Volume 60 — Missouri Reports

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

Defendant was agent for the county, and could not contract with himself to do the work. (Crumley vs. Webb, 44 Mo., 444; Eea vs. Copelin, 47 Mo., 80, 83; Wolcott vs. Lawrence Co., 26 Mo., 272; Denison vs. County of St. Louis, 33 Mo., 168.)

The tenant abandoned the premises of his own accord, leaving the corn ripe but standing ungathered on the premises. Under this state of facts the emblements went to the landlord, and plaintiff could get no title to them, as against the defendant, through Taylor. (Brown vs. Thurston, 56 Me., 12S : Tayl. Ld. & Ten., 5 ed., p. 397; Greenl. Or. Eeal Pr., 253; Bear Ars. Bretzer, 16 Penn.

The 1st section of the Mechanic’s Lien Law, (Wagn. Stat., 907) is broad enough to embrace school houses, and the law should be liberally construed in favor of laborers and material men. (Putnam vs. Eoss, 16 Mo., 337 Oster vs. Babe»nean, Id., 595.)' The cases of Dunn vs. North Mo.

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

I. Respondents having appeared to the action on the note commenced by Dewey and failed to make the defense of payment, cannot recover back the amount they have been compelled to pay on the judgment in that case. The payment of the note to Taylor in his lifetime, if made, was a good defense to the action on the note, and being simply a defense, should have been made at the time, and not having been so made, is res judicata. (LeGuen vs. Gouvernenr, 1 Johns.

<p> Appeal from Carroll Circuit Court. </p> <p>I. The deed frotn Horton to Bradley should have been excluded. It was acknowledged more than eight years after date, and the certificate fails to show that the justice acted in his own or in any town. (Carpenter vs. Dexter, 8 Wall., 513 ; Merchants Bank, etc. vs. Harrison 39 Mo., 433.)</p> <p>II. The court erred in giving plaintiff’s fifth instruction. This is not a case of mixed possession. Defendant, by his entry under claim of right and color of title, acquired seizin co-extensive with the premises covered,by his deed. (Wagn. Stat., 917, § 5 ; Tyl. Éj., 904.) And if, after his entry, plaintiff took possession of anj' part of the land so entered upon, defendant was disseized only to the extent of the part actually so occupied. (Schultz vs. Lindell, 30 Mo., 310 ; Jackson, vs. Vermilvea, 6 Cow., 677.) In McDonald vs. Schneider, (27 Mo., 405) the true owner had the prior possession, and the defendant intruded thereon. The case of Griffith vs. Schwendertnan, (27 Mo., 412) upon which the plaintiff relied in the court below, will not sustain this instruction. That case was substantially overruled in Crispin vs. Hannavan (50 Mo., 545).</p> <p>III. This suit being to recover military bounty land, should have been begun within two years after the right of action accrued. (Wagn. Stat., 915, § 1.) This right accrued when defendant’s possession became adverse. (Tyl. Ej., 927.) Hence, plaintiff’s action is barred. (Totten vs. James, 55 Mo., 494.)</p> <p>An entry made as a claim, to avoid the statute of limitations, must be while there is an existing right of possession, otherwise the right of entry is gone. (3 Cr. Dig. Tit., 31, ch. 2, §§ 16,19, 21, 37; 2 Hill. Heal Pr., 170, § 11; 156, § 7; 2 Sm. Lead. Cas., 592; 2 Greenl. Ev., § 515, note 3; Till. Ad. Ej., 100.) When the action of ejectment is barred, the right of entry is tolled. (Tyl. Ej., 70 ; Smith vs. Lorillard, 10 Johns., 356; Jackson vs. Wheat, 13 Johns., 13; Pillow vs. Boberts, 13 How., 172; Parish vs. Stephens, 3 Serg. & B., 298; Wain vs. Shearman, 8 Serg. & B., 357; Cranmer vs. Hall, 1 Watts & S., 36 ; Bigler vs. Karns, 1 Watts & S., 137; Bayard vs. Inglis, 5 Watts & S., 165; Blackw. Tax Tit., 66L-2.)</p> <p>I. The acknowledgment was in form. (2 Seld. 122 ; Thurman vs. Cameron, 21 Wend., 87; 5 Smith, [N. Y.] 279; 1 Wend., 106 ; 1 Comst., 77 ; 11 N. Y., 102; 20.111., 102.)</p> <p>II. The fifth instruction given by the court for plaintiff is proper.' Actual occupancy by the rightful owner of part of the aand, is constructive possession of the whole, rmless he is dis-seized by actual occupation. (Hall vs. Powell, ISerg. & B., 165; Schultz vs. Lindel!, 30 Mo., 317; Cottle vs. Snyder, 10 Mo., 770; McDonald vs. Snyder, 27 Mo.,105; Johnson vs. Prewitt, 32 Mo., 553; Crispin vs. Hannavan, 50 Mo., 515 ; Ang. Lim., § 110 ; Ad. Ej., 1 ed., 55-6, and cases cited.)</p> <p>III. The eighth instruction given for plaintiff is correct law.</p> <p>The effect of an entry on land by the legal owner animo clamandi, is to restore to him the seizin and possession. (3 Bl. Com., 175 ; 1 Salk., 216 ; Alternas vs. Campbell, 9 Watts, 28; 2 Or. Dig., 501; Bobinson vs. Sweet, 2 Greenl. Eep., 316; Ang. Lim., § 378; Holtzapple vs. Phillibaum, 1 Wash. C. C.? 356.) ■</p> <p>Such entry will avoid the statute of limitations. (Gree vs. Bolle & Newell, 1 Ld. Baym., 716; Hayward vs. Kinsey, 12 Mod., 573 ; Ford vs. Grey, 1 Salk., 286; S. C., 6 Mod., 11; Goodriglit vs. Carter, Dough, 186; Bull. N. P., 102, A.; Yin. Abr. Tit., “Entry” ; Com. Dig. Tit., “ Claim ;” Bac. Abr. Tit. “ Limitations;”-Till. Ad. Ej. C., 1, p. 103.)</p> <p>The Pennsylvania statute of 1785, of which ours is a copy, has been repeatedly construed, and under the decisions relating thereto, an entry has always been held to avoid the statute. (Alternas vs. Campbell, supra / Altemus vs. Long, 4 Barr, 254; Hinman vs. Cranmer, 9 Barr, 40; Ingersoll vs. Lewis, 1 Jones, 212; Miller vs. Shaw, 7 Serg. & B., 129; Hood vs. Hood, 1 Casey, 417; Hoopes vs. G-arver, 3 Harris, 517; Carlisle vs. Stiller, 1 Penn., 8; IToltzapple vs. Philii baum, supra ; McCombs vs. Bo wan, 59 Penn. St., 418 ; Doug las vs. Lucas, 63 Penn. St., 12.) And by the act of April, 1859, (1 Pampli. Laws, 603) the provisions of 4 Anne, similai to the 2nd section of our Limitation act, requiring suit to bo brought within one year after entry, are made a part of tlio limitation Laws of that State;</p> <p>Appellant may claim, however, that the statute only ap plies where there has been an actual ouster or disseizin in tho strict common law sense of the term, by an intruder or wrong doer, and not where one takes possession of vacant land under claim and color of title.</p>

Error' to Atchison Circuit Court. The death of Tarleton, between the issue of the execution and the sale, did not render the sale void, but at most only-voidable. (Tidd’s Pr., 936; Cox vs. Wilson, 1 Monr. [Ky.j, 95 ; McKinney vs. Scott, 1 Bibb., 155 ; Beardon vs. Searcy’s Heirs, 2 Bibb., 202; McNair vs. Biddle; 8 Mo., 257; Voorliees vs. U. S. Blc., 10 Pet., 472; Jackson vs. DeLancy, 13 Johns., 535 ; Warder vs. Tainter, 4 Watts, 270; Coleman vs. McAnultv, 16 Mo., 173 ;.

