Volume 58 — Missouri Reports

I. Defendant, Mansfield, liad the right to purchase the land at the sale. He was not trustee for the sale of the land. The rule that a trustee cannot purchase at his own sale of property of which he is trustee, has no application to him. The rule is that the trustee cannot purchase from himself. He cannot sustain the two characters of purchaser and seller. But defendant, Mansfield, was in no way connected with the trust nor had any control or direction of the sale.

I. The note sued upon possesses all the requisites of a negotiable promissory note, viz: 1st. Certainty as to the payee ; it is payable to the order of the treasurer of the company. 2d. Certainty as to the payer; the defendants are to make the payment. 3d. Certainty of amount; the actual amount here is stated in the note as $800, payable in instalments. 4th. Certainty as to time of payment; this is also fixed thirty days after notice of call or demand of each instalment.

I. Tlie rule which makes a vendor liable for the value of the land he agreed to convey, at the time he ought to have conveyed, and for no more, is equal and just. This-is the measure of damages applicable to the case. The consequence is that when the vendor refuses to convey, the vendee not having paid the purchase money, the vendee Í3 entitled to the full value of the premises on the day of the breach of contract minus the purchase money, remaining unpaid.

<p>1. Railroads — Fences—Killing of stock — Damages—Timber land. — The 43rd see. of tlie Railroad Corporation Law, (Wagn. Stat., 310-11) which requires all railroads “ to erect and maintain fences on the sides of the road where the same passes through, along or adjoining inclosed or cultivated fields or uninclosed prairie landsrequires that in such places, fences shall be erected and maintained on both sides of the road. But the obligation is not extended to timber lands or land from which the timber has been cut, but which is not cultivated. And when stock is killed at such a place the owner is not entitled to double damages. He can only recover single damages, by proceeding under sec. S of the Damages Act. (Wagn. Stat., 520.)</p>

<p>Tiarks v. Same, ante p. 45 affirmed.</p>

<p>Tiarks vs. Same, ante p. 45, affirmed.</p>

<p>Tiarks vs. Same, ante p. 45, affirmed.</p>

<p> Jlppeal from, Madison Circuit Court. </p>

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

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

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

<p>Tiarks vs. Same, ante p. 45, affirmed.</p>

<p>Tiarks vs. Same, ante p. 45, affirmed.</p>

I. The execution of the deed of trust from Matilda and George W. Peay and Cyrus W. Williams and wife, although the name of the trustee was omitted, created an equitable mortgage, and a court of equity will treat it as such and subject the land to the payment of the notes. (Davis vs. Clay, 2 Mo., 161; MeOlurg vs. Phillips, 49 Mo., 315; Burnside vs. Wayman, Id., 356; Abbott vs. Godfrey’s heirs, 1 Mich., 178; 3 Pow.

Appeal from, Audrain Circuit Court. I. Defendant’s evidence of a dedication should have been excluded, because it was res adjudicata. (Freem. Judg., §§ 249, 310; Kidgely vs. Stilwell, 27 Mo., 128 ; Edgellvs. Sigerson, 26 Mo., 533; OfEutt vs. John, 8 Mo., 120 ; Bent vs. Stern-berg, 4 Cowan, 559 ; Dunltle vs. Viles, 6 Barb., 515 ; 1 Kern, 420.) II.

<p>1. Construction of statute — Re-enactment by reference — Constitution.—An act declaring that a previous act “is hereby amended so as to authorize the city marshal to act as deputy constable, etc." is in conflict with Art. IV, subd. 25, of the State Constitution, as re-enacting a law by mere reference. (See Mayor, etc., vs. Trigg, 46 Mo., 288.)</p>

I. Having claimed damages to the amount of $50.00 for injuries to personal property under the third sub-division ©f § 3, Chap. 82, pp-. 808-9, plaintiffs could’ not in the same suit claim $150 damages under the fifth sub-division of said section.

<p>1. Partnership — Dissolution—Notice of, when necessary — Member suffering name to remain in firm. — As to persons who have had no previous dealings with or knowledge of a firm, or of those who composed it, no notice of its dissolution is necessary, in order to prevent liability in consequence of subsequent debts or engagements from attaching to the partner who has retired. If, however, a former partner suffers his name to appear as still belonging to a firm from which he has retired, he will be held liable to any one, who, by his conduct in this particular, has been misled into giving credit to the firm. And this will be the case whether notice be given by publication or not.</p> <p>2. Pleading — Admissions in,may beused in other suit,etc. — Admissions contained in a pleading may be used against the party in another suit; and this, wholly regardless of the question, whether the person himself was in fact cognizant of the pleading. The act of the attorney in such case will be held to be the act of the party.</p> <p>3. Partnership- — Declarations of members will bind firm,when. — While a partnership continues the declarations of either of the partners made in respect to the business of the firm will bind it. But this power ceases with the dissolution.</p> <p>4. Jury, addition al instructions to. — It is not error to give the jury additional instructions, when, after returning, they report their inability to agree.</p>

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

<p> Appeal from Gape Girardeau Court of Common Pleas. </p> <p>I. At the close of plaintiff’s evidence in chief, there having been no evidence offered tending to show “ a final settlement on the 5th day of July, 1872,” and a balance due from de-, fendant of $298.42, or a less amount, the defendant’s motion to dismiss should have been sustained, because there was an utter failure of proof. (Clark vs. Han. & St. Jo. R. R. Co., 36 Mo., 202; Smith vs. Han. & St. Jo. R. R. Co., 37 Mo., 287; Boland vs. Mo. R. R. Co., 36 Id., 484; Jaccard vs. Anderson, 37 Id., 91.)</p> <p>II. The introduction of the minute book of the company to show a “ final settlement,” as well as the copy of the defendant’s statement dated May 20th, 1872, was improperly permitted, because ; 1st — both were secondary evidence; 2nd —the treasurer’s book (shown to be in court) and the original statement were the best evidence, and should have been produced or accounted for, and did not tend to prove a “final settlement;” 3rd — a party cannot prove his own admissions; (M-oore vs. Sauborin, 42 Mo., 494; 38 Mo., 494; 33 Mo., 535,) 4th — 'the evidence must be pertinent to the issue. The minute book of the company shows only the report of a committee “ appointed to settle with the late treasurer;” but does not show any assent of defendant to such settlement.</p>

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

Error, to Cape Girardeau Circuit Court. I. The presumption of payment from lapse of time is not an absolute bar to the foreclosure of a mortgage, but may be rebutted by evidénce. (Chouteau’s Ex’r vs. Burlando, 20 Mo., 486 : Hughes vs. Edwards, 9 Wheat., 489.) II. The report of the sale of the real estate by the administrator under the order of the Probate Court, and the subsequent deed of trust executed by John Harbison, furnish ample evidence that the debt has not been paid.

Jlppeal from, Ralls Circuit Court. I. Under the 5th section of the “Dower Act,” (Wagn. Stat. p. 539) the widow was entitled absolutely to one-half of the personal estate of her deceased husband, subject only to the payment of his debts, and to vest the title of this property in her it was not necessary that she should file an election. This appears by comparison with other sections.

I. When the court declared that the sale and deed of Thompson to plaintiff were void, it had no power to proceed any further, except to remit the parties to their former status, the plaintiff not having asked the relief the court gave him. (Wagn. Stat., p. 999, ch. 110, Art. V, § 3; Am. Law. Reg., vol. 2, p. 721.)

