Volume 88 — Missouri Reports

— Hon. John E. Ryland, Judge. The court committed error in refusing to give an instruction on murder in the second degree. State v. Banks, 73 Mo. 592; State v. Wilson, 85 Mo. 134. The evidence did not authorize an instruction on murder in the second degree.

Louis Court of Appeals. (11 The acceptance of the contract by Virginia Brault from Siemers, she being in possession, estopped her and those claiming under her, from disputing Siemers’ title. Jackson v. Ayres, 14 Johns. 224; Tyler on Ejec. 166 ; Pratt v. Canfield, 67 Mo. 53 ; Walker v. Sedgwick, 8 Cal. 403. (2) The introduction of the tax deed made under an assessment against Siemers in evidence estopped them from disputing his title after the-tax sale. Rumfelt ».

— Hon. Jas. B Gantt, Judge. The appellant, for a reversal of this case, relies upon 'the testimony, which conclusively shows : (1) That John M. Shirley had sold, and intended to convey the land to ■Clayton, and by oversight the same was omitted from the •deed. (2) That defendant, Shaffner, before obtaining quit-claim deeds from the Shirley heirs, had full notice of the intention of Shirley to convey the land to Clayton, and of the omission of the same from the deed.

Turner A. Hill, Judge. (1) Defendants’ objection to- the sufficiency of the petition should have been sustained. City ordinances, when relied on, should be pleaded. State, etc., v. Ocldle, 42 Mo. 210 ; Mooney v. Kennet, 19 Mo. 555.

Louis Coiort of Appeals. (1) The court below erred in assuming that the defendant was responsible for the unknown and unauthorized promise made by Dickson to Levy & Brother. Laurence t>. Clark, 36 N. Y. 128; Carroll v. Shields, 4 E. D. Smith, 466 ; Wyllie t>. Poller, 32 L. J. Oh. 782 Jones v. Smith, 12 L. J. Oh. 382 ; Nat. Ins. Co. v. Minch, 53 N. Y. 144 ; Barnes v. Trenton, etc., 27 N. J. Eq_. 33.

— IIon. Jos. P. GrJLlUBBj Judge. (1) The evidence shows that all the plaintiffs, except, possibly, Caldwell, were .subsequent creditors. (2) Under the evidence; the court should not have rendered a decree in favor of the subsequent creditors. Payne v. Stanton, 59 Mo. 158 ; Pepper v. Carter, 11 ,Mo. 540; Belfordv. Crane, 16 N. J. Eq.’285.

<p>1. Practice : variance : failure of proof. The rule that a plaintiff cannot declare upon one cause of action and recover upon a different one prevails under the code, but Revised Statutes, sections 3565 and 3703, recognize a plain distinction between a variance and a total failure of proof.</p> <p>3. Variance. In this case there was no substantial variance between the negligence charged in the petition and the evidence.</p> <p>3. Carrier of Passenger. The undertaking of a common carrier of passengers is to carry the latter without fault or negligence, but the carrier is not an insurer against accidents.</p> <p>4 ITegligence : alighting from: car. For one, voluntarily and not to avoid some threatened danger, to jump from a train of steam cars while in rapid motion, is negligence, but to step from a car, while in motion, to a station platform, may or may not be negligence.</p> <p>•5. Question of Fact. Whether the latter is or is not negligence is a question of fact for the jurors to determine from the attending circumstances, and in such case the better practice is to submit the question, by leaving it to the jurors to determine whether a prudent person, in a like situation and under similar circumstances, would have made the step or leap.</p>

— Hon. W F, Gfeigogr, Judge. (1) The plaintiff’s motion to strike out the defendant’s plea in abatement should have been sustained. Cannon v. McManus, 17 Mo. 345. (2) The court erred in instructing the jury to find the issue for defendant. QrooJcshank ¶. Kellogg (Blackf.) 8 Ind. 257. (3) The defendant cannot plead to the merits of the action in denying being a member of the firm, and at the same time plead controverting the affidavit for attachment.

— Hon. Charles Gt. Burton, Judge. (1) The answer of the defendant very evidently proceeds on the theory that plaintiff did not have a regular chain of title, but that C. 1Í. Brown acquired his deed from J. C. Ledbetter, and J. F. Ledbetter from C. H. Brown, with full notice of defendants’ equity, and in fraud of their rights, and under plaintiff’s general denial, the issue presented was as to defendants’ equity, and it devolved upon them to prove it.

- — Hon. M. Gr. McG-regor, Judge. (1) In this state the statute of limitations does not run against the action for admeasurement of dower in real estate, and lapse of time is no bar to a right of dower. Littleton n. Patterson, 32 Mo. 357, 364-5-6; R. S. Mo., 1835, pp. 392-393;. R. C. Mo., 1855, p. 1045.

— How. James B. Gantt, Judge. (1) The court erred in excluding the evidence offered by appellant to show the proper and prudent manner ■of fencing and protecting the top of the coal shaft. (2) The demurrer to the evidence should not have been sustained, for the evidence clearly showed that the primary cause of the accident was the failure of the defendant to fence and cover, or protect, the top of the shaft as required by the act of the general assembly.

J. D. Parkinson, Judge. The respondent’s case depends on her own unsupported testimony, and fails to meet the requirements of the rule in cases like this, that the proof should be “so clear, definite and positive'as to leave no room or reasonable ground for hesitancy in the mind of the chancellor,” as to the truth of respondent’s statements before the decree asked by her should be granted. Forrester v. ' Scoville, 51 Mo. 268 ; Johnson v. Quarles, 46 Mo. 423.

Louis Court of Appeals. The bill of exceptions in this case' recites : “ Plaintiffs offered as the foundation of their title, the petition of Wm.

