Volume 50 — Missouri Reports

Appeal .from, Jefferson Circuit Court. The petition sets forth a clear case of mistake, together with such a state of facts as show that the judgment rendered in the former case ought not to be allowed to operate as a bar to a recovery of the balance due on the note. (1 Sto.

<p>1. Forcible entry and detainer — Rents and damages — Cross-action of ejectment by defendant in — Forcible entry — Rule of damages in. — A. having leased certain premises to B., forcibly dispossessed him before the expiration of the lease. B. having sued him for possession in forcible entry and detainer, held, that A. could not claim rents or damages by Avay of offset in that suit, but must submit to the judgment of the court; that is, restore the property and pay the damages and rents allowed by the j udgment. He might then bring his action of ejectment, laying his ouster prior to the time he dispossessed B.; and'in such suit he would be entitled to recover the premises and damages for their detention from the time of such ouster. He would also be entitled to the rents due him under the lease, and rent after the expiration of the lease up to the time the property Avas restored to him. But where defendant in the forcible entry suit died before the property was restored, and the judgment was presented for allowance before the Probate Oourt, all just claims for rents and damages should be allowed.</p>

<p>1. Notices, legal — English in German paper. — When legal notices are to be published in a newspaper, an English paper is always intended unless expressed to be otherwise. In the absence of such direction an English advertisement inserted in a German newspaper is bad.</p> <p>2. Trustee cannot delegate power of sale — Must he present in person. — A trustee must in person supervise and watch over the sale of the trust property, and adjourn it if necessary, to prevent a sacrifice of the property. And no one can do it in his stead unless empowered thereto in the instrument conferring the trust. A trustee cannot delegate the trust or power of sale to a third person, and a sale executed by such delegated agent is void.</p>

<p> Petition for Mandamus. </p>

<p>1. Wills, statute of — Destruction and revival of wills. — Under the law as passed in 1845 (see 'Wagn. Stat. 1366, § 12), the first will is not revived by the destruction of the last, except where an intention to that effect is expressed at the time of the destruction, or where the first will is republished.</p>

<p>1. Railroads — Iron Mountain R.R. — State lien — Sale of after acquired lands under.— The lien of the State upon the Iron Mountain Railroad lands, created by the act of 1851 (Sess. Acts 1851, p. 266 et seq.), embraced land acquired by the road after the creation of the lien, and foreclosure and sale-of the road under said act would carry title to such land.</p> <p>2. Iron Mountain R.R., sale of — What lands appurtenances to road.— The-sale of the Iron Mountain Railroad and its appurtenances, under the act of February 22, 1851 (Sess. Acts 1851, p. 268, § 11), and acts pursuant thereto, embraced railroad land, although outside of the railroad and not necessary to its use. (See Sess. Acts 1865-6, p. 107, 6.)</p>

<p>1. Mandamus — United States constitution — Pacific railroad — State bonds, payment of — Action of Legislature touching — Supreme Court, powers of. — The Pacific Railroad State bonds, issued under the act to expedite the construction of the Pacific Railroad and the Hannibal & St. Joseph Railroad, approved February 22, 1851, being payable on their face in gold and silver, can be met only by payment of the sum called for in gold and silver coin, and not by payment of the amount in legal-tender currency. The legal-tender act cannot affect this obligation. But where the Legislature has determined to pay the bonds in legal-tender currency, the Supreme Court has no power to interfere; and mandamus to compel the fund commissioners to .pay said bonds in gold and silver coin will not lie.</p> <p>Per Wagnek, Judge.</p> <p>1. Legislature, power of over appropriations — Supreme Court — Superintending control of. — It was competent for the Legislature to modify or repeal the law appropriating the money for the payment of these bonds, and its action is not liable to superintendence or control by the judiciary.</p> <p>The State may say in what manner its debt shall be paid, or that it shall not be paid. And its action may amount to a breach of faith; but there is no power to correct it.</p>

<p>1. Administraioi — Note, suit on — Defense — Title.— "Where an administrator holds a note of his intestate, which was inventoried to himself, and accounts for it in full in his settlement with the estate, and nó representative of the estate makes any complaint or seeks to charge an improper appropriation of the instrument, it becomes his property, at least as against the maker; and in suit against the latter on the note, a defense that it belongs to the estate, and that plaintiff has no title, is without merit.</p>

<p>1. Practice, civil — Pleading — Amendment — Copartnership, allegation of— Waiver.— Semble, that plaintiffs were properly allowed to amend their petition by substituting the allegation that they were a copai'tnership, for the previous averment that they constituted a corporation; and held, that where a defendant voluntarily answers such amended petition he thereby waives his objection to such amendment.</p>

<p> Appeal from St. Louis Circuit Court. </p>

<p> 'Jippeal from St. Louis Circuit Court. </p>

flppeal from, St. Louis Circuit Court. 1. The contract of insurance was the wife’s, made with her husband’s assent, 'and ratified by him. It is good, independent of any statute, by the common law. (Chit.

<p>1. Action — Malicious prosecution — Landm'ar/c.— A suit brought against defendant for removing plaintiff’s landmark, is not itself rendered actionable as a malicious prosecution by reason of the fact that the landmark was wrongly located, the evidence showing that it had been placed there by the proper officer.</p> <p>2. Action for malicious prosecution — Malice — Want of probable cause. — An action for malicious prosecution cannot lie without proof of malice and want of probable cause.</p>

<p> Jlppeal from, St. Louis Circuit Court. </p>

Louis Circuit Court. The court erred in giving said instruction; first, for the reason that there was no evidence to base it upon or to sustain it.

<p>1. Constitution — Corporations—Double liability of stockholders. — A stockholder in a corporation is not liable for double the amount of his stock (see State Const., art. vm, § 6, and Wagn. Stat. 291, <1 13) on execution against the company, the execution having been levied, after his stock has been transferred on its books and the transfer is in all respects complete.</p> <p>2. Corporations — Transfer of stock — Insolvency of purchaser. — Where, before execution against a corporation, the stockholder, honestly and without any intention to defeat the creditors of the company, sells and transfers his stock, the mere fact that the purchaser was insolvent at the time is not sufficient to hold such stockholder still liable for the debts. The question in such oases is, whether the transfer was fraudulent and void as to creditors of the company. If the stockholders knew of the insolvency at the time of the transfer, it would be very strong evidence of fraud.</p>

<p> Appeal from St. Louis Circuit Court. </p>

Louis Circuit Court. I. It has long been settled that the act of Congress of March 6, 1820, and the ordinance of July 19,1820, operated as a direct grant by Congress to the State, and vested in the State a complete title to section sixteen, for township schools, as soon as surveyed, unless the title had previously passed out of the United States.

<p>1. Actions for malicious prosecution — Advice of counsel — Communications with — Statements. — In an action for malicious prosecution, defendant, in order to sliield himself on the ground that he obtained the advice of counsel learned in the law, must show in evidence that he stated to counsel all the facts bearing on the guilt or innocence of defendant in that prosecution, which he knew or by reasonable diligence could have found out. (Hill v. Palm, 3S Mo. 13.)</p> <p>2. Malicious prosecution — Discharge of accused — Malice — Probable cause. —To support an action for malicious prosecution, it must appear affirmatively that the prosecution was instituted willfully, falsely and maliciously, and without probable cause.</p> <p>The discharge of the accuse'd by the examining magistrate, or the ignoring' of the indictment by the grand jury, are evidence going to show the want of probable cause. And from this fact, also, malice might be inferred.</p>

Motion to Affirm Judgment of St. Louis Land Court The recitals on the face of the patent are conclusive against Gibson, who claims under it, that the interfering claims are valid titles.

<p> Petition for Mandamus. </p>

<p>Appeal from Si. Louis Circuit Court.</p>

<p>1. Equity — Fraudulent conveyance — Vendee, offset by — Whatnot permitted. —Where a creditor purchases the land of his debtor at sale under execution, and brings suit against the debtor and a third party to set aside as fraudulent a conveyance of the land from the former to the latter, no principle of equity will permit the fraudulent grantee to offset against .the value of the property the amount he may have paid for it. The fraud renders the deed absolutely void as to creditors, and plaintiff is entitled to recover the property and its rents, etc., as though no such fraudulent deed ever had been made.</p>

<p> Llppeal from St. Louis Circuit Court. </p>

<p>1. Street railroads — Street between tracks, repairs of. — Under section 3 of the act of March 3d, 1869, regulating the amount of taxes to be paid by street railroads of the city of St. Louis (Sess. Acts 1869, p. 207), corporations having parallel tracks on the same street are not liable for the expense of repairing the street between the tracks.</p>

<p>1. Assignment, fraudulent — Action by creditors touching — Estoppel in pais. —"Where the motives of the assignor in making an assignment of his stock in trade were evidently to hinder and delay his creditors, and the assignee had notice of such motives, although the designs of the assignee may not have been fraudulent, yet the creditors would be at liberty, within the period allowed by the statute of limitations, to treat the sale as a nullity, as against their demands, and by attachment, or other proper proceedings, to subject the property thus sold to the payment'of their debts. But where the creditors fail to pursue such a course, but lie quietly by and suffer the assignee to carry on the business in his own name and with his own money and credit, to sell out and replenish the stock, and engage in other transactions based on their acquiescence, the sale becomes as valid as though no fraudulent motives had entered into it. The assignment was not such a transaction as made the assignee a mere trustee for the assignor. As between the parties it passed the title.</p> <p>2. Trust — Fraudulent transfer and purchase — Conveyance to family.— It has become the settled law of Missouri, that upon lands held by a third person in fraud of creditors for the benefit of the debtor, or fraudulently purchased with the money of the debtor and conveyed to his family, there is a resulting trust to the debtor for the benefit of the creditors, which may be sold on execution.</p> <p>8.“ Limitations — Execution sale — Trustee, possession of, when adverse.— In suit by tbe purchaser of land at an execution sale, whereby it is sought to make a third party, who had previously purchased the land of the execution-defendant, a trustee thereof against his will, his possession must be treated as adverse to that of his vendor, from the time possession is taken under the purchase sought to be avoided.</p> <p>4. Limitations — Construction of statute.— The operation of section 10 of the limitation act (Wagn. Stat. 918) is confined to personal actions.</p>

Louis Circuit Court. The defense set up is that the salesman was not acting in the course of his employment, and that the master is not liable for damages resulting from an injury caused by the carelessness or negligence of the servant, in the performance of an act not within the scope of the agency or the course of the employment of the servant, and which was expressly forbidden; also that there was no negligence.

Louis Circuit Court. It is the province of the court to determine upon the legal effect of testimony; and an instruction that, admitting the testimony to be true, the plaintiff cannot recover, is in the nature of a demurrer to evidence, and may be given. (Harris v. Woody, 9 Mo. 112; Lee v. David, 11 Mo. Ill, and cases above cited.)