<p> jError to St. Francois Circuit Court. </p>

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

<p>1, Schools — District—Organization—Hoidence.—The fact that a school district has in fact been organized and conducting business for a period of thirteen years is sufficient to show a legal existence without resort to record evidence of their organization ; particularly where the question involved is the disposition of funds collected under acts officially performed by the directors of such district.</p> <p>2. Schools — Township Board- — Irregularities.—Proceedings of township boards of education will not be treated as void and set aside in collateral proceedings for mere irregularities which do not affect the substantial rights of the parties. Their actions will be upheld when good faith has been exercised, unless in very glaring cases of wrong, or when direct proceedings are instituted at the tifne to set their action aside.</p> <p>S. Schools — Taxes—Sub-districts, division of — Distribution of funds. — A tax was assessed and levied by the directors of a certain school district numbered 3 for the erection of a school house. Before the tax was collected and paid over, the district was sub-divided, and a new district created out of a part which was designated as No. 5. A controversy arose as to the disposal of said taxes. Held, that under jj 99, of the School Law, (Wagn. Stat., 1261) the money could be paid out only for the purpose for which it was levied and collected, and the township board had no right to apportion money collected for the erection of a school house in one sub-district between the two new districts. Any apparent injustice in such exclusive application to a part of the original district of the funds arising from taxation of the whole could be remedied un der the provision of § 25 of the same act.</p>

<p> Appeal from Adair Circuit Court. </p> <p>I. The deed of Jane Allen to Mrs. Claybrook conveyed the entire land involved in this suit. The doctrine held in 2 Redf. "Wilis, [1st. Ed.,] pp. 380-381, § 6, is, that a gift to one and the “issue” or children, etc. etc., is an absolute gift to the person named, and that the words “ issue,” etc. etc., were to be construed as words of limitation 'and not a purchase. (See also Id., pp. 360, 363, 384-385.)</p> <p>II. A bequest of the residue of an estate is to be regarded as personalty. (Durour vs. Motteaux, 1 Yes., 320-1.) The trust being money, the fact that it was invested in land while Mrs. Allen was a feme covert, by the trustee, does not prevent the land being treated as money. The donation was money, and was only hampered for the purpose of preventing her husband wasting it.</p> <p>I. The deed from Gatewood, -trustee, to Jane Allen and her children, made them tenants in common of the land described therein. (2 Washb., 275 ; 53 Mo., 334.) Hence, Jane Allen could not convey the exclusive and entire title to the land.</p>

<p>1. Mortgage — Seal, irregularity in — Deed may be enforced notwithstanding, in 'equity. — A mortgage may be irregular where the seal is omitted or not in accordance with law, but it will nevertheless be valid to create a lien, a trust for the benefit of creditors, which can be enforced in equity; and even where suit is brought atlaw to foreclose the mortgage it will not be reversed simply for such defect.</p> <p>2. Judgments, may be amended nunc pro tune, how, — The established rule in this State is that in all cases where it is attempted to amend a judgment nunc pro tunc the record must show the facts which authorize the entry.</p> <p>S. Mortgage, suit on — Prior encumbrancer made parly defendant — Dow far concluded thereby from suit on first mortgage — Res adjudícala — R. O. 1855 — ■ Construed statutes. — In suit brought to foreclose a mortgage while the statute ■ of ISoo in relation to mortgages was in operation (See $ Í) plaintiff had a pri- or encumbrancer made one of the parties defendant. But the petition did not ask that plaintiff might have the privilege of paying off his claim and be subrogated to his rights, nor that said claim should be first satisfied in order that a clear title might be obtained upon a sale. Upon these matters the judgment was also silent. Held that such suit did not constitute a bar to further proceedings 'by the first encumbrancer on his mortgage. Although technically made a party his rights were unaffected.</p>

I. The objection that the original note was not filed with the petition instead of the copy,was waived by failure on the part of defendant to demur. (Wagn. Stat., 1014-15, §§ 6, 10 ; Id., § 19, p. 1036 ; Richardson vs. Farmer, 31 Mo., 35.) II. A petition, however defective, will be cured by verdict after issue is joined and a trial had on the merits, unless it wholly fails to- state a cause of action.

I. The power of the legislature to extend the city limits of a city is not denied, and indeed the doctrine is well settled in this State. (See St. Louis vs. Bussell, 9 Mo., 507; St. Louis Vs. Allen, 13 Mo., 400.) But while this power of the legislature is conceded, the plaintiff in error denies that the legislature can require farm lands, not valuable for city property, to contribute to the municipal treasury.

<p>1. Instructions— Compliance with contract question of fact for the Jury. — In building contracts th9 question whether the work was done as required by the contract, is one of fact for the jury. An instruction “that the plaintiff, by undertaking to do defendant a plain, substantial and workmanlike job, did not undertake to do a perfect one,” is erroneous, for the reason that it took from the jury a question of fact which it was their province and not that of the court to determine. Held, further, that to do a tiling in a plain, substantial and workmanlike manner, would imply that it should be perfectly done for the character of the job contemplated.</p>

, I. Under our statute of 1825, the remainder of Harriet’s fee tail estate can vest in no other person than one who by the course of the common law would be an heir to her estate tail, had the estate not been destroyed. In other words, the statute does not reach a case where the first grantee has no issue. The statute means that the heir of the first - taker shall have the absolute fee simple.

I. It is too late to move to set aside a judgment after final decree. (Wagn. Stat., 1052, §§ 4, 5 ; Matthews vs. Cook, 35 Mo., 286.) The «rule that courts may modify or set aside its entries during the term at which they are made, does not include the power to set aside judgments lawfully rendered, especially after the term has passed.

<p> Appeal f rom Adair Circuit Court. </p>

<p>1. Bilk of exceptions,when must he signed — Time, how waived. — Bills of exceptions must be signed and appeals perfected during the term at which the cause is disposed of. A party having the right to insist on this rule may waive it, but the waiver must appear either by an entry of.record or a stipulation filed.</p>

I. If the facts give the defendant an equitable title, upon that title, he can defend himself against the action of ejectment. (Harris vs. Vineyard, 42 Mo., 572 ; Hayden vs. Stewart, 27 Id., 288.) II. The Adair Probate Court succeeds in probate matters to all of the jurisdiction of the County Court. (Revi Laws of 1845, § 13, p. 331; Laws of 1847, § 3, p. 38.) III.

I. As to the park’s being of “public use”. Held: therein, shall assent thereto.” But it will be seen by reference to the words of the provision that it includes as well associations and companies as corporations; If the act creates substantially an association or company, and the county of St. Louis has no control or power over it, then the county of St. Louis is just as much…

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

<p>1. Equity— Contracts — Specifi'c Performance — Appraisement—Pleading—Account. — A covenant in a lease that at the end of the term the value of the ‘improvements shall be ascertained by three appraisers to be chosen as provided in the lease, cannot be specifically enforced by a court of equity. But a petition which alleges such covenant and seeks equitable relief, states a cause of action, as equity would have jurisdiction to have an aecounj^taken of the improvements.</p>

<p> Appeal from St. Louis Criminal Court. </p> <p>J. C. JYormile, for Respondent, cited Commonwealth vs. Mullins, 2 Allen [Mass.], 296; Commonwealth vs. Hills, 10 Gush., 530; 1 Wkart., § 755, [6th Ed.]; Cook vs. Mix, 11 Conn., 432; Reynolds vs. Lounsbury, 6 Hill, 53; Chouteau vs. Sarpy, 8 Mo., 733; Roscoe’s Crim. Ev. [6th Ed.], 106 ; State vs. LeBlanc, 1 Const., 354 ; State vs. Whittier, 21 Me., 341; Washburn vs. The People, 10 Mich., 372; 2 Wagn. Stat., 1374, § 8.</p>

<p>1. Railroads — Damages—Killing of bull — Const. Slat. — I» suit against a railroad for the killing of stock, it is no defense that the animal was a bull ail'd subject to the provisions of § 5 of the act passed for the restraint of certain animals therein named. ("Wagn. Stat., p. 134.)</p>

I. It must appear in the body of the deed that it is a sealed instrument, and a scroll must be attached to the same by way of a seal. Without these essentials the deed is not a sealed instrument within themeaning of the statutes. (Wagn. Stat., 269, § o, note 3; Grimsley vs. Riley’s Adm’r, 5 Mo., 280, [in point] ; State ex rel.

