Volume 281 — Missouri Reports

<p>1. CONFLICT IN OPINIONS: Certiorari to Court of Appeals: Unjust Decision. Upon certiorari directed to a Court of Appeals based on an allegation of a conflict of its opinion in a given case with prior •decisions of the Supreme Court, the Supreme Court cannot inter- ■ pose merely because it may regard the decision of the Court of Appeals as unjust. The sole inquiry is: Is the opinion in conflict with controlling decisions of the Supreme Court? If it is, the record must be quashed; if it is not, the writ must be quashed.</p> <p>2. SEWER DISTRICT: Lot: Definition. Section 14 of Article 6 of the Charter of St. Louis relates, not to sewer districts, but to the construction of streets, boulevards and alleys, and the word “lot” used therein is required to be construed “as used in this section,” and is not to be understood as a definition of “the lots of ground” and “the lots and parcels of ground” used respectively in Sections 21 and 22, which relate to district sewer and joint sewer districts, according to which assessments of benefits are made by area, and not by front-footage, and wherein the words “lit” and “parcels of ground” are used as equivalent terms.</p> <p>3. —--: Tax Bills: Against Lots Instead of Whole Tract: Dedication of Streets. Where the recorded plat divided a tract into seven lots, designating streets and alleys thereon, separate tax bills to pay the costs of constructing a district sewer may, under the charter of St. Louis, be issued against the lots severally, and are not void because one tax bill was not issued against the tract as a whole, although the streets and alleys have not been actually established; nor is there anything in Bambrick Bros. Construction Co. v. Semple Place Realty Co., 270 Mo. 450, that requires the assessment to be made by one tax bill against the entire tract. Nor was it necessary that there should have been a dedication of the streets and alleys to public use, according to the recorded plat, in order to give validity to the tax-bills.</p> <p>4. ■ — ——: -: Substantial Compliance With Charter Provisions. If charter provisions concerning the assessment of benefits for a public improvement have been substantially complied with and the improvement has been made according to contract, irregularities which do not injuriously affect the interests of the property-owner should not be permitted to defeat a suit on the tax bills; and where such is the case, a ruling by the Court of Appeals that such irregularities render the tax bills void and in the same opinion denouncing the ruling as unjust, is in conflict with Sheehan v. Owen, 82 Mo. 458.</p> <p>5. -: -: Directory Provisions. A charter provision concerning a district sewer which requires the issuance of ‘‘a special tax-bill against each lot in the district” should be held, in the absence of a showing of some loss or damage to the property owner, to be directory only; and where the sewer has been constructed in substantial compliance with charter provisions and the contract, a holding that such a requirement is mandatory and the tax bills void because the entire assessment was not included in one tax bill against the entire tract, is to confiscate the labor and material which went into its construction, and is in conflict with Granite Bituminous Paving Co. v. McManus, 244 Mo. 184.</p>

<p>1. HABEAS CORPUS: Constitutionality of Law. If a person is deprived of his liberty for any act not in contravention of an existing law, or if the act or ordinance under which he is held is unconstitutional, whether the offense denounced by it is classified as a misdemeanor or a felony, habeas corpus is available to restore him to his freedom.</p> <p>2. POWER OF CITY: Use of Streets. The charter! powers of the City of St. Louis to establish, locate, dedicate and supervise the highways of the city, and ‘'to do all things whatsoever expedient for promoting the comfort, education, morals, peace, government, health, welfare, trade, commerce or manufacture of the city or its inhabitants,” having their origin in the police powers of the State, are ample to authorize the city by legislative enactment, not only to establish and improve its streets, but to prescribe the terms and conditions upon which they may be used, subject only to the Constitution and laws of the State.</p> <p>3. -: -: Validity of Ordinance: Test Rule. The validity of an ordinance enacted by the City of St. Louis in pursuance to its charter powers is to be tested by the rules of interpretation applicable to state legislative enactments.</p> <p>4. -: -: Violation of Ordinance: Civil or Criminal Proceeding. While a prosecution for a violation of a city ordinance regulating the use of streets is technically a civil proceeding, yet in so far as it authorizes the imposition of a penalty upon conviction it partakes of the nature of a criminal action, and the validity of the ordinance is subject to the same rules of construction as is a' criminal statute.</p> <p>5.-: -: Validity of Ordinance: Special Classes. An ordinance regulating the use of streets, to he valid, must he general in its terms and uniform in its application to the class of persons or subjects to be affected. If it seeks to regulate citizens in the otherwise lawful use of their property or the conduct of their business,- the rules and conditions by it required to be observed must be so specified that all citizens may alike be required to comply with them.</p> <p>6. -: -: —:-: -: Soliciting Business. An ordinance which seeks to punish any person who shall accost another on a street in front of any store and solicit such person to purchase, at another store, goods, wares or merchandise of like nature as those kept in such store, is invalid, since it does not apply to all persons or streets alike, but is special in its terms and local in its application, and contravenes the constitutional provision that “where a general law can be made applicáble, no local or special law shall be enacted.”</p> <p>7. ———: -: Police Power: Public .Welfare: Subject to Constitutional Inhibition. A city cannot enact a police regulation which contravenes either the Constitution or a statute enacted by the Legislature. An ordinance enacted in the exercise of the police power must be general in its nature and applicable alike to all persons who may properly come within its purview. It is not sufficient that its enforcement would promote the general welfare, for instance, that it would facilitate the public use of streets; but, to avoid constitutional inhibition, it must be general in its terms and uniform in its application.</p>

Louis City Circuit Court. — Hon. Thomas G. Hennings, Judge. (1) The judgment and decree of the court is against the evidence and weight of the evidence. (2) The court erred in its fourth finding of fact that expenditures out of proportion to benefits conferred have been and are necessary because of the poor location and dilapidated condition of the real estate- belonging to the fund.

— Hon. J. G. Slate, Judge. The fact that the Constitution requires the consent of the municipal authorities to the grant of the use of the streets of such city for street railway purposes, does not prevent the Public Service Commission from granting to a street railway company relief from unreasonable requirements of an ordinance granting such franchise rights in the streets.

Louis City Circuit Court. — Hon. George H. Shields, Judge. (1) There is no suggestion in the petition of fraud ' by inference as a result of a practical common directory of the two companies, or tlieir want of contractual capacity as between themselves, and if there was, this would not be sufficient. The two companies would not lose their respective corporate individualities by such faet nor their capacity to contract with each other.