Louis Circuit Court. If this court, when it heard this cause on the first appeal, had considered the case in a proper condition to justify it in rendering such judgment as the court below should have rendered, and that the law and ends of justice would be carried out thereby, it would doubtless have given judgment itself, and either have awarded execution or remitted the record to the Circuit Court with an order to execute such judgment, as was done by said court at the same…

<p> Appeal from St. Louis Circuit Court. </p>

Louis Circuit Court. A tenant, when sued for rent or unlawful detainer, may show that the title of his landlord has been extinguished or transferred, and that he has became the owner thereof. (Tayl.

<p> Appeal from, St. Louis Circuit Court. </p>

Louis Circuit Court. The deposition of plaintiff cannot be admitted on the theory that the preservation of Dillon’s testimony in a bill of exceptions, signed after a former trial, has rendered the deposition competent evidence. It is not claimed or pretended that the testimony given by the plaintiff at the first trial is the same as that contained in his deposition. As a matter of fact it was widely different.

Louis Court of Criminal Correction. For the particulars of the contract with Gregory referred to in the decision, see State v. Morrow, 26 Mo. 135. Held: from a legal and just construction of the terms of the contract of 1842, that the said trustees intended to violate their duty and convey to Gregory a different right to raise money by lottery from what they themselves possessed, the contract must stand as wholly void, and no rights can be taken under it. * 7.

There was no appeal, or other mode of review, of the assessment made under the authority of the city of Hannibal, complained of in this case. Hence the issuing of a writ of certiorari was the proper remedy to test the jurisdiction and authority of the assessor for making said assessment, and of the city council for passing the ordinances levying the taxes complained of.

<p>I. Contract — Written agreement not varied by parol, when — Evidence of a parol agreement is not made inadmissible as varying the terms of a written contract, where that portion of the instrument bearing upon the subject-matter of the parol agreement had been purposely erased by the parties.</p>

Appeal from St. Louis Circuit Court. The liabilities of the company attach, though the passenger was riding on a free ticket. (1 Redf. 184, § 176.)

<p> Error to St. Louis Circuit Court. </p>

Louis Circuit Court. I. The petition is sufficient to sustain the judgment. (See Wing v. Campbell, 15 Mo. 276; Gramp v. Dunnivant, 23 Mo. 254.) II. The answer of the defendant explicitly sets forth the thing alleged to have been omitted in the petition, and the reply of the plaintiff admits it, and the court will examine the whole pleadings to see what'issues are made by them. (Kercheval v. King et al., 44 Mo. 401.) HI.

Louis Circuit Court. I. No motion to correct errors or irregularities in entering or recording judgments, can be made after the expiration of three years from the time of the rendition or recording of the same. (Downing v. Still, Adm’r of Thatcher et al., 48 Mo. 316; Dysart’s Adm’r v. Austin, 36 Mo. 47; see also Gen. Stat. 1865, ch. 172, p. 686, § 26 ; Wagn. Stat. 1062, § 26 ; E. C. 1855, p. 1290, § 26.) The proceedings are barred .by the general statute of limitations (Wagn.

<p>1. Practice, civil — Evidence — Instruction.— Where there is evidence tending to prove the issues presented, it is error in the court to withdraw the case from the jury.</p>

<p> Jippeal from SI. Louis Circuit Court. </p>

<p> fLppeal from St. Louis Circuit Court. </p>

Louis Circuit Court. The assignment shown does not conform to the statute (Wagn. Stat. 794, § 34) and is invalid. The statute requires the assignment to be on the thing assigned, so that the judgment itself will always carry with it a badge of ownership. It is claimed that if the Legislature had intended the assignment of judgments to be placed in the record, it would have required a margin for that purpose also.

<p> fly peal from St. Louis Circuit Court. </p>

Louis Circuit Court. I. The charge being for the proportionate cost of a large amount of work extending over several blocks and far beyond the boundary of the property, instead of the actual cost of the work in the immediate front or vicinity of the property, the benefit must be a general and not a special one. II.

<p> Appeal from, St. Louis Circuit Court. </p> <p>cited Wagn. Stat. 909--911, §§ 8-10, 20.</p> <p>cited Walkenhorst v. Coste et al., 33 Mo. 401; Schaeffer v. Lohman, 34 Mo. 68 ; Miller v. Eoulk et al., 47 Mo. 262.</p>

Louis Gircuit Court. (1) The misdescription in the deeds of Taylor to Elizabeth Wasson is clearly made out. Taylor intended to convey the lots in dispute. He had no claim to any other. (2) The deed of Wasson and wife to Henderson passed the title to Henderson, the prior conveyance to Taylor notwithstanding.

<p> Error to St. Louis Circuit Court. </p> <p>I. The petition showed no equity in the plaintiffs to have the legal or equitable title of defendants divested out of them in favor of plaintiff.</p> <p>H. The petition leaves it doubtful whether its object is not to call on defendants to say what they think of the proposed action, of plaintiff, and to say beforehand what they will do about it.</p> <p>HI. The petition calls directly on a court of equitable jurisdiction to commit an act of spoliation and aid a trustee to commit a breach of trust by appropriating and wasting the trust fund.</p> <p>IV. The doctrine of cy-pres cannot be applied here. This is not a case where, the actual and precise performance of the condition being impossible, a court of equity'is prayed to prevent a forfeiture by permitting a substantial performance. There is no impossibility at all in doing what was the condition of this devise. Nothing hinders the establishment for all time on the land devised. Such a house is there now. To keep it there may be onerous, but it is an affront to common sense to call it impossible. When, the trustee seriously asks the court to assist him in disregarding the fundamental provision, to permit him to sell the land on which the establishment was to remain forever, and to appropriate the proceeds to a scheme which, however meritorious, is not what the testatrix intended to promote, it would seem that if the court grant his prayer it (the court) is assuming the office of the will-maker, and disposing of that to which it has no earthly title.</p> <p>V. The putting up of the buildings and improvements on the land was either in conformity to the trust imposed on the devise or it was not. If it was not, then the erection of them rvas at best exceedingly indiscreet: for, as it left a debt of more than $100,000, which, as it would appear, the plaintiff has no means of discharging, either its creditors must suffer or the trust fund be swept away by a waste.of it; which can scarcely escape the imputation of dishonesty, unless the.plea of incapacity to act rationally be interposed and maintained. If the buildings and improvements were such as were in conformity with the trust, the case is scarcely altered for the better.</p> <p>The trustee and the corporation were bound, before accepting the trust, to count the cost. They must be supposed to have done so unless their conductors were irrational. Unless they were willing and able out of other funds to provide for the performance of the condition on which the devise was made, it was their duty to refuse the devise. It would in that case have gone to the heirs of Mrs. Biddle, or have passed to her residuary devisee.</p> <p>The court is only asked to administer the trust upon principles peculiar to equity. Any variation or modification of the trust which this may necessitate will he the result of circumstances beyond the control of the plaintiff.</p> <p>A court of equity has the power to modify or mold this trust to the altered condition of things as stated and proved. (Tiff. & Bull. Trusts, 388; Stanley v. Cobb, 5 Wall. 119; Curtis v. Brown, 29 Ill. 201; McIntire v. Zanesville, 17 Ohio St. 352, 363; Allen v. Graves, 3 Bush, Ky., 491; Conkling v. Washington University, 2 Md. Ch. 505; Parke’s Charity, 12 Sim. 279; Att’y-General v. Newark, 8 Bligh, N. S., 457; Ashton Charity, 22 Beav. 288; Overseers v. Bierlow, 13 Eng. Law & Eq. 145.)</p> <p>The defendants have an interest in this property, which it is prayed may be divested out of them. But for what purpose and how ? By a sale, the proceeds not to be paid to the plaintiff, but to be applied, under the direction of the court, for the benefit of the balance of the trust property; that is to say, upon the old foundation, and therefore only in execution of the trust. A sale could be had under the decree of the court, and, as will be seen, was in fact so ordered, without any divestiture in terms and with the same effect precisely. But if the prayer were wrong in this or in any other particular, it will be remembered that that is not ground of demurrer.</p> <p>There is an indebtedness of the plaintiff of $127,000 which was incurred in the due and faithful execution of the trust, as stated in the petition, which greatly embarrassed the institution, and there are no other means than a sale, as prayed for, of satisfying this indebtedness. It is not pretended that this outlay was injudicious or unreasonable, nor is it denied that it has increased the value of the property to the full extent of the money expended. The condition in this case is subsequent. A mere failure to perform such a condition does not divest the estate. (Niccoll v. E. R.R. Co., 2 Kernan, 131.)</p> <p>It was not claimed that there was a forfeiture, or that there had been any entry for condition broken. But performance was averred in the petition and was proved on the trial. The effect of this performance was to put the plaintiff substantially in the position of a purchaser for value ; but however this may be, this property cannot revert to the heirs of the testatrix. Every effort will be made by the court to enforce and administer the trust as far as practicable. (Stanley v. Colt, 5 Wall. 165.</p>

Louis Circuit Court. I. Mandamus is the proper remedy, 1st, because there is no other remedy; 2d, because the petition shows such au error in the assessment as the court is bound to correct; 3d, because the court below refuses to perform a duty plainly enjoined by the statute. It not only lies to ministerial but to judicial officers.

Louis Circuit Court. I. The court may grant any relief consistent with the case made by the evidence and embraced within the issues. The plaintiff’s relief must be determined by the facts alleged and proven, and it makes no difference by what name soever he may designate his cause of action.

<p>1. Administration — Administrator, liability of, for failure to obey order of sale made by Probate Court. — An administrator who postpones a sale ordered by the Probate Court, unless for sound reasons, will be held responsible for any loss which may happen to the estate by reason of such delay. Query : whether he would be protected in such exercise of discretion if sound reasons apparently existed.</p>

<p> Appeal from St. Louis Circuit Court, </p>

Louis Circuit Court, The plaintiffs’ exception to the refusal of the motion for new trial will not enable this court to review the action of the Circuit Court in refusing plaintiffs’ instruction. No objection was made at tbe time of tbe refusal, and it comes too late in tbe motion for a new trial for the first time.

Charles Circuit Court. I. The court erred in admitting the testimony of plaintiff King, given in response to the leading question objected to by defendant. The testimony so drawn out was the only direct testimony in the case connecting the defendant with any contract between the parties. H. The court erred in admitting against defendant’s objections the record of the case of Gatzwiler v. Morgan.

Louis Circuit Court. I. Nancy A. Green under this deed took a life estate only, with certain specified powers. («) The entire deed must be construed together, and effect given to every part of it if possible.

Gharles Circuit Court. I. In limitations to actions for the recovery of land, tbe act in force at the time tbe action is commenced, and not when cause of action accrued, must govern. In tbe case at bar, at tbe time tbe suit was commenced no limitation could be pleaded concerning lands held in trust for tbe support of schools.

Louis Circuit Court. Tbe petition contains a cause of action ex delicto and a cause of action ex contractu. The judgment could not have stood had appellant obtained a verdict. ’ This manner of pleading comes clearly within the prohibition of the statute. (Wagn.

Jlppcal from St. Louis Circuit Court.' This was a suit for damages under the statute (Wagn. Stat. 519-521) against defendant for killing plaintiff’s husband. It appears from the testimony that the latter, together with defendant and one Hanrahan — between whom and defendant there had been a difficulty of some sort — were at a country bar-room in St. Louis county, and became engaged in a quarrel, during which defendant fatally stabbed the husband of plaintiff.

