author: STORCKMAN, Judge. EAGER, Chief Justice

text:
    LAND CLEARANCE FOR REDEVELOPMENT AUTHORITY OF the CITY OF ST. LOUIS, Plaintiff, v. Georgia ZITKO et al., Defendants, St. Louis Argus Publishing Company, a Corporation, and Nannie Mitchell Turner, Defendants-Respondents, Edwina W. Mitchell, Intervenor-Appellant.
    No. 49980.
    Supreme Court of Missouri, En Banc.
    Dec. 14, 1964.
    Rehearing Denied Jan. 11, 1965.

      Sidney R. Redmond, Henry D. Espy, St. Louis, for appellant.
    David M. Grant, St. Louis, for respondents.
   STORCKMAN, Judge.

This is an ancillary proceeding to determine the distribution to be made of the sum of $43,500 paid into court as compensation for the taking by condemnation of the land and improvements numbered 2312— 14 — 16 Market Street in the City of St. Louis. The condemnation action proper has been concluded at least as far as this particular property is concerned. The defendant St. Louis Argus Publishing Company, a corporation, claims the entire fund as sole owner at the time the real estate was taken by the plaintiff Land Clearance for Redevelopment Authority as a part of the Mill Creek redevelopment project. The intervening defendant Edwina W. Mitchell claims %ths of the fund. She claims %ths as a former shareholder of Mitchell Realty and Investment Company, a corporation, now defunct by reason of the forfeiture of its charter. She claims an additional %ths of the fund as the residuary legatee under the will of her husband who was also a shareholder of the Mitchell Company. The defendant Nannie Mitchell Turner, also a shareholder in the Mitchell Company, disclaims any interest in the fund and supports the claim and contentions of defendant St. Louis Argus Publishing Company. The trial court heard the case without a jury, found the issues against the intervenor Edwina W. Mitchell, and held that St. Louis Argus Publishing Company was entitled to the entire fund. The intervenor has appealed.

The cause was heard on the first amended intervening petition of Edwina W. Mitchell and the second amended cross-complaint of the St. Louis Argus Publishing Company, a corporation, and responsive pleadings. For convenient reference and ease of distinction, the land and improvements condemned will sometimes be referred to as the Argus property or building; the St. Louis Argus Publishing Company will sometimes be referred to as Argus or the Argus Company; the Mitchell Realty and Investment Company as Mitchell Company; Mrs. Edwina W. Mitchell as Mrs. Edwina or the intervenor; and Mrs. Nannie Mitchell Turner as Mrs. Nannie.

The Argus Company relies on corporate minutes and a recorded deed of Mitchell Company as the basis of a claim under color of title and predicates its title on adverse possession, estoppel and laches, and prays that the title be quieted. The intervenor contends the recorded deed is invalid, that it is a cloud on the title and should be declared void. She also seeks an accounting of the rents and the proceeds of fire insurance coverage on the building. Apart from other possible grounds, appellate jurisdiction is in this court because of the amount in dispute since the %ths of the fund claimed by the intervenor is at least $19,115. Art. 5, § 3, Constitution of Missouri 1945, V.A.M.S.; § 477.040, RSMo 1959, V.A.M.S.

It is undisputed that Argus Company originally acquired the real estate in question on May 11, 1922, by a warranty deed duly recorded. It occupied the first floor of the premises for the publication of the St. Louis Argus, a leading Negro newspaper in St. Louis. Offices on the second floor were rented to various tenants. Argus Company lost the property through foreclosure in 1939. On October 3, 1939, the sheriff of the City of St. Louis, as successor trustee under a deed of trust, conveyed the property to Lena Traub, the purchaser at the foreclosure sale. In this connection Argus Company also executed and delivered a quitclaim deed dated September 30, 1939, to Lena Traub who was the holder of the notes and deed of trust on the property. By a general warranty deed dated February 17, 1942, Lena Traub conveyed the property to Mitchell Realty and Investment Company, a corporation. The balance of the purchase price was secured by a deed of trust.

Mitchell Realty and Investment Company was organized as a Missouri corporation on February 6, 1942. The shareholders named in the articles of agreement were Joseph E. Mitchell, Edwina Mitchell, William Mitchell and Nannie Mitchell, each the holder of four shares, and George L. Vaughn, the holder of two shares. These five shareholders also constituted the first board of directors. The capital stock of $2000 was divided into 20 shares of the par value of $100 per share; half of the capital was paid in money to the persons named as the first board of directors. J. E. Mitchell and William Mitchell were brothers. Nannie Mitchell was the wife of William. J. E. Mitchell, a widower, married Edwina in 1940. George L. Vaughn, a lawyer, represented the parties at the time. The charter of the Mitchell Company was forfeited by the secretary of state on January 1, 1946, for failure to file its annual registration statement and antitrust affidavit.

Over the objection of the intervenor, the respondents introduced in evidence a document purporting to be a set of corporate minutes of Mitchell Company and a general warranty deed from Mitchell Company purporting to convey the real estate in question to the Argus Company. The minutes, respondents’ exhibit G, purported to record the proceedings of a meeting of the Board of Directors of Mitchell Company held “At - o’clock - m, October -- — ■, 1944,” and recited, inter alia:

“The chairman announced that the business of the meeting to come before the directors at this time was the question of selling the property belonging to the company and located at 2312-14 — 16 Market Street in the City of St. Louis and State of Missouri to the St. Louis Argus Publishing Company, and the liquidation of the debt on said property to the extent of the amount of money on hand by applying the same on the incumbrance on said property.

“The property above referred to is more particularly described as follows:

[Legal description omitted.]

“Subject to the balance due on a deed of trust now of record, and to the restrictions and conditions and easements of record.

“The following resolution was then offered:

“Be it resolved, That the above described property be this day sold to the St. Louis Argus Publishing Company for the sum of Ten Dollars and other valuable considerations, including the assumption of the balance of the incumbrance on said property, after deducting the amount of the payments to be made thereon by this company, and be it further resolved that the Mitchell Realty and Investment Company shall apply and pay on the liquidation of said encumbrance the entire amount of money now on hand and belonging to said company, including said ten dollars to be received from said St. Louis Argus Publishing Company.”

The warranty deed, respondents’ exhibit C, dated May 27, 1950, and filed and recorded in the office of the Recorder of Deeds of the City of St. Louis on June 20, 1950, purported to convey the property from Mitchell Realty and Investment Company, a corporation, to the St. Louis Argus Publishing Company, a corporation. The minutes, exhibit G, purported to be signed by William Mitchell as chairman and attested by Edwina W. Mitchell as secretary. A waiver of notice appended thereto, purported to be signed by the five directors named in the articles of incorporation of Mitchell Company, including Mrs. Edwina. The deed, exhibit C, purported to have been signed by Mrs. Edwina as president of Mitchell Company. She denied that she signed either document and asserted that she was not in St. Louis during October 1944. These two instruments will be further discussed in connection with Mrs. Edwina’s claim of error with respect to their admission.

The Argus Company continued to occupy the first floor of the building as business quarters for the publication of its newspaper until April 4, 1961, when the condemnor took possession and the Argus Company moved to new quarters at 4595 Easton Avenue. While in possession of the property from 1950 until it moved in 1961, and prior thereto, the Argus Company paid no rent to Mitchell Company or anyone else. It collected the rents from the officers upstairs and kept the proceeds as a part of its own funds. It made and paid for improvements to the building and paid the real estate taxes on the premises. Two fires occurred that damaged the building, one in 1950 and the other in 1960. The policies of insurance were evidently in the name of Argus Company because it collected for the fire losses and used at least a portion of the proceeds to repair and restore the building.