<p>Appeal from Shannon Circuit Court. — Hon. J. R. Woodside, Judge.</p>

Louis Court of Appeals. (1) There was a constructive trust in 'Wolf in favor of Mrs. Taylor. Where the legal estate in land is, conveyed to a stranger without consideration there arises a. trust for the owner. 2 Story Eq. 1,01-1; 1 Cruise Dig ,. Tit. 12, ch. 1, p. 52 ; Hill on Trustees, Am. notes, p. 170 2 J. and W. 565-73 ; 1 Story Eq. 383, 395 ; Tiff & Bull on Tr., 22-23 ; Grove's Heirs v. Falsome et al., 16 Mo. 543; Iiill on Trusts, 92 side page and note.

— Hon. J. M. Davis, Judge. (1) The court erred in sustaining the state’s demurrer to the plea of once in jeopardy. Flagg v. People, 40 Mich. 706; Gordon's case, 40 Mich. 716; State v. Moon, 41 Wis. 684; State v. Moore, 66 Mo. 372 ; Shepherd v. People, 25 N. Y. 406. (2) The court erred in permitting the state to cross-examine defendant as to his having fled to avoid arrest, it not being a matter testified to by him in chief.

<p>Appeal from Barry Circuit Court. — Hon. W. E. Geiger, Judge.</p>

— .Hon. Gf. IT. Burok hartt, Judge. (1) The trial court erred in sustaining demurrer tc petition, as courts cannot take judicial cognizance oi charters incorporating towns as they may do of public statutes. 1 Gfreenleaf ’s Evid., sec. 479 and 480; Inhabitants of Town of Benton n. Robinson, 75 Mo. 194; Bowie n. Kansas City, 51 Mo. 454.

— Hon. J. P. Gí-btjbb, Judge. (1) The motion to make Brown party defendant, specified no reasons and should have been denied. R.. S., sec. 3557. Revised Statutes, section 2244, is permissive only, not mandatory. (2) The court erred in. ■overruling plaintiffs’ motions to strike out parts of amended answer of Atterbqry and the entire answer of Brown. (3) The court'erred in admitting the quit-claim ■deed from Brown to Atterbury in evidence.

— TIoh. James D. Pox, Judge. Cl) The judgment should be reversed because the jurors were not properly summoned. (2) The court should have compelled the state to elect on which count it would stand. (3) The judgment should be reversed because of the improper manner in which the witness, Ciillam, was cross-examined by the prosecuting attorney.' (1) The court will only review the matters of exception preserved in the motion for a new trial. State *. Dunn, 73 Mo. 586; State •».

Louis Court of Appeals. (1) There was nc evidence tc suppprt an instruction in the second degree-'and it should not-have been' given: State «. Stoeeldi, 8.M0. App. 597; s. c., 71 Mo.'559 ; • State, v. Murphy, 68 Mo. 315 ; State «, Andrews, 76 Mo. ■ 100. ■ • (2) Even if an instruction on murder in the second degree was proper, the law was improperly dedared. State v. Milis, 74 Mo. 207; The indictment is sufficient and there was no error in the trial.

Louis Qourt of Appeals. The charter of the city of St. Louis does not confer upon the municipal assembly any authority to tax architects, and the ordinance upon which this prosecution is based is, therefore, void so far as it concerns those who pursue the calling of an architect', (a) Architects are. not specifically named in the ordinance as objects of taxation. The power to tax must be derived, therefore,, from the general words following the enumeration.

— Hon. Andrew Elli- ■ son, Judge. (1) The court had no jurisdiction to render judgment in the.back tax suit as to Mrs. Otis and her trustee, Terbell. The owner of the land in back tax proceedings is the necessary party. Watt v. Lonnall, 80 Mo. 195; Stater). Clymer, 81 Mo. 122; State v. Saclc, 79 Mo. 661; Vance v. Corrigan, 78 Mo. 94.

Prohibition. (1) The court of appeals is an appellate tribunal only and has no original jurisdiction to allow alimony pendente lite. Constitution, art. 6 ; 80 Mo. 470 ; 49 Mo. 381; Kamp v. Kamp, 59 N. Y. 212; Eslcenbraclc v. Eslcenbraclc, 96 N. Y. 456 ; Wood n. Wood, 7 Lansing (N. Y.)204; Mclntyren. McIntyre, 80 Mo. 470, and cases cited; Winston v. Winston, 31 Hun. (N. Y.) 290.

— James K. Sheley5 Esq., Special Judge. (1) The trial court committed error in allowing the witness, Falks, to state the threats and remarks made by the mob assembled at Sutherland’s store soon after the arrest of defendant. In State v. Jaeger, 66 Mo. 180, it is said: “ And the courts will hesitate long before they will say that the violation of a plain rule of evidence did not operate to the prejudice of the accused.” See, also, State r>.

<p> Error, to St. Louis Court of Appeals. </p>

<p> Appeal from St. Louis Qourt of Appeals. </p>

— Hon. H, S, Kelley, Judge, (1) The fact that Henry Thies, Sr., was the guardian and sold real estate of appellant worth fifteen hundred dollars in Wisconsin, and that he neither made an annual or final settlement nor accounted to plaintiff for any part of his estate, is proven beyond doubt. (2) Th e probate court had jurisdiction. (3) The cláim of appellant was not barred by the statute of limitations. No time will protect a fraud so long as it is concealed.

R. B. Oliver, Special Judge. (1) Regenliardt should have been allowed to state why certain, notes were taken np and new ones given in their stead. Bump on Fr. Conv. (2 Ed.) 574; Potter v. McDowell, 31 Mo. 73. (2) The attachment affidavits read in evidence were incompetent. (3) The declarations of Besel, made after the transfer and while his grantees were in possession of the property conveyed, were not admissible against him.