<p> Error to St. Louis Circuit Court. </p> <p>cited Billingsley v. Bunce, 28 Mo. 547.</p>

<p>1. Practice, civil — Evidence, weight of . — “What weight shall he attached to evidence is a matter to he determined exclusively by the jury, or the trial court sitting as a jury.</p>

<p>1. Equity — Guardian and Ward — Will — Donation to guardian — Undue influence — Presumptions of, how overthrown. — Anyone occupying a fiduciary relation so recently that the influence arising therefrom is presumed still to exist, cannot avail himself of bounty from his late ward, or other persons holding the relation, unless there is olear and distinct evidence that the influence has determined, and that the donor acted in a manner perfectly free, independent and unbiased; and the beneficiary must in all instances furnish this evidence. And the rule holds notwithstanding the fact that such proof is difficult, and perhaps almost impossible, to attain.</p> <p>2. Wills, proceedings to test — Beneficiaries competent — Witnesses — Construction of statute. — In proceedings under the statute to test the validity of a will, the beneficiaries under the will are competent witnesses, notwithstanding the provisions of the statute concerning witnesses (Wngn. Stat. 1372, § 1), which provide that where one of the original parties to the contract or cause of action is dead, the other party shall not be permitted to testify. Such actions are in the nature of proceedings in rem, and simph' amount to a revival of the same matter in the Circuit Court which has been previously had in the County Court. The same legal rules that govern the investigation in the County Court apply in the Circuit Court. The heirs at law and devisees are made nominal parties. But in truth the proceeding is ex parte and all are competent witnesses.</p>

<p>1. Judgment — Appearance of parties. — The record of a judgment or decree which recites that both parties appeared to the suit by their counsel is quoad hoc properly admissible in evidence. It certainly cannot be attacked collaterally.</p> <p>2. Allegata and probata — Consideration — Money — Lands. — Although the consideration named in a deed sued on is money, evidence is proper showing it to have been in fact lands given in exchange and of the value named.</p>

The only question before this court is, has the defendant saved enough upon the record to ask the interposition of this court ? The facts are, beyond doubt, for the defendant. We contend that he has. (Scott v. Brockway, 7 Mo. 61; Bauer v. Bauer, 40 Mo. 61; Morris'v. Barnes, 85 Mo. 412 ; Bransteter v. Rives, 84 Mo. 818-321.) Defendant’s motion for a new trial brought this matter properly before the Court.

Tbe county, being a quasi corporation, is included in the general term “person” (Wagn. Stat. 1302, § 1) unless expressly excepted.

.Error to Johnson Circuit Court. A married woman has no capacity to contract for the sale of her real estate, or to convey it, except in the precise statutory mode. This is the rule at law, and equity follows the law. However meritorious the consideration, equity will not aid defects which are of the essence of the power, nor supply any circumstances for want of which the Legislature has declared the instrument void.

I. Allen was not the agent of the county. He was not, in fact, in the legal acception of the terms, an agent for any one. The County Court, being itself but an agent for the county, could not delegate its power. And Allen was but the mere instrument to do certain acts that the court itself might have done. (Hann. & St. Jo. R.R. Co. v. Marion County, 36 Mo. 302-3.) H. The County Court made the subscription. It was valid and binding.

<p>1. Title bond, violation of — Notes—Aetion, nature of. — One who, having received a title bond for land, gives his purchase-notes therefor, and takes them back while the debt still remains, thereby forfeits his claim on the bond; and if he had paid any one of the notes, his action should he specifically for the amount paid, and not for violation of the contract.</p>

<p>1. Action compelling party to quiet title — Defense — Suit to quiet title may be brought in Federal court — Construction of statute — Nonresident defendant.— In proceedings under the statute (Wagn. Stat. 1022, § 53) compelling defendant to show cause why he should not bring suit to try his title, it is a good defense that he has already done so in the United States court. He is not forced to take steps by affidavit, etc., to transfer the cause. The case is not one where the State court has obtained jurisdiction of the subject-matter. The statutory proceeding is not in the first instance ior the purpose of settling the title, hut preliminary to an action which the adverse claimant may be compelled to bring. And the order of the court does not respect the title, but the institution of the action.</p> <p>In suit by claimant to adjust his title he may resort to the Federal tribunal, and will not be restricted to the court of the county where the lands are situate, as in State cases.</p> <p>Such suit to show cause maybe brought against a non-resident if proper service can be had upon him in the State.</p>

<p> Appeal from Johnson Court of Common Pleas. </p>

The testimony does not disclose a fraudulent intent. (12 Mo. 169.) Debtors may give preference to creditors. (45 Mo. 431.) A bona fide purchaser for a valuable consideration is protected, although he purchase from a fraudulent grantor.