The brothers, J. E. Mitchell and William Mitchell, were the principal shareholders of Argus Company. Both had been active in the business from the beginning. Together they owned 740 of the 774 shares outstanding. William died March 10, 1945, and J. E. died December 17, 1952. Under date of March 16, 1953, an agreement was entered into by Edwina W. Mitchell, the widow of J. E. Mitchell, J. Orvel Mitchell, a son of J. E. Mitchell by a former marriage, Nannie Mitchell Turner, the widow of William Mitchell, and Frank W. Mitchell, a son of William and Nannie Mitchell. By this agreement the parties agreed to exercise their voting rights as shareholders of Argus Company to elect themselves directors of the company and as directors to elect themselves to the corporate offices therein specified and to further cooperate in other particulars with respect to the' operation of the Company. The agreement was followed at the shareholders’ meeting in March 1953 and Mrs. Edwina became chairman of the board and treasurer; she was authorized to sign checks along with Mrs. Nannie, the president. Mrs. Edwina was active in the management of Argus Company until December 1955 when she was removed as the result of litigation which culminated in an appeal to this court. See Turner v. Mitchell, Mo., 297 S.W.2d 458. Thus, during this period of time at least, Mrs. Edwina not only had an opportunity to observe the acts of Argus Company consistent with adverse possession and a claim of ownership of the premises, but she also took an active part in them. Scarcely any records of Mitchell Company could be found and some of Argus Company appeared to be missing. There was testimony that such records had been kept in a safe in the office of Argus Company to which three persons had access including Mrs. Edwina and Mrs. Nannie. Also there had been two fires. There was, however, a can-celled check in payment of the 1953 real estate taxes put in evidence. It was conceded that this check was signed by Mrs. Edwina and Mrs. Nannie.

The evidence showed that Mitchell Company opened a checking account with the Industrial Bank (now the Bank of St. Louis) on January 16, 1943, with a deposit of $1500. The persons authorized to sign checks were Edwina Mitchell, president, and William Mitchell, secretary. The only record the bank could find was the signature card. Mrs. Edwina admitted the signature appearing on the card was hers. The inter-venor produced a bank statement, exhibit 9, showing a balance of $1170.95 on December 31, 1943; a deposit of $2000 was made on January 4, 1944, bringing the balance to $3170.95 on that date. This appeared to be the only available financial records of the Mitchell Company. The bank account was closed on December 28, 1944, but the evidence does not disclose what disposition was made of the money.

The principal disputed fact questions pertained to the holding of the meeting of the board of directors of Mitchell Company in October 1944, the execution of the minutes of such meeting and the execution of the deed dated May 27, 1950, purporting to convey the property to Argus Company. Although Mrs. Edwina denied signing either document, Mrs. Nannie testified she was present at the signing and saw Mrs. Edwina sign the minutes and the waiver attached thereto. Frank A. Weathers, a notary public, testified that he saw Mrs. Edwina and Mrs. Nannie sign the deed of May 27, 1950, purporting to convey the premises from Mitchell Company to Argus Company, and that he affixed the acknowledgment to the deed. Checks and other documents bearing admitted signatures of Mrs. Edwina were received in evidence as standards for comparison. To the extent necessary, other evidence will be referred to in connection with the points presented for decision.

On April 20, 1962, the intervenor filed her motion for a change of venue on the ground that the St. Louis Argus Publishing Company “has an undue influence over the inhabitants of the City of St. Louis”. S.Ct. Rule 51.03(a), V.A.M.R. and § 508.090(2), RSMo 1959, V.A.M.S. The Argus Company filed a counter-affidavit controverting the allegations of the motion and denying that it had an undue influence over the inhabitants. In the trial court the intervenor contended, as she does here, that she had an absolute right to a change of venue to another county and that no counter-affidavit was permitted in these circumstances. The intervenor refused to offer testimony at the hearing and objected to the testimony offered by the Argus Company. After the hearing, the trial court announced its intention to overrule the intervenor’s motion and to deny her motion to strike the counter-affidavit. Thereupon, the intervenor sought a writ of prohibition in this court which was No. 49,655, State ex rel. Edwina W. Mitchell, Relator, vs. Honorable James F. Nangle, Respondent. The respondent filed suggestions in opposition and this court entered its order on September 10, 1962, denying the writ. The trial court then entered its order overruling the motions.

In counties having more than 75,000 inhabitants, an application for a change of venue to another county on the ground of undue influence over or prejudice of the inhabitants of the county may be controverted by the adverse party and the court is entitled to hear evidence on the issue and determine the same on the merits. S.Ct. Rule 51.07 and § 508.140, RSMo 1959, V.A. M.S. The City of St. Louis is a county within the meaning of this rule and statute. Section 1.080, RSMo 1959, V.A.M.S. The contention is clearly without merit. The trial court did not err in hearing evidence and determining the merits of this kind of motion for a change of venue. State ex rel. State Highway Commission of Missouri v. Curtis, 365 Mo. 447, 283 S.W.2d 458, 464 [4,5]; State ex rel. Kansas City Public Service Company v. Waltner, 350 Mo. 1021, 169 S.W.2d 697, 703 [7, 8]; Eudaley v. Kansas City, Ft. S. & M. R. Co., 186 Mo. 399, 85 S.W. 366, 367 [2],

Thereafter, on September 17, 1962, the intervenor filed a second application designated a motion for change of venue based on the allegation that the St. Louis Argus Publishing Company had an undue influence over the judge. More properly it is an application for change of judge. The Argus Company asserts that the application was not in the form required by the rules of court statutes and was properly overruled by the trial court.

The right to a change of venue including disqualification of a judge on the ground that he is biased and prejudiced is a statutory privilege, and strict compliance with the statute and the rules of this court is essential to the sufficiency of the application. Erhart v. Todd, Mo., 325 S.W.2d 750, 752 [1]; Von Eime v. Fuchs, 320 Mo. 746, 8 S.W.2d 824, 826 [7]; Industrial Acceptance Corporation v. Webb, Mo.App., 287 S.W. 657, 659 [3],

Both S.Ct. Rule 51.06 and- § 508.130, RSMo 1959, V.A.M.S., require that a petition be filed setting forth the cause relied on for the disqualification or the change of venue and that the applicant or his agent or attorney make and annex thereto an affidavit to the truth of the petition and stating that the affiant has just cause to believe that he cannot have a fair trial on account of the cause alleged. In Erhart v. Todd, supra, this court reviewed the cases and held the affidavit relied on was deficient in that it did not assert the truth of the application and that the trial court did not err in denying the change. The same situation prevailed in Industrial Acceptance Corporation v. Webb. In Von Eime v. Fuchs, the court held that an affidavit simply stating that notice of the preparation of the affidavit was given to the other party was an imperfection in its form and that the affidavit did not strictly comply with the change of venue statute.

In George L. Cousins Contracting Co. v. Acer Realty Co., Mo.App., 110 S.W.2d 885, 888, the reasons for requiring a strict compliance is stated as follows: “The courts hold that to entitle a party to a change of venue a strict compliance with the statute is essential. This is so doubtless because from the very nature of the remedy it is easily liable to serious abuses. In the instant case the affidavit annexed to the petition clearly does not comply with the statute. The affiant does not swear that he has just cause to believe that plaintiff cannot have a fair trial on account of the cause alleged, nor does he swear to the truth of the petition, but merely to its truth ‘to the best of his knowledge, information, and belief.’ The insufficiency of the affidavit is hardly open to question.”

The application in the instant case alleges that the defendant Edwina W. Mitchell could not have a fair and impartial trial before the judge because the judge was prejudiced against her and that the St. Louis Argus Publishing Company had an undue influence over the judge. It “moves the Court to transfer this cause to another Division of the Circuit Court”. This motion or first portion of the application is signed by Edwina W. Mitchell. It should be noted, however, that this first part does not attest in any fashion the truth of the allegations made therein.