<p>Appeal from Mississippi Circuit Court. — Hon. Frank Kelly, Judge.</p> <p>(1) The court, upon the objection of defendant, refused to permit plaintiffs to show that at the time the conveyance from Addie Howlett and her husband was miade to Luke Howlett, Price Howlett, husband of Addie, was being hard pressed and even sued on¡ claims against him. Such testimony was proper. 27 Cyc. 1006' (c); Brightwell v. McAfee, 249 Mo. 579; Powell v. Crow, 204 Mo. 487; Book v. Beasley, 138 Mo. 455; .Cobb v. Day, 106 Mo. 278. It does not matter that the evidence was concerning the husband’s debts, as the wife may mortgage her lands to secure her husband’s debts. ’ Hack v. Hill, 10G Mo. 26. (2) The court erred in failing and refusing to hold that the conveyance from Addie Howlett and Price Howlett to Luke Howlett, was a mortgage and that plaintiffs, the heirs of Addie Howlett, had a right to redeem the land therein described. The suit was brought in time. Lipscomb v. Talbott, 243 Mo. 28; Sheppard v. Wagner, 240 Mo. 437; Wilson v. Drumrite, 21 M,o. 325'; Ballinger v. Chouteau, 20 Mo. 89; 27 Cyc. 1029 (e); R. S. 1909, sec. 1881; Rutte v. Carothers, 223 Mo. 647; Gray v. Yates, 67 Mo. 601. (3:) The instrument sued on is a, mortgage and should have been so construed. Where a deed absolute in form contains a clause reserving to the grantors a right to redeem the premises by the payment of a specific sum within a limited time, this will generally convert the transaction into a mortgage, being taken as manifesting the intention of the parties to create a security only. . 27 Cyc. 997 (IV); Sheppard v. Wagner, 240 Mo. 437; DesLoge v. Ranger, 7 Mo. 330. (a) The intent as expressed in the instrument itself should control. 13 Cyc. 604, 604-D, 606 (b); 34 Cyc. 766; 3 BouvieiYs Law Dictionary (81 Rev.), p. 2858; 27 Cyc. 997 (IV);. 7 Words and Phrases, p. 60231. (b) Even where the intention is doubtful, and the court is to determine whether the transaction is a mortgage or a conditional sale, it will be held a mortgage, as that construction is the more just and equitable. Phillips v. Jackson, 240 Mlo. o. 382, Powell v. Crow, 204 Mo. 490; Turner v. Kerr, 44 Mo. 434; Bender v. Maride, 37' Mo. 246; Brant v. Robertson, 16 Mo. 145; White v. University Land Co., 49 Mo. App. 464. (4) A deed absolute on its face may be a mortgage. 27 Cyc. 991, 994 (b) 996 (b); Chance v. Jennings, 159 Mb. 554; Book v. Beasley, 138 Mo. 455; Hack v. Hill, 106 Mo. 18; Sharkey v. Sharkey, 47 Mo. 543; Tibeau v. Tibean, 22 Mo. 77; Wilson v. Drumrite, 21 Mo. 325; McDowell v. Morath, 64 Mo. App. 297. (5) The fact that there is no agreement to pay interest in this case is more than offset by the grantee taking- possession and retaining the rents and profits. Lipscomb v. Talbott, 243: Mo. 1; Bender v. Zimmerman, 122 Mo. 194; Towner v. Johnson, 95 Mo. 431; Ely v. Turpin, 75 Mo. 83.</p> <p>(1) The petition states no cause of action. Jones v. Hubbard, 193 Mo. 163; Branham v. Peltzer, 177 S. W. 374; Donovan v. Boeck, 217 Mo. 87. (2) The death of Addie Howlett before the expiration of the ten-year period could not extend the time limit for more than three years after her death. R. S. 1909 sec. 1888; Smith v. Settle, 128 Mo. App. 382; Reed v. Painter, 145 Mo. 341; Schradski v. Albright, 93 Mo. 42. (3) There was no existing- debt alleged or proven, therefore the maxim “no debt, no mortgage” should be applied. Donovan v. Boeck, 217 Mo. 87. (4) A,t the time she executed the deed, Addie Howlett was a married woman, and in law deemed a femme sole so far as to enable her “to contract and be contracted with.” R. S. 1809, sec. 4335; R. S. 1909, sec. 8304. (5) The deed itself and all of the evidence shows the transaction to be a complete sale,, with the right reserved in the grantors, or “either of them,” to repurchase within a specified time. Turner v. Kerr, 44 Mo. 433; Slowey v. McMurray, 27 Mo. 113; Bobb v. Wolff, 148 Mo, 335.; Dunaway v. Kerr, 163 Mío. 415; Bailey v. Trust Co., 188 Mo. 486; Powell v. Crow, 204 Mo. 481. (6) The sale was a conditional .one, and oven if there had been no redemption by Price Howlett, Addie Howlett, had she lived, could not have redeemed after the expiration ■of the ten-year- period. Bobb v. Wolff, 148 Mo. 349. (7) The burden was on the appellants to show by clear and convincing proof that the deed was a mortgage. Cobb v. Day, .106 Mo. 278 ; Book v. Beasley, 138 Mo. 455; Bobb v. Wolff, 148 Mo. 335. (8) “Redeem,” as defined by the law writers, means to purchase back; to buy back; to repurchase in a literal sense. 3 Bouvier’s Law Dictionary (3 Rev.) p. 2852; 34 Cyc. 76'6. (9) In order to show that a deed absolute in form was intended as a mortgage, the evidence must be satisfactory as to its credibility, unequivocal as to its terms and meaning, and clear and convincing beyond a reasonable doubt. Gerhart v. Tucker, 187 Mo. 46; Brightwell v. McAfee, 249 Mo. 562.</p>

<p>1. PRACTICE: Further Evidence After Demurrer. To permit plain- « tiff to introduce further evidence after he has rested and after a demurrer to the case as then made has been argued is a'matter within the trial court’s discretion.</p> <p>2. COVENANTS: In Deed and Mortgage. A vendee who secures payment to his vendor of the price of his purchased property by mortgaging back with .convenants the estate granted, does not thereby release the vendor from liability on his, similar covenants.</p> <p>3. -- — : - — : Running With the Land. The covenant of indefeasible seizure runs with the land when the deed containing it passes any interest to' carry the covenant along, the purpose being to enable a remote grantee substantially damaged by the breach to recover his damage; but a purchase-money mortgage or deed of trust, given by a grantee who suffers from his grantor’s broken covenant, does not carry back to the grantor the right to sue on the covenants in the original deed or cancel those covenants.</p> <p>4. -■: -: Estoppel: Damages. The grantee in a deed who gives back a deed of trust for the purchase money, containing Similar covenants, does not estop himself thereby to sue on the covenants in the deed when a substantial breach occurs which damages him, nor create in the grantor a right to sue.</p> <p>5. -: Foreclosure of Deed of Trust by Agreement: Grantee’s Right to Damages for Breach. The grantee, who gave a deed of trust back to secure the purchase money, did not lose his right to recover damages for breach of the covenants contained in his deed, if default in payment and foreclosure sale by the trustee occurred pursuant to a scheme arranged between said mortgagor and said mortgagee that the mortgagee was to buy in order to cure a fault in said mortgagor’s title for which the mortgagee was liable on his covenant.</p> <p>f>. —-:--—: -: Subsequent Sale. And where the agreement was .that the deed of trust, should be foreclosed and the property bought by the mortgagee in order to perfect title in the mortgagor, but the mortgagee, having purchased at the sale, conveyed to a third party, thereby cutting off the mortgagor’s title, the mortgagor is entitled to maintain an action for breach of the covenant contained in tbe deed to him as grantee and recover the amount of purchase money paid by him after his eviction by such subsequent grantee.</p> <p>7. -: —■-: -: Interest. The mortgagor, in his action for damages for breach of covenants, is entitled to interest on money paid on the purchase price, only from date of eviction, and not from date of the payments, if he was meantime in possession and was not answerable over to any one for rents and profits.</p> <p>8. --■: -: -: Reply: Departure: Confession and Avoidance. Where the defense set up in the answer to an action for damages by the grantee for breach of covenants in a deed, is that the plaintiff lost his right to sue as the result of the sale under the purchase-money deed of trust, .a replication pleading, by way of confession and-avoidance, an agreement that the property should be sold by the trustee in order to perfect the title in the defendant, does not state a new cause of action, and-is not a departure, unless the agreement was a contract substituted for the covenants.</p> <p>8. JURY: Irregular Summons. An irregularity in summoning tales men for the jury, no prejudice appearing, is not reversible error.</p>