<p> Appeal from, Bates Circuit Court. </p>

<p> Appeal from Johnson Court of Common Pleas. </p> <p>I. The second exception taken by the plaintiff, on the trial of Ms cause, was to the reading in evidence of the deed from Johnson and others to Billon, trustee for the railroad company. The plaintiff objected “ for the reason that said deed shows upon its face that the town lots therein described were sought to be conveyed to the company for speculative purposes, and that the same was therefore void.”</p> <p>By reference to the deed we find that it purports to convey to the company, 1st, five and a half acres of ground (as therein described by metes and bounds), designated upon the plat of said town as depot grounds; 2d, it seeks to convey to the company one hundred and fifty-one separate and distinct town lots, embracing every alternate lot in twenty-six different blocks, throughout said entire tract of eighty acres, and all separated by streets, avenues and alleys, from the right of way and depot grounds of the company and from each other.</p> <p>In the case of The Pacific R.R. Co. v. Seeley, 45 Mo. 212, the action was to compel a specific performance of a contract to convey to such person as the directors of said company should designate, one-fourth of all the town lots contained in one hundred and sixty acres of land. This court held upon demurrer, in that case, that the contract sued on was void upon its face, for the reason that the company had no power under its charter to engage in town speculations or in the purchase of lands, and holding them for villages and towns, either to rent or sell.</p> <p>If the contract with Seeley was void upon its face for the reason that this same company had no power to purchase or speculate in one-fourth the town lots in one hundred and sixty acres of land at Tipton, then by what parity of reasoning can the defendants contend that a deed to the company by Johnson and others of one-half the town lots in eighty acres at Knob Noster (being the same amount in both cases) would be within the corporate powers of said company? The’fair deduction would rather seem tobe that, if the contract with Seeley was void for the reason that the company had no power under its charter to deal in town lots or other real estate, then the deed from Johnson to the company was likewise void for the same reason.</p> <p>II. The third objection assigned by the plaintiff for the exclusion of said deed, and overruled by the court, was “because the deed shows upon its face that the town lots therein described were not necessary for any purpose connected with the general business of locating, constructing, managing or operating said railroad, or necessary for the purpose of carrying said road into complete and successful operation.” In support of this proposition we submit that when the Legislature, by the twentieth section of the original charter, confined the operations of this company to the business of locating, constructing, managing and operating its road, and the acts necessary for the purpose of carrying the same into complete and successful operation, it was certainly intended to keep the business of the company within certain fixed limits, and to prohibit it from engaging in any kind of business wholly foreign to the purposes for which the company was created. The only acts which the Pacific Railroad Company could lawfully do under its charter were, 1st, to locate its road; 2d, to construct its road; 3d, to manage and use its road.</p> <p>The company, then, being organized for the purposes and possessing only the powers aforesaid, and the deed showing upon its face the extraordinary fact of a railroad company purchasing one hundred and fifty town lots (in addition to its depot grounds), which, in the very nature of things, and according to the common understanding of every one, could not be used for any known business connected with a railroad company, and the purchase of that number of lots being an exception to all common experience, the natural presumption is that the lots were purchased for speculation, and that they were not required by the company in its legitimate operations, and the burden of proof was u-pon the defendants to show the contrary; and until the contrary was shown, the deed should have been excluded. (Dowuing v. Mt. Washington, etc., 40 N. H. 233 ; 3 Zabr., N. J., -510.) Had the company possessed a general power to buy and sell lands, the rule might be otherwise, but there are no presumptions in favor of a corporation of limited powers.</p> <p>The defendant’s fifth instruction declares <£ that the question of whether the Pacific Railroad Company has the power, under its charter, to take and hold the lots sued for, cannot be inquired into in this suit, but can only arise in a proceeding instituted directly by the State for the purpose of ascertaining whether said company has or has not exceeded the powers granted in its charter.” If this theory ever had any footing in this country, it was applicable only in those cases in which corporations were authorized by their charters to purchase real estate, but not to hold beyond a certain limited amount, and even then the doctrine has been applied only in those States where the English statutes of mortmain have been held to be in force. This distinction between the power to purchase and the power to hold was taken by the courts of Pennsylvania at an early day, and those early cases are often referred to, both by courts and counsel, in subsequent cases in other States, where the doctrine could have no possible application whatever; for upon examination of those cases (Leazure v. Hillegas, 7 Serg. &R. 313, and Baird v. Bank of Washington, 11 S'erg. & R. 411) it will be found that they are decided expressly upon the point that the banks had the power to purchase but not to hold real estate, and that, such being the case, the property escheated to the State under the operation of the English statute of mortmain, which the courts declared to be in force in that State. The reason why it was held in these and similar cases that the grantee held an estate defeasible at the will of the State, is readily perceived when it is considered that when a grant was made to a corporation in violation of the statute of mortmain, the estate thereupon escheated to the crown or to the State by the express terms of the statute ; or in other words, the State became seized of the estate by operation of law. The State, then, being seized of the estate by force of the statute, was, as a matter of course, the only party who could properly institute proceedings for possession. The statute, not the deed, estopped the grantor in those cases. The theory of those cases can have no application to the case at bar, for two reasons: 1st, because the Pacific Railroad Company is prohibited both from purchasing and from holding real estate for purposes foreign to the objects specified in the seventh section of its charter; 2d, because the statutes of mortmain have no application in this State and are not held to be in force here. (See 2 Kent, 282 ; Chambers v. City of St. Louis, 29 Mo. 575.)</p> <p>The real point of difference between the case of Chambers v. The City of St. Louis and the case at bar is this: the city of St. Louis had, under its charter and the general law concerning corporations, the power to purchase and hold real estate without reference to quantity or location, and it was therefore capable of acquiring rights to be enforced; whereas the Pacific Railroad Company has neither the power to purchase or hold, except for certain specific purposes, which are defined in its charter, and beyond those purposes it could acquire no rights to be enforced or title to be questioned. The same questions presented in the case of Chambers v. The City of St. Louis were also presented in Boyce v. The City of St. Louis, and in that case the court held that the city could not hold real estate for purposes foreign to the objects of its incorporation. (29 Barb. 650 ; The People v. Mauran, 5 Den. 389 ; The Bank v. Poitiaux, 3 Ran., Va., 136 ; Baird v. Bank o£ Washington, 11 Serg. & R. 411; Silver Lake Bank v. North, 4 Johns. Ch. 370.) In each of these cases (and in all others cited by defendants in support of the theory of their fifth instruction) it will be noticed that the corporations had the power to purchase real estate. So in the case of Bogardus v. Trinity Church, 4 Sandf. Ch. 758, and in Barrow v. Nashville & Charlotte Turnpike Co., 9 Humph. 304, the proceedings were to set aside conveyances made to corporations, and the courts held that the corporations having the power to purchase, and having acquired complete titles at the time the conveyances were executed, they could not afterwards be set aside or avoided at the suit of a private individual.</p> <p>The position which we take in this case is that the Pacific Railroad Company is a private corporation, and that it possessed no power to take or hold real estate for any purpose or to any amount beyond the limits prescribed by its charter, and that all deeds of land or lots to said company beyond the amounts authorized by its charter, or for purposes foreign to the objects of its creation, are utterly vofd, for the want of capacity in the corporation to take the title. In this position we believe we are sustained by all the books and authorities. “ There can be no doubt that if a corporation be forbidden by its charter to purchase or take lands, a deed to it would be void, as its capacity may be determined from the instrument which gives it existence.” A prohibition, reservation or exception in a charter must stand in full force, though it destroy or make nugatory all the powers given to the company. (Commonwealth v. Erie & N. E. R.R. Co., 27 Penn. 351 ; Ang. & Ames Corp., § 152.) The Pacific Railroad Company is prohibited by its charter Lorn holding real estate beyond a certain amount. The language of the charter is (§ 7) “and for that purpose hold a strip of land not exceeding one hundred feet wide, except,” etc. But even was the charter silent upon the question of holding real estate, then its mere silence would be as absolute a prohibition as positive words of restriction. (Blount v. Walker, 11 Wis. 457.) And we submit that if a deed to or a contract with a corporation is void for the want of capacity in the corporation to take the title or make the contract, then it is not a question between the corporation and the State; but any party interested in the act may take advantage of any defect of power in the corporation to do such act. In further support of the position that all contracts made by corporations which are ultra vires are absolutely void, and that any party interested may take advantage of any defect in the power of the corporation to make such contracts, and that it is not a question between the corporation and the State, we refer to cases following: Penn. & Del. Canal Co. v. Dandridge, 8 GiH & J. 248; Hood v. N. Y. &. N. H. R.R. Co., 22 Conn. 502 ; Elmore v. Naugatuck R.R. Co., 23 Conn. 457; The Mutual Savings, etc., v. The M. A. Co., 24 Conn. 159 ; Naugatuck R.R. Co. v. The W. B. Co., id. 468 ; Bank of Mich, v Niles, 1 Doug., Mich., 401; Orr v. Tracy, 2 Doug. 254; Root v. Godard, 3 McLean, 102 ; Root v. Wallace, 4 McLean, 8 ; Dodge v. Woolsey, 18 How. 331; Pierce v. Mad. & Ind. R.R. Co., 21 How. 442; 3 Wend. 482, 573 ; 7 Wend. 31.</p> <p>I. The question whether the Pacific Railroad Company has the power, under its charter, to take and hold the real estate sued for, cannot be raised in this suit,- but the same can only be tried' in a proceeding by the State through its proper officers, instituted directly for the purpose of ascertaining whether said company has or has not exceeded the powers granted by its charter. This ease is totally unlike that of The Pacific R.R. Co. v. Seeley et al., 45 Mo. 212. In that' case the Pacific Railroad Company brought suit against Seeley’s heirs for the specific performance of an executory contract for the conveyance of real estate to the company, based upon the consideration that the company would locate a freight and passenger station on the land of said Seeley, and this court very properly decided that the contract could not be enforced. In the case at bar, while it may be admitted that the consideration was similar, the title has been conveyed to the trustee of the company, and then passed through several parties to the respondent. “ A good defense to a bill for specific performance may be a very bad ground for a bill to set aside an executed contract; and when a corporation, vested with power to take and hold real estate for specific purposes, purchased and took a conveyance of land, and afterwards used the land for other purposes than the charter permitted, the abuse of power was deemed to be no ground for setting aside the deed at the instance of the vendor.” (Ang. & Ames Corp. 137, §§ 151-4.) In the case of Barrow v. The Nashville 6 Charlotte Turnpike Co., 9 Humph. 304, it was decided “that the want of power in a corporation to contract for and hold land, creates no equity in behalf of the vendor to rescind the contract. It is a matter of no concern to him whether the corporation exceeded its powers or not.” Appellant claims under the sheriff’s deed conveying to him the interest of Johnson, one of the grantors to the trustee of the Pacific Railroad Company, and the theory upon which he hopes to recover is that the company having no power under its charter to purchase and hold the land conveyed, the title never passed from the grantors until purchased by the appellant. Conceding that the Pacific Railroad Company exceeded its powers as to the land in suit, the question is, what became of the title? Did it remain in the grantors, or did the company take a defeasible estate subject to be divested by the State, upon office found, as in the case of aliens ? That the latter position is correct, has been decided in all the States where the question has arisen. 'In the case of Chambers v. The City of St. Louis, 29 Mo. 567, this court declared that “if, in holding and purchasing real estate, the city of St. Louis, passes the exact line of her power, it belongs to the government of the State to ■exact a forfeiture of her charter; and is not for the courts in a collateral way to determine the question of misuser by declaring void conveyances made in good faith.” The same doctrine is enunciated in the following cases: Runyan v. Lessee of Coster, 14 Pet. 122 ; Baird v. Bank of Washington, 11 Serg. & R. 418 ; The Banks v. Poiteaux, 3 Randolph, 136; Leazure v. Hillegas, 7 Serg.. & R. 319; Abb. Dig. Law of Corp. 339, § 12; Silver Lake Bank v. North, 4 Johns. Ch. 370; Burns v. Milwaukee & Miss. R.R. Co., 9 Wis. 457; Groundie v. Northampton Water Co., 7 Barr, 233. If the conveyance to the Pacific Railroad Company by Johnson and others was contrary to public policy, yet after the execution of the deed, the grantors or those claiming under them cannot attack the title conveyed. The grantors are in pari delicio with the company, and the title will be left where it has been put by the act of the parties. There is no evidence in regard to when the debt was contracted by Johnson for which the land was sold, but the record shows that the judgment was obtained on the 21st of April, 1865, and the execution levied on the 16th of March, 1870, while the deed to the company was made on the 18th of December, 1858. In the time intervening between the conveyance and the levy and sale, a flourishing town has sprung into existence upon the land, and thousands of dollars have been expended in improvements by persons in no way connected with the original transfer. In such a case this court will not interfere. (Farmers’ & Millers’ Bank v. Detroit & Milwaukee R.R. Co., 17 Wis. 372: Bissell v. Michigan Southern R.R. Co., 22 N. Y. 258.)</p> <p>II. It will be noticed by reference to the language of the acts creating and governing the Pacific Railroad Company (Sess. Acts 1849, p. 220, § 7; Sess. Acts 1851, p. 272, § 9) that there is no express prohibition upon the company as to the purchase of or taking lands. There can be no doubt that if a corporation be forbidden by its charter to purchase or take lands, a deed made to it would be void, as its capacity may be determined from the instrument which gave it existence. There is, however, a broad distinction between a prohibition to purchase or take, and a prohibition to hold; and when the act incorporating a bank made it capable “to have, hold, purchase, receive, possess, enjoy and retain lands, rents, tenements, goods, chattels and effects of whatever kind, nature or quality, to the amount of two millions of dollars and no more; provided, nevertheless, that such lands and tenements, which the said corporation are hereby enabled to purchase and hold, shall only extend to such lot and lots of ground, and convenient buildings and improvements thereon erected, or to be erected, which they may find necessary and proper for carrying on the business of said bank, and shall actually occupy for that purpose,” it was decided by the Supreme Court of Pennsylvania that the bank might purchase, absolutely, lands in a distant country which they did not occupy, though they, or the third person to whom they might convey, would hold them by a title defeasible by the commonwealth and the commonwealth alone, as is the case with the title of aliens. In an action of ejectment the question of exceeding its powers by a corporation cannot be determined. (Ang. & Ames Corp. 137, § 151-3; Mclndoe v. St. Louis, 10 Mo. 576 ; Baird v. Bank of Washington, 11 Serg. & R. 418 ; Leazure v.. Hillegas, 7 Serg. & R. 319 ; Gioundie v. Northampton Water Co., 7 Barr, 239, 240.)</p> <p>In the case of The People and Health Commissioner of New York v. Mauran et al., 5 Den. 389, the Supreme Court of New York held “ that every corporation may convey whatever they have taken, whether able to hold it or not. The consequence is that the grantees of the company took the estate as they held it, absolute or defeasible as might be. Corporations have a fee simple for the purposes of alienation, and a determinable fee for the sake of enjoyment.” (29 Verm. 93 ; 8 Dana, 129; 2 Kent’s Com. 326-7.) We have no disposition to controvert' the settled rule that a corporation possesses only those properties which the charter expressly or incidentally confers upon it, nor do we assert that the Pacific Railroad Company had authority to become a real estate broker or speculator in town lots, but we do contend that the title to the lands in suit having been conveyed by deed to the company, even if in excess of its power to hold them, the company could then convey to third parties, and the title thus conveyed, although defeasible by the State, is good as to the remainder of the world.</p> <p>HI. That the restriction found in the charter of the Pacific Railroad Company, and similar restrictions in other charters, were intended by the Legislature to apply to the power of corporations in this State to hold lands, is evident from section 2, page 297, Wagner’s Statutes. Ample provision is there made for any railroad company’s acquiring real estate in any quantity to aid in the construction, maintenance and accommodation of its railroad, and the enactment is in accordance with the statute of mortmain, which was held to apply to the holding real estate by corporations, not to the proceeds of the sale of real estate. (2 Kent’s Com. 229 ; Ang. & Ames Corp. 136.)</p>

Maddox’s administrator relies upon certain verbal admissions and verbal testimony to show that the deeds were made upon a different consideration than that shown on their face; that they were made, in fact, in order to enable Nelson to sell the land conveyed, in trust that he would pay the net proceeds to Maddox. Such testimony is incompetent under the statute of frauds. (Wagn.

Clair Circuit Court. I. The personal property of the wife at the time of her marriage is thereby vested absolutely in the husband, and so with her choses in action reduced to possession during coverture. ( See 2 Kent, 129, 143 ; Reeves Dom. Rel. 49; Sallee v. Arnold, 32 Mo. 532, and cases cited.) ' II. The husband is entitled to the whole of the earnings and savings of the wife during coverture (1 Pars. Cont. 345 and note x, and authorities there cited; Reeves Dom.

