p> <p>2. SWAMP LANDS: Ringer Patents: County Warrants as Consideration: Estoppel. The various decisions-of this court holding the Eltzroth patents of certain swamp and overflowed lands in Stoddard county to be valid and to have conveyed the legal title to the grantee, have now become a rule of property; and the execution by the said Eltzroth, special commissioner, of the patent of 1869 to Lewis M. Ringer, for which the county received in payment warrants worth to it their face value and equal to the consideration expressed, being within the powers of the county, and the instrument showing upon its face that the power was well executed, the county, by retaining the consideration for thirty years thereafter and by failing to disturb the status, ratified the transaction, and is estopped to question the grant; and no one claiming adversely to the said Ringer or his grantees will be permitted to assert any equity in the county.</p> <p>3. TAX DEED: Suit Against Record Owner by Initials. Where the title stood upon the record in the name of Lewis M. Ringer, and notice was given by publication to and judgment by default was rendered against L. M. Ringer, a sheriff’s deed, made in pursuance to said judgment, conveying the title and interests of L. M. Ringer, did not convey the title of Lewis M. Ringer.</p> <p>4. -: Three-Year Limitation: Application. The act of March 30, 1872, Laws 1872, p. 130, providing that an action to avoid or defeat a sale or conveyance of land for taxes must be brought within three years, has no application to a sheriff’s deed made under the Act of April 22, 1877, relating to the collection of delinquent taxes.</p> <p>5. LIMITATION: Thirty-Year Statute: Lawful Possession for One Year. Section 1884, Revised Statutes 1909, requires that in order for it to constitute a bar the land shall have been in the lawful possession of the person claiming adversely to the legal title for one year prior to the bringing of the action; and in order that such claimant may interpose that statute as a defense, it is necessary for him to show there was some condition that the law will construe as possession, either actual or constructive. Actual possession for seven months prior to bringing the action is not a sufficient defense. Nor will the possession and cultivation of forty or fifty acres in another section, between which and the land in suit there intervenes an unfenced square mile of swamp and woods, although described in the claimant’s invalid deed, nor will the selling of some timber off the unfenced land in suit or the pasturing of cattle thereon, support the running of the statute or authorize the presumption of notice to the true owner that his possession was interrupted or his title in danger.</p> <p>6. LACHES: Adverse Possession. The doctrine of laches is not applicable to a suit to quiet title to land, where the whole question relating to the loss'of the legal title is dependent upon the non-payment of taxes and lawful possession for one year under the thirty-year limitation statute.</p> <p>7. CONVEYANCE: Under Seal: Scroll. A recital in the testimonium clause that the deed is given under the hand and seal of the maker is a sufficient showing that the instrument was sealed, whether or not its record shows a seal was actually attached.</p>

<p>1. WAREHOUSEMAN: Police Regulation. The business of storing goods for hire embraces the storage of all kinds of personal property, and is public or private, as it may be conducted for the storage of the goods of the general public, or those of certain persons; and as it necessarily affects the public, its regulation is a proper exercise of the police power, and its supervision and control by the lawmaking bodies has become a part of the jurisprudence of the country.</p> <p>2. -: Liability. Independent of statutory regulation, a primary obligation assumed by a warehouseman at common law is to return to the holder of his receipt the goods called for by it, upon the payment of charges and its surrender or cancellation. For a breach of that duty an action ex contractu arises to the depositor or his assignee; and for a failure to exercise due care to prevent loss or injury to the goods stored (varying in degree according to the nature of the goods and other attending circumstances) the warehouseman is liable in an action ex delicto.</p> <p>3. -: Bond: Valid at Common Law. Whether or not the statutes regulating the inspection of grain stored in a public warehouse and its business are valid, the bond of a surety company executed for a premium, by which it agrees that the warehouseman will “faithfully perform its duty as a public warehouseman, under the laws of Missouri” and “also fully and unreservedly comply with the laws of said State relating . . . to public warehousemen,” is a valid and subsisting obligation at common law, and for a breach thereof by the principal, in failing to deliver upon demand grain called for by a receipt issued by him to a depositor not named in the bond, the surety is liable in damages. The bond is not opposed to public policy, but being voluntary and resting on a sufficient consideration is enforcible as a common-law obligation.