.Appeal from Pemiscot Circuit Court. — Hon. Sterling H. McCarty, Judge. (1) Where a common source of title is established by agreement or proof, plaintiff need not go back of such common source in making Iris case.

<p>1. LOST CORNERS: Conflict Between Statute and Land Office Rule. If the statute pertaining to the re-establishment of decayed corners of surveyed lands (Sec. 11322, R. S. 1909) operated to change the boundaries of United States surveys, so that one who purchased land according to those surveys would be divested of a portion of it, and another who did not purchase such portion would be invested with it, the statute, in so far as. it conflicts with the rules of the General Land Office pertaining to the re-establishment of lost corners, would be void; but the statute can have no application where the original boundaries are known or can be ascertained, for before it can be invoked it must appear that the corner is not merely obliterated, but is lost — that is, that its locus cannot be determined either from the plat and field notes of the original survey, or by any competent extrinsic evidence.</p> <p>2. -: ->: Statute Paramount. The rule of the General Land Office is controlling in every instance in which it is sought to re-establish a lost internal section corner on the public lands of the United States; but as to lands within the State whose titles have passed to private owners and the jurisdiction of the U. S. Government in reference thereto has ceased, the statute is, in a sense, a rule of evidence, and, in cases in which it is applicable, is obligatory upon the courts.</p>

— Hon. Edgar B. Wool-folk, Judge. . (1) The referee erred in holding that decedent and .plaintiff agreed on a stated account, and in holding that the account was closed at intervals during decedent’s twenty years’ management on the farm, and in holding that all items of account in plaintiff’s claim which accrued-more than five years before same was filed in the probate court were barred, and the circuit court likewise erred in adopting these views and findings of the referee.

<p>1. JURISDICTION: Usurpation. Under a constitutional government the acts of a court not' within its powers prescribed' by the organic . law are usurpations, and when done by a court of last resort may become a gravo menace.</p> <p>2. -: Divorce: Other Issues. Divorce per se is not one of the cases named in the Constitution in which an appeal lies to the Supreme Court, and if it has jurisdiction to review a judgment for divorce on its merits it must b'e because it involves some issue which brings it within the enumeration of specific cases wherein it is given appellate jurisdiction.</p> <p>3.-: '-: Alimony: Amount in Dispute: How Ascertained. Where the trial court granted the wife a divorce and alimony in the sum of $5,000, and the only possible ground upon which the Supreme Court has jurisdiction of her appeal is that the amount in dispute exceeds $7,500, the fact that it has jurisdiction on that ground must affirmatively appear from the record made in the trial court; and if the petition does not allege any definite amount she is entitled to recover, either as alimony or attorney’s fees, the entire record should be examined, to determine what is the amount in dispute.</p> <p>4. -: -: -: -: Inadequate Award: Social Station. Where the plaintiff in her petition in the divorce case did not allege the amount she was entitled to recover as alimony or attorney’s fees and its prayer was that she be adjudged such alimony as in the nature of the case and the circumstances of the parties may be right and proper, and in her motion for a new trial she complained. that the amount of alimony awarded her was inadequate and less than she was entitled to under the law and the evidence and further that she should have been adjudged an amount sufficient to yield her an income that would support her according to the station in life of herself and defendant, the amount in dispute on her appeal is the difference between the $5,000 adjudged to her and either (a) the adequate amount to which she is entitled under the law and the evidence, or (b) an amount that would yield an income sufficient to support her according to her station in life; and unless it affirmatively appears from the entire record that the amount she was entitled to recover for one or the other of these reasons, is an amount in excess of $12,500, the Supreme Court has no jurisdiction of her appeal — there being no other ground on which jurisdiction is invested in said court except the one possible ground that the amount in dispute exceeds $7,500. But she could have fixed appellate jurisdiction in the Supreme Court, by claiming in her petition an amount in excess of $7,500 over and above the amount awarded he-r by the trial court, unless the allegations made it apparent that such claim was fictitious and colorable only.</p> <p>5. DIVORCE: Dower After Decree for Wife. The wife’s inchoate dower in her husband’s real estate is unaffected by a decree granting her alone a divorce and awarding her alimony in a named sum of money, which is not adjudged to be in lieu of dower.</p> <p>6. Estate by the Entirety: Cotenants Upon Divorce Decree. Residence property, bought by the husband and by his bounty conveyed to him and his wife as tenants by the entirety, by virtue of a decree of divorce in her favor becomes the property of the two equally as tenants in common.</p>

— Eon. Arch B. Davis, Judge. (1) The daughters having placed their brother in a position to convey his share or interest in the estate to innocent parties, the loss should fall upon the children, the heirs of the estate, they being the parties to the transaction who placed him in a position to impose upon innocent parties. Ciippen v. American Natl. Bank, 51' Mo. App. 508; Rossi v. Natl. Bank of Commerce, 71 Mo. App. 161.