Louis Court of Appeals. (1) The plat of “Connor’s addition to St. Louis,”’ made in 1817, and the conveyances through which the defendant now holds its property adjoining Tenth street, made in the years 1820, 1821, .1827, 1828 and 1849, recognizing said plat and conveying premises, describing them as bounded by Tenth street, as established by said plat,' amounted in law tó a dedication of the street for public use.

Louis Court of Appeals. (1) The plaintiff in this case has the same rights, and no other, as the Broadway Savings Bank. Harris «. Babitl, 4 Bill. 185. The fact that Krieger was not a director and had not been appointed to the office of cashier, was well known to the president and directors of said bank, when the bond was executed by defend: ants as sureties.

R. E. Cowan, Judge. (1) The first instruction given on behalf of the plaintiff, is an authorization of a verdict for the plaintiff,. and is erroneous in the following particulars: (a) It ignores the question of plaintiff ’ s knowledge of the de-. feet, and authorizes a verdict for the plaintiff without requiring the jury to pass on the question of whether, the plaintiff knew of the broken or cracked tie beam or. not.

— Horn. Theodore Brace, Judge. (1) The evidence clearly establishes the fact that Murray, in conveying his large estate to Luce, acted fraudulently, and with intent to hinder, delay, or defraud his creditors. The decree of the court is against the preponderance of evidence on this issue. In chancery cases this court will review the testimony upon which the decree is based and reverse or modify the judgment, if it is manifest that the judgment should have been otherwise.

— I-Ion. C. G. Burton, Judge. • * ~ (1)- The court erred in permitting the old leaf, its photograph and the transcribed record’ to be introduced in evidence. Cliawoin r>. Wagner, 18 Mo. 531; Tome Parkersburg Ry., 39 Md. 36. (2) The court erred-in admitting in evidence the transcribed record of the deed from Wamsley to Bennett. A deed defectively acknowledged cannot be read in evidence until there is some proof that a deed once existed. R. S., sec. 679; Harden ».

— Hon. Gr. D. Burgess, Judge. (1) The act of congress of September 28, 1850, conveyed to the state of Missouri a fee-simple title to swamp and overflowed lands within its borders, subject to the conditions contained in said act, and for a breach of these conditions congress alone can annul the conveyance, or the United States enter.

— Hon. IT. S. Kelley, Judge. (1) County courts in establishing roads, changing roads, or in making orders to open roads must confine themselves to the statute, otherwise their proceedings are nullities, and a person may resort to a petition in equity and injunction for relief against the acts of the county court and overseers. Carpenter to. Gresham, 59 Mo. 247; County of Cooper to. Geyer, 19 Mo. 260, 261; Jefferson County to.

Louis Court of Appeals. (1) The circuit court and court of appeals erred in holding that the homestead act, uxion a fair construction, does not provide for the appointment of appraisers and the setting apart of a homestead by a sheriff, when property on which there is a homestead is levied upon by him under a writ of attachmentin his hands. R. S., sec. 2690 et seq.; Vogler •».

—IIon. Noah M. Gtyan, Judge. (1) The deed bv which Mrs. Martin acquired title «reates in her’ a pure, legal estate ; and it is not competent, under the x>ecnliar facts disclosed in this case, to ■assail or change the title with which she is invested. This could only be done by charging fraud or mistake in the execution of the deed to her, which is not pretended.

— Trial before Hon. J. P. Stroti-ier, Judge of tlie Sixth. Judicial Circuit. (1) The court erred in striking out the special defences set up in defendant’s amended answer. The special contract pleaded, was a valid. defence. Daer v. New York, etc., 1 Kern. 485; Wells v. Railroad, 24 N. Y. 181; Perkins v. Sorne, 24 N. Y. 196; Bigsell v. Railroad, 25 N. Y. 442.

Louis Court of Appeals. (1) The measure of damages, as fixed by the court below in the instructions given, is correct under the pleadings and the conduct of the trial in the court below. Moore r. Mounteastle, 72 Mo. 605; Pomeroy r. Benton, 57 Mo. 550; Flowers r. Helm, 20 Mo. 324. (2) It is not true that plaintiff sued for breach of contract and recovered on a quantum meruit.

Appeal from St. Louis Court of Appeals. (1) The plaintiff is the owner in fee of the western half of Sixth street between Olive and Locust streets. Newhall v. Ires on, 8 Cush. 595; Nichols v. Suncorlc Mfg. Co., 34 N. II. 345; Adams v. Railroad, 33 Barb. 414; Hannibal Bridge Co. ,v. Sehauback&r, 57 Mo. 582; Higbee v. Railroad, 19 N. J. 276 ; Paul v. Carver, 26 Pa. St. 224.

Mandamus. (1) It was not tlie intention of the legislature to interfere with relator’s contract by the repealing act of-March 28, 1885. This is shown by the passage of the act of the: same date as the above (Laws of 1885, p. 203), which expressly recognizes relator’s contract as binding- and obligatory, and directed that certain vouchers be-turned over to him for collection under said contract.

Louis Court of Appeals. (1) Plaintiff Paving contracted to do an entire work for a specific sum, can recover nothing unless the work •be done, or it can be shown that it was the defendant’s fault that the work was incomplete. Story on Bailments (9 Ed.) secs. 4265 and 427a ; 1 Wharton on Contracts, ch. 14, secs. 322, 300, 308, 310, 314, 326, 547 and .714 (Ed. 1882); Pollock’s Principles of Contracts (1 Am. Ed.) secs. 362 to .365, pp. 411 to 414; 2 Addison on Contracts (1 Am.

Louis Court of Appeals. ' [1] Tke testimony is not sufficient to support tke verdict. [2] The instructions given for plaintiff were wrong ; they left the question of negligence to the jury. Negligence is a question of law for the court and the latter must state some rule as to what constitutes negligence, and the province of the jury is to ascertain whether the facts of the case on trial bring it within the rule.