<p>1. Security, verbal release of — Proof as to intention. — Proof of intention to give a verbal release of a written security, to avail, must be clear and satisfactory.</p> <p>2. Mortgage — Taking of new note, effect of as to release — Where a note is secured by a mortgage, the taking of a new note does not of itself operate as a discharge of the lien. Nothing short of an actual payment of the debt itself, or an express release, will have that effect.</p>

Erroi' to Jefferson Circuit Court. Replevin will lie only for property which can be specifically distinguished from all other articles of the same kind, by indicia, or ear marks or otherwise. (Blackst. Comm., Vol. I, p. 122, Side p. 151; Bouv. Law Die., vol. I, [12 Ed.] p. 40; Gray vs. Parker, 38 Mo., 160.)

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

I. The court should have admitted the plaintiffs testimony with regard to the instructions sent by him to his wife as to how the title to the laud was to be taken, and should also have admitted the letter from the plaintiff to the defendant on the same subject.

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

I. One prominent clause in this contract, is tliis: “The balance of purchase money to be paid on sncli terms as may be agreed on between said parties.” If defendant, though able to fulfill bis contract, cannot be jndicially compelled to do so, the jurisdiction of equity is at an end. (Adams’ Eq., p. 81; Kemble vs. Kean, 6 Sim., 333; Wiley vs. Robert, 31 Mo., 215 ; Fry Spec. Perf., §§ 185, 203, 221; Milnes vs. Gery, 14 Yes., 400; S. W. R. R. Co. vs. Wyt-hes, 5 DeG.

I. When the several debts passed into the hands of third, persons, they should be paid in the order in which they respectively become due. (Mitchell vs. Ladew, 36 Mo., 526; Mason vs. Barnard, 36 Mo., 384; Thompson vs. Field, 38 Mo., 320; Ellis vs. Lamme, 42 Mo., 153; Hunk vs. ErskinC, 45 Mo., 484; Matthews vs. Switzer, 46 Mo., 301.) II. The alleged agreement between Alkire and Savage, that Martin’s deed of trust should have precedence over the other was simply void.

I. Tlfe indictment gives a sufficient description of the instrument alleged to be forged. • (Wagn. Stát., 1091, § 28.) II. This section of our law is taken from, and is exactly the same as, the 5th section of lé and 15 Yiet. C. 100. (Arch. Or. Pr. & Ph, 531.) III. The main objection raised in the court below and sustained by the court, was that the indictment does not show in what particular the alleged instrument was forged or altered. That is not neeessary.

Adair Circuit Court. I. The act of Sept. 28, 1850, was by its terms an absolute grant of all swamp lands, and if this land was actual swamp land, which fact is undisputed, so far as the evidence is concerned, then whether the defendants have title or not, the plaintiff cannot recover, having no legal title. (9 U. S. Stat. at Large, 519, § 1; Hann. & St. Joe. R. R. vs. Smith, 9 Wall., 95; Clarkson vs. Buchanan, 53 Mo., 563.)

•Appeal from Montgomery Circuit Court. I. It is the settled law that a purchaser for value, without notice of a deed previously made but acknowledged before a justice of the peace of a county different from the one where the land lies, obtains the title as against such deed'; also, that the record of such deed as to all purchasers prior to 1847, is a nullity and imparts no notice.

<p> Appeal from Cape Girardeau Court of Common Pleas. </p>

I. The duty of the County Court to pay over township school funds into the county treasury is ministerial, devolving upon them by operation of law; and imperative, and no element of discretion can enter into its performance, and .mandamus -is a proper remedy.

<p> Jlppeal from St. Louis Circuit Court. </p> <p>I. The contract was joint, and all creditors are affected by the frauds of the others. The receipt of a cash bonus by some of the creditors was a fraud which avoided the whole agreement. (Donghty vs. Savage, 28 Conn., 146; 42 Mo., 403; 1 Sto. Eq., 10 Ed., 324, 378, 379.) Although plaintiffs themselves received no bonus, still the fraudulent conduct of other creditors in so doing, gave plaintiffs the power to rescind the whole agreement; a fortiori if plaintiffs could the indorser could. (Pendlebury vs. Walker, 4 Younge & Collin, 440; Sullivan vs. Collier White Lead Co., 42 Mo., 397.) The refusal of some of the creditors having claims of over two hundred dollars to sign said agreement, was such a breach thereof as avoided it in toto. (Forsyth Comp., p. 61 and following; Spooner vs. Whist on, 8B. Mon., 580; Johnson vs. Baker, 4 B. & Aid., 440 ; Enderby vs. Corder, 2 C. & P., 203; Doughty vs. Savage, 28 Conn., 146.) The validity of the indorsement depends on the validity of the agreement, and that being void, the indorsement is void.</p> <p>II. Defendants complain of the instruction No. 2, given by the court, for two reasons: 1st. The court erred in inserting the clanse requiring defendants to prove that plaintiffs were apprised, at or before the time they signed the agreement, that defendants had agreed to indorse the twelve months notes, and of the information or statements given the defendants at the time they agreed to indorse; because it was entirely immaterial whether plaintiffs were aware of what representations were made to defendants — defendants not claiming that any representations were made to them other than those embraced in the agreement of compromise signed by plaintiffs. (Johnson vs. Baker, 4 B. & Aid., 440.) 2d. Defendants complain of that clanse contained in said instruction No. 2, given by the court, which requires defendants to prove that “the fact that all creditors having claims over two hundred dollars did not sign said agreement, was unknown to defendants;” The law is, as presented in defendant’s instruction No. 7, if any creditor haying a claim over two hundred dollars refused to sign, unknown to defendants, that fact avoided the agreement. (Doughty vs. Savage, 28 Conn., 146.)</p> <p>I. The fact that some of tlxe creditors of Beardslee & Co., whose claims exceeded $200, failed to sign the compromise agreement, does not affect the validity of the note sued on, provided that fact was known to appellants, or either of them, at the time of indorsing the notes, notwithstanding which knowledge they elected to indorse and deliver the notes; for by so doing, they waived that objection to the validity of the notes, and assumed the liability of indorsers, notwithstanding the fact that the terms of the compromise agreement had not been fully complied with. (Doughty vs. Clark, 28.Conn., 152; Kintzing’s Assignee vs. Bartholow, 1 Dill., 157.)</p> <p>II. The fáct that a portion of the assets embraced in the statement of Beardslee Bros. & Co., was used by them for the purpose of paying bonuses to some of their creditors to induce them to sign the compromise agreement, is no defense to this action, unless it is proven to the satisfaction of the jury, that such payments weré concealed from and unknown to appellants at the time they indorsed the compromise notes, or unless it is proven that respondents received a bonus for their signature, or consented that bonuses should be paid to other creditors. The mere fact that a fraud is practiced by a principal debtor upon his surety in obtaining the signature of the surety, does not discharge the surety unless such fraud was practiced with the knowledge and consent of the obligee. (Berge Suretyship, p. 218; Graves vs. Tucker, 10 Sm. & Mar., p. 923: Burks vs. Wonterline, 6 Ky., (Bush.) p. 23 ; Bank State of Mo. vs. Phillips, 17 Mo., 29.) The notes cannot be affected in the hands of plaintiffs by any false statements or representations made to appellants by Beardslee Bros. & Co., without the knowledge or consent of respondents. (Spelter vs. James, 32 Ind., 209; Quinn vs. Hard, 43 Yt., 377-8.)</p> <p>III. Whatever effect this court might be disposed to give to said facts, that all the creditors whose claims exceeded $200 did not sign, and that bonuses were paid to other creditors to 'induce them to sign the compromise agreement, as between the parties to said agreement themselves, still those facts can havé no effect to release appellants, unless their indorsements were procured by a fraud participated in by both parties to the agreement.</p> <p>IY. It is a well established principle of law, that when one of two innocent parties must suffer by the fraud of a third, he who trusted such third party and enabled him to commit the fraud shall bear the loss. Obear & Co., by indorsing and delivering the compromise notes, put it in the power of Beardslee Bros. & Co. to commit the fraud complained of; and cannot now ask to be released from the consequences of their indorsement, on the ground that the conditions of the compromise agreement had not been performed.</p>

I. This action is not brought on all of the stipulations of the contract; the part herein sued on reads as follows : “Jackson, Ho., Aug. 1868. On or before the first day of January, 1873, we, * * * * promise and bind ourselves * * * to pay to Jacob Tobler or order, the sum of seven hundred and eighty-six dollars and ninety-six cents for value received, in said Tobler advancing that amount in the building of said church as late treasurer.