<p>1. ADMINISTRATION: Presentation of Claims: Limitations: Exhibition to Administrator Within Six Months. Section 195, Laws 1911, page 82, does not mean that the exhibition of a demand against the estate to the administrator for allowance within six months will alone stop the running of the special statute of limitations. A claimant cannot avail himself of the. fact that he exhibited his demand, by notice and in due time, to the administrat- or, unless he also presents it to the court for allowance within the time prescribed by the statute.</p> <p>2. —■-: -: — -: -: Presentation to Court. The Legislature did not intend by the amendatory Act of 1911, by striking out of Section 195 the words explicitly requiring demands to be presented to the court for allowance and substituting the words explicitly requiring it to be exhibited to the administrator for allowance, to make the section simply a reiteration of the requirement of Section 191, as amended, that a demand must he exhibited against the estate as provided in clauses five and six of Section 190, as amended, or be forever barred, but did intend to require a second exhibition to the administrator, the first being for the purpose of obtaining priority of classification, and the second for the purpose of having it allowed. Said Section 195, as amended, requires a demand to be presented to the court for allowance. At all times prior to 1911 and since 1855 two kinds of limitation sections have run along side by side in the Administration Statute, each serving different purposes and each indispensable and distinct from the other, the one -requiring demands to be exhibited to the administrator within a designated period, and the other requiring them to be presented to the court for allowance within a designated time.</p> <p>3. -:,-: Exhibition to Administrator for Allowance. The words “for allowance,” used in Section 195 of the Adminstration Act of 1911, requiring the claimant to “exhibit his demand to the administrator .in the manner provided by law, for allowance,” are not positive enough to empower the administrator to allow a demand against an estate, or to imply that such power already existed. Demands must be established by the judgment of a court, and the requirement that a demand be exhibited'to the administrator for allowance means an exhibition to him in a proceeding in court to have the claim allowed.</p> <p>4. -: -: Manner of Exhibiting Demand. Exhibition of a demand to the administrator, for allowance means an exhibition to him in a proceeding in court, and this proceeding can be by an action in court in the ordinary mode, or by presentation to the probate court. If the exhibition is by presentation to the probate court, the proceeding is initiated in the manner provided by the statutes, namely, by the claimant delivering to the administrator, ten days in advance of the term at which he intends to present the claim, a written no'tice and copy of the instrument of writing or account on which the claim is founded, with a statement that it will be presented for allowance at the next regular or adjourned term.</p> <p>5. -■ — : -: Dismissal: Reinstated Within a Year. Where the demand was exhibited to the administrator within six months after letters granted, and presented to the probate court more than six months after the last publication of notice, and then dismissed, a suit brought in the circuit court within one year after such dismissal, but more than one year after letters granted, or the last published notice, is barred by limitations, under the Act of 1911. The special limitation statute contained in said act controls, and the provision in the general limitation statute that a new action may be begun within one year after such dismissal does not apply. The exhibition of the demand to the administrator within six months does not stop the running of the special statute (See. 195, Laws 1911, p. 82) requiring the demand to be presented to the court for allowance “within one year after the granting of first letters on the estate, or the last insertion of the publication of notice of the grant of such letters.”</p> <p>6. -: —i-: Inconsistencies in Section 195; Exception. The second part of Section 195 of the Administration Act of 1911, permitting exhibition of a demand to the administrator at the usual term for final settlement, seems inconsistent with the. first clause, which requires claims to be exhibited within a year from the granting of letters, since final settlement can- occur no sooner than “the first regular term of the court after the expiration of one year.” But said second part may be regarded as contemplating an exception to the regular procedure, and to allow a proceeding, commenced with the year, to be followed up in court as late as the term next succeeding the one at which final settlement would otherwise occur. The purpose was to permit0 a claimant whose second exhibition was within the year, but too late to follow it up in court within the year, to have a term, but only one, after the one for final settlement, to present it to the court; whereas a claimant who gave earlier notice under Section 203 would need no such grace. This ambiguity in. Section 195, however, was cured by the amendment of 1917, Laws 1917, page 98.</p> <p>CONSTRUCTION OF STATUTE: Reconciling Inconsistencies. In order to prevent one statute, or a portion of one, from conflicting with the entire scope of legislative action touching the subject, it is sometimes necessary to depart from a literal construction, and adopt the one that removes the inconsistency and produces harmony.</p>

Louis City Circuit Court. — Hon. Thomas G. Hennings, Judge. (1) If the description of real estate contained in an instrument, which seeks to convey an interest in said real estate, is so inaccurate, indefinite and incomplete as to render the identity of the particular tract of land sought to be conveyed wholly, uncertain, the instrument is void as a means of conveying interest in real estate or color of title.

— lion. B. G. Thurman, Judge (1) At common law the master is not required to guard his machinery but could leave all parts of the machinery unguarded and incur no legal liability on that account. Cole v. Lead Co., 240 Mo. 404; Czernicke v. Ehrlick, 212 Mo. 386; Lore v. Manufacturing Co., 160 Mo. 608'; Blair v. Iieibel, 103 Mb. App. 621; Gleason v. Smith, 172 Mass. 50.

— Hon. John W. Calhoun, Judge. (1) The trial court should have sustained appellant’s demurrers to the evidence, (a) The evidence showed no negligence on the part of appellant. Stotler v. Railroad, 200 Mo. 146.; Berry on Automobiles' (2 Ed/), p. 158; Battles v. Railway, 178 Mío. App. 624. (b) The plaintiff was guilt3r of contributory negligence as a matter of law. Stotler v. Railroad, 200 Mo. 146; White v. Railroad, 250 Mo. 482.

Louis City Circuit Court. — Hon. Thos. G. Hennings, Judge. (1) A landlord may be under no obligation to make repairs on the demised premises, but if be undertakes nevertheless to make repairs, and the same are negligently made, he is responsible in damages for the injuries resulting therefrom. 1 Tiffany on Landlord & Tenant, pp. 660, 649; Finer v. Nichols, 158 Mo. App. 539; Little v. Mc-Adaras, 38 Mb.

— Hon. C. H. Skinker, Judge. (1) The fiduciary relation having been shown to exist between plaintiff and defendant, the law presumes that the deed was obtained by undue influence. Cadwallader v. West, 48 Mo. 483:; Kirschner-v. Kirschner, 113 Mo. 297; Ennis v. Burnham, 159 Mo. 518; McDermeitt v. Keesler, 240' Mo. 287; Kincer v. Kincer, 246 Mo. 419. (2) The deed should be set aside for failure of consideration. Respondent admits he paid nothing.

<p>1. RESULTING TRUST: Whence and How It Arises. A trust results in favor of a party who furnishes the purchase money for real estate, when the title is taken in the name of another. It arises from the facts, not from an agreement, hut regardless of and sometimes in spite of an agreement.</p> <p>2. -.: Presumption: Conveyance to Wife. The presumption is that the grantee in a deed conveying real estate intends to hold the title in trust for the person who paid the purchase money. But that presumption is oversome by another where the husband pays the purchase price and his wife is named as the grantee, for then the presumption is that he intended the conveyance prima-facie as a provision for her. But the presumption that he intended the conveyance to operate as a settlement on his wife is rebuttable, but only under circumstances consistent with legal principles.</p> <p>3. -: Coincident With Conveyance: Future Contingency: Express Trust. A resulting trust must arise, if at all, at the instant the deed is taken. . The transaction must be such that the trust arises the moment the title passes. If the trust in favor of the husband’s children is made contingent upon the happening of an event in the future, such as the legal separation or divorce of the husband and wife, the children do not have a resulting trust in real estate paid for by the husband and conveyed to him and his wife. •</p> <p>4. - — : Parol Agreement to Hold in Trust: Express Trust. Allegations that the husband’s money paid for the real 'estate and that it was conveyed to him and her upon an agreement that in case of their legal separation or divorce, she and he would convey to their three children, is grounded on an express trust, which cannot be established by parol.</p>