Louis Court of Appeals. (1) Under the so-called chattel mortgage, the respondents had no right to take, carry away or sell the machine, without tendering appellant the money already paid by her, less 25 per cent. R. S. secs 2507,2508. (2) The appellant, being a married woman, with no separate estate, could not legally bind herself by the contract, mortgage or note. ITorton v. Ransom, 6 Mo. App. 19 ; Hash v. Horment, 5 Mo.

— Hon. George W. Dunn, Judge. (1) The unQQntradicted OYidenoe shows that if d-G* ■ceased had looked (certainly if he had done so when within fifty yards, or less, of the track), he could have seen the train for a distance which increased from fifty yards to forty-two rods, as he approached the track, and that if he had stopped and listened he could have heard the train' at least a half a mile distant. Under these circumstances the plaintiff could not recover.

<p>Appeal from Jackson Circuit Court. — IIon. Silas H. Woodson, Judge.</p>

.Appeal from Lafayette Circuit Court. — Hon. J. P. Strother, Judge, (1) The Gourt should have sustained appellant’s objection to the witness, Winsor’s, testimony, in regard to effecting insurance.

— Hon. James M. ■ Davis, Judge. . (1) The court should not' have made a partition in ' contravention of the will. 62 Mo. 364. (2) Nancy Robertson’s share under the will could only be ascertained (by an appraisement of the whole estate. When this •was done and the appraisement disclosed the fact that her share of the estate exceeded five thousand dollars, then, eo instanti, she and her children by the terms of the will, were invested with the whole of the Saline county lands.

Louis Court of Appeals. ■ If defendant is guilty of larceny it is only petit larceny, as the property lost was not worth over fifteen dollars, and the alleged larceny was not committed in a dwelling house, but in a car driver’s room over a saloon., R. S., secs. 1297, 1309. The instruction in regard to> possession of stolen property as presumptive evidence of guilt should have been given as offered by the defendant’s counsel.

Louis Criminal Court. — Trial before Hon. Charles G. Burton, Judge of the Twenty-fifth Judicial Circuit.

— Hon. II. S. Kelley, Judge. (1) Plaintiff should not have been confined to showing the condition of the road at the immediate place of the accident and at the time of its occurrence. He should have been allowed to show the general bad condition of the road. Sheldon v. Railroad Co., 14 N. Y. 218 ; Shears man & Redf. on Neg., p. 397, sec. 833 ; Henry v. Railroad Co., 50 Cal. 176.

<p>•Criminal Law: larceny : asportation. In larceny the caption and asportation consist in removing the property alleged to have been ’ stolen from the place where it was before ; it need not be talcen out of the room and carried away.</p>

Louis Court of Appeals. (1) The. court erred in withdrawing an instruction from the jurors after they had retired to deliberate on their verdict.

Louis Court of Appeals. (1) The facts in evidence sustain the verdict. The plaintiff’s injuries were directly caused by the negligence of John Tracy whilst engaged in directing and controlling the business of the defendant, or a department thereof, and the defendant is, therefore, liable. Brothers Carter, 52 Mo. 372; Qormly ■». Vulcan Co., 61 Mo. 492; McGowan v. Railroad, 61 Mo. 532; Dowling v. Allen, 74 Mo. 13; Malone v. Hathaway, 64 N. Y. 9.

Louis Court of Appeals, (1) The paper of April 6, 1880, executed and delivered by the respondent to William . Heinrich, 46 Mo. 603.

Appeal' from Adair Circuit Court. —TIon. Andrew Ellison, Judge. (1) Mrs. Gordon,- being a married tvoman, had she lived her suit could have been brought at any time Avithin twenty-four years from July 27, 1863; the time given her not having elapsed at the time of her death, her heirs had until the expiration of said twenty-four years to bring suit. Dyer v. Brannoclc, 66 Mo. 391; Dyer v. Wittier, 14 Mo. App. 52;’R. S., 1879, secs. 3222-4.

— Hon. James M. Davis, Judge. (1) The defendant, Arnot P. Douglass, although present at the trial, did not testify, which is a strong circumstance against him. Mabary v. McClurg, 74 Mo. 575 ; Baldwin r>. Whitcomb, 71 Mo. 651; Cass Co. v. Green, 66 Mo. 512 ; Henderson v. Henderson, 55 Mo. 559. (2) The evidence showed a case of fraud.

Louis Court of Appeals. (1) Substantially the whole return is confessed and avoided. It pleads simply Us pendens. Long v. Long, 79 Mo. 644. (2) The return sufficiently shows that Mc-Cann qualified as a justice of the peace. R. S. secs. .2815-16. (3) The removal by such officer of his office or place of holding court out of the district for which he was elected or appointed is ipso facto a vacation of it. R. S. secs. 2806, 2833-4.

— Hon. John P, Strother, Judge. (1) The third paragraph in defendant’s answer should not have been stricken out. (a) The statute makes the defence a complete bar to an action for negligence. E. S., sec. 809. (5) It was new matter constituting a ■defence, and under the code is required to be set up in the answer. E. S., sec. 3521. (e) Contributory negli-' gence is a defence which has to be pleaded.

— lion. James M. Davis, Judge. (1) The omission of-the word “county” after the word “ Livingston ” in the indictment is cured by the statute of jeofails. Section 1821, Revised Statutes.

— IIon. E. L. Edwards, Judge. (1) The payment of a less amount than the sum really due is no discharge of the debt. -Nor will such payment of a part of the real debt constitute a sufficient consideration for a promise to cancel or discharge the remainder. Riley r. Kershaw, 52 Mo. 224; Price v: Cannon, 3 Mo. 318; 2 Dan. on Neg. Inst.