<p>1. Criminal law — Dram-shop license — County Court — Indictment. — Where a town charter contains nothing which excludes the right of the County Court to demand a license for selling liquor from the keeper of a dram-shop, he is not protected from indictment by a town license, hut must also take one out from the County Court.</p>

<p>1. County, commissioner of— Deed by — Construction of statute. — A deed made by a county seat commissioner need not recite the authority of the officer. If it appear on the face of the instrument that it was made by him as commissioner, the requirement of the statute (Wagn. Stat. 397, $14) is met.</p> <p>Such a conveyance can only be a quit-claim deed; and a covenant of warranty would not bind the county.</p>

<p> Error to Bates Circuit Court. </p>

<p> Error to Laclede Circuit Court. </p>

<p> Appeal from Cooper Circuit Court. </p>

<p>1. Jury, removal of, from one county to another. — A court has no right to have a jury earned from one county to another.</p> <p>2. Jury — Session after adjournment. — A court has no authority to have a jury in session after the adjournment of the court to a distant day.</p> <p>3. Jury —No verdict in case of insanity. — If, after a jury is sworn, one of them is rendered incompetent by insanity or otherwise, no verdict can be rendered and a new jury must be ordered.</p> <p>4. Jury — Verdict, etc.— The jury must all be in court when the verdict is rendered.</p> <p>6. Jury, foiling of — Signing of verdict.— Either party has the right to poll a jury. It makes no difference whether the verdict is signed by all the jurors or only by the foreman.</p>

Allison, having paid the entire debt for which he was surety, was, under the rules of .equity, entitled to be subrogated to the rights of the creditors who held these debts, and to have the benfit of the lien, and the moneys arising therefrom, held by them for the payment of said debts so paid by him as surety, (See 8 Mo. 169, 418 ; 18 Mo. 136 ; 23 Mo. 447 ; 35 Mo. 99 ; 38 Mo. 281, and authorities in these cases cited.) A surety for a part of a debt is not entitled to the…

<p> Appeal from Johnson Court of Common Pleas. </p>

<p>1. Practice, civil — Instructions, exceptions to. — Instructions not excepted to in the lower court will not be reviewed in the Supreme Court.</p> <p>2. Sheriff’s deed — Purchase-money — Deed — Vendor.— Semble, that the delivery of a sheriff’s deed and the payment of the purchase-money by the vendor are concurrent acts. The latter is not bound to part with his money until a deed for the premises is tendered.</p> <p>U. Sheriff’s sale — Sheriff agent of both parties — Duties of at sale.— An officer selling property under execution is the agent of both the plaintiff and defendant, and he is bound to protect the interests of all parties concerned, and is not bound to accept a bid without reserve. If he can see that a -sacrifice of property will be prevented by reasonable delay, he may return “no sale” for want of bidders; and especially so on a re-sale, when the time and circumstances are such as to prevent a reasonable competition. (Conway v. ÍTolte, 11 Mo. 74.)</p> <p>Per Adams, Judge.</p> <p>4. Sheriff’s sale — Purchaser — Deed — Payment.— The purchaser at a sheriff’s sale must pay the purchase-money before he can demand his deed.</p>

<p>1. Contracts —■ Specialty — Attorney in fact — Execution — Equity.— An agreement under seal by an attorney for a principal, although inoperative at law for want of a formal execution in the name of his principal, is binding in equity if the attorney had authority.</p> <p>2. Chancery, court of — Sale of estate of minors not a nullity.— Chancery proceedings to sell the estate of minors, although instituted prior to the act of 1861 (Sess. Acts 1860-1, p. 98), were not void in the sense of being a nullity, even if the court went beyond its powers. Chancery courts have always had jurisdiction over the estates of minors. And if they exceed their powers under the law, such excess is not a naked assumption of power, as might he the case if the tribunal had no jurisdiction. Their action in such cases not being a nullity, but, if void, only relatively so, strangers cannot disregard it.</p> <p>3. Equity — Purchasers, innocent. — A purchaser of land who buys of one who, as he supposes, has the legal title, but who informs him that even if it he so, he does not own the property and makes' no claim to it, and for a nominal' consideration obtains' from him a,quit-claim deed, cannot be called an innocent purchaser, and cannot be protected either in equity or under the registration act.</p>

<p> Appeal from Cole Circuit Court. </p>

<p> Error to Bates Circuit Court. </p>

The appointment was not the exercise of judicial power. There was nothing to adjudicate, It was not a retrospective act, and did not impair the obligations of any contract. It was simply the exercise of an administrative power or an ordinary legislative function, carrying out the purposes of all the parties to this deed of trust. (See Stewart v. Griffin, 33 Mo. 13; Gannet v. Leonard, 47 Mo. 205.) The principles of these cases are directly in point with the case at bar.

<p> Appeal from Osage Circuit Court. </p> <p>To pay debts the court shall order all the right, title and interest of the estate, etc., to be sold at public sale. (Wagn. Stat. 94; §8.) This the court did. The sale was that of the equity of redemption, and its proceeds would not be applied to the purchase of the legal title.</p> <p>The administrator sold the whole estate, legal and equitable. There were no- assets belonging to said estate with which to redeem. (Wagn. Stat. 94, §§ 8-9.)</p> <p>I. The decision is in conflict with an express statute. The statute provides that where lands of deceased are encumbered by deed of trust, etc., “if such redemption would injure the estate or creditors, or there would not be assets to redeem such estate after payment of debts, the court shall order all the right, title and interest of the estate to such property to be sold at public sale.” (Wagn. Stat. 94, § 8.)</p> <p>No other interest can be sold, yet the court decides that the administrator sold the legal as well as the equitable title.</p> <p>II. This decision is in conflict with the decision in the cases of Delassus v. Poston, 19 Mo., on pages 480-32 ; also the case of McNair et al. v. O’Eallon, 3 Mo. 188, opinion on page 202 ; and the case of Lumly v. Robinson, 26 Mo. 364, which are cited by plaintiff.</p> <p>HI. The court clearly misapprehended the facts, and the opinion is based upon the fact that the sale was not made under sections 6 and 8 of article III, Wagn. Stat. 94, when the record shows that the administrator, by order of the court, was directed to sell only the right, title and interest of the deceased in and to the land. The question is, does the money arising from the sale of an equitable legal title go to the estate of the deceased, or to the person holding the legal title? This question the court does not decide.'</p>

<p> Error to Jackson Circuit Court. </p>

Jlppeal from Kansas City Court of Common Pleas, If Devitt knew of tbe exposure to danger in having to pass under the .bridge, and with such knowledge consented to and did continue in this service, he could not recover, (Hayden v. Smith-ville Manuf.

I. The original petition, so far as enforcing said pretended lien was concerned, was totally defective, and no special judgment could have been rendered thereon. That being the case, the law does not allow the filing of an amended petition constituting an entirely new cause of action, after it is too late to bring said action in an original suit. II.

<p> Error to Henry Circuit Court. </p>

<p> Appeal from St. Clair Circuit Court. </p>

The judgment, so far as it is rendered in personam,, is clearly void for want of jurisdiction, and can be regarded as a nullity in a collateral procéeding. (Enos v. Smith, 7 Sm. & M. 85; 8 Sm. &M. 505.) Smith’s knowledge of the judgment and its invalidity was confined to the execution, which was a general one, reciting a judgment rendered by a court of general jurisdiction, and Smith had the right to suppose the judgment was valid.

relied upon Carter y. Black, 46 Mo*. 384. A warranty is an express contract between parties. (1 Pars. Oont. 577; 2 Kent’s Com. 658.) The petition should allege an agreement, contract or warranty.' (2 Chit. PI. 278 — 9; Washb. PL and Pr. 1701.) Whether the woz-ds, acts and conduct of the parties prove it or not, is for the triers of fact to determine. (1 Pars.

For statement of case see dissenting opinion of Judge Wagner. I. The act of the general assembly of April 1, 1872, creating the office of Probate Court for Boone' and other counties, is not in violation of section 27, article IV, of the State constitution.

<p>I. Bills and notes — Indorsement after maturity — Presentment — Notice — Diligence.— The indorsement of a negotiable note after maturity is equivalent to the drawing of a new bill of exchange at sight, and the same diligence in making demand of and giving notice is required to charge the indorsers. Where such indorsement was on the 19th of April, and the demand and refusal occurred on the 3d of the following July, no excuse appearing for the delay, the indorsers would not be liable.</p>

<p> Appeal from. Pettis Court of Common Pleas. </p>

The court erred in excluding the testimony of William Douglas. The conversation was not a confidential communication. The relation of attorney and client never existed between plaintiffs and witness, and the rule of privileged communication as between attorney and client is strictly confined to cases in which the relation exists and to the time during which that relation continues.

<p> Error to Vernon Circuit Court. </p>

<p> Appeal from Callaway Circuit Court. </p>

(Seaman v. Hogeboom, 21 Barb. 406; 4 Ad. & Ellis, 81.) I. Parol testimony cannot be resorted to to control the meaning of a deed, or give it a different meaning from that which it carries on its face. • H. The lease was properly excluded on account of the uncertainty of its description. It contains no description, or reference to any description, by which a surveyor could find the premises described therein, or the lot in controversy, not even giving the State and county.

<p> appeal from St. Clair Circuit Court. </p>

<p>1. Carrier, common — Receipt, effect of. — A receipt for goods, given in the usual form by a common carrier, implies an agreement to transport the goods to their destination if upon the carrier’s line.</p>

Defendant, being an intruder, cannot show want of title in plaintiff. The possession of plaintiff being proven, is sufficient to maintain trespass. (30 Mo. 442.)

<p>1. Lessor and lessee — Covenant to deliver possession, action on — Rule as to damages. —In an action of damages for withholding possession of leasehold. < property, where plaintiff had been a non-resident and had removed to this , State for the purpose of occupying the premises, he would not be entitled to recover, on the covenant to deliver possession contained in the lease, the amount of his expenses incurred in the removal. He might protect himself ’ against such damages by requiring that a provision to that effect be inserted 0 in the contract. If he fails to do this he can only recover losses which nat1 urally result from its violation.</p> <p>In such a suit the true rule of damages would be the difference in the rent as provided for in the lease and the rental value of the premises. And the rental value would be not what the premises might he worth to the plaintiff, hut what they would rent for in the neighborhood.</p> <p>2. Leases — Suit by lessee against lessor — Covenant to deliver possession — Unlawful detainer — Former recovery — Plea in bar. —A lessee who is prevented from occupying the leasehold premises by a wrong-doer is not compelled to proceed against him, but may have his action directly against the lessor on his covenant to deliver possession. But where he chooses to sue the wrong-doer for unlawful detainer, and recovers judgment against him for '• possession and damages for the detention, he cannot afterwards resort to his remedy against the landlord; and in case of such an action the latter may plead the former recovery by the lessee, in bar of the suit.</p>