</p> <p>4. -: -: Surety for Premium. A rigid observance of contracts of indemnity made by corporations licensed to engage in that business for profit, is compelled. Such bonds being given for a gainful purpose (a premium paid), their makers do not fall in the category of sureties for accommodation, who are favorites of the law and are exonerated in all cases where a strict construction of their contract does not bring them within its provisions. The statute estops a duly licensed surety company to deny its corporate power to execute an indemnifying bond for profit or to assume liability thereunder.</p> <p>5. --: -: For the Public. A warehouseman’s bond which by its terms expresses an obligation on the part of a surety company to indemnify the public against any default of its principal in the performance of his duties as a warehouseman (assumed for a premium), is a valid common-law obligation, and is enforcible by the legal holder of its principal’s warehouse receipt, who is entitled to sue for a breach of the bond made for his benefit,’ though not named therein.</p> <p>6. -: -: Defense Not Pleaded. In a suit on a warehouseman’s bond, the defense that the grain called for by the receipts is in the warehouse or has disappeared by natural shrinkage, is not available unless pleaded.</p>

<p>1. ADMINISTRATION: Partnership Estates: Priority of Creditors. Tiie claims of general creditors of a partnership estate must be paid out of its assets before debts due by the partnership to one of its members can be paid. Such' preference is given by the common law and ■ the principles of equity, and not by statute.</p> <p>2. -: -: -: Classification: At Any Term Within First Year. Under sections 97, 98, 190 and 191, Revised Statutes 1909, all demands pertaining to the fifth class, presented and allowed at any term during the first year, and properly classified as fifth or first-year demands, have equal standing, and none take priority over the others because of priority of allowance, whether presented at the first or fourth term of the probate court within that year.</p> <p>3. -: -: -: -: Res Adjudicata. The classification of demands presented and allowed within the first year as fifth-class demands against the partnership estate does not affect the right of such claimants to priority in the distribution of the assets. As between the creditors and the administrator the orders of the probate court allowing and classifying demands are judgments; but as between creditors of the same class, whose demands are allowed within the first year and classified as belonging to the same class, those allowed at the first term are hot entitled to be paid first in preference to other demands presented and allowed at a later term within the first year.</p> <p>4. -: -: -: Priority of Payment. Although the claims of general creditors of the partnership and the individual claim of a partner to whom the partnership was indebted, were presented at the first term after the administration began, and'all were allowed and classified as fifth-class demands, and the general creditors took no steps to. have their allowed demands given priority in payment until long after the first year, such general creditors are entitled to priority in payment until the final distribution of the partnership assets, and to be paid before the partner can share in such assets.</p>

<p>1. APPEAL: By Administratrix. The legal title to the personal estate of a deceased husband prior to distribution is in the administratrix; and where she has asked for an order of distribution and by written statement set up her claim individually to one-half of the net proceeds of her husband’s estate, and from an order in accordance therewith the heirs have appealed to the circuit court, where the order is reversed and a Judgment is rendered declaring her interest to be only one-sixth, her appeal therefrom should be in her capacity as administratrix, since she is still the legal custodian of the estate.</p> <p>2. -: Affidavit. Where the affidavit used the word “and” instead of “or” in the clause “this appeal is not taken for vexation and delay,” and the appeal was timely taken, and no effort to have it dismissed was made until the case was set down on the docket for hearing, the appeal will not be dismissed for that clerical error.</p> <p>3. ADMINISTRATION: Share of Widow. In dealing with the rights of the widow to share in her deceased husband’s estate, the courts liberally construe the statutes in her favor; and under them she does not take as dowress, but as distributee.</p> <p>4. -: Widow and Grandchildren. Where the only claimants to the estate are the widow and five children of a son who died prior to the intestate’s death, the five grandchildren cannot be counted as five children of the intestate, but they are to be considered as inheriting the interest that their father would have received had he survived the intestate; and one-half the estate should be distributed to the widow, and the remaining balf equally divided among tbe five grandchildren. [Sec. 349, B. S. 1909.]</p> <p>5. -: -: Per Capita and Per Stirpes. In a controversy between a widow and intestate’s children as to their respective interests in his estate, they each take per capita; but as between the widow and his grandchildren, she takes per capita and they take per stirpes.</p>