The second part of the application immediately following Mrs. Mitchell’s signature consists of two paragraphs and is signed by a notary public in Philadelphia, Pennsylvania. It reads as follows:

“Personally appeared before me, the undersigned Notary Public, the within named Edwina W. Mitchell who after being first duly sworn says that she cannot have a fair and impartial trial in Division No. 3 and that the matters and facts stated in the above Motion are true and correct.
“Sworn to and subscribed before me this 14th day of September, 1962
“My term Expires June 21, 1965
“/s/ Marian B. Johnson
“Notary Public”

This second part of the application is not signed by Edwina W. Mitchell or by anyone for her. The notary’s certificate that the document was “subscribed” before him could only refer to the motion in the first part of the document since that is the only part signed by Edwina W. Mitchell. Part one of the application, however, cannot be treated as the statutory affidavit or a combination of the petition and affidavit because it does not assert “the truth of the petition” as required by the statute and the rule of this court. The intervenor cannot take advantage of the allegation in part two that the facts stated in the motion are true and correct because that part of the application is not subscribed by her. A jurat is defined as “a certificate added to an affidavit stating when, before whom, and in British practice where it was made”. Webster’s New International Dictionary, Third Edition. See also Bouvier’s and Ballentine’s law dictionaries. A jurat need only consist of a statement “sworn to and subscribed” before the notary public as in the last paragraph of the application set out above. In fact the omission of the jurat will not render a properly executed affidavit a nullity. State ex rel. Knapp v. Cowan, 230 Mo.App. 226, 88 S.W.2d 424, 426 [6]. In any event a jurat cannot be employed to cure the deficiencies of a statutory affidavit.

The first part of the application is not sufficient as a statutory affidavit in that it does not contain an allegation that the facts are true, and the second part of the application is not effective because it is not signed by Edwina W. Mitchell or her agent. Decisions of the appellate courts of this state have uniformly held that the failure to sign an affidavit renders the instrument wholly ineffective. Robertson v. Robertson, 270 Mo. 137, 192 S.W. 988, 989 [3]; Elsea v. Bass, 229 Mo.App. 250, 77 S.W.2d 164, 165-166 [3]; Hargadine v. Van Horn, 72 Mo. 370; Davison v. Arne, 348 Mo. 790, 155 S.W.2d 155. The Hargadine case was an action in ejectment in which an unsigned affidavit for an attachment was held to be a nullity. Robertson was a divorce case in which the petition was signed by the plaintiff but she had failed to sign the affidavit although the jurat of the notary public had been properly executed. The affidavit and jurat are set out in full at 192 S.W. 988, and the prior cases including Hargadine are discussed and relied on. Elsea v. Bass was a replevin suit in which the affidavit was unsigned although the jurat of the notary public appeared. The affidavit was held to be void and wholly ineffective.

The rule is well established in Missouri that an unsigned affidavit is no affidavit at all. Royal Loan Co. of St. Louis v. Darr, Mo.App., 220 S.W.2d 787, 789 [2, 3]; State ex rel. Knapp v. Cowan, 230 Mo.App. 226, 88 S.W.2d 424, 425 [2]. When there is no affidavit attached to the application for change of venue or the affidavit is insufficient, the trial court cannot be convicted of error in overruling’ it. Spencer v. Smith, Mo.App., 128 S.W.2d 315, 318 [3, 4] ; State ex rel. State Highway Commission of Missouri v. Hartman, 226 Mo.App. 604, 44 S.W.2d 169, 170 [2, 3]. The effort required to file a proper application for a change of judge or venue is slight compared to the abuses that are likely to follow a less stringent requirement. The court did not err in denying the application.

The intervenor’s next contention is that the trial judge erred in denying her motions and other requests for a jury trial of issues of fact “especially since the Argus has an undue influence over the judge.” Our examination of the transcript discloses nothing to substantiate this charge of “undue influence”. On the contrary, the trial court exhibited patience and fairness in situations fraught with personal feelings that often permeate cases of this kind and permitted the parties considerable latitude in developing their theories and adducing supporting evidence. As has been previously stated, the conflicting testimony took a rather narrow range.

Essentially the action was one to determine title to the real estate in question. The intervening petition of Mrs. Edwina sought to have the deed of May 27, 1950, declared void and removed as a cloud on the title, and to establish an interest in the real estate or its proceeds. In another count she sought an accounting of rents and insurance proceeds collected by Argus for fire damage to the building. The respondents claimed title by adverse possession, estoppel and laches, and sought injunc-tive relief from other actions threatened by the intervenor. The intervenor predicates her claim of right to a jury trial on § 510.190, RSMo 1959, V.A.M.S., preserving jury trials unless waived. Section 527.150, RSMo 1959, V.A.M.S., however, more aptly covers the manner of trial of the issues in this case.

Both of the parties sought equitable relief. The principal disputed fact questions were whether the intervenor had signed the minutes of the October 1944 meeting of Mitchell Company and the waiver of the notice of the meeting and whether she had a part in the execution of the deed of May 27, 1950. The questions were integral parts of her request for cancellation of the deed as a cloud on her title. The relief she sought sounded in equity and she was not entitled to a jury trial on the fact issues necessary to support her claim. Burnett v. Johnson, Mo., 349 S.W.2d 19, 22 [2] ; St. Joseph Lead Co. v. Fuhrmeister, 353 Mo. 232, 182 S.W.2d 273, 277 [5]; Kimberlin v. Roberts, 341 Mo. 267, 107 S.W.2d 24, 27-28 [6]; Dinkelman v. Hovekamp, 336 Mo. 567, 80 S.W.2d 681, 682 [2]; Ebbs v. Neff, 325 Mo. 1182, 30 S.W.2d 616, 620 [3] ; Cuthbert v. Holmes, Mo., 14 S.W.2d 444, 445 [2]; Hauser v. Murray, 256 Mo. 58, 165 S.W. 376, 383 [2], The motion and requests for a jury trial were properly denied.

The next two points deal with alleged errors in admitting in evidence two exhibits offered by the respondents. They are exhibit C, the purported deed from the Mitchell Company to the Argus Company dated May 27, 1950, and an executed copy of minutes of Mitchell Company, exhibit G, purporting to record the minutes of a meeting in October 1944. Mrs. Edwina’s contention that she did not sign either of the exhibits may be jointly disposed of. The deed purports to be signed by her as president and the minutes by her as secretary; the waiver of notice of the meeting following the minutes also purports to be signed by her. During her testimony, Mrs. Edwina did not point out in what respect, if any, the signatures did not resemble her admitted signatures in evidence. With respect to the minutes, she claimed that she was not in St. Louis during October 1944, that she was in Washington, D. C., for a week during the middle of October attending a meeting of a Negro women's association. She stated that she returned to St. Louis during the first week of November 1944. On the other hand, there was direct evidence that she was present on both .occasions and that she signed the exhibits' C and G. An incorrect' date or a later signing would not vitiate the force and effect of the minutes for the purpose for which they were offered if she actually signed them.

Comparison of Mrs. Edwina’s signatures on these exhibits with the other admitted signatures in' evidence is highly persuasive that the signatures upon the exhibits are genuine. On all the evidence in'the record, we conclude that the signatures of Edwina W. Mitchell on exhibits C and G are genuine. Furthermore, in reviewing the evidence in a non-jury case, we defer to the trial court’s opportunity to judge the credibility of the witnesses' and we may not set aside the judgment unless it is clearly erroneous. Section 510.310, subd. 4, RSMo 1949, V.A.M.S.; Barker v. Allen, Mo., 273 S.W.2d 191, 192 [2], The trial court did not err in finding that the intervenor signed the exhibits. ‘ '

Another objection to exhibit G, the minutes, is that it is a “carbon copy”. The exhibit bears the signatures, however, of all the directors; they were also all of the shareholders of Mitchell Company according to intervenor’s exhibit 2, the articles of agreement on which the Company was incorporated on February 6, 1942. Randazzo Macaroni Mfg. Co. v. Minneapolis & St. L. R. Co., Mo.App., 251 S.W. 466, cited by intervenor held that it was not error to sustain an objection to the introduction of a copy of a typewritten paper on the ground that the copy was not the best evidence; the nature of the copy was not shown and the ruling is not persuasive on the facts of this case. A carbon copy of a document is a duplicate or an original document repeated and where signed by the parties or otherwise properly identified is admissible over, an objection that it is not the best evidence. Schróer v. Schroer, Mo., 248 S.W.2d 617, 621-622 [6-8]; State v. Trice, 338 Mo. 744, 92 S.W.2d 135, 136 [1]. The court did not err in overruling the obj ection on this ground.