<p>J. Venue, change of — Application for at close of term. — An application for1 change of venue, left undisposed of*at the end of the term, is simply continued, and may be taken up and passed on at the next term. A new application is unnecessary.</p>

-Appeal,from Linn Court of Common Pleas. The trustees, in contracting the debt and in issuing the warrant, acted without any authority, and the corporation is not estopped after the issue of the warrant, to set up the defense of ultra vires. (Dill. Mime.

<p> Appeal from Carroll Circuit Court. </p> <p>.Instructions Nos. 6 and 7 referred to by the court were as follows:</p> <p>YI. The court instructs the jury that there is no evidence tending to show that the Websters ever took possession of the land in question under the cóntract'for a deed which was read in evidence; and that in the absence of such evidence the said' contract for a deed cannot affect any right to recover which plaintiff may have under the evidence in this case.</p> <p>- YII. If the witness Hill, under the agreement which has been read in" evidence, went upon the land in question in July, 1868, and plowed five-eighths of an aero, or thereabouts, for the plaintiff, and with the view to take possession of the same for plaintiff, and if he temporarily quit the plowing for any reason, intending to continue the same, and if in the meantime and in the fall of the same year, defendant had the house'built thereon, then such facts are not of themselves sufficient to prove an abandonment by the plaintiff of his possession, aud if defendant relies upon such abandonment he must prove the same by a preponderance of evidence.</p> <p>I. While the law protects those who honestly and in good faith take the actual possession of and make real improve^ ments on land, it will refnse protection to mere gamblers in land, who cause to be instituted sham.proceedings, possession or improvements. (Crispen vs. Hannavan, 50 Mo., 536, 548; Chapman vs. Templeton, 53 Mo., 463.)</p> <p>I. It was not necessary that plaintiff should remain upon the land, or that he should keep any one there. If his acts lone upon the laud indicated an intention to hold possession m himself, he could recover. (Bartlett vs. Draper, 23 Mo., 107; Humphrey vs. Jones, 3 Monr., 261; Chiles vs. Stevens, !'. A. K. Marsh., 333 ; see. also, Powell vs. Davis, 54 Mo., * 15 ; Langworthy vs. Meyer, 4 Iowa, 18 ; Miller vs. Northrup, H: Mo., 397.) Whether the defendant was in the actual posit Bssion at the commencement of this suit was a question of 7 let for the jury. (DeGraw vs. Prior, 53 Mo., 313.)</p>

Jlppeal from, Carroll Circuit Court. Plaintiff in this action must do some act furnishing visible tokens of occupancy. Temporary presence of itself is insufficient.

I. The depositions should have been admitted. (Tindall vs. Johnson, 4 Mo., 113 ; Cabanne vs. Walker, 31 Mo., 274; Delventhal vs. Jones, 53 Mo., 460; Parsons vs. Parsons, 48 Mo., 405.) II. The court was bound to enter up the judgment conform-ably to the verdict. (Bartling vs. Jamison, 44 Mo., 141; 8 Mo., 45 ; 27 Mo., 396 ; Emmons vs. Dow, 2 Wis., 322.) The court could not award the return of the property.

The cause tried before the justice was a demand, in plaintiffs’ favor, against Hill and Weakley. In the Circuit Court it was amended so as to be in favor of Beattie & Weakley, against Hill as sole debtor. This was such a change in the cause of action as the law prohibits.

The note and deed of trust were parts of the same contract. (2 Pars. Oont., 5 ed., 653, and note with cases cited.) The note is in no way affected by the deed of trust, unless respondent chooses to proceed under the deed. He may elect as to remedy. (2 Am. Law Reg. [N. J.l, 650 : Young vs. Ruth, 55 Mo., 515.)

The obligee had the right, without payment or ¿ender of the purchase money, on the conveyance to Liggett, to treat the original contract as rescinded and sue for his purchase money and damages, (Hill. Vend., 2nd. Ed., 250,) and that even though the vendor might receive back the title before the time at which he agreed to perfect the title to plaintiff. (2 Pars.

As to accounts between partners, the statute generally begins to ran upon the dissolution, of the partnership. (Patterson vs. Brown, 6 Mon., [Ky.] 10 ; Bisplian vs. Price. 15 How. [U. S.]. 162. 17S ; Cochran vs. Rogers, 10 Pick.. 112 : Coulter vs. Coalter, 1 Rob. [Va.], 79 ; Sto. Part., 386, note 4 to § 233; Didier vs. Davidson. 2 Barb.

Jlppeal from Linn Common Pleas. I. The deeds were acknowledged according to the laws of this State, and the record copy was admissible in evidence under the general law. (Wagn.

<p>1. Certiorari only brings up the record — Facts dehors shoulfcbe proved, — The effect of the writ of certiorari is merely to bring up the records and proceedings of the lower court. And, so, where a petition for that writ charged facts de~ hors the record, showing the illegality of a certain county tax, on a hearing of the cause, those material to the case should be proved or admitted as in other trials ; otherwise the writ should be dismissed;</p>

Jipjjeal from Caldwell Circuit Cowrt. I. The court erred in admitting the declarations of David Hughes when he claimed title to the land in dispute. Defendant and his ancestor never had actual possession of this land. Their possession, if any they had, was constructive. To constitute constructive possession, the claim 'must be under color of title.

I. Whether the execution of the policy of defendant in this suit was sufficiently proven, or whether the acts of the agent. Corby, if informal on-account of the manner in which such policy was signed, were ratified or waived by the defendant,, were questions solely for the consideration of the jury. (Benton vs. Klein, 42 Mo., 98; Deere vs. Plant, 42 Mo., 60 ; McFarland vs. Bellows, 49 Mo., 311; Wanuell vs. Kern, 57 Mo.,. 478; Allen vs. Jones, 50 Mo., 205; Sto.

I. The county, as mortgagee of the lands, had the right to hold possession as against the mortgagor and those claiming under him, after condition broken, until the debt was satisfied. (Hubble vs. Vaughan, 42 Mo., 138 ; 38 Mo., 120; 49 Mo., 244 ; Johnson vs. Houston, 47 Mo., 227.) II.

<p>1. Ejectment.— Chain of title through common source. — In ejectment where both trace title through the same source neither need go farther back . ’</p> <p>2. Deeds — Terms, ‘‘'grants, bargains and sells” amount to quit-claim, when. — A deed which “ grants, bargains and sells all the right, title and interest ” of the grantor is merely a quit-claim conveyance and inoperative to convey an after acquired title.</p>

Appeal, from Harrison Circuit Court. I. The phrase “other felony ” in § 32 has no reference to the maiming, wounding, etc., mentioned in § 33. Hence an attempt to wound, etc., etc., is not a statutory offense within § 33, which does not refer to “ attempts ” to commit the offense specified. Moreover, the offenses mentioned in § 32 are of higher grade than those embraced in § 33. But the punishment in both is the same.

• I. The provisions of section three of the act of September, 1852, providing for the payment of a tax by the Hannibal & St. Joe. E. E. Company and for the mode of assessment, constituted no such vested right in the company as to preclude the legislature from providing some other mode of assessment. II. The act of March 10, 1871 (Sess.

<p> Jjjjpeal from Caldwell Circuit Court. </p>

I. Under the amended charter of the city of St. Joseph she was authorized to macadamize her streets, and the general power was conferred; but tlie specific mode pointed out was by ordinances. (See Saxton vs. Beach, 50 Mo., 488; Rev. Órd. St. Jo., 1869, p. 8 , § 10.) * II.