<p>1. DEPOSITIONS: Attachment of Witness. Whatever power a justice of the peace possesses to command by subpoena and compel by attachment the attendance of witnesses before him at the taking of depositions, is statutory.</p> <p>2. -: -: Notice. In the absence of waiver and agreement of the parties, the statutory notice to take a deposition is an essential prerequisite to the vesting in the justice of the peace of authority to take the deposition at all, and without such notice he has no power to subponea and attach witnesses whose depositions are desired.</p> <p>3. -; -; -; Service: For Past Date. The service of a copy of a notice to take a deposition on a date that is past, is void and no notice at all, although the original upon which the officer who serves the copy makes his return calls for a future date. The return of the constable is at most but prima-facie, and the rule applicable to a sheriff’s return upon summons cannot be invoked.</p> <p>4. FALSE IMPRISONMENT: Attachment of Witness: Liability of Private Persons: Mistake in Notice: Punitive Damages. It is the general rule that it is incumbent upon private persons (such as a party to a suit and his attorney), voluntarily causing the enforcement of a writ of attachment for a witness, to find a record that will support the process; and where they induce the issuance and service of such writ, an action for false imprisonment will lie if the writ is issued without jurisdiction — if, for instance, they induce the justice to issue and the constable to serve a writ of attachment for a witness who has not been served with notice to appear at the taking of the deposition. As to such private persons and a right of action against them it matters not that the copy of the notice served upon the witness, by unintentional mistake of the justice, called for attendance upon a past date, though a belief by them that due notice had been given is of much importance on the question of punitive damages.</p> <p>5. -:-: Attorney: Good Faith. Trespass lies against an attorney for a party to a pending suit, who sues out void process whereby another is unlawfully imprisoned. Nor is bad faith an essential element of false imprisonment. Good faith will not relieve an attorney from liability for procuring the issuance and service of process from an inferior tribunal absolutely without jurisdiction. [Questioning soundness of apparently contrary announcement in Fellows v. Goodman, 49 Mo. 62, and distinguishing between good faith and malicious prosecution.]</p> <p>.6. -: -: Elements: How Shown. To sustain an action for false imprisonment, it is necessary to prove the imprisonment, the arrest, the “constraint of liberty,” as well as its falsity; but this may be shown to have been effected by words alone, or by acts alone, or by both. Submission to arrest in order to avoid a demonstration which apparently can only be avoided by submission, is sufficient.</p> <p>7. -:-:-: Mitigation. Courteous treatment by the officer making the arrest cannot defeat an action for false imprisonment against a private person who induced the justice to issue and the constable to serve the writ of attachment, nor can the fact that the witness and her attorney knew the notice to attend the taking of the deposition contained a mistake which made it void and did not at an opportune time reveal that fact to the defendant’s attorney, though such facts ought to reduce the recoverable damages.</p> <p>‘8. -: Against Attorney's Client. The evidence in this case supports the inference that the client of the attorney who induced the justice to issue and the constable to serve a writ of attachment for a witness who had not been subpoenaed, knew and approved of his attorney’s acts, and therefore he is also liable to the witness in an action for false imprisonment.</p> <p>D. MALICIOUS PROSECUTION: No Abuse of Process. Where the evidence reveals no abuse -of process, but merely a detention without authority or process, or upon void process, an action for malicious prosecution cannot be sustained. In malicious prosecution some sort of “prosecution” must appear, which necessarily implies the employment of legal process possessing at least a measure of regularity.</p>

<p>1. STREET: Dedication: Irrevocable. The dedication of a street by a properly executed and recorded plat, in the manner prescribed by statute, made by the owner of land, vests the title to the streets and alleys thereon designated in the city, without any action on its part, and thereafter is irrevocable by him or his heirs.</p> <p>2. -: Common-Law Dedication: Acceptance by City: Estoppel. A plat made by commissioners appointed to partition the lands, so made that the respective allotments should be bounded by certain streets and alleys designated thereon as dedicated to the city, followed by an exchange of deeds vesting the allotments in accordance therewith among the coparceners in severalty, though not acknowledged, if recorded, constitutes a common law or non-statutory dedication, and is just as efficacious as a statutory dedication would be, if accepted by the city in any of the ways recognized by the law, or if the owners of the allotments by any acts having that effect have estopped themselves to question the validity of the dedication.</p> <p>3. -: -: Acts of Acceptance. Omitting from assessment for taxation streets and alleys designated on the unacknowledged ’ but recorded plat; taking charge of one of the streets, changing its name, improving it under ordinance passed for that purpose, and causing it to be widened by a condemnation proceeding; and including the streets and alleys designated in the plat in all the official maps of the city’s highways, amount to an acceptance by the city of the common-law or non-statutory dedication of such streets and alleys.