. — Hon. A. J. Seay, Judge. (1) It was competent for appellant to introduce the notice and return of service under which the probate court acted, to show it acted without having first acquired jurisdiction of the person of appellant and that for want of jurisdiction all of its proceedings were void.' R. S. secs. 1175, 1179 ; lb., secs. 1027, 1029 ; Bateson v. Ciarle, 37 Mo. 31; Moriland •». Holland, 44 Mo. 58.

<p>Appeal from, Jasper Circuit Court. — Hon. AT. G. McGregor, Judge.</p>

— Host. GK D. Burgess, Judge. The following is the third declaration of law, asked by defendant and refused by the court, referred to in the opinion: “If the court, sitting as a jury, finds from the evidence that the plaintiff, prior to the purchase of the land by defendant from Hughes, had the deed for the land under which he now claims, and knew that the defendant was about to consummate his purchase of the land from Hughes, and purposely withheld or concealed from…

— Hon. Turner. A. Gtill, Judge. (1) It is undisputed that at the time of the levy of the attachment writs the relator was in the sole possession of the property, therefore, prima facie, it belonged to him. Wharton oh Evid., sec. 1331; Best on Evid., sec. 366; Greenlf. on Evid., sec. 34; Wiseman v. Lynn, 39 Ind. 259 ; Vastine v. Wilding, 45 Mo. 89 ; Rubey v. Culbertson, 35 la. 264; Simpson v. Carleton, 14 Gray, 506.

— Hon. Charles GK Burton, Judge. (1) Phillips was entitled to hold the lot in controversy as his homestead at the time of the attachment. ' Acts 1870, p. 16, sec. 1; Hartwell ,x. McDonald, 69 111. 297. (2) A homestead is not the subject of a fraudulent conveyance. Vogler x. Montgomery, 54 Mo. 383 ; State ex rel.

<p> Appeal from St. Louis Court of Appeals. </p> <p>(1) The deed of trust executed by E. B. Hudson, to secure the payment of the certificates of .the Butchers’ & Drovers’ Bank,- is a mortgage. Hoffman v. Mackall, 5 Ohio St. 130 ; Woodruff v. Bobb, 19 Ohio St. 215 ; Newman v. Samuels, 17 Iowa, 534 ; Judge Dillon, 2 Am. Law Reg. 648 ; Casey v. Gibony, 36 Mo. 320 ; Johnston ®. Houston, 47 Mo. 227; Master son v. By., 72 Mo. 347; Jones on Mort., secs. 62, 1769; Perry on Trusts, sec. 602, d and f; 1 Wash, on Real Prop., 475, 483; 12 Mo.’ App. 497; 97 U. S. 68 ; 13 N. T. 200; 15 111. 505; 21 111. 450. (2) After default in the' payment of the certificates secured, the trustee was entitled to enter for breach of condition, (a) A mortgagee may enter after forfeiture. Walcop v. McKinney, 10 Mo. 230; Meyer v. Campbell, 12 Mo. 603 ; Kennett v. Plummer, 28 Mo. 142; Sutton v. Mason, 38 Mo: 120; Plubble v. Vaughn, 42 Mo. 138 ; 43 Mo. 98 ; 47 Mo. 227 ; 49 Mo. 126, 389 ; 51 Mo. 55 ; 53 Mo. 147. (5) A trustee may enter. Johnston v. Houston, 47 Mo. 227; Plaster son v. By., 72 Mo. 347; Sherwood v. Saxton, 63 Mo. 82; Goode v. Comfort, 39 Mo. 313; Jones on Mort,, secs. 62, 1769 ; Shaw v. By., 5 Gray, 162, 180 ; 1 Wash. Real Prop. *502; Perry’s Trusts, sec. 602, d, i, k, aa, gg; Broton v. Due, 10 Sm. &M. 268; Jones on Ry. Securities, secs. 357, 360 ; Sturges r. Knapp, 31 Yt. 1; Hall v. By., 21 Law Rep. 138. (3) The restrictions upon the trustee’s power to sell do not attach to his right of entry after forfeiture. Power of sale concurrent, not exclusive. Thornton v. Bigg, 24 Mo. 249; Sav. Ass'n *. Mastín, 61 Mo. 435 ; Johnston r>. Houston, 47 Mo. 227; 1 Broom & H. Corns., 617; 1 Wash, on Real Prop. *501 ; Jones on Morts., sec. 1773 ; 2 Am. Law. Reg. 653, 717; 7 Ala. 823 ; 2 Chand. 105 ; 5 Gray, 162, 180; 36 Pa. St. 150 ; 21 Ala. 573; 2 Cowen C. C. 195 ; 5 Hump. 612 ; 10 Iowa, 408 ; 2 John. Ch. 25 ; 48 Miss. 444; 12 Mich. 180 ; 4 Mich. 447 ; 76 N. C. 378 ; 52 Texas, 326 ; 1 Wis. 420 ; 12 Conn. 449 ; 21 Wend. 273; 49 Me. 375; 39 Ark. 544. A restriction upon a power of sale will not adtach to the concurrent rights or remedies. Johnston v. Houston, 47 Mo. 227; Butler ». Ladue, 12 Mich. 180Bradley v. By., 36 Pa. St. 150, note; Shaw v. By., 5 Gray, 162,180. (4) A tenant is in no better position than a mortgagor. 2 Coke *36, Butler’s note 2 ; 2 Wash, on Real Prop. *226 ; 4 Kent, *164,. *165 ; Moss v. Gillmore, 1 T. R. 384; 2 Yes. & B. 252.</p> <p>(1) The action being ejectment the burden of proof was on plaintiff to show both legal title to the premises, and the right of possession as against defendant. Malone on Real Prop. Trials, 98; Kimbrough v. Benton, 3 Humph. 129 ; Ford r>. French, 72 Mo. 250 ; Norfleet n. Bussell, 64 Mo. 176. (2) Plaintiff does not own or hold the legal estate convejmd by Mrs. Hudson’s deed of trust to James G. Barry. There was no provision in the deed for the appointment of a new trustee in case of the death of Barry, and the power of the latter was extinguished by his death. Hill on Trustees (2 Am. Ed.) 301, 211; 2 Perry on Trusts (3 Ed.) 355; Whittelsey v. Hughes, 39 Mo. 13 ; Graham n. King, 50 Mo. 22. A new trustee does not take the legal title until the conveyance of the same to him by the former trustee, or by some person appointed by the court. O' Keefe v. Oallhrop, 1 Atk. 18 ; Young v. Young, 4 Cranch, C. C. 499 ; Hill on Trustees-(2 Am. Ed.) 274-5, et seq. (8) There has been no default, which entitles the plaintiff to enter. Marlin v. Faxon, 66 Mo. 260; Tracy v. Gravois Fy., 18 Mo. App. 295 ; St. Louis, etc., v. Fy., 69 Mo. 65. (4) The agreed statement of facts shows that all the amounts due from the stockholders of the Butchers’ & Drovers’ Bank of St. Louis have not yet been either collected or applied to the payment of the certificates of indebtedness of said bank, as provided in the deed of trust, which, by its express terms, makes the collection and application of these amounts to the payment of the said certificates a condition precedent to any sale of this property by the trustee. This condition precedent not having yet been fulfilled, it is clear that the trustee could not now make any valid or legal sale and conveyance of this property under the power of sale contained in the deed of trust. Foariy v. Mitchell, 7 Gray (Mass.) 243; 1 Hilliard on Mortgages, p. 132, sec. 4: Such sales if now made by the trustee, would be simply void, both at law and in equity, and would pass no title to the vendee, which would enable him to maintain an action of ejectment for this property. Eitelgeorge v. Building Association, 69 Mo. 52 ; Long v. Long, 79 Mo. 644, 51, 52 ; Koehring v. Muemminghoff, 61 Mo. 403; Hill on Trustees [2 Ed.] *478, p. 698 and note; Sugclen on Powers [6 Ed.] 497. The debt secured by the deed cannot be ascertained in amount until the amounts due from the stockholders of the bank are collected or found to be uncollectible; and any attempted sale by the trustee would be enjoined until the amount of the debt should be ascertained by an accounting in equity/ or some other proper manner. WiUcins v. Gordon and wife, 11 Leigh, 547. (5) And for the same reasons above set forth, neither the trustee nor the scrip holders of the Butchers’ & Drovers’ Bank, can now maintain a bill for the foreclosure of the deed of trust, and the appointment of a receiver on the ground that there had been default in the payment of the scrip, and that the property is inadequate to secure its payment. Butchers’ & Drovers’ Bk. v. The Banlt et all., 14 Mo. App. 597; Building Ass’n v. Platt, 5 Duer, 675; Mastersonv. By., 72 Mo. 347 ; Meyer v. DstellyAB Miss. 401. (6) Mrs. Hudson was a voluntary surety for the bank, and as such entitled to stand on the strict construction and letter of her contract. Brandt on Surety-ship, sec. 21 ; 1 Jones on Mortgages, secs. 113-4 ; Wilcox v. Todd, 64 Mo. 3S8 ; John v. Reardon, 11 Md. 465.</p>