Statement of Case. •The facts charged in the petition were that plaintiff was a young man of nineteen, enployed as a brakesman by defendant, and that in consequence of the unevenness of a switch sidetrack, he was thro urn from a car and run oyer, and his leg was crushed. I. If a servant is injured by the negligence or fault of his fellow servant, though the one injured is subject to the orders of the one in fault, no action can be maintained against the master.

<p>1. Practice, civil — Withdrawal of a defence pleaded,. — The right of a defendant to withdraw one of his defences at any time is unquestionable.</p> <p>‘ 2. Parol evidence as to technical tenns in a deed. — Where terms are used in a deed that require explanation to those unfamiliar with the business to which they ' pertain, parol evidence in regard to them is proper, although the terms are • not ambiguous.</p>

<p>1. Promissory note — Readiness to pay at lime and place designated — Effect of— Money must be brought into court. — The readiness of the maker of a promissory note to pay the same at the time and place appointed, will stop interest from that time. But to avail himself of this defense upon trial, he muss deposit the money with the clerk of the court.</p> <p>2. Promissory note — Readiness to pay — Subsequent demand and refusal must be only for principal — Must be pleaded. — Where the maker of a promissory note is in readiness to pay the same at the time and piace designated for payment, and the miikor is in default, the latter may show a subsequent demand and refusal ; but the demand must be for the precise sum due at maturity, and the facts must be pleaded. If the demand is for the principal and interest since accrued, it will not operate as a demand and refusal after tender.</p> <p>3. Promissoiy note — Tender, admits what? — A plea of tender admits the existence of the debt.</p>

<p> Appeal from, DaKaTb Cirouit Court. </p>

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

<p> Appeal from, Buchanan Oircuit Court. </p>

I. Respondent purchased after and subject to the lien of the judgment against Shaw. (Paul vs. Pulton, 25 Mo., 156; Jones vs. Luck, 7 Mo.. 551.). II. The cas#é*of Reed vs. Ownby, etc., have no application because respondent purchased and paid the purchase money after the judgment lien had attached, and his deed shows this to be the fact-. (Valentine v. Havener, 20 Mo., 133; Davis vs. Ownby, 11 Mo., 170.) III.

<p> Appeal from, JYodaway Circuit Court. </p> <p>I. Tbe Texas cattle act does not prohibit the transportation of that stock from one county within this State to another.</p> <p>II. The owner of the cattle who turned them out upon the prairie, and not the railroad, caused the damage, and lie alone is liable. (Wagn. Stat., §§ 131-136 el seq ; also, § 139.)</p> <p>HI. The Texas cattle statute is highly penal and must be strictly construed. (56 Mo., é07.)</p> <p>1Y. It is violative of tlie power given Congress by tbe Constitution of the United States to regulate commerce between the States. (Gibbons vs. Ogden, 9 Wheat., 186 ; Graves vs. Slaughter, 15 Pet. 511; 7 How. 393.) The Stare police power to exclude disease, gives the legislature no power to prohibit the introduction of cattle which are not diseased or infected— which it does prohibit by this law; for it makes no discrimination, but excludes them all.</p> <p>I. The defendant violated the law in taking the cattle from one county to another, and was responsible for all damages following. (Sedgw. Dam., 5 Ed., s. p. 88, s. pp. 79-80 ; Mur, phv v. Wilson, 44 Mo., 313, and cases referred to ; Baxter v. Eoberts, 13 Am. Law Beg., 16. 41; 1 Am. Lead. Cas., 549; 19 Johns., 381; 4 Denio, 464.) The Missouri statute is similar to the Vermont law. (Sedg. Dam., p. 88, n. 2; Saxton v. Bacon, 31 Vt., 541.) It is also like the Massachusetts statute (Perley v. Eastern B. B. Co., 98 Mass., 414).</p> <p>The law is a necessary police regulation; (11 Pet,., 102, 139 ; 17 Mo., 13-15 ; Cool. Const. Law, 573, 2 Ed.) and under the H. S. Constitution is left to the several States. (Cool. Const. Law, 574; 8 How., 632,592; 36 Ind., 389 ; 10 Am. Eep., 42-51; 44 Mo., 523 ; T6 Pet., 539 ; 58 Ilk, 254 ; 4411k, 523 ; 26 Mo., 441; Pierce Am. E.. B. Law, 40, 6 Ed. of 1867.)</p>

. I. Where it is shown that a loss by a common carrier was occasioned by a cause from which he is by law or special contract exempted from liability, the burden is cast upon the shipper to establish the negligence of the carrier. In other words, the shipper then holds the affirmative in establishing the liability of the carrier for negligence. (N. J. St. Nav.

<p> Jippeal from Carroll Circuit Court. </p> <p>cited Lloyd vs. Pac. R. R. Co., Í9 Mo., 199.</p> <p>referred in argument to Calvert vs. Hann. & St. Jo. R. R. Co., 30 Mo., 212 ; Id., 38 Mo., 167; G-orman vs. Pac. R. R., 26 Mo., Ill; Trice v’s. Hann. & St. Jo. R. R., 19 Mo., 138; Biglow vs. North Mo. R. R., 18 Mo., 510; Meyer vs. North Mo. R. R., 35 Mo., 352; Lloyd vs. Pac. R. R, 19 Mo., 199 ; Ellis vs. Pac. R. R., 18 Mo., 231; Powell vs. Hann. & St. Jo. R. R., 35 Mo., 157.)</p>

<p> Appeal from Gentry Circuit .Court. </p> <p>cited Looker .vs..Davis, ,45 Mo. 145 ; State-, etc. vs; Meagher,. 44 Mot 356;-Poa vs. Domic, et al., 54-Mo. 123.; : -■</p>

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

<p>X. Practice, civil — Allegation as to existence of corporation — What sufficient.— In suit by a corporation, an averrment that plaintiff was a corporation “duly incorporated under and by virtue of an act of the General Assembly of the' State of Missouri entitled,” etc., was a sufficient allegation of plaintiff’s corporate existence.</p>

<p>1. Foreign fire insurance agents doing business in this State not compelled to obtain licenses. — Sinne the passage of the Insurance act .of 1869, (Wagn. Stat.,782) an agent of a foreign fire insurance company, .doing business in this State, is not liable to the penalty fixed by the statute (Wagn. Stat., Art. IV, p. 781, 2 4) for failing to procure a State license. 2 44, Art. Ill, of the act of 1869, (Wagn. Stat., 777-8) requiring the payment into the Insurance Department of certain fees and dues in lieu of other taxes, etc., embraced in its operation foreign as well as domestic companies doing business in this State, and had the effect of repealing Art. IV, so far as it required the procurement of State licenses by foreign companies. But such companies will continue liable under Art. IV, for fees, licenses and taxes for county and municipal purposes.</p>

I. Tiie plaintiff had a right to sue alone. There was no defect of parties plaintiff. The petition shows that the damages claimed by the plaintiff were sustained by him, and not as to any part thereof by Price or Leroy D. Dewey. In such case it is unnecessary to join all the obligees as plaintiffs.

<p>1. Wilson vs. Kansas City, St. Jo. & Council Bluffs R. R„ ante p. 184, affirmed.</p>

4ájypeal from Buchanan Circuit Court. The prima facie case of negligence could be rebutted by showing that the locomotive doing the damage had the best and most approved machinery in good condition, and was in the care of skilful and prudent men. (37 Mo., 287; 46 Mo., 456 ; 45 Mo., 352.) Evidence of fires caused by defendant at other times and places is inadmissible, unless it be shown that the other fires were set by the engine causing the damages complained of.