Further, the intervenor contends that the waiver attached to exhibit G is insufficient and cites cases and statutes with respect to notices required for the calling of meetings of corporate directors and shareholders. It is a common practice in corporations where the stock is closely held to have the directors and shareholders sign waivers of notice of meetings rather than to follow the more troublesome and expensive procedures set out in the statutes. A person for whose benefit or protection a notice is intended may waive it. 66 C.J.S. Notice § 15, p. 653. In fact, a waiver of notice is contemplated by § 351.340, RSMo 1959, which provides, among other things, that: “Attendance of a director at any meeting shall constitute a waiver of notice of such meeting except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular meeting of the board of directors need be specified in the notice or waiver of notice of such meeting.” Italics added. The waiver ■attached to the minutes, exhibit G, not only dispenses with notice of the time and place of the meeting of the board of directors but further states that the purpose of the meeting was to authorize the payment of funds on hand on the incumbrance on the property known as 2312-14 — 16 Market Street and authorize the transfer of the property to the St. Louis Argus Publishing ' Company. The waiver was signed by all of the director’s including Edwina W. Mitchell. The meeting was not ineffective for lack of notice.

The intervenor further asserts that the resolution shown by the minutes could not be the basis of any action because no suit was brought on it within two years after the dissolution of the corporation as required by § 351.565, RSMo 1959, V.A.M.S. This statute provides that a suit may be prosecuted or defended by the corporation in its corporate name if the action is commenced within two years after the date of dissolution. The statute has no relevancy since there was no attempt to sue the Mitchell Company in its corporate name. The trial court did not err in overruling the objection on this score.

The intervenor further objects to the admission of the minutes in evidence on the ground that exhibit G was not certified in the manner provided by § 490.250, RSMo 1959, V.A.M.S. The statute provides that, when authenticated as specified, copies of the minutes shall be received as prima facie evidence “in the same manner and with like effect as the originals.” We have previously held that exhibit G was a duplicate original and since it was signed by all the parties in interest the statutory method of qualifying copies of minutes was not applicable. Santa Fe Hills Golf & Country Club v. Safehi Realty Co., Mo., 349 S.W.2d 27, 37 [10].

The intervenor complains that the minutes had no validity because they did not comply with § 351.400, RSMo 1959, V.A.M.S., which requires the directors to adopt a resolution and submit it to the stockholders. We have pointed out that the directors were also the owners of all of the stock. The board of directors of a corporation is authorized by statute to control and manage its property and business. Section 351.310, RSMo 1959, V.A.M.S. We are not here concerned with the rights of a shareholder to proceed against the corporation for violation of some statutory right which the corporation has denied him. The exhibit was offered to show the purpose and intent of Mitchell Company to transfer the property in question to Angus Company and as the basis for the execution of the warranty deed dated May 27, 1950. The objections are without merit and the court did not err in admitting exhibit G in evidence.

The deed of May 27, 1950, exhibit C, is further objected to on the ground it was void and could not transfer title or be made the basis for color of title because the charter of the Mitchell Company had been forfeited January 1, 1946. The inter-venor asserts that the title to the real estate at the time the deed was made in 1950 was vested in the directors and officers of the company as statutory trustees under § 351.— 525, RSMo 1959, V.A.M.S. Intervenor further contends that the deed was defective in that the name of the president, Edwina W. Mitchell, was omitted from the acknowledgment, that it purported to bear the acknowledgment of J. E. Mitchell as secretary but was not signed by him, and that the corporate seal affixed to the deed bore the name “Mitchell Realty and Investment, a Corporation” thereby omitting the word “Company” from the corporation’s name. We need not determine, however, the force of these latter defects upon the validity of the deed because it is well-recognized that a corporation whose charter has been forfeited has no legal existence and a deed executed by a defunct corporation is not effective to convey title to real estate. New Hampshire Fire Insurance Co. v. Virgil and Frank’s Locker Service, 8 Cir., 302 F.2d 780, 782-783 [1]; Leibson v. Henry, 356 Mo. 953, 204 S.W.2d 310, 315 [5]; Bradley v. Reppell, 133 Mo. 545, 32 S.W. 645, 647, 34 S.W. 841. In fact, the respondents make no claim that the deed is effective as a conveyance of land but contend that the deed is admissible as tending to show color of title and adverse possession.

“Although the instrument under which color of title is claimed may be actually void and convey no title, if it purports on its face to convey the title to the land in question by appropriate words of transfer it will constitute color of title.” Jamison v. Wells, Mo., 7 S.W.2d 347, 348 [6], See also Barker v. Hayes, 347 Mo. 265, 147 S.W.2d 429, 430 [5]; Johnson v. Moore, 346 Mo. 854, 143 S.W.2d 254, 256 [5]; Woodside v. Durham, 317 Mo. 15, 295 S.W. 772, 781 [4], 53 A.L.R. 884; Bergesen v. Clauss, 15 Ill.2d 337, 155 N.E.2d 20, 22-23 [4], 68 A.L.R.2d, 446. The deed although ineffectual as a. conveyance possessed the requisites set out in Jamison v. Wells and was relevant evidence on the issue of color of title and adverse possession. The trial court did not err in admitting exhibit C in evidence.

Next the intervenor contends the court erred in refusing to make specific findings of fact requested by her and in finding other matters as facts which were not in evidence, citing in support S.Ct.Rule 73.01(b) and (d) and § 510.310, RSMo 1959, V.A.M.S. It is not necessary to discuss in detail the seven specifications because both the rule and the statute provide that: “All fact issues upon which no specific findings are made shall be deemed found in accordance with the result reached.” The judgment and decree rendered by the court occupies eleven pages in the transcript and includes findings of fact and declarations of law. If the evidence is sufficient to support the decree, the intervenor cannot predicate error upon the finding of superfluous facts by the trial court or the failure to find in accordance with the requests made because in a case of this nature the appellate court reviews the record de novo and reaches its own conclusions on the law and the evidence giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. S.Ct.Rule 73.01(d) and § 510.310, subd. 4, RSMo 1959 V.A.M.S.; Santa Fe Hills Golf & Country Club v. Safehi Realty Co., Mo., 349 S.W.2d 27, 33 [2]; Franck Bros., Inc. v. Rose, Mo., 301 S.W. 2d 806, 811 [2] ; Barker v. Allen, Mo., 273 S.W .2d 191, 192 [2],

The intervenor further contends that the evidence was not sufficient to support a finding that the Argus Company was vested with title by adverse possession and asserts that the judgment and decree should have been in her favor. She cites such cases as Franck Bros., Inc. v. Rose, Mo., 301 S.W. 2d 806, Hilgert v. Werner, 346 Mo. 1171, 145 S.W.2d 359, and Badger Lumber Co. v. St. Louis-San Francisco Ry. Co., 338 Mo. 349, 89 S.W.2d 954, which in general hold that “adverse possession” in order to be effective must be hostile and under a claim of right, actual, open and notorious, and exclusive and continuous. The controversy in this respect relates almost wholly to the force and effect of the evidence.

Section 516.010, RSMo 1959, V.A.M.S., provides that no action for the recovery of lands shall be commenced, had or maintained unless the plaintiff or the person under whom he claims was seized or possessed of the premises in question within ten years before the commencement of such action. Section 516.040 is as follows: “The possession, under color of title, of a part of a tract or lot of land, in the name of the whole tract claimed, and exercising, during the time of such possession, the usual acts of ownership over the whole tract so claimed, shall be deemed a possession of the whole of such tract.” This court has held that a title by adverse possession where the entry is under color of title may be established by a less weight of evidence than a bare entry by an intruder under no claim of right. Draper v. Shoot, 25 Mo. 197, 202.