<p>Appeal from Macon Circuit Court. — Hon. Vernon L. Drain, Judge.</p> <p>(1) Sec. 7047, R. S. 1909, denies foreign insurance companies equal protection of the law. This section is violative of Section 1 of the Fourteenth Amendment to the Federal Constitution, and is unconstitutional and void. Said section conflicts with Sub-section 26, Section 53, Article 4, Constitution of Missouri, and with Article 2 of Section 30 of Constitution of Missouri. Southern Railway Co. v. E-reene, 216 U. S. 400. ('2) Defendant having been authorized to do business in Missouri was, after such authorization, entitled to be treated the same as a domestic insurance company and entitled to equal protection of the law. The imposition of conditions preceding entry into the State have no bearing on the question, as the point goes to the equal rights of the defendant after being admitted. Gulf, Colorado & Santa Fe Railway v. Ellis, 165 U. S. 150. (3) To effectuate an assignment of a policy of fire insurance so as^ to create liability from the insuring company to the assignee, there must be (a.) a valid assignment by the owner of the policy to the assignee and (b) the consent of the insurance company to the assignment. If the minds of the seller of the property and the purchaser have not met as to assigning the insurance or the expressed consent of the insurance company has not been secured, then in either event it is ineffectual. 2 Joyce on Insurance (2 Ed.), sec. 1120. (4) The court should have directed a verdict as a matter of law, because no valid assignment of the policy was proven, nor any consent of the insurance company requested or given respecting same. Unexecuted intention to assign a policy does not amount to an actual assignment. Meadows ’ Guardian v. Meadows ’ Administrator, 13 Ky. Law Report, 495'. Fire insurance policies cannot be assigned without consent of the insurer. 4 Joyce on Insurance (2 Ed.), p. 2304. Assignment and consent thereto is a tripartite contract and must in every sense be a novation to have any legal effect. Swaine v. Teutonia Fire Insurance Co., 222 Mass. 108. (’5) Insurance agents, even though designated “general agents,” are not substitutes for their employer with authority to do anything whatsoever but must act within the apparent scope of their authority. Continental Insurance Company v. Schulmán, 205 S. W. 315.</p> <p>(1) The defendant’s agent countersigned the policies and followed the usual course of business he had pursued for years with the consent of the company. This made their agent a general agent and his agreements and knowledge was binding- upon the company. The company is estopped from disputing) the authority of its agent. Sheets v. Ins. Go., 153 Mo. App. 020; Rogers v.. Eire Ins. Co., 157 Mo. App. 671; Deland & Sons v. Ins. Co., 68 Mo. App. 282; Bealmer et al. v. Hartford Eire Ins. Co.,. 193 S. W. 847; Woolfolk v. Home Ins. Co., 202 S. W-. 627; Prichard, v. Conn. Fire Ins. C'o., 203 S. W. 223. (2) The extent and character of the agent’s authority is determined by the powers granted and the general course of dealing, and not the name by which the agent is designated by the company. Sheets v. Ins. Co., 153 Mo. App; G20; Nickell V. Ins. Co., 144 Mo. 420; Bealmer v. Hartford Fire Ins. Co., 193 S. W. 847. (3) The general agent has authority to bind the company and his agreements or knowledge will be imputed to the company. A local agent having the power to make contracts of insurance has authority to make assignments of policies. Nickell v. Ins. Co., 144 Mo. 420'; Sheets y. Ins. Co., 153 Mb. App. 620’; Bealmer v. Hartford Fire Ins. Co., 193 S. W. 847; Woolfolk v. Home Ins. Co., 202 S. W. 627; Prichard v. Conn. Fire Ins. Co., 203 S. W. 223. (4) When the agent knows the exact conditions and the premium is accepted or not returned, the company will be held liable for the loss. Gray v. Ins. Co., 155 N. Y. 184; Rogers v. Ins. Co., 157 Mo. App; 671; Manning v. Ins. Co., 176 Mo. App. 678; Rosecrans v. Ins. Co., 66 Mo. App. 352; Bealmer v. Hartford. Fire Ins. Co., 193 S. W. 847; Woolfolk v. Home Ins. Co., 202 S. W. 627; Prichard v. Conn. Fire Ins. Co., 203 S. W. 223. (5)1 Contracts of insurance need not be in writing. If the agent had authority his agreement for insurance or assignment of policies will bind the company. R. S. 1909', sec. 2993; Baile v. Ins. Co., 73 Mb. 371; Real Estate Saving Inst, v. Collonious, 63 Mo. 290; King v. Ins. Co., 195 Mo. 290; State v. Lincoln Trust Co., 144 Mo. 592; 15 Am. & Eng. Ency. Law (2 Ed.), 852; 1 Joyce on Insurance, sec. 525; Richards on Insurance, sec. 41; Vining v. Ins. Co., 80 Mo. App. 311; Bealmer v. Hartford Fire Ins. Co., 103 S. W. 847; Woolf oik v. Home Ins. Co., 202 S. W. 627; Prichard v. Conn. Fire Ins. Co., 2Ó3 S. W. 223. (6) Sec. 7047, 1909, is constitutional. It is a general and not a special law. State v. Bishop, 128 Mo.. 373; State ex inf. v. Aetna Ins. Co., 150 Mo. 113; Hamman v. Central Coal & Coke Co., 156 Mo. 232; Ex Parte Berger, 193 Mo. 16-; Phillips v. Mo. Pac. Ry. Co., 86¡ Mb. '5401.</p>