. I. The plaintiff cannot recover in this form of action. She could only sue at law for maintenance or possession, upon failure of John Devofse or his representatives to perform'the conditions of the contract. (Moore vs. Wingate, 53 Mo. 339— 441, and authorities cited; Messersmith vs. Messersmith,-22 Mo., 370 ; Livingston vs. Tompkins, 4 Johns.

. I. A fair construction of the statute (Wagn. Stat.,783, §.2), does not require that the payor any more than the payee (who in notes never does) shall sign the writing. II. Respondent, in open County Court, contracted with appellant to pay ten per cent. The contract was entered of record, and was necessarily in writing. I. It required a promise in writing to make plaintiff liable to pay ten per cent, interest. II.

A final settlement may be reviewed and impeached for fraud. (Jones vs. Brinker, 20 Mo., 87 ; State, to use, vs. Roland, 23 Mo., 98; Sullivan Co. vs. Burgess, 37 Mo., 300.) The matters complained .of in the petition were all once tried in the Probate Court, and a judgment rendered on them, which remains unreversed and is conclusive.

There is no mutuality in the conditions of the contract sued on. Lindell does not promise to abstain from drinking intoxicating liquors or beer during the period mentioned in the contract, nor does_ he stipulate to do anything whatever. There is no promise, for á promise shown in the instrument, and it is a nudum pactum. (Burnet, vs. Briscow, 4 Johns., 285 ; 2 Kent Com., 464 ; 1 Sto. Contr., [4 Ed.] § 431; White vs. Bluett, 24 Eng. Law & Eq.

<p>1. Pleadings — Allegations as to corporate existence in suit by company on contract, etc. — One having mude a contract with a company, in its corporate name, thereby admits that it is duly constituted a body politic and corporate, at the time, and is estopped from setting up for defense by way of demurrer or otherwise, the non-allegation of these facts by the company in suit on the contract. And in such suit the company need not state where it has its residence or principal place of business.</p> <p>2. Promissory note given by partners — Allegation as to partnership, what sufficient. — In suit on a promissory note given by co-partners, the allegation that the makers were co-partners and signed their names as such, is sufficient without the further allegation that they were co-partners for business purposes or were known as such.</p> <p>3. Practice, civil — Demm~rer by one defendant — Judgment for both, when improper. —Where one of two defendants demurs to plaintiff’s petition, and the demurrer being sustained, plaintiff refuses to answer, it is error to give judgment against him in favor of botli defendants.</p>

Gentry Circuit Court. I. All the right of Phillips that could be transferred by a deed — whatever that right was — passed to Taylor by the deed to him, made by Phillips, and was not divested by the return and cancellation of the deed. (Tibeau vs. Tibeau, 19 Mo., 78.) ' I. Plaintiff had no notice of the deed to Taylor, and it was not recorded ; and Phillips not having the legal title, his deed to Taylor never placed the legal title in Taylor.

I. The acknowledgment was not in conformity to the law in force at the time of its execution and does not pass the wife’s interest in land.

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

In suits brought by an executor or administrator upon contracts made with the testator or intestate in his lifetime, if he fails to recover he is not liable de bonis propriis. (Wooldridge vs. Draper, 15 Mo., 470; Laughlin vs. McDonald, 1 Mo., 684; Ranney, Adm’r, vs.' Thomas, 45 Mo., Ill; State vs. Maiilsby, 53 Mo., 500; Einney vs. State, 9 Mo; 225.) I. The matter of costs, in a case like this, is left pretty-much to the discretion of the trial court.

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

<p>1. Probate Courts — Appeals from — Failure to prosecute— What constitutes ouch failure as to warrant affirmance. — Where appellant falls to prosecute h¡3 appeal, as required by law, from the judgment of a Probate Court, the judgment should be affirmed. Section S of the net concerning appeals from the Probate Court, (Wagn. Stat., 120,) providing for the trial of causes anew in the Circuit Court, is to be construed in connection with $ 16 of the law concerning costs. .(Wagn. Stat., SH.) But failure, for two terms, to give notice of appeal or to enter an appearance In the Circuit Court, is not such a failure to prosecute the appeal from the Probate Court as the statute contemplates, in order to entitle the appellee to an affirmance. The default which will warrant such a step, is a failure to appear and defend when the case is called for trial.</p>

I. Respondent stood in Wagner’s shoes and immediately he was notified of the determination of said .contract on the part of appellant, he became a tenant at will; and after the demand was made upon him fox’ the deliverance of possession thereof and after his refusal to quit such possession, he became guilty of an unlawful detainer. (Wagn.

cited, in argument, Brent by Guardian vs. Grace, Adm’r, 30 Mo., 253; Mitchell vs. Williams. 27 Mo., 399 ; Wagn. Stat., 1872, § 28. Oh., 66 ; Strouse vs. Drennan, 41 Mo., 289. I. While a gnardiai^ may make expenditures for the support and maintenance of his ward, without applying in the first instance to the Probate Court for an order and appropriation, he must show that the expenditure was subsequently sanctioned by the court and allowed him in his settlement..

<p>1. Practice, Supreme Court — Conflict of evidence. — In civil actions at law Supreme Court will not consider questions of conflicting evidence.</p> <p>2. Railroad — Deductions from pay rolls of workmen of amounts due •merchant for supplies — Implied assumpsit. — A railroad company having become liable to pay the wages of workmen employed by contraetors(Wagn. Stat., 302, § 10) deducted, on their pay rolls, charges for sundry goods theretofore furnished the men by a merchant under an agreement entered into by him with the contractors. On the rolls, and pursuant to the agreement, the amounts purchased were entered as payments made on the wages account and as due from the contractors to the merchant; Held, that, being a stranger to the agreement, the company was not' liable to the merchant under it for such advances; and its deductions of the amounts due the merchant from the wages of theimen would not, of itself, raise an assumpsit in his favor against it. And it would be liable, notwithstanding, to the employees for the unpaid balances. But they having acquiesced in that mode of settlement, the merchant could recover those sums from the company on an implied undertaking to pay the same.</p> <p>3. Assumpsit — Promise made for third party. — A promise made for his benefit may be sued upon by a third person.</p>

<p>1. St. Joseph, charter of — Special taxes — Liability of owner prima facie — As sessment apportioned to frontage — Charges for •work not in contract — Interest-, tender of, etc. — In suit on a special tax bill for street improvements, brought under the amended charter of St. Joseph, (Sess. Acts, 1865, p. 488, et seg.) held :</p> <p>l3t. The bill made the owner prima fade liable for the amount of the debt charged and constituted a valid claim until rebutted.</p> <p>2nd, The amount assessed must be in that proportion to the whole charge under the contract which the frontage of the lot taxed bears to that of the whole work undertaken.</p> <p>3rd. The fact that some small amount of work or material may have been apportioned and charged in the bill other than that called for by the contract, will not necessarily invalidate the bill; but the additional amount so assessed may, on proper showing, be deducted.</p> <p>4th. In case the bill contains such excessive charges, accruing interest can be stopped only by tendering the true amount; then in event of non-acceptance thereof, if the holder fail to recover more, he can have no interest.</p> <p>5th. The failure of the city engineer to record the bill in a book kept for that purpose, will not defeat the bill.</p> <p>2. Street improvement— Contract embracing independent streets — Non-paving of a part of the streets — Tax bills for work on finished streets — Recovery on. — Where a contract for street paving embraces a number of disconnected streets, the fact that the paving on-some of them is unfinished will not prevent recovery on special tax bills for work on other streets where the work has been completed. And if the paving called for by the contract, has been completed on the particular street, that is sufficient, regardless of the question whether the remainder of the street is paved, or not.</p>

Although prima faeie the man who signs his name on the back of the note, not being the payee, is a maker, still he may, by parol, show that he did not sign as maker, but simply as endorser. (Seymour vs. Earrell, 51 Mo., 95; Kimtz vs. Temple, 18 Mo., 71; Mammon vs. Hartman, 51 Mo., 168 ; Ayres vs. Milroy, 53 Mo., 516.) And on this point the evidence was all in favor of app’ellant, and the finding of the court was without any vindication whatever in the testimony.