Louis Court of Appeals. (1) Davis took an assignment' of tke interest tke Fourth National-Bank had in the suit in equity-to charge the property with the judgment. He also took an assignment of the judgment, but it was all one transaction, .the same consideration transferred to him both rights, i. . Balter, 16 Hun, 169; Gordon v. Tweedy, 71 Ala. 213 ; Patrick v. Patrick, 77 111. 569; Staney v. Laning, 58 la. 662.

— Hon. E. L, Edwards, Judge. (1) Failure to return the delinquent tax list shall in no way affect the validity of the assessment, judgment, sale or lien of the state. W. S., 1872, sec. 172, p. .1194. (2) The notice of sale was sufficient. W. S., 1872, sec. 184, p. 1197. (3) Plaintiff’s deed was in the exact wrords of the statute and contained all that was essential.

Louis Court of Appeals. (1) The application of defendant for a change of venne was made under a condition of the cause, and contained such statements of facts as entitled the applicant to an order in accordance with his prayer, as a matter of • right. Corpenny ». City of Sedalia, 57 Mo. 88-92 ; Barnes ®. McMullins, 78 Mo. 265-266 ; Mix n. Kepner, 81 Mo. 93-96; Ex parte B. M. Chambers, 10 Mo, App. 240.

<p> Error to St. Louis Court of Appeals. </p>

— TIon. F. M. Black, Judge. (1) By the contract sued on, plaintiff had an admitted right to the land; he did not by consent give up that right and if it is lost it must be by such conduct on Ms part as will make it inequitable if not fraudulent to assert it. (2) Time is not ordinarily of the essence of a contract. Waterman on Spec. Per., sec. 460; Pomeroy on Spec.

— Hon. C. C. Bland, Judge. (1) It was error to refuse to strike out the portion of the answer in which it was averred that the administrator had charged himself with nine hundred dollars interest in his final settlement by mistake. The administrator should not be allowed to deny his own solemn acts in this way. Defendants further plead the approval of the final'settlement. Their pleas must be • consistent. R. S., sec. 3523.

— Hon. Noah M, Gtvah, Judge. (1) The contract sued on was a personal covenant; did not run with the land or create a privity of estate between the original parties or their grantees, the parties to this action. Wash, on Real Prop. [3 Ed.] top pp. 261, 262, 283, side pages 15, 16, and cases cited; Cole x. Hughes, 54 N. Y. 444. (2) The original parties to the contract sued on intended only to bind themselves and only employed terms to that end.