<p>1. EVIDENCE: Substantial for Plaintiff: Appellate Practice. If plaintiff’s testimony that he stumbled over a brake-beam lying-in defendant’s railroad yard is substantial, and is not contrary to reason, the appellate court will accept the verdict of the jury finding it to be true.</p> <p>2. DANGEROUS PLACE: Brake-Beam in Yards: Constructive Notice of Location. At different times cars were repaired in defendant’s railroad yard, their parts separated, and it was customary to take out brake-beams and drop them near at hand, to be subsequently removed; a car was being repaired near the scene of the accident on the day preceding it; the yard belonged to defendant and was fenced; and plaintiff, a switch-tender, testified that having aligned the rails so as to permit a train to pass, at four o’clock of a dark and_ rainy December morning, he started to walk across the yard to a shanty where he stayed when not engaged in adjusting the switches, and while looking ahead to determine his course, he stumbled over a brake-beam, fell to the ground, and before he could arise a switch engine on a lead track struck him. Held, that the other facts were circumstances confirmatory of plaintiff’s testimony, and that, under the Federal Employers’ Liability A,ct, defendant cannot escape liability on the ground that the evidence failed to show it had either actual or constructive notice of the location of the brake-beam.</p> <p>3. -: -: -: Act of Servant. Under the Federal Employers’ Liability Act, a switch-tender is not required to show a negligent placing of a brake-beam in the railroad yards, over which he stumbled and fell; but the leaving of the beam at said point was a negligent act and -bound the company as effectually as if it, as principal, had left it there.</p> <p>4. -: -: Assumption of Risk. A switch-tender, having aligned the tracks at the switches and started to the shanty where he stayed when not so engaged, at four o’clock on a dark and rainy December morning, had a right to assume that the railroad company had exercised proper care to provide a reasonably safe place for him to work, free from any obstacles which would cause his injury, and that a, brake-beam, over which he stumbled, had not been left in the yard over which he customarily passed; the leaving of the beam in such place, at such time, did not constitute a risk normally incident to his employment.</p> <p>5. <-: -: Evidence of Customary Acts. Where the railroad yard through which the switch-tender passed in going in the night time to a shanty in which he stayed between his acts in aligning tracks, was used by defendant in the conduct of -its business, testimony that it was the practice of the employees to scatter materials over the yard in repairing cars is admissible, the switch-tender having stumbled over a brake-beam in the yards and having been injured thereby. While such acts are in a sense collateral, an inference of fact bearing on the particular act of negligence may properly be drawn from them.</p> <p>6. -: -: Collateral Fact. The rule is that if a collateral fact bearing on the main issue is so intimate and valuable as to tend to prove the main fact, it is competent evidence.</p> <p>7. DAMAGES: Under Federal Act: Contributory Negligence: Instruction. It is proper to- instruct the jury, in a suit for personal injuries brought under the Federal Employers' Liability Act, that the amount of plaintiff’s damages may be reduced in the proportion that his own negligence contributed to his injury; and the instruction on the subject in this ease is unobjectionable.</p> <p>8. VERDICT: Excessive: $10,000. Under the Federal Act. an injured employee is entitled to such damages as will compensate him for expenses incurred, loss of time, suffering and diminished earning power, and the amount recoverable is not otherwise limited or restricted, except where he has been guilty of contributory negligence; and there being no such negligence, a verdict of $10,000 for the loss of an arm and a gash above the eye which impairs the sight, supported by substantal evidence and approved by the trial court, vested with authority to set it aside if excessive, is approved.</p>

<p>1. NEGLIGENCE: Safe Place: Narrow and Unlighted Platform. A petition which states that deceased was ordered and directed to stand twelve feet above a concrete floor on á platform twelve inches wide, and while so standing to reach up six feet and regulate the dampers to a boiler; that the platform was unsafe, because too narrow for deceased to perform his labors with safety, because it had no railing to prevent a person on it from falling off and because it was inadequately lighted; and that, while performing the said work, deceased fell and was killed, states a cause of action. And particularly does the averment that it was dark on the platform tender dn issue to be submitted to a jury.</p> <p>2. -: -’: Assumption of Bisk. Although the height and narrow width of the platform on which deceased was required to work were apparent, and although the danger in adjusting the dampers of the boilers which his employment required him to regulate was apparent, h’e 'did not assume such risks; but he assumed only such risks, in respect to the place where he was put to work, as were incident to the service after his employer performed his duty by using care to provide a place of reasonable safety. Although the danger may be obvious, if this is due to a lack of care on the part of the master in furnishing him a safe place, the servant does not assume the risk.</p> <p>3. -: -: Contributory Negligence. Unless to perform on the platform the work with which the servant was occupied at the time he fell appears conclusively from the allegations to have been plainly hazardous to a degree that would have deterred a man of ordinary prudence from undertaking to perform it, he cannot be defeated on the score of contributory negligence, as a matter of law, upon a demurrer to the petition.</p>

<p>1. LACHES: Action at Law: Suit to Quiet Title. Laches is no de-_ fense to an action .at law. Where the petition and answer are not set out, but abstracted by appellant, and it is stated in this abstract that laches was interposed by the answer as a defense, but both this abstract and the statement of respondent also say that the petition was an ordinary action under the statute to quiet title, and the record shows the case was tried as one at law, the case will be so treated on appeal, and the finding of the judge sitting as a jury will be binding, for such a petition states a cause of action at law, and not in equity.</p> <p>2. -: -: -: Taxes. The mere non-payment of taxes on land does not show laches.</p> <p>3. IDENTITY OF NAME: Identity of Person. Identity of person is to be presumed from identity of name. But the presumption may be overcome by credible evidence. The presumption only establishes a- prima-facie case. The jury, or the court sitting as a jury, may believe or disbelieve such evidence; if believed, the presumption fails; if disbelieved, the presumption will authorize a verdict.</p> <p>4. -: —:-: Instruction: Reasonable Doubt. An instruction on the presumption of identity of person arising from identity of name should not require the trier of the facts to find the identity of person beyond a reasonable dopbt, or otherwise ignore the presumption. The term “reasonable doubt” or similar expressions have no place in instructions in a civil case.</p> <p>5. INSTRUCTION: Erroneous: Given by Court to Itself. An erroneous instruction given by the court sitting as a jury to try the facts will work a reversal. In such case, the erroneous instruction in a law case is just as fatal as if the issues had been submitted to a jury and such instruction had been given to them as their guide.</p> <p>6. CONVEYANCE: Existence of Deed: Presumption: Payment of Taxes. In the absence of any record, proof that a deed was made by the patentee to defendant’s ancestor may be made either (1) by proof of such facts as will raise a presumption that such deed was made or (2) by direct evidence that such deed was made and had been lost or destroyed. But the presumption that a deed was made cannot arise from the mere payment of taxes for a period, of years, either by such ancestor or his heirs or grantees; but ancient and long possession, coupled with other circumstances, will justify the presumption. Nor will evidence that defendant’s ancestor was in possession of a patent, in which he was not named as patentee, aid the presumption that a deed was made by said patentee to him as grantee. And the presumption aside, and no record of a deed or possession of the land being shown, the evidence should show a deed in fact.</p>