I. Courts of equity have original, independent and inherent jurisdiction in cases like the one at bar. (Sto. Eq. Jur., 252, and cases cited, Id., 256 ; Kerr on Fraud & Mist., 43, 44, and cases cited, 252, 293-4; Beigal vs. Wood, 1 Johns.

<p>I. fflninenl Domain — Benefits deducted from assessment of damages for land taken for railroads — Rule as to — Testimony touching. — In the assessment of damages for land taken for railroad purposes the benefit which is to be deducted from the damages which the owner sustains is the direct and peculiar benefit resulting to the land in particular, and not the general benefit accruing to ■ it in common with other land which is enhanced in value by the building of the road. (St. Louis & St. Jo. R. R. Co. vs. Richardson, 45 Mo., 466.) And the land should be assessed at its value when taken. But witnesses may testify as to its value before and after the taking, as tending to shed light on that point.</p>

1. After .defendant had advertised the note in a newspaper, he placed his name on tbe back of the note, thereby ratifying his own act; and the endorsement or acceptance of a note or bill is an admission of tbe truth of ail tlie facts which are re: cited in it. (1 Greeni. Ev., § 196; lPhill. Ev., 36éand n. 1.) Defendant was guilty of gross negligence and is estopped from taking advantage of his culpable conduct. (2 Par.

<p> Error to Linn. Common Pleas. </p> <p>cited in argument, Greer vs. Yosti. (56 Mo., 307;) Hamilton vs. Marks, (52 Mo., 78 ;) Horton vs. Bayne, (52 Mo., 531;) Corby vs. Butler (55 Mo., 398).</p> <p>cited Briggs vs. ISwart, (51 Mo., 245;) Martin vs. Smylee, (55 Mo., 577;) Corby, Ex’r, vs. Weddle (57 Mo., 452).</p>

The petition should aver that the opportunity of improving the adjoining part of the street was given the property holders, and the defect was fatal. I. The ordinance providing for giving the owners this privilege was directory, and if the engineer had given them no notice plaintiff ought not to have been made to suffer. (Neenan vs. Donoghue, 50 Mo., 406.) II. Besides, the ordinance did not require the engineer to give the owners notice.

Jljpffeal from Buchanan Circuit Court. I. Defendant, Wall, even though an innocent party, was liable for the conversion of the draft. (Koch vs. Branch, 4oi Mo., 5é2 ; Chapin vs. Drake, 75 111., 295 ; Edw. Bills, § 337; Sto. Prom. Notes, § 192.) Much more was this the case where, as was here the fact, he had knowledge.

<p>1. Damages — Injuries by railroad train — Contributory-negligence—Causes, remote , and immediate. — Although one injured by a railroad train was guilty of sonre negligence which contributed to the injury, yet if those in charge of the-train might have avoided the injury by the exercise of ordinary care and prudence, the company would be liable, provided that the negligence of the one injured tyas the remote or incidental, and that of the road the direct, cause of the accident.</p> <p>2. Instructions — Rejection of particular ones improper, when the aggregate states the law properly. — If instructions taken as a whole declare the law properly, and'are neither inconsistent nor misleading, the fact that.any particular one is ■ partial or defective, is no-ground for its rejection.</p> <p>3. Damages by railroad to person — Doss of limb — Measure of damages, etc. — In. assessing damages for loss of limb caused by a railroad, the jilry should consider the age, situation, bodily suffering and mental anguish of the person injured, and the loss sustained by him in consequence, and the extent to which . he was thereby disabled from self-support.</p> <p>4. Personal injuries by railroad — Negligence—Intoxication.—One standing.in a state of intoxication, on a railroad track at the usual time of running of the train, and in a position of exposure, is guilty of negligence.</p> <p>6. Railroads — Crossing used by passengers — Diligence of company and passengers — What necessary. — Where a railroad track is crossed by a path commonly used by passengers, trains should use great diligence to guard against accident; and a like diligence and caution devolve upon passengers.</p> <p>6, Damages — Excessive—Interference by Supreme Court. — The Supreme Court ■ will not ordinarily interfere on the ground of excessive damages.</p> <p>1. Newly discovered evidence, merely cumulative, no ground for new trial. — A motion for new trial should not be granted on the ground of newly discovered evidence which is merely cumulative.</p>

I. By the instructions given for respondent,, the court saj-s that if a railroad cuts its ditches and makes its embankments with reasonable skill, it may collect surface water for a mile or more, direct it from its usual course and flowage, open a water gap or sluice, and overflow a man’s land and ruin his crops, and not be liable, because the water, with which lie docs it, is surface water, collected in ditches skillfully made for that purpose. Such cannot be thelaW.

^ I. The grant is for a right of way one hundred feet wide. The railroad had the right to use tlie whole of said one hundred feet for railroad purposes. 'The term “ Railroad,” has no proper application as signifying road bed or track. The term “ road bed” or “ track”'has such a' signification, and is the proper term to use in the grant, if intended to be given only on the condition that the road bed was located on the line.

I. The mortgage purported to be and was treated as a chattel mortgage, and attached only to the machinery in the mill at the date of its execution, and it would have been incompetent. for the parties to have contracted that such chattel mortgage should have applied, to after acquired machinery. (19 N. Y.. 123; 2 Lane. [N. Y.],.127; 10 Mete., 481; 2 Hill. Mortg., 339, et seg.) II. No remittitur has been filed in this court for this excess.

<p>1. Equitable liens — Filing notice of lis -pendens affects purchaser of land. — The purchaser of land, after the filing of notice of a lawsuit affecting the tilde thereof, acquires only the rights of a purchaser pendente lite. Under a proper construction of the statute (Wagn. Stat., 905), the words “purchasers of incumbrances” should read “purchasers or incumbrancers.”</p> <p>2, Lis pendens — Purchaser of property, when affected by decree, etc. — A purchaser pendente lite of property actually in litigation, though for a valuable consideration and without notice, express or implied in point of fact, will be” bound by the decree affecting that property, which may be made against tire person • from whom he.derives title.</p> <p>3. Lis pendens — Purchaser with notice affected although relief granted is not prayed for. — A. brought suit to divest tlie title to a tract of land out of B. k C., and to vest the same in himself; but the decree of court vested the title in B., at the same time, however, giving judgment for a certain sum, and ordering a special execution against the land to satisfy it. Held, that a purchaser at the sheriff's sale would hold the title as against a grantee of B. with statutory notice of the litigation. The fact that the decree placed a lien, not asked for by plaintiff, on the land, did not invest B. and his grantee with tlie title discharged of the incumbrance. In such case, the grantee, pendente lile. is governed by the decree of the court notwithstanding that the relief granted is the result of compromise, and other than that called for by the pleadings.</p>

Error io DeKaLb Circuit Court. I. The judgment, as originally entered, was erroneous, (Kritzer vs. Smith, 21 Mo., 296.) II. The minutes of the court do not show that any judgment was ever ordered on the verdict. III. The failure of a court to act, or its ineotrect action, can never authorize a nunc pro tuno entry.

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

I. The words charged are not actionable per se, but Only by reason of some special damage in respect to plaintiff’s trade or profession, which damage should have been averred and proved and was not. (Curry vs. Collins, 37 Mo., 324; Sellers vs. Tell, 4 Barn. & Or., 655.) . I. The court did not err in the admission of evidence under the second count in the petition.