<p> Petition for Mandamus. </p> <p>cited Const, of Mo., art. VI; §§ 14, 16-19 ; Commonwealth v. Gamble, 62 Penn. 343 ; Commonwealth v. Mann, 5 Watts &'Serg., Penn., 403; People v. Dubois, 23 111. 547; People ex rel. Ballou v. Bangs, 24 HI. 187; People v. Garey, 6 Cow. 642; 9 Cow. 640; State v. Messmore, 14 Wis. 163 ; Lowe v. Commonwealth, 3 Mete., Ky., 237; Commonwealth v. Sutherland, 3 Serg. & R. 145; Hoke v. Henderson, 4 Devereux, N. C., 1; Page v. Hardin, 8 B. Monr. 648; McCafferty v. Guyer, 9 P. F. Smith, 109; Bates v. Kimball, 1 Chip. 77; People v. Draper, 15 N. Y. 558 ; Moses Mand. 87; Citizens’ Bank v. Wright, 6 Ohio St. 318 ; The People v. Pinckney et al., 32 N. Y. 377; The State v. Dilloway, 2 Yroom, N. J., 42 ; State ex rel. Yail v. Draper, 48 Mo. 213 ; Bar to v. Himrod, 4 Seld. 483; State ex rel. Circuit Att’y v. Cape Girardeau State Line R.R., 48 Mo. 468; 38 Mo. 419; State ex rel. Attorney-General v. Davis, 44 Mo. 129; State ex rel. Jackson v. Emerson, 39 Mo. 87; State of Ohio ex rel. Flinn v. Wright, 7 Ohio St.'333.</p> <p>The general assembly may change, modify or abolish a statutory office, and the incumbent would hold subject to such change, modification or abolishment. (State ex rel. Davis v. Mann, 41 Mo. 395; State ex rel. Attorney-Gen eral v. Davis, 44 Mo. 129; Primm v. City of Carondelet, 23 Mo. 22.) And while it may be admitted that the office of circuit judge cannot be abolished nor the term changed, yet the circuits are prescribed or given by statute, and they may be changed, modified or altered by the statute. (6 Wend. 531; 18 Me. 109; 7 Ohio, 333; 62 Penn. St. 348; -People ex rel. Ballou v. Bangs, 24 111. 184.)</p>

<p>1. Practice, criminal— Threats by deceased, the day prior to homicide. —In an indictment for murder, evidence of threats made by Ibe deceased the day prior to the homicide, and continuing uninterruptedly down to the time of the death, declaring bis intention to kill the accused, is competent as a part of the res gestee, and should not be excluded from the jury.</p> <p>2. Homicide — Character o f deceased, as desperate, etc., may be shown, when. — Where a homicide occurs under such circumstances that it is doubtful whether the act was committed maliciously or from a well-grounded apprehension of danger, testimony showing that deceased was turbulent, violent and desperate, is proper, in order to determine whether the accused had reasonable cause to apprehend great personal injury to himselh</p>

<p>1. Bond, suit on — Verdict — Judgment — Appeal, etc. — In a suit upon an official l>ond, the error of the trial court in rendering judgment upon the verdict of the jury, instead of ón the bond, with a further judgment that relator have execution for the damages assessed, is a merely formal one, which may be corrected at any time, and will not authorize a reversal of the cause.</p>

The ordering of money to be paid to or warrants issued by County Court justices, in favor of any party, either for real,or pretended services or as a gratuity, is simply a ministerial or administrative act and not a judicial act; and a willful and gross abuse of authority by a ministerial officer differs from a corrupt decision of a judicial officer, and the language of an indictment against the former does not require the same technical words. (State ex rel.

The fact that the sheriff had not made the levy, in no manner abridged his power to execute a deed after the expiration of his term of office. (See Hunter v. Miller et al., 36 Mo. 147; Duncan v. Matney, 29 Mo. 375.) I. Hayden was the proper officer to make the deed. (Duncan v. Matney, 29 Mo. 885 ; Hunter v. Miller, 36 Mo. 147.) n. The deed, when made^- took effect by relation from the date of the sale.

cited Wynn v. Cory, 43 Mo. 301; Hewitt v. Harvey, 46 Mo. 368. If this was a trespass suit, whether under the statute or at common laAV, the petition should have shown actual possession' to let in the proof offered. (1 Chit. PI. 162, 180 ; 2 Greenl., § 613; SedgAv. Dam. 134, 139, 147-8, 154-5.)

<p> Appeal from Moniteau Circuit Court. </p>

From the statement furnished on behalf of appellant, it appears that Groetz said to witness Tobien, “Dear friend, I have to die, I received two mortal wounds, and they pain me a great deal,” and other words of similar import.

I. The court erred in holding that the instrument offered in evidence was a contract of sale. It was merely a receipt, and was susceptible of explanation by parol testimony. (1 Greenl. Ev., § 305; 1 Phil.

<p>1. Practice, civil — Actions—Parties—Husband and wife — Mechanics’ liens.— An action under the mechanics’ lien law is no exception to the law requiring that the husband shall be joined in all actions against the wife. (Wagn. Stat. 1001, § 8.)</p> <p>2. Practice, civil — Parties — Husband and wife. — The statute of 1868 (Wagn. Stat. 1001, \ 8), which provides that “when a married woman is a party her husband must be joined with her in all actions except those in which her husband is plaintiff only and the wife defendant only, or the wife plaintiff and the husband defendant,” is in conflict with the statute of 1865 (Gen. Stat. 1865, p. 651, $ 8), under which a married woman might have been sued alone in respect toller separate property, and she cannot now be sued alone except when the husband sues her.</p> <p>8. Practice, civil — Non-joinder — Error, how reached when not apparent on the face of the proceedings — Amendments — Limitation. — Where suit is improperly brought against a married woman without joining her husband, and judgment is rendered against her alone, and the error does not appear on the face of the proceedings, the error can only be brought to the attention of the court by a proceeding in the nature, of a writ of error coram nobis. The usual way is by motion supported by affidavit or evidence. There is no statute of limitations against such a motion; the statute of amendments (Wagn. Stat. 1036, 19) does not cure this error.</p>

.The Boonville , branch of the Pacific Railroad extends from Boonville to Tipton, a distance of twenty-six miles. It connects at Tipton with the main line of the road. Bunceton is a station on the branch, about ten miles north of Tipton. On the 13th of. December, 1870, Thomas Tucker offered for shipment at Bunceton station five cars of hogs, which it may be conceded-defendant agreed to receive and transport.

<p>Jlppeal from Kansas City Court of Common Pleas.</p>

I. ' The purchase by'a mortgagee with power of sale at his own sale, through a third person, does not change the relation of the parties. (Mapps v. Sharpe, 32 111. 13 ; Benham v. Rowe, 2 Cal. 387; Moore v. Titinan, 44 111. 368; Eaton v. Whiting, 3 Pick. 490; Thornton v. Irwin, 43 Mo. 153.) The mortgagee in such case, will still hold the title as security for his debt.

<p>1. Constable, bond of, action on — Execution, failure to return. —In suit on a constable’s bond for failure to return an execution, it is sufficient for plaintiff to show that tbe execution was delivered to defendant; and it is not necessary, in order to make out plaintiff’s case, to show tbe failure to return it.</p> <p>2. New trial, motion fon— Instructions — Surprise. — It is no ground for a new trial that appellant was surprised by tbe giving or refusal of instructions.</p>

Altbougb tbe complaint in this cause may be said to be, under a- strict construction of its language, for a forcible entry and a forcible detainer, yet, whether the entry be with or without force, the detainer is unlawful whether maintained with or without force; and the proof, to maintain an action under either section 2 or 3. of chapter 61, Wagner’s Statutes, is, under section 16 of that chapter, p. 645, the same.

<p> Error to Kansas City Court of Common Pleas. </p>

The note transferred by defendant to Simmerwell operated as a conditional payment upon the note sued on, and stands as payment until returned or accounted for. (Dayton v. Trull, 23 Wend. 345-6 ; Kearslake v. Morgan, 5 T. R. 513 ; Chit. Bills, 97.) . The first note was no payment of the note-sued upon. (Appleton-. v. Kennon, 19 Mo. 637.) By the terms of the receipt given by Simmerwell to .defendant, it was only taken as collateral security. (1 Smith Lead.

<p>1. Circuit Court, record of — Index, compensation for making — Mandamus. — In 1869 the Circuit Court of Cole county had no authority to order the making of an index of the records of the court; and even if it had the authority, it had no power to fix the compensation for such services. The County Court is the proper tribunal to adjudicate that question in the first instance. Hence, claimant having another remedy, mandamus will not lie to compel the County Court to audit the claim for payment simply on the strength of such order.</p>

<p>1. Justices’ courts — Appeal—Affirmance — Appearance. — An appearance of the appellee in the Circuit Court, on appeal from a justice, for the purpose of asking an affirmance, is not such an appearance as will waive the failure of appellant to give the notice of the appeal required by the statute. (Wagn. Stat. 850, l 21.)</p> <p>2. Justices’courts — Appeal — Failure of notice — Affirmance.— Where an appeal from a j ustice is not allowed on the same day when the judgment is rendered, the failure of the appellant to notify the other party of the appeal before the second term of the Circuit Court thereafter, is such a failure to prosecute the appeal (Wagn. Stat. 344, § 10) as will warrant an affirmance of the judgment.</p>

<p>1. Practice, civil — Jury, waiver of. — An entry of judgment which shows that the parties “appeared and submitted the case for trial to the court” sufficiently indicates that trial by jury was waived.</p> <p>2. Judgment — Amendment of, nunc pro tunc. — "Where a motion for a new trial and the whole case is continued to the next term of court, the judgment may be amended nunc pro tunc.</p>

This being an ordinary action of ejectment, the plaintiff must, to entitle him to recover, be clothed with legal title, and an equitable title is not sufficient to sustain a recovery against defendant in possession. (Robinson v. Campbell, 8 Wheat. 212 ; Eemr v. Holme, 21 How. 481; Hickey v. Stewart, 3 How. 750 ; Agricultural Bank v. Rice, 4 How. 225; Carson v. Boudinot, 2 Wash.

<p>1. Criminal law — Indictment — Recognizance — Habeas corpus. — After indictment, a justice of a County Court other than the county where the indictment is pending has no power to take a recognizance for the appearance of a prisoner, unless he is brought before such justice by writ of habeas corpus. ■</p>

<p> Appeal from Ray Court of Common Pleas. </p>

Tie delivery of goods to a carrier, for tie purpose of transferring them to tie purchaser, is a delivery to the purchaser. (2 Kent’s Com. 499.)

<p>1. Practice, civil — Instructions — Exceptions, etc. — Where appellant saves no exceptions to the action of the lower court in giving instructions, such action will not be reviewed on appeal.</p>

<p> Appeal from Hay Court of Common Pleas. </p>

Plaintiff, among other matters, offered in evidence a certified transcript of the papers, proceedings, orders and decrees of the case wherein Godfrey and Fish were plaintiffs, and the unknown heirs and devisees of Henry Clay, deceased, were defendants, brought to supply by decree a deed from Henry Clay to Richard Findell for the land in controversy, with other lands, dated October-14, 1839. See further the opinion of the court.