Respondents’ exhibit C, the deed of May 27, 1950, recited that the instrument was signed and sealed by authority of its board of directors. The description of the real estate was correct, the parties were properly named, and the words of conveyance were in usual form. It appears that this deed was a belated effort to comply with the resolution adopted by the directors of Mitchell Company in October 1944 when the charter of the corporation was in good standing. The recording of the deed on June 20, 1950, gave notice to the world that Argus Company was claiming legal title, but Mrs. Edwina W. Mitchell is charged with actual notice by reason of her participation in the directors’ meeting and her signing of the minutes and the warranty deed. See 39 Am.Jur., Notice and Notices, § 18, p. 242. It is not necessary to determine what, if any, equitable claim the Argus Company had in the property after the adoption of the resolution in 1944. We do rule that the execution and recording of the deed in 1950 constituted “color of title” as the basis for adverse possession even though the deed itself was not effective to convey the title. Feinstein v. McGuire, Mo., 297 S.W.2d 513, 517 [8],

The salient facts .upon which the claim of adverse possession depends are that Argus was in possession continuously at least from May 1950 until April 1961, that during the entire period Argus Company paid no rent and collected and retained as its own the rents from other tenants, that it paid taxes on the real estate in question which was assessed in the name of St. Louis Argus Publishing Company, and that Argus insured the property and collected the proceeds of two fire insurance losses and restored the building and made repairs during the entire period it was in possession. No one contested these acts of ownership or disputed the title of Argus Company until the invalidity of the deed was discovered while the condemnation action was pending at which time Mrs. Edwina W. Mitchell first learned of the defective title and intervened in the action. In Jamison v. Wells, Mo., 7 S.W.2d 347, 348, this court stated: “No more affirmative act of ownership can be asserted than the rental of the land by the plaintiff and the collection of the rents thereon. The inclosure of the same by fences at different times and the payment of taxes due on the land are, in addition to other more potential facts, persuasive evidence of actual possession.” See also Johnson v. Moore, 346 Mo. 854, 143 S.W.2d 254, 256 [1,2], and Woodside v. Durham, 317 Mo. 15, 295 S.W. 772, 783 [6], 53 A.L. R. 884.

The Argus Company was in possession for more than ten years under a claim or color of title and the acts of ownership exercised by it during that period of time constituted adverse possession. We further find the possession of Argus was not permissive, but was under a claim of right and was hostile. Barker v. Adíen, Mo., 273 S.W.2d 191, 194 [3], Under all the evidence we hold that Argus Company acquired title to the real estate in question by adverse possession and is entitled to the decree in its favor on that ground. Feinstein v. McGuire, Mo., 297 S.W.2d 513, 517 [10]; Barker v. Allen, Mo., 273 S.W. 2d 191, 194 [4, 5]; Johnson v. Moore, 346 Mo. 854, 143 S.W.2d 254, 257 [7]; Jamison v. Wells, Mo., 7 S.W.2d 347, 348 [9].

The trial court also found that the inter-venor was estopped to deny Argus’ title and there is considerable evidence in the record to support this theory. The intervenor has presented this question on appeal and the respondents have treated it in their brief. We need not pursue the matter further, however, since the evidence is clear and convincing that Argus Company acquired title by adverse possession and we have so held.

The intervenor’s remaining contention is that the court erred in overruling her motion to strike parts of the second amended cross-complaint of Argus seeking special damages in the nature of interest on the fund deposited and to cover the cost and expenses of obtaining money to relocate the newspaper business because Argus was unable to use the proceeds of the real estate. Argus also sought punitive damages in the sum of $10,000 on the ground the claim of the intervenor was malicious and deliberate. Since the ruling was not an adjudication on the merits, the intervenor was not prejudiced and the court did not err in overruling the motion and disposing of the issues after the hearing on the merits. Johnson v. Frank, 354 Mo. 767, 191 S.W.2d 618, 623-624 [10],

The judgment and decree held that Argus Company was the sole and absolute owner of the real estate at the time it was taken in condemnation and was entitled to the entire fund on deposit with the clerk of the court and that the intervenor had no interest therein. It was further ordered that Argus Company have and recover judgment of the intervenor interest at the rate of six percent on $43,500 from September 29, 1961, to December 17, 1962, in the sum of $3,046.99 and at six percent thereafter until the amount due was paid. The prayer of Argus Company for punitive damages was denied. The costs of the entire proceedings were taxed against the intervenor. The inter-venor contends that the court erred in allowing interest and asserts that the costs should be paid out of the money deposited in court. The question of interest is the most difficult one. The parties have not cited any authorities directly in point and we have discovered none in our independent research.

As a part of its final judgment, the court permanently enjoined the intervenor or anyone acting on her behalf from asserting any claim, interest, right, title, or ownership of the property or the fund in question. In support of the interest allowance, Argus Company cites 28 Am.Jur., Injunctions, § 291, p. 803, dealing with awards of damages or compensation in connection with injunc-tive relief. It also cites Virginia Public Service Company v. Steindler, 166 Va. 686, 187 S.E. 353, 105 A.L.R. 1413, dealing with the rights of a corporate shareholder to recover damages suffered by reason of the corporation’s refusal to make a transfer of stock. Neither of these authorities are persuasive in the present situation.

Where the amount of compensation for taking private property for public use has been finally ascertained and deposited in court, the condemnation action proper is terminated and the proceedings for the disposition of conflicting claims to the funds on deposit must be conducted and determined as nearly as may be in accordance with the rules of law and procedures governing ordinary civil actions involving similar issues. 29 C.J.S. Eminent Domain § 205 b, p. 1121; Oliver v. United States, 8 Cir., 156 F.2d 281. The money on deposit in court is substituted for the real estate taken and conflicting claims of interests in the property are transferred to the fund. City of St. Louis v. Rossi, 333 Mo. 1092, 64 S.W.2d 600, 604 [9-12].

The issues made and tried in the instant case were in the nature of a suit to quiet title and for the cancellation of the deed alleged to constitute a cloud on the title. In the usual litigation involving such issues, interest is not a factor, but the prevailing party is entitled to have the costs taxed in his favor. Hart v. T. L. Wright Lumber Co., 355 Mo. 397, 196 S.W.2d 272, 277-278 [7]. Also a condemnation award paid to the clerk of the court as provided by law cannot be distributed without an order of the court, thereby imparting to it the characteristics of a deposit in court. Sections 523.040 and 523.050, RSMo 1959, V.A.M.S.; State ex rel. State Highway Commission of Missouri v. Paul, Mo., 368 S.W.2d 419, 423 [9-11]. As a general rule, interest cannot be recovered while a fund is on deposit in the registry of the court. 30 Am.Jur., Interest, §§ 53 and 54, pp. 45 and 46; 47 C.J.S. Interest § 54, p. 66; Bowman v. Wilson, C.C. 12 F. 864.

Although the circumstances are quite persuasive, we cannot say it has been demonstrated under existing law that Argus Company is entitled to special damages or interest prior to judgment. Zimmerli v. Waldorf Restaurant Co., 122 Wash. 383, 210 P. 801, 802 [3]. After the final judgment was rendered on December 17, 1962, the amount due Argus was liquidated and Argus was entitled to the entire fund but was prevented from obtaining it by the intervenor’s appeal and the supersedeas bond posted. Section 408.040, RSMo 1959, V.A.M.S.; State ex rel. Dean v. Douglas, 236 Mo.App. 1284, 165 S.W.2d 304, 308 [7], The intervenor became liable for interest from the date of judgment and is also liable for the entire amount of taxable costs and such costs cannot be paid out of or deducted from the fund on deposit.

That part of the judgment and decree allowing interest from September 29, 1961, to December 17, 1962, is set aside and for naught held. In all other respects, the judgment is affirmed for the reasons and on the grounds herein stated. It is further ordered that the Argus Company have and recover from the intervenor interest on the fund in the registry of the court from December 17, 1962, to the date of distribution and payment, and that the costs of the proceedings for distribution of the fund be taxed against the intervenor, Edwina W. Mitchell.

DALTON, HYDE, HOLMAN and HENLEY, JJ., concur.