<p> Jlfjpealfrom Galdioell Circuit Court. </p>

The contract was let to Ely,, and by its terms he undertook to furnish all the materials and complete the building in a specified time and manner, and for a stipulated compensation. Hence, lie was not an agent or servant of the Board. (Blake vs. Ferris, 5 N. T., 48, 61, and cases cited; Pack vs. Mayor, &c., of New York, 8 N. Y., 222; Eaton vs. Eu. & North. R. R. Co., 59 Me., 520; Painter vs. The Mayor, &c.,' of Pittsburgh, 46 Penn.

This court lias long since settled the question that both town authorities and the State can entertain concurrent jurisdiction over similar offenses. The first that asserts or acquires its jurisdiction over a particular case, controls it to the exclusion of the other. In this case, as the State instituted the prosecution, it would be a bar to any action by the city authorities of Liberty, and so vice versa.

I. The two years limitation in § 1, art. 2 of the Limitation Law, Wagn. Stat., 915, does not apply in this case. That section did .not go into effect until August 1st, 1866, and plaintiff’s right of action accrued in June, 1865. The limitation law, then in force, was that of ten years. (See § 32, art. 2, supra.

<p>1. Insurance — ■Premium note — Parol contract set up as a defense against — Contracts partly written and partly parol, latter part may be shown by parol — Rescission — Recoupments, etc. — Where, in suit by an insurance company on a premium note, the defense was that the notes were given in consideration of a parol agreement by plaintiff to loan defendant certain sums of money, held, 1st. The note and agreement constituted parts of the same contract; and only a part of it being in writing,parol testimony wa3 admissible to prove the remainder. 2d. Notwithstanding the failure to comply with his agreement to loan, defendant would be liable on his premium note unless he offered to rescind the contract of insurance by returning the policy and demanding the note. 3d. Without such defense the amount of plaintiff’s recovery on the notes would nevertheless be subject, under appropriate pleading, to be reduced to the extent of the damage suffered by defendant in consequence of plaintiff’s • failure to make the loan.</p>

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

<p> •Appeal from JYodaway Circuit Court. </p>

I. The law contemplates a case where'defendants have an immediate right of action at law in ejectment. (Wagn. Stat., 1022, § 53 ; Yon Phnl vs. Penn, 31 Mo., 333 ; 31 Mo., 312 ; Rutherford vs. Ullman, 42 Mo., 216 ; 42 Mo., 218.) II. There can be no just or equitable reason for compel ling defendants to bring an action to try the title when the petitioner can just as well sue as the defendant.

<p>1. Wilson vs. Kansas City, St. Jo. & Council Bluffs R. R., ante, p. 184, affirmed.</p>

I. The court erred in referring this canse without the written consent of the parties. (Wagn. Stat., 1041, § 18 ; Caulk vs. Blvth. 55 Mo., 293.) II. If plaintiffs had any right of action in the premises, it was to set aside the quit-claim conveyance to Gov. King apon the payment of reasonable compensation for services actually rendered. I. Defendant’s objection to the reference, to avail, must have been made at the time of the order of reference. II.

relied upon Marion County vs. Phillips, J5 Mo., 75. I. The final settlement, made by the County Court with the collector, is equivalent to a judgment i-endered by a court of competent jurisdiction, and will only be impeached upon a proceeding in the nature of a bill in equity for fraud or mistake.. (Sullivan Co. vs. Burgess, 37 Mo., 300.) It cannot be done in a suit on the collector’s bond.

• I. Meadville was not incorporated, nor were the stock killed at a public crossing or highway, but were killed where tlie road was not fenced. (Iba vs. Tlie Hann. St. Joe. E. E. Go., 45 Mo., 472, 473; Wagn. Stat., 310, 3 LI, § 43.) • II. Plaintiff’s cause of action was not barred at tlie time of the commencement of this suit. (Wagn.

<p>1. Railroads — Damages—Stock killed’■ — Uninclosed prairie land. — The failure of a railroad corporation to fence its track will render it liable in damages for injuries to stock along the line of-its road, without proof of negligence, where the evidence shows that the land at the point of the casualty was uninclosed and also prairie land. (Cary vs. St. L., K. C. & N. R. R., ante p. 209.)</p>

. I. The duty of the employees in charge of the train required that they should caution the bojr to keep away and resist his getting upon the train. (Kline vs. Cen. Pac. E. E. Co., 37 Cal., 400 ; Lovett vs. Salem, etc., E. E. Co., 9 Allen, 557; Cook vs. Champlain, 1 Denio, 91; Davis vs. Mann, 10 Mes. & W., 545'; Lynch vs. Nurdin, 1 Ad. & Ell., N. S. 29 ; Beers vs. Housatonic E. E., 19 Conn., 566 ; Eobinson vs. Cone, 22 Yt., 213; Byrne'vs. Goodman, 19 Conn., 507.) II.

I. The court erred in allowing John W. Cooper to testify in behalf of his wife, Hannah Cooper, who was the real plaintiff — the action having been brought to recover the land in her name. He was not a competent witness for her. (Paul vs. Leavitt, 53 Mo., 595.) II. The court erred in admitting the deed from Collett to Hannah Cooper as color of title to the west half of the land in controversy.

<p> Jljypeal from Holt Circuit Court. </p>

<p>1. Injunction — Decree against one not party — Gai'nishment.'—In a suit for injunction a decree against one not made a party, is unauthorized. Nor will such , a suit without issue of execution or statutory process for attachment, warrant . the summoning of garnishees.</p>

fljppeal from, Buchanan Circuit Court. I. By the common law, the husband, by marriage, acquired an absolute title to all personal property belonging to the wife, and to all personal property subsequently acquired by the wife during coverture. (Reeves Horn. Eel., 1.) The common law has been modified by the statute exempting from attachment or levy of execution for the sole debts of the husband, the rents, issues and products of the real estate of any married woman (Wagn.

I. The will required an election, and when the widow elected to take under the will it provided that the bequest should “be in lieu of her dower in the whole estate” of the deceased. (Pemberton vs. Pemberton, 29 Mo. 408 ; Brant’s Will, 40 Mo., 277 (at bottom); 2 Sto. Eq. Jur., § 1075 — 1123 and cases cited; Wagn. Stat., 541, §§ 15,16.) II.

<p> Error to Linn Circuit Court. </p> <p>cited in argument 2 Pars. Bills & N., pp. 570, 571 ; Hervey vs. Hervey, 15 Minn., 857; Nevins vs. DeGrand, 15 Mass., 436; Kountz vs. Kennedy, 63 Penn. St., 187; Drakes vs. Fray, 7 Push Ky., 273.</p> <p>cited in argument, 1 Greenl. Ev., § 565 ; 2 Pars. Notes & B., 545; Haskell vs. Champion, 30 Mo., 136; Brit-ton vs. Dierker, 46 Mo. 591; Holmes vs. Trumper, 22 Mich., 427; 7 Am. Eep., 661; Whitmer vs. Frye, 10 Mo'., 348; Fulmer vs. Seitz, 68 Penn. St., 237.’</p>