<p>1. LIMITATIONS: Cotenants: Notice of Adverse Claim. The institution of suit against the other descendants of an intestate decedent, by' one of his children, in possession, to quiet title in her, is notice to them that an adverse possession is intended to be asserted against them.</p> <p>2. --: Arresting Running of Statute: No Action by Defendants Within Ten Years After Suit Brought. Decedent had built a house and placed his daughter, the plaintiff, in possession, and she alleges it was a gift to her. He died intestate in 1903, and on January 27, 1904, she, . being in possession, instituted suit against his. other 'heirs, to have the title determined under the statute (Sec. 650, R. S. 1899); and on February 25, 1916, she filed her fourth amended petition, in which she averred that the property was given to her by her father, and that prior to his death she occupied the same and has since held the sole and exclusive possession thereof, “claiming the same as the owner and adverse to all persons whomsoever.” To this petition defendants filed their answer in which they each claim an interest in the property adverse to the claim of plaintiff, ask the court to determine the title, charge plaintiff with rents and decree partition; and their first answer, filed June 5, 1907, was to the same effect. Held, that, under Section 1879, Revised Statutes 1909, which provides that “no action for the recovery of lands or of the possession thereof shall be commenced or maintained, unless it appear that the plaintiff or other person under whom plaintiff claims was seized or possessed within ten years before the- commencement of said action,” defendants are barred and plaintiff has title by limitations, unless, within ten years after plaintiff entered into possession, defendants arrested the running of the statute by the filing of their answers, for plaintiff’s first petition, in which she asserted sole ownership, imparted notice to them, as cotenants with her, that she claimed adversely to them; and all of defendants’ answers or cross-bills being statutory actions to determine title, for rent and for partition, none of them had for their object the recovery of the premises, and none of them operated to arrest the running of the statute, and therefore plaintiff has the title, by limitations. (Goode, Graves and Woodson, JJ., dissenting.)</p> <p>3. --; -; By Demand for Rents. A, demand for rents set up in the answer to plaintiff’s petition to determine title and asserting adverse possession, does not state an action for the recovery of the premises.</p> <p>4, _; -; -: By Action to Quiet Title. That portion of an answer or cross-bill which asks that the court ascertain and determine the title under the statute cannot be considered an action to recover land, such as is contemplated by Section 1879, Revised Statutes 1909, which says that no action to recover land or the possession thereof shall be commenced or maintained, unless it appear that plaintiff or other person undei whom he claims was seized or possessed within ten years. The ten-year Statute of Limitations has no application to the bringing of a mere statutory action to determine title.</p> <p>5- -: -: —■-: By Demand for Partition. A suit in partition is not an action for the recovery of land, under the ten-year Statute of Limitations (Sec. 1879, R. S. 1909); and a count praying for a decree of partition, in a cross-bill in a suit to determine title, which in no wise asserts a possessory right of the defendants, cannot be considered an action tb recover the land or its possession.</p> <p>6. -: -: —■-: By Count in Ejectment. By a separate count in ejectment in their answer or cross-bill to plaintiff’s pe-' tition to determine title, or by any other sufficient allegations of facts for affirmative relief, in which they plead ouster, assert their right to possession and pray that they be .restored to. possession, made within ten years, defendants can arrest the running of the ten-year Statute of Limitations (Sec. 1879, R. S. 1909): but if no such possessory right is asserted in the answer or cross-bill, and it contains no denial of plaintiff’s allegation,, in her amended petition, of adverse' and sole possession and claim of ownership for ten years, including the years which have expired since her suit was instituted, and the facts establish such possession in her, the running of the statute against defendants is not arrested.</p> <p>7. -: Adverse Possession: Creates Title. Adverse possession, accompanied by the well-known prerequisites, for the statutory period, not only bars any action for recovery, but operates.to vest the full legal title in the possessor.</p> <p>8. -: .-: Consistent With Action to Determine Title. An action to determine title is not only not inconsistent with, but is entirely consistent with, plaintiff's adverse possession.</p>

. Prohibition. The suit of Joseph SharamitarO' v. Union Pacific Railroad Company-et al., No. 20072, pending in the circuit court of the city of St. Louis, is an attempt to subject Walker D. Hines to the jurisdiction of the said court, in violation of the plain provisions of the statutes of Missouri relating to the venue of suits against corporations, because of which said circuit court was possessed of no jurisdiction over the person of the Director General of Railroads.

Certiorari. (1) In disposing of the case on appeal, the respondents have done so on a theory not presented below and thus have affirmed the cause on issues never presented to the trial court or jury by pleadings or instructions. In so doing respondents have failed to follow the rule announced on that subject in the latest controlling decisions of the Supreme Court in Brunswick v. Standard Accident Ins.

: — Hon. H, W. Utts, Judge. (1) The information in this case is fatally defective and the demurrer thereto should have been sustained. It is difficult to tell which section of the statutes this information was attempted to be drawn under.

<p>1. INDICTMENT: Embezzlement:-Conversion by Bailee. Under Section 4552, Revised Statutes 1909, which makes it an offense to convert money or property as a bailee with intent to embezzle it, an indictment charging that at a time mentioned defendant was the bailee of a certain note, describing it, which was owned by a certain other person; that while said note was so held by defendant, he, without the consent of the owner, converted it to his own use; that his intent in so doing was to deprive the owner of the same, and that in the manner aforesaid he did feloniously steal, take and carry away said note, etc., charges every essential element of the crime.</p> <p>2. -: -: Ownership. In an indictment charging that defendant unlawfully as bailee converted a note for $1500 to his own use, it was alleged that the note, executed by Henry Woods, was “payable to the order of” defendant and was “the right of action, valuable security and property of C. C. Sanders,” and was “delivered to and came into possession and under the care of” defendant “as bailee aforesaid, of, for and on behalf of C. C. Sanders.” Held, that the indictment is not bad because it does not allege that the note was indorsed by defendant to Sanders, but the ownership is sufficiently alleged to be in Sanders, and by the words used is more specific in that respect than it would be had it contained an allegation that the note had been indorsed by defendant to Sanders.</p> <p>3. -: -: Description of Note: Secured by Deed of Trust: Interest. In an indictment for embezzlement as bailee of a note payable when made to defendant, .it is not necessary that it allege that the note was secured by a deed of trust, that it bore interest at the rate of eight per cent after maturity, or that it was payable at the ■ office of defendant. Those things constitute matters of description not necessary to be pleaded under the statute, which makes the indictment sufficient if the instrument embezzled is described by any name or designation by which it may be usually known.</p> <p>4. OBJECTION'S: General. Objections to testimony must be specific, and upon an adverse ruling thereon exceptions must be saved; otherwise, they may be disregarded on appeal.</p> <p>5. EMBEZZLEMENT: Variance: Accounting: Intent; Where the crime charged embezzlement of a note by defendant as bailee, proof that, while the note was in defendant’s possession only for the purpose of effecting its sale for the benefit of the owner, defendant pledged it to a bank as collateral to secure the payment of his own debt, is competent to prove the intent with which the conversion was committed, and being competent for that purpose it cannot be ruled to have been offered to establish an accounting, and consequently there was no variance.</p> <p>6. INSTRUCTIONS: No Specific Assignment. A motion for a new trial in a criminal case should contain some definite reference to instructions complained of. Assignments that “the court erred in giving instructions upon the request of the State,” that “the court erred in the instructions given of its own motion” and that “the court erred in failing to instruct on all the law-of the case,” are too indefinite to authorize a review of the instructions on appeal.</p>