EAGER, C. J., dissents in part and con•curs in part in separate opinion filed.

LEEDY, J., dissents and adopts opinion filed in Division Two by STOCKARD, C., as his dissenting opinion.

EAGER, Chief Justice

(dissenting in part and concurring in part).

I believe that the application for a change of judge constituted a substantial compliance with § 508.130, RSMo 1959, V.A.M.S. and with our Rule 51.06, though technically objectionable. I so voted in Division and I still feel that the application should have been sustained. However, since the majority here votes otherwise, I wish also to express my concurrence in the foregoing opinion in so far as it deals with .the merits.

OPINION OF COMMISSIONER STOCKARD IN DIVISION 2.

In view of the result we have reached on this appeal a brief statement of the facts in the form of a general summary will suffice.

The Land Clearance for Development Authority of St. Louis obtained title by ■condemnation to a tract of land located at 2312-14 — 16 Market Street in the City of St. Louis, and it paid $43,500 into the registry of the court -which was the amount determined to constitute just compensation for the taking thereof. There is no issue on this appeal pertaining to the right to condemn or the amount of the award. Appellant was permitted to intervene, and she contends that immediately prior to the taking by condemnation, title to the property was vested in the statutory trustees of the Mitchell Realty and Investment Company, whose corporate charter was forfeited by the State of Missouri on January 1, 1946, and that as the owner of eight of the total of eighteen shares of stock issued by that corporation she is entitled to four ninths of the award and to an accounting of the rents and profits from the property. The St. Louis Argus Publishing Company contends that it was the sole owner of the property at the time of the condemnation, and that it is entitled to the entire award. By a cross-complaint it also sought a declaratory judgment, and injunction and special damages. The numerous pleadings, motions, and rulings pertaining to the above issues occupy more than 150 pages in the transcript.

The case was tentatively set for trial in Division 3 of the Circuit Court of St. Louis City on November 12, 1962. On September 17 appellant filed what she incorrectly denominated a motion for a change of venue, but which was an application to disqualify the trial judge. That application was denied by the trial court without stating its reasons for doing so. Trial was subsequently had before the court without a jury, after appellant’s motion for a jury trial was overruled, and judgment was entered adverse to appellant. The refusal to grant the application to disqualify the trial judge was assigned by appellant as error in the motion for new trial, and it is properly preserved and presented for appellate review.

Civil Rule 51.03, V.A.M.R. (reference is made herein to the Civil Rules pertaining to disqualification of a judge in effect prior to the effective date of certain changes made in 1963) provides that “If it shall be alleged by either party to the cause that the judge is * * * prejudiced, * * * or that the opposite party has an undue influence over the mind of the judge,” the court shall taire the authorized steps to obtain another judge to sit in the cause, but when the disqualification is made of a judge in a multiple judge circuit, pursuant to Civil Rule 51.16 “such case shall be transferred to another division of said circuit court presided over by a different judge.” Civil Rule 51.06 provides that this application shall be made by “a petition setting forth the cause of [the] application for * * * disqualification and when he [the party, his agent or attorney] obtained his information and knowledge of the existence thereof,” and it also provides that there shall be annexed to the petition an affidavit, made by himself, his agent or attorney, “to the truth of the petition, and that affiant has just cause to believe that he cannot have a fair trial on account of the cause alleged.”

Appellant contends on this appeal that her application “was in proper form in all respects,” and that under such circumstances it was prejudicial error to deny her application to disqualify the judge. The only reason advanced by respondents in support of the action of the trial court is that the affidavit annexed to the motion “was insufficient both as to form and substance.”

Although it is clear that the rules contemplate the presentation to the court of a petition in which there is alleged an authorized ground for an application to disqualify the judge, and that there shall be annexed to the petition an affidavit containing certain averments, appellant did not present her application in that form. Instead, what appellant did was to consolidate the petition and the affidavit so that each consists of the entire instrument. However, if the minimum requirements for both the petition and the affidavit are contained therein, poor draftsmanship should not prevent consideration of the substance of the application.

Appellant first alleges in her combined petition and affidavit that “she cannot have a fair and impartial trial * * * for the reason the * * * judge is prejudiced against her,” and for the additional reason that the St. Louis Argus Publishing Company, the opposite party to appellant, “has an undue influence over the said judge.” She then alleges that she did not learn of the above facts until September 14, 1962, and that “this affidavit is filed within five days after your affiant became aware of the foregoing facts.” She prayed the court “to transfer the cause to another division of the circuit court, in the manner prescribed by law.” Following this is appellant’s signature. There then appears a jurat wherein it is stated that appellant personally appeared before the certifying notary public, and “who after being first duly sworn says that she cannot have a fair and impartial trial in Division No. 3 and that the matters and facts stated in the above motion are true and correct.” It thus appears that appellant alleged at least one of the grounds set forth in Civil Rule 51.03 to disqualify the trial judge, and that she appeared before a notary public and swore that the facts stated in the “motion,” which was her petition, were “true and correct,” and that she also swore that she “cannot have a fair and impartial trial * * * for the reason the * * * judge is prejudiced against her.”

It has been said that it is essential that there be strict compliance with the provisions relating to the substance of the petition to disqualify a judge and to the substance of the affidavit required to be annexed thereto. Erhart v. Todd, Mo., 325 S.W.2d 750. However, this does not apply to mere matters of form. La Grange Elevator Co. No. Ill v. Richter, Mo.App., 129 S.W.2d 22. As previously noted, the petition and affidavit are not in the form prescribed by the rules, but our examination of the instrument discloses that it contains every allegation of substance and every affirmation under oath required by the rules to constitute a valid application for disqualification of the trial judge.

The Civil Rules provide, see Rules 51.03 and 51.16, and it has long been the rule by court decision that when a party files an application to disqualify the judge, if it is the first such application by that party, the judge “ ‘has power only to determine whether the application is in due form and due time, and if it is, to see that the proper steps are taken to substitute another judge’ —he may not pass on his own qualifications.” State ex rel. Kansas City Public Service Co. v. Waltner, 350 Mo. 1021, 169 S.W.2d 697, 700; State v. Bailey, 344 Mo. 322, 126 S.W.2d 224, 227. We construe the above reference to “due form” to mean that the judge is to determine whether the application contains all required allegations and all required affirmations under oath; it does not refer to matters of draftsmanship. There is no requirement that the petition be supported by evidence. Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323. It is not contended in this case that the application was not timely. While it is true that at the time it was filed appellant had previously filed her responsive pleadings, she alleged that the knowledge of the disqualification was not obtained until September 14, 1962. The application was filed on September 17, and the time set for trial was eight weeks away. We cannot say that these circumstances result in the application being untimely.

Respondents rely on Robertson v. Robertson, 270 Mo. 137, 192 S.W. 988; Erhart v. Todd, supra; Industrial Acceptance Corp. v. Webb, Mo.App., 287 S.W. 657; and Spencer v. Smith, Mo.App., 128 S.W.2d 315. The Robertson case pertained to the sufficiency of a divorce petition. It was there held that in some situations an affidavit must be signed by the affiant. See .also Royal Loan Co. of St. Louis v. Darr, Mo.App., 220 S.W.2d 787, 789. However, we have determined that in this case the entire instrument constituted the affidavit, and it was signed by the affiant and was sworn to before a notary public. In the Erhart case the application to disqualify the judge was denied by the trial court because it was “untimely filed after the cause was called for trial” and because the affidavit was insufficient. On appeal the sufficiency •of the affidavit was not ruled, and its terms are not set out. We cannot tell from the Spencer case whether there was no affidavit .at all or whether it did not contain the sworn statement that affiant has just cause to believe that he cannot have a fair trial on account of the cause alleged.” As previously noted, the equivalent of such affirmation is in the affidavit in this case. In the Industrial Acceptance case the affidavit to an application was held insufficient because it was “not to the truth of the facts stated” but only “to their truth according to the best knowledge and belief of affiant.” Regardless of the merits of that distinction, appellant in this case swore that “the facts stated * * * are true and correct.” These cases do not provide any basis for sustaining the action of the trial court in this case.