<p> Appeal from Ray Circuit Court. </p> <p>This suit seems to have been commenced on the 25 th day of October, 1867, and afterwards taken, by change of venue, to the Circuit Court of Ray county, and was there tried on an amended petition.</p> <p>I. Statements made by a party after assignment are not admissible to affect the title of the assignees. (Stewart vs. Thomas, 35 Mo., 202; Enders vs. Richards,’33 Mo., 598; Garland vs. Harrison, 17 Mo., 282.) The admissions of a grantor in a deed of trust, after its execution, are admissible in favor of the cestui qui trust, though not against him ; and such admissions are not competent against the grantee or assignee. (McLaughlin vs. McLaughlin, 16 Mo., 242; Weinrich vs. Porter, 47 Mo., 293.)</p> <p>II. The deed from McGirk to Thomas J. Jones, for the laud in controversy, under the deed of trust, was improperly excluded as evidence offered by defendant Jones, to prove hip title. It was prima facie good until attacked for fraud. But the court pronounced it fraudulent and void before the evidence was heard, or any offer to impeach it. This deed was dated September, 1869, and respondent’s amended petition was not filed until 1871.</p> <p>III. The evidence shows an agreement entered into on the day of the sale of the land by the sheriff, on the part of the respondents, to purchase the property by one for all, and to refrain from bidding, which operated to repress bidding, and was a fraud upon the debts. (Wooten vs. Hinckle, 20 Mo.,-290 ; Neal vs. Stone, 20 Mo., 294; Hook vs. Turner, 22 Mo., 333 ; Stewart vs. Severance, 43 Mo., 322.)</p> <p>I. The declarations of Alfred Jones in regard to his son Thomas, whilst in California, after the date of the deed of trust, July 23, 1863, were competent against Thomas J. Jones, in connection with the other evidence in the case, showing a conspiracy, or common purpose entered into between Alfred Jones and Tlios. J. Jones, or acquiesced in by Tlios. J. Jones, to cover up the property of Alfred Jones and defraud his creditors. (Weinrich vs. Porter, 47 Mo., 293; Waterburv vs. Sturtevant, 18 Wend., 353; Cnyler vs. McCartney, 33 Barb., 165 ; Peek vs. Crouse, 46 Barb., 151; Gamble vs. Johnson, 9 Mo., 605.)</p> <p>II. The court below properly excluded the pretended deed made by Isaac M. McGirk, on the 9th day of September, 1869, as trustee, to Thomas J. Jones, for the lands in controversy, on private sale, during the pendency of this suit and two years after the suit was commenced, not for cash, as antherized by the deed of trust, but for depreciated notes and dioses in action, impeached as partly paid, and partly fraudulent and fictitious, in this suit, then pending, to which both McGirk and Thomas J. Jones were parties and had answered. (O’Beilly vs. Nickerson, 45 Mo., 160, 165, 166; 1 Sto. Eq. Jur., §§ 405, 407; Murry vs. Ballou 1 Johns. Chy., 566 ; Stone &. Warren vs. Connelly, 1 Mete., [Ky.] 655; From. Judg., 228; Cord Leg. Eq. Bights Mar. Worn., Ch. XLIV, p. 597, § 1043.)</p> <p>III. The pretence set up in the amended answer of defendants, Alfred Jones and Thomas J. Jones as to an alleged conspiracy and combination at the sheriff’s sale, at which plaintiffs purchased the lands, in November, 1855, to depress the price of the lands and stifle bidding, is entirely unsupported by the evidence.</p> <p>Plaintiff had a clear right to agree to bid on these lands, and make them bring the amount of their debts, or buy them. (Stewart vs. Severance, 43 Mo., 322.)</p>

I. The law requires railroad companies to enclose their roads with a fence where it passes along inclosed or cultivated fields, etc. The petition fails to show that Isabel was killed at a point embraced by any of the above requisitions. II. Eor the first time the idea is advanced, that fences are erected to keep human beings from railroad tracks.

<p> Appeal from, DeKalb Circuit Court. ■ </p>

I. The indictment is bad, being for an offense not jointly indictable. (Rex vs. Atkinson, 1 Salk., 382; Rex vs. Weston, 2 Strange, 623, cited in Arch. Or. Plead, p. 55; Yaughan vs. State, 4 Mo., 530.) I. Defendants were jointly engaged in business as partners, and the act of one was the act of the other. If one made a sale in violation of law, then both are guilty. Where the agent sells, both principal and agent are-liable to indictment.

I. Our statute does not restrain the husband from collecting-in and reducing to possession the choses in action of his wife. (Boyce vs. Cayce, 17 Mo., 47; Clark vs. Bank, 47 Mo., 17.) And it makes no difference whether the money or bond arises from the sale of her land or other property.

I. By appearing to the citation and submittingto an examination, the defendant gives the court jurisdiction of his person. II. If the amendment was necessary,'the court did not err in permitting the appellant to amend the affidavit. The first affidavit was sufficient to notify, and it did no. tify, the defendant of the charge against her.

<p>1. Mortgage — Agreement to give will create a lien, how far. — It seems to be well settled, that an agreement in writing to give a mortgage, will create a lien upon the land specified in the agreement us against general creditors. (Mc-Qtiie vs. Peay, 5SMo,, 5S ; Blackburn vs. Tweedie, joosffp. 505.) And it is proper to record such an instrument.</p> <p>2. Conveyance inter partes — Sheriffs' sales — Accuracy of description— What necessary in two cases. — In the interpretation of deeds inter partes, courts are not inclined to insist upon that accuracy of description required in sheriffs’ deeds or oilier transfers of property ininvitum,</p> <p>8. Deed — Description of land in — Patent, ambiguity in — Identification of aliunde. — In an agreement for a mortgage of land the property was referred to. as “a farm owned by me in townships sixty-five and sixty-six of Worth county,” * * * “south of Grant City, one and one-lialf miles.” But neither section nor range were given. It appeared that the maker of the agreement lived in another county, and that the tract claimed to be that described by the deed liad no house upon it, and was not known as the farm of the maker, nor generally understood to be his. Held, that the ambiguity in the description was patent, and that the uncertainty was not cured by the evidence aliunde.</p>

<p> Appeal from Carroll Circuit Court. </p> <p>I. If it may be implied from a written agreement, that the laud is to be chargeable with, or security for a debt, it amounts to an equitable mortgage,(2 Sto. Eq. Jur., § 1020,1 Hil. Mortg. 647, § 1; Chase vs. Peck, 21 N. Y., 583 ; Neil. Eq. Mortg., 218, n.; Ad. Eq., 313 & n.; Bussell vs. Bussell, 1 Lead. Cas. Eq.. 2 Am. Ed., 499, and authorities cited at the, end of note,) and the mortgage may arise without a deed or special contract. (4 Kent. Com., 11 Ed., 164.)</p> <p>I. The instrument does not constitute an equitable mortgage. It neither confers a lien nor creates a title to the land. The possession was not taken and delivered under the contract, but existed before.</p> <p>II. The trust, if any, is at most, a personal trust reposed in the good faith of John Tweedie, and not a property trust fastened by its terms upon the land itself and following it, into whose hands soever it may pass.</p> <p>III. Put, if it should be held to be an “Equitable Mortgage” then it is not good against the plaintiff unless he had “actual notice” thereof, at the time of his purchase. And in this case he had no notice actual or constructive.</p>

<p>1. Railroads — Failure to transport passenger to old depot — Knowledge of change by passenger — Contract held to be made in reference to change,when. — Insult against a railroad company for failing to carry plaintiff to its original depot., where it appeared that the company had abandoned its old depot for one, half a mile short of that terminus: Held, 1st. That although the change had been adopted only a few week.? prior to his purchase of ticket,, yet, tire running of the trains having been uniformly to the new depot since that change, will be considered as a usage of tlie company, in reference to which plaintiff must be hold to have contracted. That a fortiori, such is tlie case where plaintiff knew of the change at tlie time of procuring his ticket; 2nd. That tlie question whether defendant liad violated statutory requirements could not be raised in such a sui t.</p> <p>2. Corporation, illegal act of— When may be investigated by private citizen, collaterally. — Tlie only exception to the rule which prohibits collateral inquiry by a private citizen into tlie supposed illegal acts of a corporation, is where such investigation is expressly authorized by the legislature.</p>

I. Plaintiff brought his suit in trover, and recovered judgment upon a special contract. . This cannot be done, even under the generous rules of practice provided by the code. (Wagn. Stat., 1058 ; Harris vs. Han. & St. Jo.

contended that for back taxes in default, the only proper mode of determining the tax rate was to take an average of all the sub-districts, and cited Porter vs. Rock Island & St. Louis R. R., 63 or 64 111.