<p>1. COMMON LAW: Pleading: Effect. The effect of the statute of Kansas which provides that “the common law as modified by the constitutional and statutory law, judicial decisions, and the conditions and wants of the people shall remain in force in aid of the general statutes of this State” extends no further than to assert the common law to he there in force as therein stated, and to render unnecessary any presumption that might otherwise obtain an account of that State not having been carved out of the original territory subject to the law of England. Considered in any other sense, the pleading of the statute is a mere conclusion.</p> <p>2. -: Definition: How Pleaded. The common law is not “a true body of law” in the sense that it is collected into a code or any particular book; but it began in statements- and principles announced in decisions of courts, which have been multiplied and modified by subsequent decisions, until they are regarded as accumulated and approved expressions of what is right and just. In this country, the common law is inseparably identified with judicial decisions, and what is the common law of any particular state is to be ascertained by an examination of its decisions, as precedents; and where an attempt is made to plead the common law of another state, the rules of decision of the courts of that State, as applicable to the particular case, are the things to be alleged, as the basis of the action. It is not sufficient to plead what counsel may think is the common law of the foreign state, but it, as well as its violations, must be pleaded with distinctive^ ness, as any other substantive fact.</p> <p>3.--: Pleading: Conclusions. In pleading the decisions of another state from which the common law therein is to be determined, pertinent parts of such decisions should be alleged, in order to avoid the charge of stating mere conclusions. If the common law of such foreign state is the basis of recovery or the constitutive fact of plaintiff’s case, mere conclusions as to what counsel may think the decisions of its courts may mean will not suffice.</p> <p>4. -:--: -: Private Charity. In a suit to construe a will, devising property in Kansas and probated in that State, the will was alleged to be invalid for that it attempted to create a private charity, in violation of the common law in force in that State, and the petition, after a general averment “that the common law in force in Kansas is and was in part at all times mentioned as follows,” proceeded, in several paragraphs, in some of them arbitrarily and in others argumentatively, to state what is alleged to be the law of Kansas relating to wills and charities and the powers and duties of the donee (a school district) in reference thereto, but alleging nothing either affirmative, definite or precise as to what is the actual common law of the State. Held, that it is essential that the common law of Kansas itself, as found in the court decisions of the State, be pleaded as any' other fact, and the petition is not good as against a general demurrer.</p> <p>5. -: -: -: Ultimate Facts. A petition, in stating the ultimate facts in regard to the common law of another state, relied on as the basis of the action, and not the law itself, is not sufficient. Ultimate facts are nothing more than issuable, constitutive or traversable facts essential to the statement of a cause, of action, and are not mere conclusions as to what the facts are.</p> <p>6. -: *-: Demurrer: Admissions. A general demurrer to a petition does not admit conclusions of law. Where the petition simply contains general averments as to what the common law of another state is, but does not plead that law itself as facts, a demurrer to it that it does not state -facts sufficient to constitute a cause of action does-not admit the common law of the State to ]?e what the averments allege it to be.</p> <p>7. -: -: Private Charity: Gift for Educational Purposes. The Supreme Court of Kansas has never decided that every public charity must be such as the State may lawfully maintain by public taxation. Therefore, an allegation in the petition to construe a will by which property was bequeathed “for the purpose of creating an endowment for the education of worthy young men and woman of a school district” in a named county, “preference to be given to those who ar'e orphaned,” that the will attempted to create a private charity, and that the gift was void because the object was not one which “the State its'elf ought and lawfully might endow and support with public resources,” does not and cannot state a cause of action, because there are no decisions of that State so holding.</p>

Certiorari. (1) The trial court erred in refusing' to give the peremptory instructions asked by the defendant, and' the decision of the Court of Appeals affirming its rulings in that regard is at variance with controlling1 decisions of this court, (a) A person has a right to u;se only1 that part of public property to which he is invited, either expressly or by implication.

— Hon. Edgar B. Woolf olh, Judge. (1) Both the statute law and the decisions conclusively establish that this conveyance created an estate by the entirety in William Finley and Fannie Finley, his wife.

<p>1. IMPEACHMENT: Place of Residence. Objections to an inquiry of witnesses for their knowledge of plaintiff’s general reputation in a given place, is not an objection to their competency to testify.</p> <p>2. -: General Reputation: In Community. Plaintiff is subject to impeachment like any other witness, and general reputation is admissible' to prove his character as it 'exists at the time of the trial, and reputation, to be competent, must be made up of what is generally said of the witness by those who have sufficient opportunity to observe his life and actions, and ordinarily they are the persons in the neighborhood or community in which he resides, but it is -not impossible for him to have a general reputation for veracity in more than one community. " ,</p> <p>3. -: --: -: Former Residence. The discretion of the trial court is not abused by the admission of testimony relating to the witness’s reputation in a community in which, beginning nine or ten years previously, he resided for several years, and in which he was widely and generally known and which he frequently revisited and there plied his vocation of selling spectacles and jewelry.</p> <p>4. -' — : -: Neighborhood and Community. The term “neighborhood” or “community” is not susceptible of exact geographical definition, but means in a general way the place where the person has established a reputation, whether that be his present or former residence or place of business. It is not necessarily confined to a particular locality, but may be co-extensive with his residence or place of business, or both, or to places of present and former residence, if he in such places came into such frequent association with persons there as to establish a reputation. In the absence of a showing to the contrary, the inquiry as to his reputation should be confined to the neighborhood of residence; ' but where there are additional facts to show the establishment of a reputation elsewhere, the court does not abuse its discretion by permitting witnesses to testify what his general reputation in such other place is or was.</p> <p>5. INSTRUCTION: Injuries at Other Times and Places. The trial court did not commit prejudicial error in instructing the jury that the mere fact that plaintiff at some time may have sustained broken ribs and other injuries was not proof that he was injured at the time and in the manner asserted by him, if there was direct testimony that he was neither on nor within several feet of defendant’s car at the time he claims to have been injured and he did not call a doctor or notify defendant for four months thereafter.</p> <p>6.-: Conflicting. An instruction authorizing the jury to find. for defendant if they believe “from all the facts and circumstances in the case” that plaintiff had not received any injury is not in conflict with another for defendant requiring plaintiff to make out his case “by the greater weight of the credible evidence in the case.” They do not set up different standards of the weight of evidence requisite to warrant a finding, but the one places the burden on plaintiff and the other presents the matter from the point of view of defendant, on whom rests no such burden.</p> <p>7. -: Expert Testimony: No Injury. Error in an instruction concerning expert testimony is not prejudicial, where th'e testimony has reference to the character, extent and permanency of plaintiff’s injury and spends its force on the issue as to the amount of damage, and the jury finds that he was not injured by defendant at all. Besides, the instruction here complained of was, in substantially the same form, approved in Hoyberg v. Henske, 153 Mo. 1. c. 75, and numerous later cases.</p> <p>8. -: To Disregard Testimony. An instruction for defendant telling the jury that they were authorized to disregard testimony, if any, opposed to obvious physical facts or in contradiction of the common knowledge and experience of mankind, was not prejudicial under the facts of this case, where both court and jury had full opportunity to observe whether plaintiff’s actual physical condition and conduct accorded with his testimony.</p> <p>9. FAIR TRIAL: No Exceptions. Where no objection was made to the admission of testimony that plaintiff’s pretended injuries were simulated, no reguest was made that defendant’s counsel be rebuked for their conduct or that the jury be discharged, and no exceptions were taken to the conduct of the trial in the manner complained of on appeal, it cannot be ruled that plaintiff was not afforded a fair and impartial trial.</p>