— Hon. J. W. ■Emerson, Judge. (1) The court erred in refusing instruction asked for by plaintiffs, it contained the law governing the case. (2) The evidence does not disclose that the mortgage here in controversy, given by Jones, the defendant, to Marsden, the interpleader, was given for value, or for any consideration other than a past or antecedent debt. (3) The mortgage is nothing more than a collateral security.

— Hon. Turner A. Gill, Judge. (1) The relation between the plaintiffs and the Mas-tin Bank was not a trust, but one of debtor and creditor., (2) The money sought to be recovered in this action was first deposited with other money, by Stoller & Hill, to their credit. A check was then drawn for the purpose of placing in the Exchange Bank of Denver, for Earnest, the net proceeds of his cattle.

— IIon. T. A. Gill, Judge. The agreement in this case was as follows: “This article of agreement made and entered into on this thirtieth day of August, 1870, by and between William J. Smith and George J. Keating, of City of Kansas, county of Jackson, in the state of Missouri, parties of the first part, and August F. Korfhage, of the City of Weston, county of Platte, and state aforesaid, party of the second part. “ Witnesseth : Whereas, said Smith & Keating are the owners of…

— Ron. P. M. Black, Judge. (1) The Court erred in permitting the witness, Melver, on behalf of respondent, to testify to a conversation occurring between him and appellant’s driver after the injury had happened. It was not a part of the res gestee and was incompetent. Adams v. Ry., 74 Mo. 553 ; Mc-Dermott v. Ry., 73 Mo. 516. (2) The court committed error in refusing to give the first and third instructions asked by appellant.

Louis Court of Appeals. (1) The referee’s findings both of law and fact were-right. ' The exceptions to his report should have been overruled. The corporate power of the company under the law in force at the time it was incorporated was in the directors only. Gr. S. 1865, p. 355, sec. 7 ; p. 360, sec. 36. And by that law the special power of distributing the assets of the company, was also bestowed upon it. Gr. S. 1865, p. 361, sec. 51.

Louis. — Hon. Shepard Barclay, Judge. (1) The act of March 27, 1883, is not limited in its operation to election contests under 2 Revised Statutes, chapter 101, but includes election contests where the remedy is by information in the nature of 'quo warranto.

<p>Braetioe m Supreme Court: bill or exceptions. Where theie is no order of the court authenticating the bill of exceptions, the Supreme Court will consider nothing but the record proper.</p>

<p> Appeal from St. Louis Court of Appeals. </p>

<p> Appeal from St. Loins Court of Appeals. </p>

— Hon. E. L. Ed- ' wards, Judge. The following is the eleventh instruction given for the state: “If the jury believe, from the evidence, that the de-' fenclant and the deceased, prior to their meeting in Ash-craft’s store, had an altercation, and that the defendant afterward went into said store and there met the deceased, and that a difficulty arose between them, and that the deceased advanced towards the defendant in a threatening manner, and if the jury shall further…

<p>Fees in Cases of Felonies : statute : city oe st. louis. Fees collected from the state by the clerk of the criminal court of the city of St. Louis, in cases of felonies and not called for by the persons entitled to them, should, under Revised Statutes, sections 5633 to 5639, be paid into the city treasury.</p>

— J. L. Mibick, Esq., Special Judge. (1) The court erred in assessing the damages. There is no evidence that the land not in cultivation was worth anything. See sec. 2252, R. S. ; liobicloux v. Casseleggi, 81 Mo. 459. (2) The instructions for plaintiff, if given by the court as shown by the record, are wholly unauthorized by the law or the facts. (3) Defendant’s first instruction should have been given. Plaintiff cannot recover on this petition against his co-tenant.

Charles Circuit Court. — Hon. W. W. Edwards, Judge. (1) The record shows that the change of venue was on account of the prejudice of the inhabitants of the ninteenth judicial district which included St. Charles county. (2) An order transferring the person of the defendant to the custody of the sheriff of St. Charles county was necessary to perfect the jurisdiction of the latter court.

— IIon. G-. H. Bubckhaktt, Judge. (1) If the cestui que trust had filed an ex parte petition in the circuit court of Randolph county to have.had Sheriff Williams appointed to execute the trust described in the petition, an l said court had appointed him, there is no doubt about the liability of the sureties on his official bond, if he had failed to pay over the money received from a'sale under a deed of trust.

— Hon. J. D. Foster, Judge. (1) A charge of dishonesty against an individual in connection with his business, whereby his character in such business 'may be injuriously affected, is actionable. Rammel v. Otis, 60 Mo. 365. (2) The words charged in these two counts are actionable per sé.

— Hon. Elijah Robinfon, Judge. (1) The definition of a partnership contained in the instructions given for the defendant and by the court of its own motion, is erroneous as applied to the facts of this case. The cases of Donnell v. Harshe, 67 Mo. 170, and Musser v. Brink, 68 Mo. 242, were all cases of partnership inter sese and not, as in the case at bar, one of such a relation as to third persons, or by operation of law.

— ITon. Geo. W. Dunn, Judge. (1) The questions asked plaintiff on cross-examination in reference to the Ulbriglit and other mortgages were competent, and the court erred in sustaining the plaintiff’s objections thereto, and excluding the same. Eastman v. Premo, 49 Yt. 355; 1 Greenlf ’s Evid., sec. 53; Qastle r>. Bullard, 23 How. 172; Irving v. Motley, ■ 7 BiDg. 543; Carey v. Heathing, 1 Hill, 316 ; Wood v. TJ.

— I-Ion. H. P. White, Judge. (1) The motion to quash should have been sustained. It was necessary to allege and prove that the money was obtained with intent to cheat and defraud. E. S., sec. 1561 ; State v. Faneher, 71 Mo. 460. (2) Defendant’s demurrer to the evidence should. have been sustained.