<p> Appeal from Buchanan Circuit Court. </p>

<p>1. United Stales patent — Proof of record. —A United States patent for military bounty land may he shown in evidence without proof that tbe same was recorded in the land department, or memorandum of such record.</p> <p>2, Conveyances — Evidence — Variance. — The fact that the grantor in a deed is described as John Nichols, and that the instrument is signed by John Nichols, Junior, will not render it inadmissible.</p> <p>8. Ejectment— Outstanding title, proof of. — -It is sufficient for defendant in ejectment to show title in another, without establishing his own.</p> <p>4. Conveyance by heirs, effect of, against that of ancestor. — Upon the death of the owner of land, a conveyance thereof by his heirs to an innocent purchaser for value will carry the title as against an unrecorded conveyance of the deceased owner.</p> <p>5. Conveyances — Acknowledgment — What defective. — An acknowledgment purporting to be made before a clerk of a foreign city,andwhich fails to state that the grantor was known to the officer granting the certificate to he the person whose name was subscribed to the instrument as a party thereto, is bad.</p> <p>6. Instructions — Statement of facts in, etc. — Where instructions taken as a whole present the facts properly to the jury, they should be given.</p>

<p> Error to Linn Circuit Court. </p>

<p> Appeal from Ray Court of Common Pleas. </p> <p>cited Sto. Prom. Notes, 19, § 17; id. 23, 28, §§ 22, 25; Edw. Bills and Notes, 118, § 134 ; id. 132-3, 135-7, §§ 139,140, 142-5; Cliit. Bills, 137 et seq.y Cook v. Bradley, 7 Conn. 57; Leiber v. Goodrich, 5 Cow. 186 ; Thompson v. Sloan, 23 Wend. 71; Keith v. Jones, 9 Johns. 120; Judah v. Harris, 19 Johns. 144; Jones v. Eales, 4 Mass. 245 ; Young v. Adams, 6 Mass. 182-8.</p> <p>The instrument sued on is a negotiable note. (Wagn. Stat. 216, § 15 ; .Sto. Bills, 36, § 29 ; id. 45-57, § 32-35.)</p>

<p>1. Practice, civil — Supreme Court — Appeal, failure to prosecute. — Damages. — Where appellant fails to prosecute his appeal as required by law, and no reason is shown for the delay, the judgment will, on motion of respondent— a perfect copy of the record being presented by him — be affirmed, with ten per cent, damages.</p>

I. The orders and proceedings of the Circuit Court of Sullivan county, before the transcript of the record had been forwarded to and filed by the clerk of that court, were unauthorized, extrajudicial and mere nullities, because the court did not have jurisdiction of the case. (Wagn.

<p>1.' Justices’ courts — Jurisdiction — Railroads — Contracts of affreightment — Construction of statute. — Under the existing laws of this State,1’justices of the peace now have jurisdiction over contracts of affreightment made hy railroad companies to the extent of ninety dollars.</p>

<p>1. Landlord and tenant — Statute of frauds — Holding over.— Payment of yearly rent —After the expiration of a written lease, a tenancy from year to year may be created by a verbal permission to hold over and receipt of yearly rent.</p>

<p>1. Partition — Sale — Infants — Gross inadequacy of price, even in absence of fraud, ground for setting aside sale.— On a suit in partition, some of the parties to which were infants, sale was ordered of a tract of land worth $1,600, and an agent of one of the parties was engaged to be present and prevent a sacrifice of the property. By some accident this agent was prevented from attending, and the land was sold for $50. Held, that although no fraud in the purchase appeared, yet the inadequacy of price was so great as to shock the conscience; and, as infants were concerned, it was the duty of- the court to set aside the sale.</p> <p>2. Infants — • Partition — Guardian ad litem — Next friend. — An infant can not bring a suit in partition by a next friend. The guardian, if there be one, must bring the suit; and if there be none, the court in which such suit is to be brought may, in term time, appoint a guardian ad litem, who shall have all the authority of a regular guardian in such case.</p>

<p> Appeal from, Clay Circuit Court. </p> <p>cited Stark. Sland. 489; 2 Stark Sland. 63; Smith v. Carey, 3 Campb. 461; Williams v. Stott, 1 Crom.' & M. 676 ; Yan Tassel v. Capron, 1 Denio, 250 ; 2 J. J. Marsh. 540 ; Maynard v. Fireman’s Ins. Co., 34 Cal.48,</p>

<p>1. Landlord and tenant — Holding over — Act of 1869, effect of. — Section 13 of the landlord and tenant act, as amended by that of 1869 (Sess. Acts 1869, p. 68), by which tenancies not in writing are made to be from month, to month, will operate upon an implied tenancy at will, where the tenant holds over under a written lease, although the lease was made prior to the passage of the act.</p>

I. Trustees, agents, administrators, guardians, attorneys or others, whose connection with any other person is such as to establish a confidential relation between them concerning the property of such person, or to give them official knowledge and opportunities in regard to such property, cannot become the purchasers of' such property, even though the sale be at public auction.

<p>1. Justice of the peace — Appeal — Cause of action, change in.— On appeal from a justice of the peace, the rectification of a mistake in the name of a party, or the introduction of a new party, does not change the cause of action and will be permitted.</p>

I. The statute of 1855 must govern in this case, because under that statute the- appellants had acquired vested rights. (See R. C. 1855, p. 904, §§ 13,14. It is incompetent for the Legislature to divest these rights, or destroy them, by subsequent legislation retrospective in its operation. (Const, of Mo., art. i, § 28 ; Fisher v. Cockerill, 5 Mour., Ky., 129 ; Atkinson v. Dunlap, 50 Me. Ill; Streubel v. Milwaukee & Mississippi R.R. Co., 12 Wis 67; State ex rel.

<p> Appeal from Cameron Court of Common Pleas. </p>

I. The judgment was rendered in the absence of respondents or their attorneys, for want of answer, when, under the law and established rules of the court, defendants were allowed until the next succeeding term of said court in v'hich to file answer; and in that particular the judgment was against the law. II. It is agreed between plaintiffs and defendants that the following is one of the rules of the said Circuit Court: “Rule 1— Amendments. 1.

dlppeal from Clinton Girouil Court. I. The fact that other persons crossed -the railroad track at an improper place is no excuse for plaintiffs doing the same thing. To cross the railroad track at an improper place was á wrong, and the doing a wrong at one time is no excuse for repeating it. H. There is no evidence in the case on which to base the first instruction.

Jlppeal from Linn Circuit Court. The recognizance, executed by the defendant and John A. Eur-guson before the Circuit Court of Chariton county, was improperly admitted in evidence. It is not the recognizance recited in the scire facias. ■ The allegations in the scire facias are that the-recognizance'was executed before R. A. PeBolt, judge of the Chariton Circuit Court, while the one which was read in evidence was taken by the Circuit Court of Chariton county.

I. The appellant, as a common carrier of passengers, had a •lawful right to make and carry out the rule enforced in this case.

'The counsel on both sides filed elaborate briefs; but as the .judgment of the court was based upon other grounds than those discussed by counsel, the briefs are necessarily omitted.

<p> Appeal from Ray Court of Gomnion Pleas. </p>

Buchanan Circuit Court. I. The judgment in the court below declaring the deed of John W. Breckenridge, Lafayette Ardry and Adam Breckenridge, as Well as plaintiff’s deed from Ardry and Breckenridge, void, is erroneous. 1. The intent of the parties to a deed always governs as to the nature of the deed. (Sibly v. Hood, 3 Mo. 206 ; Brant v. Robertson, 16 Mo. 145; Wilson v. Drumrite, 21 Mo. 325 ; Turner v. Kerr, 44 Mo. 429.) 2.

<p>1. Promissory note — Accommodation maker — Signature in blank — Agreement. — A. and B. were makers of a promissory note whieli had become due. O. signed in blank another note, with the understanding that it was to be signed also by A. and B. and used to pay the former note. A., however, filled up the note as payable to himself and assigned it over to B., who was aware of the understanding under which it was signed by C. B. subsequently brought suit against A. and O. on the note. Held., that A. and B. having violated the agreement under which O. signed the note,’and B. having knowledge of that agreement, O. could not be held liable to B. on the note.</p>

<p>I. Probate Courts, special acts touching, constitutional — Not judicial.— The establishment of courts of inferior jiu'isdictio'n by special legislation, is a , matter resting in the discretion of the general assembly. (Att’y-Gen’l ex rel. Boone County Court, ante, p. 317.)</p> <p>Such acts are not'in the nature of judicial sentences. Such courts and offices are statutory, and within the complete control of the Legislature to repeal, abolish or destroy them.</p>

<p> Appeal from Clinton Circuit Court. </p>

<p>1. Tax bills — Si. Joseph, city of — City council — Resolution — Action of mayor. —Under the amendment to the charter of St. Joseph, approved November 21, 1872, by virtue of which “the mayor and couneilmen of the city of St. Joseph ” had power to macadamize, etc., streets and alleys, the city council had no power to direct work of such character to be done except when acting in conjunction with the mayor, and a tax bill based on the action of the council alone, without the co-operation of the mayor, would be invalid.</p>

<p>I. Judgments — Entry of nunc pro tunc, after term — Cannot be made, when. — After the term at which final judgment is rendered, no entry can be made altering the form of the judgment unless the. facts appear of record, or on the minutes of the court, or from the papers on file, to authorize such change. Such entries cannot be made from outside evidence or from facts existing alone in the breast of the judge, after the term at which final judgment was rendered.</p>

The instrument sued on is not a bond, bill or note, within the moaning of the statute. (Gen. Stat. 1865, ch. 165, § 5 ; Jack-man v. Bowker, 4 Mete. 235 ; 1 Pars. Notes and Bills, 60, 61, 210 ; Doan v. Holly, 27 Mo. 256; 34 Mo. 318.) The instrument sued on is for the direct payment of money, and may be regarded as a bill of exchange or promissory note. (2 Pars.

Jlppeal from Buchanan Court of Common Pleas.' This was a suit commenced in the Circuit Court of Buchanan county to recover a bill for macadamizing and other improvements done by plaintiff in front of and adjoining property owned by defendant. The work was done by virtue of an alleged contract with the city of St. Joseph, made in pursuance of the charter and ordinances.

I. The suit was correctly brought upon the covenant o£ seizin, and not upon the covenant against encumbrances. Not only does the demurrer admit the vesting of the fee simple in the Platte County Railroad, but a reference to the charter of the company will show that the power-of condemnation of the fee was granted to the company, and that company was of unlimited duration. (Sess.

I. The court had- no jurisdiction and no right to affirm the judgment of the justice until notice of the appeal was given, or until appellee entered his appearance, and could not render any judgment in the case. (6 Wall. 256.) H. The statute is express that no appeal shall he dismissed for want of notice ; much less could the judgment of the justice be affirmed for want of such notice. (Gen. Stat. 1865, p. 725, §22.) HI.

A parol partition of lands, when accompanied by possession, is valid. (20 Barb. 127 ; 4 Johns. 212; 9 Johns. 276; 4 Kent Com. 369, note a; 24 Mo. 400 ; Com. Dig., ch. 5.) The petition shows that, in pursuance of their agreement, Atwood conveyed one-half the land to Barnett, and that Barnett failed to convey to Atwood. This constituted a valid cause of action on the part of those claiming under Atwood, for a specific performance of the contract.