</p> <p>4. -:--: Estoppel. The execution and exchange of deeds ■ among the coparceners conveying the allotments to them in severalty, in accordance with the plat of the commissioners in partition, designating certain streets and alleys and reserving them to public use, immediately upon the filing of such unaekowledged plat, vest the easement, in the streets and alleys in the city, and estop the coparceners from questioning the efficacy of the dedication.</p> <p>-5. -: Limitations: Adverse Possession. A claim of title to a street, by limitation or by abandonment, presents issues of law; and no right or title can accrue from adverse possession, unless it began prior to the time the statute excepting lands devoted to a public use from the operation of the Statute of Limitations became operative on August 1, 1866, and was actual, open and notorious, under a claim of ownership, prior to that date.</p> <p>-6. -:-:-: Appellate Practice. Where the evidence was conflicting on the question of whether plaintiff’s actual possession of the streets and alleys prior to August 1, .1866, was adverse to the city’s claim of an easement, or was in recognition of it, or was actual, and the court sitting as a jury found against the plaintiff on the issue, presented purely as an issue of law, and no instructions were asked or given and no exceptions were saved during the course of the trial, the weight of the testimony was for the trier of the fact, and his finding on that issue will not be disturbed on appeal.</p>

<p>MAXIMUM INDEBTEDNESS: School District: Merchant’s License. ■ In determining the amount of indebtedness a school district may incur under sections 11 and 12 of article 10 of the Constitution, the aggregate amount of merchants’ and manufacturers’ licenses should be considered as a part of the property subject to taxation for the payment of such indebtedness: If the amount of the bonds to be issued, including existing indebtedness, does not exceed fire per cent of the aggregate taxable value of all property in the school district, including the amount of such merchants’ and manufacturers’ licenses, the total indebtedness does not exceed the constitutional limitation. Merchants’ and manufacturers’ goods and stocks are personal property, subject to an ad valorem tax, and are taxed as such.</p>

<p>1. STREET: Recognition By City.: Duty to Repair. The mere act. of the dedication of a street, and the approval thereof by the municipality, do not, without more, impose on the city the duties as to maintenance and repair which are cast upon it by law whenever it appropriates a street to public use. But these-obligations do arise the moment the city, with or without such formalities, devotes the highway to the uses of the public by recognizing it as open for travel, or invites the public to use it as a street; and such recognition by it' may be shown either-by direct or by circumstantial evidence.</p> <p>2. -: -: -: Facts Showing Recognition. Where there was evidence tending to show that, prior to plaintiffs injuries resulting from a fall into a hole or gully in the street, the street had been dedicated to the city and the city authorities had thereafter caused rolling machines to he run over the roadway part of the street in both directions ¡therefrom; that there were telephone poles on each side of the street, and an electric light was suspended across it; that the .sidewalk space on one side had been planked over by the abutting property-owners, and on the other side was marked a pathway covered with cinders, and that said sidewalk spaces were used by the neighboring residents and the public generally, though not improved by the city; and that notice of the hole or gully in the cinder path had been given to the city authorities prior to the accident, and they had promised to mend it, there was sufficient evidence of a recognition of the street by the city as a public highway to carry to the jury the question of the duty of the city to repair the hole or gully and to maintain the path in a condition, of safety for pedestrians.</p> <p>3. -: -: Injury to Pedestrian: Demurrer. Where there is substantial evidence of the recognition of the street as a highway open for public travel, and that plaintiff, in the exercise of proper care, in walking along a cinder path in the sidewalk space, about six or seven o’clock of a December evening, fell into an oblique wash or gully running across the cinder path out into the street, which was about eighteen inches wide and a foot deep, and sustained a fracture of her thigh, it is error to sustain a demurrer to the evidence in her suit against the city for damages.</p>