<p>1. Revenue — Stock in National Bank, liable to taxation. — Shares in National Banks are liable to assessment ¡md taxation in this State. (Lionberger vs. Eoivse, 43 Mo., 67: First Nat. Bunk vs. Meredith, 44 Mo., 600, affirmed.)</p> <p>2. Revenue — Personal property of non-residents. — Personal property of nonresidents which is found within the local jurisdiction is taxable here, regardless of whose hands it happens to be in.</p>

<p> Appeal from Sixth District Court. </p>

<p>1. Schools, sub-district — Formation of, what illegal — Action by teacher for services. —Under the statute (Witgu. Stat., p. 1245, (S 17) a school sub-district cannot be lawfully formed out of territory situated in two townships, without a joint meeting of the township boards of education. The fact that one board held.such meeting, and that the individuals constituting the other board, signed a paper purporting to relinquish the territory in their township would not render the formation of the sub-district valid. And no action will lie for services as teacher under a contract made with the local directors of such sub-district.</p>

<p>1. Evidence, presumption of — Continuance of a state of facts once proved to exist. — Evidence of the existence of a state of facts a-fe a certain time raises a presumption that such facts exist for a reasonable time thereafter.</p> <p>2. Practice, civil — Trials—Instructions not applicable to facts as proved, improper)'. —Instructions which do not apply to the facts of the case, as shown by tlie testimony, are improper, even though they correctly^declare abst ract propositions of law.</p> <p>8. Practice, civil — Trials—Instructions, improper, not ground for reversal unless misleading. — Tlie giving of improper instructions is not alone sufficient ground for reversal, unless they have had the probable effect of misleading the jury.</p>

Louis Circuit Court. I. The court erred in refusing the third instruction prayed b)r plaintiffs. Held: that a less amount of mental capacity than is required to enable a man to cope with the world at large, in contracts and in ordinary business transactions of every day life, will be sufficient to enable him to make a valid will; all that is necessary for this latter purpose, is that his mind and memory be sufficiently sound to make…

The judgment of the court ou the award is a complete bar to plaintiff’s action herein: 1st — Said judgment had the same force and effect that a judgment in an action of debt upon the award would have had. (Wagn. Stat., p. 145, § 17; G. Stat., ch. 198, § 17.) Any matter which at law or in equity would constitute a defense to an action on the award, might have been set up in the proceeding under the statute by motion.