It is unfortunate that after the lengthy trial of this case there cannot now be a final disposition of the merits on this appeal. However, under the circumstances appellant was entitled to a' trial of this case before a different trial judge, and the denial of that right was prejudicial.

The judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: DALTON, Judge.

license: Public Domain

text:
    Mrs. A. J. WALKER, Respondent, v. Edwin NIEMEYER and Grace Niemeyer, Appellants.
    No. 50431.
    Supreme Court of Missouri, Division No. 1.
    Jan. 11, 1965.

      W. F. Daniels, Fayette, for respondent..
    Dale Reesman, Boonville, for appellants..
   DALTON, Judge.

Action for $25,000 damages for personal' injuries alleged to have been sustained by-plaintiff when she fell on the steps of a. building (a former residence) owned by-defendants, which building had been divided', into four apartments, two on the first floor and two on the second. Plaintiff was a. tenant of one of the second-floor apartments- and was using a stairway provided by defendants for the use of the second-floor tenants at the time she fell. Verdict and judgment were for defendants, but the Court granted plaintiff a new trial on the ground that “defendants’ instructions D-4, D-5,, D-6 and D-l 1 are erroneous and misdirected the Jury because each of them fail to contain a proper and sufficient factual hy-pothesization of the evidentiary facts.”

Defendants have appealed and, as appellants, here contend that the Court erred in ■refusing to direct a verdict for defendants at the close of all the evidence, as requested by defendants, (1) because plaintiff failed to make a case for the jury on plaintiff’s claim; and (2) because plaintiff was guilty of contributory negligence as a matter of law.

In considering the issues presented, a statement of the evidence most favorable to plaintiff is required. We shall disregard defendants’ evidence unless it aids plaintiff’s case. Neal v. Kansas City Public Service Co., 353 Mo. 779, 184 S.W.2d 441, 442 [1,2]. Our statement shall also include the evidence most favorable to plaintiff on the issue of whether she was guilty of contributory negligence as a matter of law. Goldbaum v. James Mulligan Printing & Publishing Co., 347 Mo. 844, 149 S.W.2d 348, 351 [2],

As stated, plaintiff was a tenant of defendants and was occupying one of the mentioned second-floor apartments. She was seventy-two years of age and had moved into the building on April 25, 1960, only a few days prior to sustaining her injuries, on April 29, 1960.

One of the defendants testified that she .and her husband owned the property and had reserved the use of the stairway for their tenants. She also testified that she kept the steps clean and looked after the stairway. The record does not show how long the defendants had owned this apartment but the other defendant testified that he had last varnished the steps approximately two years prior to plaintiff’s fall.

Access to the second-floor apartments was ordinarily gained through an outside door on the north side of the building, although there was also a back stairway. The outside door on the north side of the building opened into a vestibule about four feet square and the mentioned stairway led up to the right or to the west to a landing which was about the same size as the vestibule. There were three steps from the vestibule floor to this landing from which the stairway led up to the left some eleven steps to a second landing, where there was an outside window. The stairway then went up to the left or east four steps to the second-floor hallway. The outside window threw some light on the second landing, but none on the lower steps.

There was a light cord hanging from the ceiling of the second landing, with the light bulb (60 watt) about nine feet nine inches above the floor of the second landing (fifteen and one-half feet above the first landing), “just a drop cord with an ordinary light bulb in it.” There was also a light fixture located on the north wall of the vestibule above the first and second steps, which fixture was seven feet eight inches from the vestibule floor. The light above the second landing was operated by a switch located to the right or west side of the vestibule door and also by a switch located in the second-floor hall. The light fixture above the first steps from the vestibule was operated only by a switch to the right of the outside door. The same switch operated a porch light outside the north entrance door. There was a Venetian blind and some drapes covering the glass portion of this outside door. On the left side of the mentioned stairway going up, there was a bannister all the way to the second floor, while on the right side of the stairs was the outside wall of the building.

There was testimony that even with the upper light on at the head of the stairway it threw no light, or very little, on the bottom three steps because the light was actually behind a wall and, as stated, this upper light was some fifteen feet above the first landing. Other testimony tended to show that the nose or under-cut area of the bottom three steps varied; and that the steps were of wood, worn, stained dark, varnished and waxed.

A witness for plaintiff measured the rise of each of the three steps between the vestibule and the first landing and determined that the rise of the first step was six and one-half inches; the second, five and five-eighths inches; the third, five and thirteen-sixteenths inches and the last rise to the first landing was five and five-sixteenths inches. He also found that there was a slight variation in the width of the treads, the tread on the first step being nine and a quarter inches; the second, nine and seven-sixteenths inches and the third, nine and five-sixteenths inches. This same witness stated that at the time he examined these steps on February 21, 1963, at 4:30 in the afternoon of a clear, cold day he found wax on the steps which he could remove with his fingernail; the yellow material he so obtained was wax and not varnish, which1 you would have had to scrape off. No objection was made to this testimony although defendants claimed to have sold the property prior to the mentioned date. “The nosing [on the mentioned three steps] was five-eighths of an inch, one-quarter of an inch, and three-quarters of an inch [respectively], a variation of one-half inch.” The nosing on these steps was “worn and well varnished and waxed.”

Concerning these three steps, plaintiff testified: “They are rather narrow steps” and “they are worn until they are round on the edge.” She also testified that the steps were waxed and had a nice gloss. At the time she fell she was wearing dress oxford shoes with an inch1 and a half heel, not a spike heel.

Neither the owners of the apartment nor anyone else had instructed plaintiff with reference to the operation or use of the front stairway lights. Plaintiff had been using the rear stairway and had been up and down the north stairway no more than twice prior to her fall. On that date she left her apartment and went to the grocery store where she obtained two sacks of groceries and, after parking her automobile, she carried the two sacks of groceries into the north vestibule of the house. She placed one of the sacks on the second step up from the vestibule floor and carried the other sack .up the stairs to her apartment.

When she was at the grocery store a light mist was falling so that the walks were damp or wet and, when she returned home and entered the house, she did not wipe her shoes off on the rug on the vestibule floor, but came in over it. She did not attempt to turn on either of the light switches located to the right of the door, although she had seen and observed the location of the switches. There was enough light from the window so she could see to go up the steps. When she reached her apartment she walked through the living room of her apartment and back to the kitchen, where-she placed the groceries on a table and started back for the rest of the groceries. She used the light switch in the second-floor hall to turn on the top light above the second landing, but it did not throw any light on the lower steps. The first-floor light was not burning and, as stated, could not be turned on from the second floor.

When plaintiff started back down the steps for the other sack of groceries, she placed her right hand on the bannister, until she reached the first landing up from the vestibule; she turned to her right on the landing and started down the remaining three steps without holding to the bannister. On either the first or second step below this first landing, she started to turn to pick up her groceries and her foot slipped from the step and she fell, breaking her hip. She also testified: “I was coming down the steps when my foot slipped. * * * I just made this turn and my foot slipped out from under me. * * * I was looking toward my sack of groceries. * * * Oh, yes. I could see the steps, but then they weren’t lighted. It would be just like these steps if there was a shadow on them. * * * I could see the steps then because I guess my eyes had gotten used to what light there was there.” She also testified that, at the time she fell, while she could see the last three steps, she could not see them plainly “because the light was not on them and it was dark that afternoon.” When she fell, she had not actually bent over to pick up the groceries she had placed on the second step.