<p>1. REVIEW OF ERROR OF COURT OF APPEALS: Certiorari. The Supreme Court has power to review upon certiorari errors (not the jurisdiction) of a Court of Appeals. It has power by such writ to quash the opinion of a Court of Appeals in a case over which it has appellate jurisdiction, in which that court has failed to follow the last previous ruling of the Supreme Court in “any question of law or equity.”</p> <p>2. -: -: Matters of Jurisdiction and Error. Section 3 of article 6 of the Constitution, declaring that “the Supreme Court shall have a general superintending control over all inferior courts” and “shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari and other original remedial writs, and to hear and determine the same,” and sec-’ tion 6 of the Amendment of 1884, declaring that “the last previous rulings of the Supreme Court on any question of law or equity shall, in all cases, be controlling authority in said Courts of Appeals” and section 8 of said amendment, declaring “the Supreme Court shall have superintending control over the Courts of Appeals by mandamus, prohibition and certiorari,” should all be read together and considered as rounding out the judicial system created by the Constitution, of which it clearly maltes the Supreme Court the head; and under them, if a Court of Appeals refuses to assume its constitutional jurisdiction, the Supreme Court by mandamus can compel it to exercise it; if it exceeds its constitutional jurisdiction, the Supreme Court by its writ of prohibition can restrain and confine it within its jurisdictional lines; and if it refuses to follow “the last previous rulings of the Supreme Court,” which in effect would be to transgress the lines of its constitutional jurisdiction, that court by its writ of certiorari can quash its record (including its opinion, which is a part • of its record). A refusal to follow the last previous rulings of the Supreme Court is not a mere matter of error, but in its essence and effect is to exceed its jurisdiction, for which certiorari is an appropriate remedy.</p> <p>MM, by BOND, X, dissenting, that the Supreme Court cannot by its writ of certiorari quash the record (including the opinion) of a Court of Appeals on the ground that its decision ■is in conflict with the last previous ruling of the Supreme-Court; that the writ cannot be used as a substitute for •an appeal or writ of error, and the Constitution vests in a Court of Appeals jurisdiction in certain cases, and makes its decision therein final; that jurisdiction means power to decide, and power to decide includes power to determine whether or not its decision is in conflict with the last pre- , vious rulings of the Supreme Court; and it would be illogical and contradictory to rule that the Supreme Court has' power by certiorari to quash the opinion of a Court of' Appeals when it is in conflict with the last previous rulings of the Supreme Court and not power to quash such opinion when no such conflict exists; and section 6 of the Amendment of 1884 clearly gives to the judges of a Court of Appeals power to determine whether or not its decision is in conflict with the last previous decision of the Supreme-Court, or of a decision of another Court of Appeals, and if' they or any judge of said court, conceive there is such conflict, the case is required to be certified to the Supreme-Court, but if they are of the opinion no such conflict exists it is mere error in decision, and does not impair their constitutional jurisdiction to make a final decision in-the case.</p> <p>3. -: -: Untimely Filing, of Transcript: Duty of Clerk-It is not the duty of the clerk of the trial court to file in the-proper Court of Appeals a certified copy of the judgment and order of appeal in a -case falling within its jurisdiction, but that duty rests upon appellant; and if it is not filed within the time prescribed by the statute, said appellate court is authorized' to affirm or dismiss, and such action is not in conflict with the last previous ruling of the Supreme Court, and will not be disturbed by writ of certiorari.</p>

<p>1. SPECIAL TAXES: Priority of Liens. Liens on land for taxes take priority in the reverse order of other liens;' that is, the last is first, and the first last. And in the absence of a statute or charter provision to the contrary, there is no difference in this respect between liens for general taxes, and liens for special taxes. And the right to priority of the later special tax bill over a prior one is implied, or at least not denied, by sections 22 and 24 of Article 8 of the Charter of Kansas City, declaring that any person claiming any estate or interest in the land may. be joined as defendants in the suit on the tax bill, “and the right, title, interest or estate of the parties made defendants in any such suit shall be bound thereby.” [Disapproving Parker-Washington Company v. Corcoran, 150 Mo. App. 188.]</p> <p>Held, by WALKER, J., dissenting, that the last special tax bill cannot be given priority of liens over others previously issued, unless there is a statute or city charter authorizing such priority; and such priority not only is not given by the charter of Kansas City, but that charter specifically says that every special tax bill “shall be a lien on the land described therein upon the date of the certification thereof to the city treasurer” by the Board of Public Works, which clearly means that the tax bill which is first in date of. certification is first as a lien.</p> <p>2. -: Referable to Taxing Power. The power to assess private property for a public improvement is referable to and derivable from the taxing power of the State lodged by the Constitution in the General Assembly, and such special taxes are, in their ■essence, just as much taxes as are general taxes assessed •■against the same land for the support of the government; and the assessment and collection of either special or general taxes are an exercise of the taxing power.