<p> Jljpjpeal from Caldwell Circuit Court. </p>

I. The execution of December, 1862, issued from the Nodaway court came to the sheriff of Andrew county tlie same month, and became a lien on the land in suit from that time; and as Mrs. Montgomery did not purchase till February, 1863, 9he took subject to that execution. (R. C. 1855, pp. 741-2 ; § 21-) II. The levy of the execution on personal property did not satisfy it. The property was returned to and sold by .defendant. (10 Mo., 721; h'Mo., 537; 26 Mo., 308.) III.

contended, among other points urged, that the contract assigned was not founded merely on personal trust and confidence; and lhat the case of Lansdeu vs. McCarthy,.(45 Mo., 106) was not applicable.; and also that the assignment was accepted by the company, and that defendant went forward and did the work authorized under it. I. The position of Early under the contract imposed upon liim, when required to perform them, duties of great trust and reponsibility.

<p>1. Partition — Sale of land in partition — Confirmation of discretionary with lower court. — The confirmation or rejection of a sale ofland in partition, is a matter resting largely in the discretion of the lower court, and the Supreme Court will be very slow to Interfere with its action.</p>

I. The balance due from Dawson and liis notes to the trustees, are tied up by the Kentucky suit, which was brought prior to and not divested of the jurisdiction by the present one. The decree' of the court below compels defendant to pay the money, and leaves his notes outstanding, on which he may be again sued. II. The court finds there was a lien for the unpaid purchase money retained by the terms of the deed, and the trust éstate cannot lose the lien..

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

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

<p>Instate ex rel. Bracken vs. Heiser, ante p. 540, affirmed.</p>

As the money of these wards was not derived under the provisions of this statute, from a sale of tlie'ir land, but from another source, the Probate Court had no power to order their guardian to purchase real estate without this fund. (Shoui. Dom.

I. The right of plaintiff to the note was that of owner by assignments indorsed on the note, and incident to this was the right to have the mortgaged property sold to pay the debt specified in the note. (1 Hill. Morfc., 238, and cases cited in note/1.; Jackson vs. Bronson, 19 Johns., 325.) I. A deed of land from the mortgagee is not an assignment of the mortgage. '(Peters vs. Jamestown, 5 Oak, 334; Hill.

At the time the county bought in the lands, there was no law authorizing it to do so. and it possessed no powers not conferred by statute. (Reardon vs. St. Louis Co., 36 Mo., 555 ; State in re, etc., vs. St. Louis, 34 Mo., 546 ; Ray Co. vs. Bently — expressly affirmed in Holt Co. vs. Harmon, 59 Mo., 165.) And the sale by the County Court, July 12, 1864, and the transfer of Ellis, amount to nothing more than an equitable assignment of the mortgage.

<p>1. Landlord and tenant — Chitting timber from wild lands, vested as part of farm —What possession shown by. — Where lessees of a farm embracing wild lands, under the terms of their lease — authorizing them to cut timber from any part thereof — do in fact fell and remove timber from portions of the wild land, such acts are circumstances going to show possession of the whole tract.</p> <p>2. Landlord and tenant — Attornment to stranger. — A deed from a tenant to a third party, without the consent of the landlord, can have no effect in depriving the lessor of his possession.</p> <p>8. Landlord and ■tenant — Person holding under tenant — Adverse title. — One holding under a lessee cannot set up a title adverse to that of the original lessor.</p> <p>4. Military bounty land — Entry upon must be made, when. — An entry upon military bounty land, to be valid and effectual, must be made within two years after the taking of adverse possession. (Bradley vs. West, ante p. 38.)</p>

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

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

<p>1. Railroad Corporation law — 11 Enclosed or cultivated fields” not merely those protected by the owner with lawful fence. — Tile statute laying on railroad companies tlie‘obligation of fencing tlieir tracks along “enclosed or cultivated fields” (Wagn. Stat., 310-11, g 43,) does not require that the fields should be protected by the owner with a lawful fence on other sides, in order to hold the road for failure to fence the side adjacent to the road-bed. But the incursion of stock and injuries to crops must result from the failure of the company .to erect such fence. Where caused by insufficiency of the fence put up by the owner, the company will not be responsible.</p>

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

<p>J. Practice, civil — Instructions may be given, when, taken as a whole, they state ■ the law properly. — Where instructions, taken together, state the law correctly, it is proper to give them, although they are objectionable when taken separately.</p> <p>2. Forcible Entry and Detainer — Ploughing by plaintiff — What proof of actual possession by plaintiff insufficient — What sufficient. — In an action of forcible entry and detainer, proof that plaintiff entered upon the land and ploughed a few furrows across a portion of it, does not make out such a ease of actual possession on his part as to warrant a verdict in his favor. Something more is necessary showing an intention to possess, accompanied with acts indicative of that purpose. The visiting, and looking after, and superintending of unoccupied land are acts going to show such intent.</p> <p>S. Practice; Supreme Court — Evidence, weight of. — In civil actions at law, the Supreme Court has nothing to do with the weight of evidence.</p> <p>4. Forcible Entry and Detainer — Title to land cannot he tried in. — In actions of forcible entry and detainer, the title to laud cannot be inquired into.</p>

<p>1. Mguity — .Resulting trust — What proof necessary to authorize deerree of. — To warrant tlie destruction of a legal title, by decree of a resulting trust, the proof should be of the most conclusive character.</p>

<p>.1. Judgment — Clerical mistake — Correction nunc pro tunc. — Where the minute, entry, on a judge’s docket, shows that a judgment was taken by default, but the judgment was entered by the clerk as final, that entry may be corrected and judgment, in accordance with the facts, entered at a succeeding term.</p>

<p>1. Mechanic's Hen — Attaches only to structure in which material teas aolually used_ Statute and cases construed. — The present mechanic’s lien law gives the material man a lien only on the building, into the construction of which the material actually entered. The words, “with intent to defraud the person from whom the materials were purchased,” etc., used in § 23 of the mechanic’s lien law (WagnScat., 912); must be construed to mean “with intent to deprive him of the lien on which he relied at the time of making the sales.” Morrison v. Hancock, 40 Mo. 561 and Hoffman v. Walton, were cases construing the act of 1857 (Sess. Acts 1857, p. 668) before the present modification of the law governing mechanics’ liens.</p>

Petition for Mandamus. The resolution under which Gilbert made his contract (Sess. Acts 1873, p. 407), gave him authority as provided in the act of 1868 (Adj. Sess. Acts 1868, p. 44).

<p>1. Bequest to a church afterward incorporated — Eow treated in equity — Faith of grantor how ascertained. — A grant of land to a church is a charity, and although the chnrcli is, at the time of the grant, unincorporated so that no grantee is then in esse capable of taking it, and although the language used as indicating the intent may be somewhat obscure, yet equity will effectuate the. trust, and protect those equitably claiming under the grant. And, in ascertaining the faith of the grantor, resort may be had to the usages, tenets and ecclesiastical history of the church to which he attached himself.</p>

Pedition for Mandamus. I. This is no.fe such a claim as is required to be “exhibited to the State Auditor for allowance, supported by the evidence thereof, (Limitation Act, Wagn. Stat., 1336, § 24) because 1. It is one peculiarly -within his knowledge, and of which no one can have information, except through him. (Wagn. Stat., 1257, § 75.) 2. It is his duty to draw his warrant for the amount found by him to be due the University.