<p> Appeal from Shelby Circuit Court. </p> <p>1. The language in section 40, (Wagn. Stat., 596) to-wit;: “Any writing, instrument or deed, purporting to affect any real estate or any right or interest in or to the same,” is descriptive of an instrument which of its own force operates either in law or in equity on the title, and does not include within its terms any other. (Patterson ,vs. Pagan, 38 Mo., . 83.) A naked or common power of attorney is not such an instrument. The extent of its operation is the appointment of an agent, and it is revocable at the pleasure of the principal ; it is revoked eo instanti by his death. Said section 40 is “ in pari materia” with the Recording Act and should be construed as part thereof. Upon this rule rests the construction given to said section by this court in Garrison vs. Barry, (28 Mo., 449, 450). The languageused in section 24 of the Recording Act (Wagn. Stat., 277), “Every instrument in writing, whereby any real estate may be affected in law or equity,” is of the same import as that used in said section 40 of the act concerning evidence. That the language used in said section 24 of the Recording Act was not understood or intended by the legislature to include common powers or letters of attornejq is made manifest by the fact that special provision is made for letters of attorney in section 27 immediately thereafter following; and by the further fact, that by the very language of said section 27, “ Every instrument whereby real estate may be affected in ■ law or equity,” is placed in manifest contradistinction to “Every letter of attorney or other instrument containing a power to convey real estate as agent or attorney.”</p> <p>.The proposition that sections 24,25, and 26 of the Recording Act were not intended to embrace common powers of attorney, is further strengthened by the consideration that said sections were first adopted in Revised Code of 1835, (§ 30 et seq., p. 123) in lieu of section 13 et seq. of Revised Code of 1825, p. 221, and that said section 21 of the Recording Act, (R. S. 1865) was first adopted in Revised Code of 1835, in lieu and place of section 15 of R. 0. 1825, p. 221. In the Code of 1825 the instruments, for the recording of which provision is made, are specifically named, and each one operates either in law or in equity by its own force upon the title.</p> <p>In place of the specific enumeration o'f instruments as in Code of 1825, we now have in said section 24 general language descriptive of the same instruments'. The same remark is true with reference to the relation sustained by section 27 of the present law to said section 15 of the Code of 1825. Sections 29 and 30 of the present Recording Acts can apply to powers of attorney in one state of facts only, and that is where the power of attorney is made part of the deed, and as such recorded with it.</p> <p>. II. If it should be held that section 40 embraces powers of attorney within its terms then said section is to be construed in connection with sections 24, 25 and 26 of said Recording Act, and as operating only on records made in compliance therewith. (Garrison vs. Barry, 28 Mo., 449.) Said section 40 applies to the record of the county where the land is situated.</p> <p>III. Open and notorious possession of land is not notice, to subsequent purchasers, of the occupant’s title, even if knowledge of such possession be brought home to such purchaser. . If the purchaser had knowledge of such possession, it may be, that from that fact a presumption of notice will arise. Even then it is a presumption of fact, and not of law, and like all other-presumptions of fact-may be rebutted by showing the truth.- It may also be that the fact of open and notorious possession will raise the presumption (of fact) that the purchaser had knowledge of such possession. If tin’s be true, it is also true that this presumption may be rebutted. The possession, to have any force as evidence tending to prove actual notice, must be an open and notorious possession. (Vaughn vs. Tracy, 22 Mo., 417; Vaughn vs. Tracy, 25 Mo., 320 ; Beattie vs. Butler, 21 Mo., 313 ; Maupin vs. Emmons, 47 Mo., 304.) In this case there was no such possession.</p> <p>IV. Neither the recording of the alleged power of attorney from "William Muldrow to John Muldrow, in Marion county, nor the recording in Shelby county of' the alleged deed from William Muldrow by J ohn Muldrow to Gray, operated to give plaintiff constructive notice of the alleged title of defendant.</p> <p>I. The copy offered is not a transcript from the records at Shelby county, in which the land is situated, (Wagn. Stat., 277, §§ 24, 27, 30) and its admission was not authorized-by law. It is not a transcript of a record in the meaning of the statute. No such paper spread upon the books is a record, except as to lands in the county in which it is recorded. (Gwynn vs. Frazier, 33 Mo., 90.)</p> <p>II. The existence of an executed original had not been proved. “ The best evidence of which the case is susceptible, must be produced,” and secondary evidence of the contents of a deed “was inadmissible without proof of the previous existence and loss of the deed.” (Smith vs. Phillips, £5 Mo., 557 ; Gould vs. Trowbridge, 82 Mo., 293 ; Atwell vs. Lynch, 39 Mo., 519 ; Dail vs. Moore, 51 Mo:, 590 ; Briggs vs. Henderson, 49 Mo., 533.)</p> <p>III. But even if defendant had produced in evidence the original power of attorney, of which the paper offered purports to be a copy, he must fail in his defense, under the provisions of the registry law, for want of legal notice. (Wagm Stat., 277, §§ 24, 26, 27 ; Thornton vs. Miskimmon, 48 Mo., 223 ; "Bowman vs. Lee, Id.. 336 ; Terrell vs. Andrew County, 44 Mo., 312; Aubuohnn vs. Bender 44 Mo., 564; Young-blood vs. Vastine, 46 Mo., 243.)</p> <p>IY. Section 27, page 277 of Wagner’s Statutes, places letters of attorney upon the same footing with “other instruments of writing, conveying or affecting real estate.” The original power of attorney not having been recorded, the question arises, did plaintiff have “actual notice thereof.” The burden of proof of the fact of notice rested on the defendant.</p> <p>- Y. There is no evidence that plaintiff had notice of any of the facts given in evidence, and relied on as proof of notice; but a knowledge of these facts brought home to plaintiff would not constitute actual notice. Plaintiff had no knowledge of any .fact'that would prompt him to inquire about the title to the land.</p> <p>Yl. By giving instruction No. 3 and refusing No. 1, the court virtually declared,"that the power of attorney might be “ properly recorded ” without being recorded in the county in which the real estate to be affected thereby is situate. This would render nugatory section 24 of the Registry Act.</p> <p>I. The certified copy of Marion Co. record of power of attorney of William Muldrow to John Muldrow and the deed made thereunder to M. L. Gray was properly admitted in evidence, it being shown by the testimony of the plaintiff, that William Muldrow (the father and grantor of plaintiff) was, at the time of the record of said power of attorney in Marion county, residing on, and claiming as his own, certain lands in Marion county ; and i’t being further shown that the said original power of attorney was beyond the reach and control of defendant, and that he, defendant, through his agents and attorney had made necessary effort to obtain, same. (Wagn. Stat., ch. 54, § 40, Ed. 1872.)</p> <p>II. The whole question here turns upon the power of John Muldrow to convey, and upon the notice plaintiff had of defendant’s claim under such power; and the certified copy is prima facie evidence of the execution of.said instrument. Plaintiff might have introduced testimony to show that original was never executed, or that the copy' offered (in evidence was not a true copy. (Wagn. Stat., § 34/cli..- 54.) •</p> <p>III. Proof of actual knowledge is not necessary,, but the jury may infer it from knowledge of facts that naturally suggest it. (47 Mo., 304.) Notice is actual where the purchaser, either knows of the existence of the adverse claim.or title, or' is conscious of having the means of knowing, although he may not use them. (40 Mo., 405 ; 48 Mo., 219-222-3 ; 35 Mo., 71.)</p> <p>IT. Possession is not actual^iotice as a matter of law,, but is competent to go to the jury, on which, if satisfied, the)1 may find actual notice. (22 Mo., 415; 25 Mo;, 3.1 S';•. 3 Washb.■ Real Prop., 283-4.) If the plaintiff bought the lands in dispute with a knowledge of his father’s former transactions ’in sale of lands in north-east Missouri, and with the fact staring him in the face that defendant had told him that M. L. Gray of St. Louis owned them, he had sufficient notice to put him on his inquiry, and if he bought without further.inquiry he bought with actual notice. (4 Mo., 62-66.) , .</p> <p>I: The deed of Wm. Muldrow (by John'Muldrow,.his attorney in fact,) and his wife to M. L. Gray, was so executed and acknowledged as to entitle it to be recorded. (Wagn. • Stat., pp. 273, 274, 275, §§ 7, 9, 13, 24.) JBy section 29 of same act it was entitled to be read in evidence. ■ ..</p> <p>II. The deed of Wm, Muldrow to M. L. Gray was notice to all the world of its contents. (Wagn, Stat., p.' 277, § 25; 10 Mo., 34; 47 Mo., 374.)</p> <p>III. The action of the court in admitting the certified copy of the power of attorney from Wm. to John Muldrow was correct. A deed purporting to be the deed of Wm. Muldrow by John Muldrow, claiming to be his attorney in fact, had been recorded in 1850. And of this deed plaintiff had full notice; i. e. the fact of its acknowledgment and record was, as we have shown, notice to him of its contents. In the certificate of the acknowledgment of said deed, (he. clerk states lie knows that John Muldrow is attorney in fact of "Wm. Muldrow from a power of attorney recorded in his office in Marion county, Missouri. This statement was equivalent to a reference to the book and page in Marion County Records, where said power of attorney could be found. Now, if the officer, in his certificate, had referred to the book and page of the record in Marion County, Missouri, where the power of attorney was recorded, would that not have affected plaintiff with notice of it %</p> <p>IY. But the action of the court in admitting the certified copy of the power of attorney, is to be viewed entirely independent of any question of notice to plaintiff. Plaintiff had notice by law of the deed of Wm. Muldrow by John Muldrow, recorded in Shelby county in 1850, and thereby had notice that it was claimed that a power of attorney existed. To give operation to the deed of William Muldrow by John Muldrow, attorney in fact, it was only necessary to prove that John Muldrow had authority to make that deed. If lie had authority to make it the deed was the deed of Wm. Muldrow against all the world. That John Muldrow had authority to make this deed in the name of William Muldrow to M. L. Gray was just the fact, and the only further fact that defendant needed to prove to show an older and better title in himself from Wm. Muldrow than in plaintiff. If he could have produced the original power of attorney from Wm. to John Muldrow, though it had never been recorded anywhere, he would have shown the necessary authority in John Muldrow to make the deed of 19th June, 1850, and thereby, made said deed binding and operative. Defendant could not produce the original, hut he showed searches for it in Marion county, Missouri, where Wm. Muldrow resided when he made it; and in Ralls county where the attorney resided at the date of it, he showed a further; search among the papers of the deceased, John Muldrow, etc., and thereby proved bis inability to produce it. This entitled the defendant to introduce a certified copy of the power of attorney. (Wagn. Stat., p. 278, § 30 of act concerning Conveyances.)</p> <p>Y. This copy was as competent from the records of Marion county, Mo., as from the records of Shelby county, Missouri. The proof shows that in 1849, (Feli’y) when the powér of att’v was executed, Wm. Muldrow lived and owned lands in Marion county. Its recording there was then legal and proper. The power of attorney was an authority to convey Wm. Muldrow’s lands anywhere in Missouri.</p>

Appeal f rom Madison Circuit Court. 1. The objections to the judgment set forth in the motion to quash the execution, could have been corrected by appeal or writ of error, and the defendants having failed to avail themselves of this remedy, have none remaining. (Bracket vs. Bracket, 53 Mo.-, 265 ; Marsh vs. Bast, 41 Mo-, 493 ; Collins vs. Bannister, 48 Mo., 435 ; Finney vs. State, 9 Mo., 632.) II. The administration of Kennon’s estate was completed.

<p>1. Indictments — Selling “intoxicating liquors" on Sunday — Dram-shop keeper. • Under the statute (Wagn. Stat., p. 553, \ 22) an indictment charging that defendant sold “ intoxicating liquors” on Sunday, but failing to aver that he was a dram-shop keeper,” is bad.</p>

I. If Houston directed the assault to be made, or was present and knew that it was being made, prima facie it was done under coercion of the husband, and the wife cannot be held liable. (Meegan vs. Gunsolis, 19 Mo., 419; McKeon vs. Johnson, 1 McCord, 578 ; 52 Mo., 39 ; 46 Mo., 114; 8 Am. R., 422-5.) II. In a joint action of husband and wife, for assault and battery on the wife, compensation for the loss of service cannot be included in the damages. (Hill.

The. following inquiries were submitted by the Governor to the Judges of the Supreme Court. Under tlie provisions of the 11th section, of Art. VI of the Constitution, I beg leave to call jour attention to certain constitutional provisions and legislative enactments, and most respectfully ask your opinions upon certain questions growing out of them.

1. The petition, because it did not show what sum was apportioned by the board to the county for taxation, was bad. Without apportionment, no tax that could be levied could be legal. The county is authorized by the statute to levy taxes on the shares of the values apportioned to the county, but upon nothing else. The allegation then, that a sum was apportioned, was essential td the showing of the plaintiff’s right to tax, and to sue and recover. II.