</p> <p>Held, by WALKER, J., dissenting, that priority of liens of general taxes did not exist at common law, but had' its origin in a statute, first enacted in this State in 1820; that the doctrine of sovereignty of the State to make general taxes a lien on land cannot be applied to special taxes except by statute, or by a city charter of equal dignity with a statute; that there is no such statute, and the charter of Kansas City (section 24, article 8) specifically declares, that a special tax bill shall be a lien on the land described therein “upon the date of the certification thereof to the city treasurer” by the Board of Public Works, which, can have no other meaning than that each special tax bill takes priority in the order in time of its certification; and that, therefore, the last bill certified cannot take-priority as a lien over others previously certified.</p> <p>3. - — : Basis for Priority of Lien. Special assessments are-charges on the physical property, and proceedings to enforce-them are in rem, or against the thing itself. The basis of the assessment is that it is a just equivalent of the increased1 value or permanent increment due to the public improvement, and the tax bill represents that added value, and the city or contractor is entitled to be paid that added amount without waiting for the holders of prior liens to be paid.</p>

<p>1. CONVEYANCE: Vested Estate: Reversion: Condition Subsequent. Where no condition subsequent was annexed to the grant, and the deed in its entirety and the circumstances attending its execution demonstrate that no reversion was intended upon the subsequent happening of a lawful condition, a deed of gift vesting the title in fee cannot be uprooted, and the fee will not revert to the grantor or his heirs.</p> <p>2. CHARITY: Definition. A charity is a gift, to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves for life, or by erecting public buildings or works or otherwise lessening the burdens of government; and it is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable in its nature. In its legal sense it comprises four principal divisions: Trusts for the relief of poverty; ■ trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes ■ beneficial to the community, not falling under any of the preceding heads.</p> <p>3. -: Public: Education: Endowment of President’s Chair. A deed “for and in consideration of the love for the cause of Christ and our earnest desire to promote his heritage on earth,” to an incorporated church school for students of both sexes, of certain lands and the proceeds thereof, to be applied “for the use and benefit of said institution of learning, especially for the endowment of the president’s chair in memory of our deceased son,” created a public charity for educational purposes; and the proceeds of the gift were not confined to the exclusive use of supporting the president’s chair, but so much as were not necessary for that purpose were left free to be used for other departments or the general support of the school.</p> <p>4. -: Perversion: Varying Educational Gift to Religious Use: Consent. Courts of equity will vary details of administration of a charity in order to effectuate the permanent purpose of its founder, but they will not alter the charity itself, or substitute another for it. Land and its proceeds were given to Scarritt Collegiate Institute at Neosho, the consideration expressed being “the love we bear for Christ and our earnest desire to promote his heritage on earth,” and the fund was to be applied “for the use and benefit of said institution of learning, especially for the endowment of the president’s chair in memory of our deceased son.” The school at Neosho was abandoned, and merged with another school at Morrisville under the name of “Searritt-Morrisville College.” Both were under the supervision and control of the' same ecclesiastical body, and that body directed that the fund be turned over to the trustees of a church in the town in which the grantors resided, to be used in the erection of a memorial church in memory of their deceased son. The only remaining grantor and the heirs of the other consented to such use of the fund and by proper instrument released all claim to the fund, and the trustees of Searritt-Morrisville College formally consented to said application, and Scarritt Collegiate Institute was dissolved as a corporation, and a receiver appointed. Held, first, that there was no forfeiture clause in the grant, and the fund did not revert to the grantors or their heirs on the abandonment of the school at Neosho, and they had no legal power to alter the charity or change the application' of the fund; second, the charity itself cannot be altered and another substituted therefor, and to permit the fund to be used for the erection of the said memorial church would, under the circumstances, be to contravene the expressed purposes of the gift, but the fund, being for educational purposes and primarily for the support of the president’s chair, must be turned over to Scarritt-Morrisville College, and used for said purposes; and, third, the consent of the trustees to its use in the erection of said church, and the direction of the church conference having supervision and control of both schools, were without legal authority, and cannot be held to justify the attempted alteration in the charity.</p>