The deed from Henry McGee to Eolger, even if not a good deed as to the other parties, named in • the body of the deed, is nevertheless good as against him. The words “agent for the heirs of Thomas McGee, deceased,” in the body of the deed, are mere surplusage. The deed does not purport to be executed by him as agent. The covenants are by and for him alone. (Lapsley v. McKinstry, 38 Mo. 247; Sto.

<p>1. Evidence — Bills and notes — Lack of consideration — Fraud. — When, in a suit on his'non-negotiable notes, the defendant alleges that the notes were a part of the purchase-money for certain real estate, which was conveyed to him by an alleged attorney in fact, and that the power of attorney was a forgery, such an allegation is a good defense.</p> <p>2. Conveyances — Covenants of warranty — Absence of fraud — Possession of the property. — When there is no-fraud, and a party receives a conveyance with covenants of general warranty, he cannot retain possession, and set up failure of consideration when sued for the purchase-money.</p>

Jippeal from, Cameron Court of Common Pleas. Possession of property as bailee for certain purposes, or as a pawn or pledge in any manner to secure a debt, whether evidenced by mortgage or not, is sufficient to authorize a recovery by such possession against any other person for damaging or converting the same to his own use. (2 Greenl. Ev. 612 — 14, note, § 637; 1 Blackst. Com. book 2, pp. 318, 396.) The mortgage is sufficient of itself to authorize a recovery.

Jippeal from Buchanan Court of Common Pleas. I. The map made, acknowledged and filed for record by John Patee, and dated the 10th of July, 1851, definitely fixed the location of block 12 in said addition, and also the location and numbers of the lots ; and such location and designated number could only be changed by the proprietor thereof,-by making, acknowledging and filing a plat showing such changes.

I. The court erred in not appointing a referee and referring this case to him. Where the parties do not agree to have the case referred, the court, upon the application of either, or of its own motion, may direct a reference, where the trial of an issue of fact shall require the examination of a long account on either side (Gen. Stat. 1865, eh. 169, p. 674, § 18 ; Wa'gn. Stat. 1041, § 18),. and “ the examination of a long account” was involved in the trial ot this case. II.

I. The causes of action in this case rest upon an exercise of the taxing power. Prom necessity this power must be limited in its extent to the value of the property upon which it is exercised ; there is nothing beyond on which the power can act. (City of Carondelet v. Pieot, 38 Mo. 131.) The certified accounts read in evidence are not prima facie evidence that the defendant is indebted to the plaintiff in the several sums of money therein set forth.

<p>1. Deeds of trust — Declarations of grantor — Conspiracy. — To establish fraud on the part of the grantor in a deed of trust, his subsequent acts and declarations, if not too remote, may be shown. But they cannot be used against the beneficiary without first proving a fraudulent conspiracy between them to defraud the creditors of the grantor.</p> <p>2. Deeds of trust — Mistakes in — What will be corrected by a court of equity. —Mistakes in deeds of trust, such as making the debt due the trustee instead of the beneficiary, and describing a bond, e. g., secured by the deed as bearing even date with the deed, instead of being dated a few days prior thereto, are such as a court of equity will correct.</p>

<p> Jlppeal from. Buchanan Circuit Court. </p>

I. The testimony is sufficiently consistent and clear to show that there were two or three breaks between the time when possession was first taken by Judge Arnold, in 1836 and 1861, when possession was last had by any one under whom plaintiff claims. The first noticeable break in the possession was a period between the occupation of Hugh Standly and that of his family, and the time when Norvill took possession.

Both defendant and plaintiff claim title under Peter Ausmuss, and the defendant will not be permitted to deny that he had title after buying from him. (11 Moore, 394; Brown v. Brown, 45 Mo. 415; Jackson et at. v. Walker, 7 Cow. 637; Whiteside v. Jackson, 1 Wend. 419; Galloway v. Einley et at., 12 Pet, 294; 2 Greenl. Ev., § 305; Jackson v. Norris, 7 Cow. 717; Hamilton v. Taylor, Litt. Sel. Cas. 444; Doe v. Burton, 6 Eng.

<p>1, Action at law converted into an equitable proceeding by answer — Instructions, improper. — Where an action of law is converted into an equitable proceeding by the answer, it is improper for the trial court to give declarations of law; and it is not error in the court below, on the trial of such action, to refuse instructions, and error cannot be assigned here for such refusal</p>

Appeal 'from, Buchanan Court of Common Pleas. The damages done to the growing crops by cattle breaking through the fence built by respondent, under the law and facts of this case, are not too remote. They grow out of and are- the immediate result of the negligent manner of building the fence, and the very intent and purpose of the appellant in the building of this fence, as part of the contract, was to protect his crops.

<p> Error to Caldwell Circuit Court. </p>

I. The sheriff’s deed read in evidence to the jury should have been excluded. 1. No notice of the sale of said property had been given as required by law, because the notice was not published in the Union as recited in the deed, and because the notice published in the Volksblatt stated that the sale would take place during the session of the Circuit Court, when in fact it was made, as recited in the deed, during the session of the Buchanan Court of Common Pleas. 2.

<p>1. Evidence — Land titles — Will, to he received as evidence, must he shown to affect the land. — In a suit in ejectment, a will offered to show title must be shown to embrace the land in controversy. Unless this is done, the will is not competent evidence.</p>

Tbe first or negative defense, ££ not guilty,” was not inconsistent with or nullified by tbe two affirmative defenses in tbe sense of tbe statute. (Lansingb v. Parker, 9 How. Pr., 288 ; Nelson v. Brodback, 44 Mo. 596.) cited Buckley v. Knapp et al., 48 Mo. 152, 163-4; Allred v. Bray, 41 Mo. 484-90; Kennedy v. North Mo. R.R., 36 Mo. 351-64 ; Eranz v. Hilterbrand et al., 45 Mo. 121-23 ; Conard v. Pacific Ins.

The defendants are liable on defendant McCormack’s sheriff’s bond for the money sued for, because it was received by McCormack in his official capacity during the term of office covered by their bond, although the money arose from a partition sale made by him during a previous term of office, covered by a bond with different sureties.

Equity follows the law, and the bill shows upon its face that the grantor of defendants in error, William Davis, was by law precluded from owning or entering the land in question. Equity, therefore, affords no relief either to said William Davis or the defendants in error, who are his privies in estate. (Sto. Eq., 3d ed., §§ 6,12, 13, 16,17, 64 ; State v. Matson, 38 Mo. 489 ; Dilly v. Barnard, 8 Gill & J. 171; Field v. Myers, 37 Mo. 434; 28 Mo. 335.)

<p>1. Practice, civil-r-.Trials — Evidence, preponderance of, determined by jury — Instructions should cover the whole case. — It is the province of the jury to determine on which side the preponderance of evidence attaches, but courts by their instructions should cover the whole case and take in all the testimony.</p>

<p>1. Justices' courts — Practice — Statement — Precision not required.— Precision and conformity to rigid rules cannot be invoked in regard to proceedings before justices of the peace; and where a transcript from a justice stated that plaintiff had filed his affidavit, and gives its substance, and the justice sends up as one of the original papers in the case a statement indorsed “ affidavit,” it sufficiently appeared that the statement had been filed at the institution of the suit, and it was error to dismiss the case on the ground that no statement had been filed with the justice.</p>

I. There was no warrant in law for the submission of the matters involved in the petitioner’s application to a jury. The proceeding was unknown to the common law. It was not an action to recover money or property to which the petitioner had an antecedent right, or damages for the deprivation of any right, and it was therefore not a case for a jury. The petitioner’s right wholly depends upon the exercise of the discretion of the court.

I. In the case of The State, etc., v. Towl et al., 48 Mo. 148, the point was directly made that the same deed from French to Mrs. Castleman was void because made under an order of sale where the report of the sale and the sale and the conveyance were all made at the same term of court.

<p>1. Limitations, statute of— When it begins to run — Incapacity, period of, excluded.— The cause of action arises as soon as the party has a right to apply to the proper tribunal for address; but when there is a temporary incapacity to sue, growing out of some particular provision of a statute, the time of such disability should be excluded from the computation.</p> <p>2. Limitations, statute of — Administrator — Heirs and distributees — Adverse title. — "When the administrator purchases or acquires title to property of an estate, and afterwards, with the knowledge of the heirs, notoriously asserts title in himself and claims adversely to the estate, he may avail himself of the statute of limitations against the heirs, and in the same manner against the distributees, from the date of final settlement and order of distribution.</p> <p>8. Limitations, statute of — Wills—Court, County — Court, Circuit — When it begins to run.— The law allows five years wherein to contest a will in the Circuit Court, and until that time has passed, the rights under the will are not finally settled, though it is probated in the County Court; and until after that time the statute of limitations does not begin to run against the heirs.</p> <p>4. Partition, decree of — Adverse title —Estoppel.—A decree in partition does not estop the parties to the suit from setting up a new and independent title afterwards acquired; it only aifects the title they then had.</p> <p>5. Administrators — Acts of, in good faith — Revocation of authority.— The lawful acts of administrators, done in good faith, shall not be impeached by any will appearing, nor by any subsequent revocation or superseding of their authority.</p> <p>6. Court, County — Order of distmbution — Innocent purchaser. — In a matter of distribution, the judgment of a County Court, while unreversed, will protect an innocent purchaser or a stranger buying property under it. (Castle-man v. Keif, ante, p. 583.)</p>

I. During the term of court at which the indictment was found, Pipkin was at least a de facto officer, and his acts were . valid and binding upon third parties, and cannot be called in question collaterally as in this case. (King v. Corporation of Bed-ford, 6 Bast, 369, and authorities cited; King v. Lisle, Andrews, 163 ; Lutwyche, 608-19.) II. If he then were de facto officer, his acts were colore officii and valid as to and between third parties.

I. Every conveyance of real estate hereinafter executed shall pass all the estate of the grantor, unless the intent to pass a less estate shall appear by express terms. (R. C. 1855, p. 355, § 2.) II. A deed by a tenant in common, purporting to convey in severalty, is a good conveyance of the grantor’s undivided part within the boundaries of the conveyance. (Lessee of White v. Sayer, 1 and 2 Ohio, 302.) HI.

<p>1. Court, County — Railroads, subscription to — Agents — Bonds — Reasonable ■ certainty — Statute, compliance with. — Where a county issues its bonds to a railroad, if there was reasonable certainty in the manner of voting and ordering the subscription, and the subscription was made to the road authorized, and the other provisions of the statute were complied with, such bonds are valid.</p>

<p> Appeal-from, JYeiu Madrid Circuit Court. </p> <p>This suit for title is analogous to suits for specific performance. Where there is a trust or fraud, equitable courts will not interfere, but leave parties to their legal remedies. To get the aid of equity the plaintiff must be willing to do equity himself. (Sto. Eq., §§ 692-93, 706, 769, 787.) The facts show no intent to invest title at the time of the transaction. The deeds were retained in the possession of the grantor.</p> <p>The plaintiff seeks not the performance of a contract, but to set up and perpetuate the existence of a pre-existing and completed contract or deed; not to create a title, but to restore the lost evidences of a perfect title’.</p>