<p>1. Principal and agent — Representations of agent. — The representations of an agent respecting the subject matter of his agency, if made at the same time with the transaction, as part of the res gestee, will bind the principal.</p> <p>2. Principal and agent — Question of agency for the jury. — The question of agency is one for the determination of the jury.</p>

<p>1. Railroads — Damages—Killing of slock — Negligence—Bells, etc. — Contributory negligence. — Under the statute of this State, (Wagn. Stat., 310, \ 8) the failure, by the person in charge of a railroad train, to ring the engine bell or blow the whistle at a distance of at least 80 rods before reaching the crossing of a public highway, is negligence, and if, under such circumstances, cattle are killed at such crossing, such negligence is sufficient of itself to create a liability on the part of the railroad company, unless some contributory negligence can he shown on the part of the owner of the cattle.</p> <p>2. Railroads — Damages—Killing of stock — Bull suffered to run atlarge. — Under the statute concerning animals running at large (Wagn. Stat., 134, \ 5) it is not unlawful for bulls to run at large until after notice has been given to the owner, and even then the only remedy would be the onepreseribed by the statute; and under this view the fact that a bull was so permitted to run atlarge, would be no defense to an action by his owner for his killing by a railroad train. (Schwarz vs. Hann. & St. Joe. R. R. Co., ante, p. 207, affirmed.</p> <p>3. Negligence — Question of law to be passed upon by court; of fact by the jury.— Although in many eases where the facts from which negligence is to be inferred are undisputed, the question of negligence is one of law to be passed upon by the court, yet if the facts are disputed and the evidence conflicting, the question should always be left to the jury.</p> <p>4. Damages — Negligence—Burden of proof. — In actions for damages arising from alleged negligence, the burthen of proof is always on the plaintiff.</p> <p>5. Damages — Railroads—Killing of stock — Efforts necessary to safety of passengers. — Necessary efforts made by the agents of a railroad, after the discovery of cattle on the track, to save' the train and passengers from threatened danger, would not render the railroad company liable even though they might result in injury to the cattle. •</p> <p>6. Practice, civil — Trials—Instructions.—When all the propositions of law con-mined in an instruction offered by one party, which are applicable to the facts, have already been declared ill instructions given for the opposite party, the refusal of such first mentioned instruction is not error.</p> <p>7. Practice, civil — Trials—Verdict—Separate counts. — When the petition sets up separate causes of action, stated in separate counts, with a separate demand for damages in each count, a general verdict for a general sum is improper, and.is good cause for arrest of judgment. This rule does not apply where there is but one cause of action, stated in different forms, in different counts. In such a case a finding upon any one of the counts would be a bar to any further recovery on any count in the petition, and a general verdict for plaintiff would be sufficient.</p>

Louis Court of Criminal Correction. I. When a law repealing a former clause or provision shall be. itself repealed, it shall not be construed to revive such former law, clause or provision, unless it be so expressly provided. (Wagn. Stat., 894, § 3.) II. The charter of the city of St. Louis of 1870 was a law repealing a general law of the State (concerning bawdy houses, and under which defendant was prosecuted below) within the city of St. Louis.

L The will of John Kerr at the utmost, gives, and only - proposes to give, three-fourths of his property remaining at the death of his widow, to the children of his brother, G. W. Kerr. (a.) The will gives one-fourth of the estate remaining at the death of the widow, to her. This is the effect of the devise to her of the entire estate for her support and maintenance, with power to dispose of one-fourth at her death as she shall deem fit.

■Appeal from Madison Circuit Court. I. The certificate of the justice appended to the depositions sought to be suppressed,wholly fails to comply with the requirements of the statute in this: it fails to show and omits to set forth that the depositions were reduced to Avriting, etc., on the day, between the hours, and at the place set forth in the notice. This omission is fatal. (Wagn. Stat., 526, § 22; Thomas vs. Wheeler, 47 Mo. 364-5; Moss vs. Booth, 34 Mo. 317.) II.

Louis Circuit Court. I. Tlie application for insurance forms part of the contract, and the statements contained in it are warranties. (Daniels vs. Hudson B. Fire Ins. Co., 12 Cush., 416 ; Loehner vs. Home Mut. Ins. Co., 17 Mo., 255; Miller vs. Mut. Ben. Ins. Co., 81 Iowa, 231; Bliss Life Ins., pp. 53, 54, 55 ; May on Ins., 582.) II.

<p>1. Judgments — Erroneous entries — Coro'ections nunc pro tunc, at subsequent term —Evideoice sufficient to authorize — Presumption.—The rule is well settled in this Stare, that where the clerk (if a court fails to enter a judgment, or enters up a wrong judgment, the court lias the power to correct the error or omission. by having the proper judgment entered up by the clerk, at any time at. the same or a subsequent term. But incases where nunc pro tune entries are made, the record should in some way show, either from the judge’s minutes or otherwise, the facts which would authorize the entry. Where a judgment is entered nunepro tunc by order of the court, the presumption is in favor of the action of the court, and that it was based upon sufficient evidence.</p>

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

<p>1. Bills and notes — Consideration—Innocent holder. — The consideration of a negotiable promissory note, in the hands of an innocent holder for value, cannot be inquired into, and before the -consideration can be impeached it must be first shown that the holder had notice of the lack of consideration.</p>

<p> Pippeal from, Schuyler Circuit Court. </p>

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

1. Conveyances — Wills—Life estate — Power of disposition — Case stated — Estate conveyed. — It is generally true that ah absolute power of disposition over property conferred by will, and not… Held: that the interest of the wife was limited to the use and benefit of the property during hev natural life and widowhood, and that the children were invested with a title to the remainder by operation of the conveyance and notas the representa-' lives of the wife. 2.

■ Appeal from Washington Circuit Court. I. The court'erred hi admitting Mrs. Charles to testify as, a witness for-tlie plaintiffs. She was incompetent. She was not the real party in - interest. (Cord on Leg. and Eq. Rights of Married Women. §§ 987, 997, 998:) ‘ The case in 54 Mo., 285, was under statute giving the wife the right of action'; that in '44 Mo;, 441,'was for land'of-wife; that in 48 Mo.,'291, was'to contest'the validity of the will of the wife’s ancestor. II.

<p>Per Curiam.</p> <p>1, Bills and Notes — Sureties—Notice to holder to me principal — Due diligence— Rights of surety. — Under the statute concerning sureties and their discharge (Wagn. Stat., 1302 et seq.) the creditor who has been notified, as provided in section 1, must do two tilings ; first, he must commence suit against the principal debtor within thirty days ; second, he must prosecute his suit with due diligence, in the ordinary course of law, to judgment and execution, or else the surety, who may be joined in the action with his principal, will be discharged. Due diligence in the prosecution of the suit is just as essential as commencement within the time limited, in order to fix the liability of the surety after such notice. If the creditor brings such suit and fails to obtain service on the principal at the first term, he should take out an alias summons to the next term, and then under Wagn. Stat., (1010, $ 20, ) he would be entitled to judgment against the surety in case service was not had on the principal, unless the surety should consent to further delay.</p> <p>Per Napton, Judge, Dissentng.</p> <p>1. Bills and Notes — Surety, action against. — The creditor, under the statute, has a right to sue both principal and surety ; and when the summons against the principalis returned mo» «sí, he has a right to dismiss, as to the principal, and proceed against the surety alone.</p>