Louis Court of Appeals. In Martin v. Halley, 61 Mo. 196, it was held that equity will interpose for the relief of one who has taken a defective conveyance, and will compel' the vendor and those claiming under him to make good the conveyance. For the purposes of this case, the defendants, as to the property involved, are the vendors of the plaintiff. . The defect in the trustee’s deed is a defect in the deed of plaintiff’s vendors. 1 Story’s Eq. Jur. [10 Ed.] secs. 169, 170.

Louis Oourt of Appeals. (1) The agreement of January 28, 1853, is inoperative and of no force, because it was never, perfected as contemplated and as required by its terms. (2) If, however, it is true that a less number than the whole could be bound by the agreement, then that number is certainly fixed to be holders of not less than fifteen hundred feet: and there is no evidence that such number signed the agreement. Anderson ». City, 47 Mo. 479.

— Hon. J. P. Strother, Judge. (1) In many cases where money is paid under a mistake of law it may be recovered back. “Mistake of. Legal Right,” 17 Cent. Law J. 22, and authorities cited. One exception to the general rule that money so paid cannot be recovered, is where the party seeking relief was misled as to the law of the transaction, by the false, statements of the other party. 18 Cent.

Appealfrom Lafayette Circuit Court. — Hon. John P. Strother, Judge. The ruling of the court below, that the plaintiff was entitled to recover the full value of the injured animal, when she made no effort to save it, although she might have done so, or at least utilized it for food and realized from its hide and tallow, was erroneous. Where cattle are not killed by a train on a railroad, it is the duty of the owner to dispose of them to the best advantage.

— Hon. M. G. McGregor, Judge. (1) The motion of defendant to strike this case from the docket in the Lawrence circuit court should have been sustained. The order of the Jasper circuit court, changing the venue to Greene county, gave that court jurisdiction, and it was forever gone from the Jasper .circuit court. Henderson v. Henderson et al., 55 Mo. 534; Gilslrap v. Felts, 50 Mo. 428 ; State v. Daniels, 66 Mo. 192.

- — Hon. Ben. E. Turner, Judge. There is nothing in the plea of ten years possession. Plaintiff has shown that he has purchased Curtis’ interest, whatever that may have been, and this raises a prima facie right' to recover, unless defendants can show a better title than that of the common grantor. 64 Mo. 545. There is nothing inconsistent in plaintiff showing title through Curtis and also through the other source. The petition sufficiently describes the land.

— IIon. J. R. Woodside, Judge. The only error complained of by the appellant is that the information was not signed and verified by the prosecuting attorney. The record was made by a special prosecuting attorney, and although it is not expressly shown that he was appointed in the absence or inability to act of the regular prosecutor, this court 'will presume that the trial court proceeded regularly, and in conformity to law. State v. Brown, 75 Mo. 317.

. Appeal from Knox Circuit Court. — IIon. Ben. B. Turner, Judge. • (1) The petition does not state facts sufficient to constitute a cause of action. No facts were proved to-show that defendant was a city. Robinson n. Jones, 71 Mo. 582. (2) There was no evidence that the sidewalk was built by the city or received by it'or that-'the city was under any legal obligation to keep it in repair. Craig v. Sedalia, 63 Mo. 417; City, etc., n.-Miller, 66 Mo. 467.

Louis Court of Appeals. This is an action to recover the salary of tlxe plaintiff as physician of the insane asylum for the months of February, March and April, 1877. The agreed case admits that during all of said period, except the last ten days of April, 1877, said position was filled by Dr. Charles W. Stevens, and that said Stevens ivas paid from the public treasury the salary attached to the office for the time served by him as aforesaid.

— Hon. Gf. H. Burokiiartt, Judge. (1) The contract upon'which' defendants base their title is an executory one, and before they can recover they must show performance on their part of all they agreed to do under its provisions. Ingle v. Jones, 2 Walk-1; Busch v. Sander, 87 Mo. 104; 1 Chitty on Pleading, 323;■ Chouteau v. Bussell, 4 Mo.-553; Story on Con--' tracts, secs. 27, 30, 32 ; Bayse v. Ambrose, 32 Mo. 484 Earp v. Tyler, 73 Mo. 617.

Louis Court of Appeals, (1) Revised Statutes, section 3409, clearly refers to tlie advancement of the limited partner as capital, and not such loans as he may make outside of his advancements as a limited partner. Clapp v. Lacey, 35 Conn. 463. (2) The statute is in aid of commerce and should receive a liberal construction. (3) It is of the very essence of limited partnership that the special partner by complying with the law risks nothing but the capital advanced.

Louis Court of Appeals. (1) The court below erred in permitting the plaintiff, against defendant's objections, to read to the jury the ordinance referred to in the petition, to-wit: Ordinance number 10,305, entitled ‘£ An ordinance to regulate the speed within the limits of the city of St. Louis of cars and locomotives propelled bjr steam power;” and also in not giving to the jury at the close of the case, defendant’s instruction excluding such ordinance from the…

Louis Court of Appeals. (1) The demurrer to the evidence at the close of plaintiffs’ case should have been sustained on the ground of deceased’s contributory negligence. Fletcher v. Ry. ■Co., 64 Mo. 484; Nelson r>. Ry. 0c.,.68 Mo. 593; Hicks n. Ry. Co., 64 Mo. 436; Harlan v. Ry. Co., 65 Mo. 22; O’ Neill v. Ry. Co., 45 Iowa, 646; Ry. Co. v. Patterson, 93 111. 195 ; Thomas v. Ry. Co., 51 Miss. 637 ; Wood t>. Ry. Co., 70 N. Y. 195; Ry.