<p> Appeal from Adair Circuit Court. </p> <p>I. The plaintiffs have not the legal title. The judgment before the j ustice of Macon county was void. The admission of parol evidence, to show that the summons was returned by the deputy in the name of his principal, was error. The evidence shows that the return was made by the deputy in his own name, and so absolutely void. (1 Mo., 504; 5 Mo., 533; 7 Mo., 359; 8 Mo., 177; Samuels vs. Shelton, 48Mo., 444; McClure vs. Wells, 46 Mo., 311.)</p> <p>II. The deed from Grlassbumer to Oliver did not pass the legal title. (Wagn. Stat., 273, § 7.) The case of Caldwell vs. Head was based on the statute of 1845, which is materially different from the statute of 1865. Said conveyance passed nothing more than an equitable interest, and did not convey a title upon which ejectment could be sustained.</p> <p>III. A deed cannot be proven by a deposition to the copy of the record of it. The statute prescribes the manner of proving a deed, and it cannot be proven any other way. (Wagn. Stat., 275-6, §§ 11, 15, 17, 18, 19, 20, 21.)</p> <p>IV. Plaintiffs have no right to recover without paying defendant the amount of the note and interest secured by the mortgage from Oliver to Johnson, for buying at sheriff’s . sale they buy no more than Oliver had, and the rule of caveat emjptor applies. (10 Mo., 157.) Again, a party, buying land of which another is in possession, takes it with notice of the possessor’s rights. (7 Mo., 610 ; 4 Mo., 62 ; 11 Mo., 77; 21 Mo„ 313; 22 Mo., 415 ; 25 Mo., 318; 39 Mo., 506 ; 40 Mo., 405; 47 Mo., 306 ; 49 Mo., 350.) And the record of any instrument affecting real estate, which is properly acknowledged, whether it is sealed or not, is full notice to every one of its contents. (Wagu. Stat., 277, §§ 24, 25.) The mortgage, unsealed as it is, is good between Oliver and defendants, and the plaintiffs have no better position than Oliver had. (10 Mo., 229; 12 Mo., 63; 38 Mo., 120; 39 Mo., 24; 46 Mo., 404, 472.) Defendants in ejectment have a right to use all equitable defenses. (Pemberton vs. Johnson, 47 Mo., 227.)</p> <p>V. Defendants can also show an outstanding legal title to defeat plaintiffs’ suit. (6 Mo., 330 ; 11 Mo., 149; 17 Mo., 98; 27 Mo., 286, 405.) The defendants show an outstanding legal title in Halliburton, who, although he bought with knowledge of the record of the conveyance from Glassbnrner to Oliver, yet bought the legal title, as the deed from Glass-burner to Oliver only conveyed an equitable title, and the deed not being acknowledged, was no notice to any of its. contents, although they had seen it. And another rule of law comes in here, and that is this : “ Equity extends its protection equally, if the purchase is originally of an equitable title without notice, and afterwards the party obtains or buys in a prior legal title, in order to support his equitable title.” (1 Sto. Eq. Jur., 9 ed., 56, § 64, n. 3,.) In this case Johnson had the equitable title, and Halliburton bought in from him a prior legal title to support his equitable title.</p> <p>YI. Defendants can dispute Oliver’s title, though he is Johnson’s vendor. (9 Mo., 177 ; 12 Mo., 238; 11 Mo., 116; 16 Mo., 273; 33 Mo., 269 ; 36 Mo., 163.)</p> <p>YII. The plaintiffs must recover upon their own legal title or fail. (Wagn. Staf., 557, § 1; Beal vs. Harmon, 38 Mo., 435.)</p> <p>YIII. As to equitable defenses in ejectment suits, see Jones vs. Mack, 53 Mo., 407; Honaker vs. Shough, 55 Mo., 472.</p> <p>I. The mortgage was but an equitable one, and required the interposition of a court of equity to enforce the same.</p> <p>II. All the interest that Johnson can claim to said land he got by virtue of the equitable mortgage. When a dismissal was eutered as to Johnson, he went out of court, and then his defense under his mortgage ceased. If it be true that Oliver had no interest in said land at that date, on account of the defective acknowledgment as claimed by appellants, then it is equally true that Johnson has no interest.</p> <p>III. The evidence shows that Oliver left the State only a few days after the service of process on him, and it was not necessary to have an execution issued by the justice. (Wagn. Stat., 839, § 14.)</p> <p>IV. When an instrument is lost or destroyed, parol evidence is'admissible to prove its contents. (Gould vs. Trow-bridge, 32 Mo., 291; Earrell’s Adm’r vs. Brennan’s Adm’x, 32 Mo., 392; Broggs vs. Henderson, 49 Mo., 531; Minor vs. Tillotson, 7 Pet., 99; Christy vs. Kavanaugh, 45 Mo., 375.)</p> <p>V. The instrument, introduced in evidence, from Oliver to Johnson was not made under seal, and imparted notice to none. It was not such an instrument as the law authorized to be recorded; it was only an equitable mortgage.</p> <p>VI. There is no evidence to show that Harrington had notice of the so called mortgage and knew that Eortner was in possession of said1 land. The execution of the deed from Glassburner to Oliver can be proven by a deposition of a witness. The proof in question was taken by a notary public in California. (Wagn. Stat., 274, § 9.)</p>

I. It was the duty of Ely to file an inventory of the property under oath, which came into his hands. (W. S., 151-2, §§ 2, 3.) II. The ruling of the court below makes Ownby pay what Ely loses by his fraudulent acts. (Allen vs. Berry, 50 Mo., 90.)

<p>1. Practice, civil — Trials—Railroads—Injury to stock — Double damages. — In an action under section 43 of the railroad incorporation law (Wagn. Stat., 310-11) against a railroad, for injury to stock, accruing from the failure of the railroad to erect and maintain suitable fences and cattle-guards, when the jury finds the actual damages, it is not error for the court to double them.</p>

dip peal from Montgomery Circuit Court. I. The court below erred in refusing to allow plaintiff to amend his affidavit, after appeal to Circuit Court, changing the affidavit in 'amount only and not in form; (Wagn. Stat., p.1034, §§ 3, 4 and 5 ; Martin vs. Martin, 27 Mo., 227 ;) 2nd. in admitting the defendant to testify as to settlements made with his father, and payments made to him previous to his death; (Wagn.

<p>1. Statutes, construction of — Railroads—Condemnation of land. — The statute authorizing the appropriation of land for railroad purposes (Wagn. Stat., 326) is in derogation of tile common law, and should be liberally construed in’ favor of those whose rights are to be affected by it.</p> <p>2. Railroqds — Condemnation of land — Commissioners, report of — Review—Evidence — Alteration.—Upon exceptions filed to the report of commissioners appointed to condemn land for railroad purposes, the court should review by evidence the action of the commissioners, and supervise tlieir finding so as to do substantial justice. The court may approve or reject the report, but cannot alter it.</p> <p>3. Railroads — Land, condemnation of — Removal of property — Ownership—Trespass. — After the condemnation of land in favor of a railroad, the property thereon belongs to the railroad, and if the former owner removes any of it he will be liable to an action of’trespass.</p> <p>4. Lands, condemnation of — How to he appraised. — In condemning land its value is to be assessed with reference to what it is worth for sale, in view of the uses to which it may be put, and not simply witli reference to its productiveness to the owner in the condition in which he has seen fit to leave it.</p> <p>5. Lands, condemnation of — Benefits, how assessed. — In proceedings to condemn land, the benefits, which are to be assessed against a tract of land, are the benefits resulting to that tract in particular, and not the general benefits accruing to it in common with other land which is enhanced in value by the erection of the improvements.</p>

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

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

<p>1, Venue, change of — Attorneys are competent witnesses to prove facts necessary to sustain. — Attorneys at law are competent witnesses to sustain allegations in support of ail application for change of venue.</p>

<p>X. Railroads — Silling of stock — Negligence.—Although failure of the persons in charge of a railroad train to ring a bell or blow a whistle when within eighty rods of a public crossing is negligence, yet, such negligence is not, by itself, sufficient to authorize a recovery for damages for an animal killed at such place, unless it is shown by sufficient testimony, that such killing was attributable to such negligence.</p>

<p>1. Case dismissed for want of bill of exceptions signed by the judge of the trial court.</p>

<p>1. Practice, civil — Trials—Instructions, commenting on evidence improper. — Instructions, which comment on the evidence or direct attention to the improbability of a particular part of it, are improper. The improbabilities or contradictions in the statements of witnesses are matters for the consideration of the jury.</p> <p>2. Witnesses — Impeachment—Moral character may be inquired into. — In order to discredit a witness, the inquiry need not be confined to his veracity alone, but may properly be extended to his general moral character.</p> <p>3. Witnesses — Credibility—Conspiracy—Motives.—The spirit, which animates a witness, is always a proper subject for inquiry, in order that the jury may place a proper estimate upon the value and importance of his testimony. And the formation of a conspiracy against a party, on the part of witnesses, may be properly shown on the examination.</p>

<p> appeal from Vernon Circuit Court. </p>

I. There is no cause of action stated in the petition. It is not stated, that the former executrix or the present administrator have, or ever had, anything for distribution, nor that there will be anything after the payment of debts. It does appear, that this suit was commenced within three months after the death of the testator, and before the debts could be ascertained, or any distribution had.

<p> Appeal from Jasper Circuit- Court. </p>

Jlppeal from-' Jackson Circuit Court. Baber signed the name of “Iielmreich & Co.” and acknowledged tlie instrument. Baber was not the person whose name is signed to the instrument, and lienee it cannot be bis deed. The name of “H. Helmreieh” is the name signed to the instrument (tbe word “Co.” being surplusage), and be did not sign or acknowledge it, so that it cannot be bis deed.

I. The court may conjecture that by mistake “first part” was written for “second part.” But the mistake has not been corrected. Until the instrument be reformed the contract can be enforced only according to its terms, at law and in equity. The court acts on it as it is.

Bales Circuit Court. In criminal cases tlie court will reverse the judgment and grant a new trial if tlie verdict is against the evidence. (State vs. Mansfield, 41 Mo., 470; State vs. Marshall, 47 Mo., 378.) Tliis court will not review the facts, after they have been, passed upon by a jury under proper, instructing and legal testimony, unless the verdict is totally unsupported by evidence. (36.

The receipt óf a sum of money, in payment of the interest on the note to a future day, did not, without reference to, or against, the express intention of the parties, constitute, in law, a contract to extend the time of payment, (Freeman’s Bank vs. Rollins, 13 Me., 202; Mariners!

Appeal from Saline Circuit Court. I. An inchoate right of dower is an incumbrance amounting to a breach of the covenant against .incumbrances. (Rawle on Oov. for Tit., 123; 2 Scrib. on Dow,, 3, 4; Shearer vs. Ranger, 22 Pick., 447.)

I. The State was not bound to elect, on which count it would proceed to trial. (State vs. Porter, 26 Mo., 201.) II. Drunkenness is an aggravation of a crime rather than, a mitigation. (14 Mo., 502; 21 Mo., 466 ; 27 Mo., 332.) III. It was not necessary for the verdict to show upon which count the defendant was found guilty, a general verdict is good. (State vs. McCue, 39 Mo., 112.)

I. That portion of the amended answer of the defendant, Thomas Jones, which set up the purchase of the land by him, the payment of the debts of the estate with this money, and the value of the permanent improvements made by him on the land in good faith, and claiming a lien on the land therefor, was an equitable defense.

<p>1. Deed of trust — Acknowledgment before trustee — Deed as inter partes. — Although the acknowledgment of a deed of trust, taken before one who is trustee in the instrument, is worthless, yet the deed is valid between the parties. •</p> <p>2. Deed, aclcnowledgment of — Registration—Notice, etc. — The acknowledgment of a deed becomes necessary, principally in order to obtain registration, for the purpose of imparting notice to third parties.</p> <p>Per Curiam — Napton & Hough, J. J., Dissenting.</p> <p>■8. Deed of trust, sale of land voider, while maker was in Southern army — Bill to ■ set aside, etc.• — -A bill in equity will not lie to redeem lands sold under a deed of trust, on the ground that the maker was, when the land was sold, in the ,sqcallod Confederate service, and held as a prisoner by [the United States Government, where it further appears that lie had voluntarily entered the Southern army. (DeJarnette vs. DeGiverville, 56 Mo., 440, affirmed.)</p>

<p> •Appealfrom, Cooper Circuit Court. </p>

I. Mandamus will not lie against a mere private person, not ■exercising or claiming to exercise the functions of some office or trust in which the public is interested. (Dunklin Co. vs. District 'Ct., 23 Mo., 449; Hussey vs. Holland, 5 Kan., 462 ; High Extra Leg. Bern., § 1 et seq., and § 78 ; People vs-. Stephens, 5 Hill, 616 ;’ State vs. Scofield, 41 Mo., 88.) I. Mandamus was proper. (Mos.

1. To constitute a valid levy there must have been an actual taking of the possession and control of the vehicles.. (Wagu. Stat., § 19, 606 ; Yeldell vs. Stemmons, 15 Mo., 443; Newman vs. Hook, 37 Mo., 207; Cobb vs. Gage, 7 Ala., 619.) L The levy was valid. (Woods vs. Yanarsdale, 3 Rawle; 401; Butler vs, Maynard, 11 Wend., 548; 23 Wend., 490 ; 5 Denio, 198 ; 12 B. Mon., 484.) II.

<p> Appeal from Lawrence Circuit Court. </p> <p>referred in argument to Gen. Stat., 1865, ch. 148, §2; Stewart vs. Anderson, 6 Conn., 203; Follet vs. Buyer, 4 Ohio St., 586.</p>

<p> ¡Appeal from Jasper Circuit Court. </p>

Hoiuell Circuit Court. The writ of mandamus is generally applied to the ministerial acts of inferior tribunals, (9 Mo., 119 ; 41 Mo., 221,) and the building of a court house by the County Court is a ministerial act. (26 Mo., 275; 41 Mo., 44; 42 Mo., 512; 49 Mo., 146.) . The doctrine laid down in County Gourt vs. Round Prairie Township, TO Mo., 679, and Titt vs. Owens, 42 Mo., 512, does not apply.

<p> JLppeal from Jasper Circuit Court. </p> <p>cited in argument: St. L. & Iron Mt., R. R. Co. vs. Silver, 56 Mo., 265; Page vs. Kankey, 6 Mo., 433; Brown vs. Burrus, 8 Mo., 26; State vs. Ross, 24 Mo., 475; State vs. Joeckel, 44 Mo., 234; State vs. Long, 39 Cal., 361; People vs. Sanchez, 24 Cal., 28.</p> <p>cited: 8 Mo., 334, 606; 18 Mo., 47, 445, 477; 21 Mo., 423; 1 Mo., 780; 3 Mo., 123; Bay vs. Sullivan, 30 Mo., 191; Gonsolis vs. Gearhart, 31 Mo., 585; see also 35 Mo., 201, and 36 Mo., 35.</p>

I. The contract of July 18th, 1868, between the Johnson heirs and defendant, was an executory contract on both sides, in which the obligation of either party was dependent upon the performance of the opposite party, and which was subject to the control of the parties making it, and liable to be rescinded by them. (Bonaffe vs. Lane, 5 La. Ann., 225.) II. The question in this case is not covered by the decision in Lawrence vs. Fox, (20 N. Y., 268).

<p>1. Administration — Bill in equity against heirs for sale of lands, will not lie after final settlement. — Under the administration law of tiiis State, the failure of personal assets of the estate will not, after final settlement of the administration, authorize a bill in equity on behalf of the creditors against the heirs, to have lands descended to them, sold to satisfy their claims.</p> <p>Our statute of administration has entirely superseded the machinery of the common law; and the whole doctrine of equitable assets, marshalling of assets in equity, and bills for discovery of assets and account, is without application here, save in so far as the principles underlying those proceedings may be invoked to illustrate or explain analogous remedies afforded by our statute.</p>

I. Neither the contract nor the promise of marriage were in writing. The court manifestly erred therefore in permitting evidence relating thereto. (Pars. Cont., [5 ed.,] vol. 2, pp. 63, 64; Derby vs. Phelps, 2 N. PL, 215.) II. It was lawful for defendant to show his financial condition. (Sedg. Dam., [3 ed.] ch. 7,p. 219; Green vs. Spencer, 3 Mo., 172, [Houck’s ed]. III.