After defendant’s motion for a directed verdict had been overruled at the close of all the evidence, the plaintiff submitted a finding by Instruction No. 1, as follows: “ * * * that the defendants were the owners of the property located at 402 Center Street, Boonville, Missouri, and that on said property was located a two story residence made into four apartments, * * * that one of the second story apartments was rented and occupied by the plaintiff and that to said apartment were steps leading from the front door, which said stairway was used by the occupants of the upstairs apartments and the lower apartments as a common stairway, * * * and if you find that on April 29, 1960, the day plaintiff was injured, that said stairway and steps were worn, of uneven height and width, worn smooth on the edges of said steps and that said steps were varnished and thereby made slippery, if you so find; and that defendants failed to provide an electric switch at the top of said stairway that would turn on a light to illuminate the lower portion of said stairway, if you so find; and if you further find that because of the aforesaid conditions said steps and stairway were not reasonably safe for plaintiff to use, if so, and if you further find that said conditions as aforesaid had existed for such a period of time that the defendants knew, or by the exercise of ordinary care, should have known thereof in time to have remedied said conditions and made said stairway and steps reasonable safe to use, but that defendants failed to do so, and if you further find that defendants were thereby negligent; and if you find that as a direct result of defendants’ negligence, plaintiff, while descending said stairway and exercising ordinary care for her own safety, if so, plaintiff was caused to fall and be injured; and that plaintiff was not guilty of contributory negligence as submitted in other instructions herein, then your verdict should be in favor of plaintiff and against defendants.”

In her motion for a new trial plaintiff stated that she “did not submit her case on lack of light or illumination, but on defendants’ failure to (1) provide a light switch upstairs which would illuminate [sic] the downstairs portion of said stairway and (2) structural defects of said stairway.” She also states that improper lighting * * * was not an issue-in the case and had not been submitted to the jury.”

As stated, under Point I of their Points and Authorities, appellants contend that the trial court erred in not sustaining defendants’ motion for a directed verdict presented at the close of all the evidence. Supreme Court Rule 72.01, V.A.M.R. However, defendants have appealed from an order granting plaintiff a new trial and, under Point I, the defendants, as appellants, have made no reference to the Court order from which they took this appeal. Appellants admit that in considering a motion for a directed verdict the Court must take plaintiff’s evidence as true and give her the benefit of all favorable evidence and every reasonable inference that may be drawn from the evidence. Appellants, however, insist that this rule does not require the Court to give plaintiff the benefit of anything other than reasonable inferences; and that it does not relieve plaintiff from the burden of introducing substantial evidence tending to prove facts essential to a recovery on her claim. Appellants further argue that there is no substantial evidence tending to prove that the stairway in question was defective in any manner, or slippery or the lighting insufficient. Appellants cite Probst v. Seyer, Mo.Sup., 353 S. W.2d 798, 802, 91 A.L.R.2d 1252, holding that the finding of an essential fact necessary to plaintiff’s recovery may not rest upon guess work, conjecture or speculation beyond inferences reasonably to be drawn from the evidence; and Linneman v. Freese, Mo.Sup., 362 S.W.2d 585, 587, holding that no fact essential to liability may be found or inferred in the absence of a substantial evidentiary base therefor.

While appellants under this point have not mentioned the fact that their appeal was from the order granting plaintiff a new trial, we shall assume that the assignment was intended to be directed to that issue, because it has been repeatedly held that, if plaintiff failed to make out a submissible case for the jury on his claim, the errors, if any, in giving instructions or in the admission of evidence are immaterial, where the defendants have appealed from an order granting the plaintiff a new trial after verdict for defendants. In Graves v. Atchison, T. & S. F. Ry. Co., 360 Mo. 167, 227 S.W.2d 660, this Court held that, where defendants appealed from an order granting plaintiff a new trial after a verdict for defendants, in determining whether the trial court had properly awarded a new trial for error on the ground that the verdict was against the weight of the evidence, this Court would examine the record to ascertain whether there was sufficient substantial evidence to justify the submission of plaintiff’s case to the jury, or to sustain a verdict for plaintiff, the party to whom the new trial was granted. Other cases also hold that, if plaintiff did not make out a submissible case, the errors, if any, in instructions upon which the Court acted in granting the plaintiff a new trial are immaterial. Oganaso v. Mellow, 356 Mo. 228, 201 S.W.2d 365, 366 [1].

The only case cited by appellants with reference to a person falling on steps is the case of Heidland v. Sears, Roebuck & Co., 233 Mo.App. 874, 110 S.W.2d 795, 799 [2, 3], where the negligence charged was failure to have a rubber mat on a particular part of the floor of a store and where it was held that a customer in a store had a duty to look where she is walking, particularly when starting to go down steps; and that in a customer’s action against the store for injuries sustained from slipping and falling at the head of a basement stairway, where the evidence showed that the vestibule and stairway were properly lighted and were not defectively constructed and there was nothing to prevent the customer from seeing water on the steps (tracked in by other customers) which water might cause her to slip, and the customer did not look at the steps or floor which were wet because of the rainy weather, established that the customer was guilty of negligence contributing to her injury and barred recovery. That case also quotes from a case stating that “Generally speaking, the rule is that the owner of premises is liable to an invitee, using due-care, for an injury to him occasioned by the unsafe condition of the premises which is actually or constructively known to the owner but not to the invitee, which the owner has negligently suffered to exist, and of which the invitee has no knowledge- or notice.” English v. Sahlender, Mo.App., 47 S.W.2d 150, 153 [1, 2].

The rule is not applicable here, where we are dealing with the duty of a landlord to provide a reasonably safe means of ingress and egress over a common stairway provided for the use of several tenants. Peterson v. Brune Realty Co., Mo. Sup., 273 S.W.2d 278, 280, and cases therein cited; Feld v. Frankel, Mo.Sup., 351 S. W.2d 755, 757; Taylor v. Hitt, Mo.App., 342 S.W.2d 489, 493.

In Barber v. Kellogg, Mo.Supp., 123 S.W.. 2d 100, 102, the Court held that where the landlord undertakes to furnish lights in a common hallway he must exercise reasonable care and will be liable for injuries toi persons lawfully upon the premises who-are injured by reason of the landlord’s, negligence. In that case the petition-charged that “the defendants were negligent in failing to furnish an electric light switch at the second floor of the apartment to enable the tenants to turn on the lights in the lower hall; that the light at the second floor was insufficient to light the lower part of the steps due to the right-angle turn in the stairway.” (123 S.W.2d 100, 102.) The Court held: “We do not mean to hold that the evidence showed negligence as a matter of law, but it would not be unreasonable for a jury to find that ordinary care required a switch at the second floor so that a person, as plaintiff in this case, could turn on the light before descending the steps.”

We have hereinbefore reviewed the evidence in the record which tends to show that the first three steps up from the vestibule were worn until they were “round on the edge”; that they were stained dark, varnished and waxed; that they varied in width and height (or rise) ; and that plaintiff’s foot slipped on either the first or second step and she was caused to fall and sustain injuries. The evidence further shows that there was no way to light the lower steps from the second floor. The evidence was sufficient to infer notice to the landlord of the condition of the steps and the location of the lighting switches. The duty of inspection was on the landlord. Kroeker v. Stecken, Mo.App., 31 S.W.2d 229, 230 [1, 2],

“Negligence does not become a question of law alone unless the acts upon which its existence depends are of such character that all reasonable men would concur; and where different conclusions can be drawn from the evidence, it .is a jury question.” Steele v. Woods, Mo.Sup., 327 S.W.2d 187, 200.

We think an inference could be drawn from these facts that the steps were slippery and not reasonably safe; and that the evidence in the record was sufficient to support the submission of defendants’ negligence as made by plaintiff’s Instruction No. 1, hereinbefore set out.

Appellants further insist that plaintiff was guilty of such contributory negligence, as to bar her from right of recovery as a matter of law, citing In re Thomasson’s Estate, 346 Mo. 911, 144 S.W. 2d 79, 91, which is not a negligence case. Appellant’s theory is that plaintiff is barred by her own testimony. Appellants insist that “plaintiff expressly testified that she (1) started using the stairway without the aid of artificial light, although she knew of the location of the switches; (2) failed to use the bannister in her descent after reaching the lower landing, and (3) turned to her right on one of the steps below the lower landing while failing to use the bannister.”

There was no evidence tending to show that the danger from the use of the steps was so obvious that plaintiff should not have used the stairway. Plaintiff’s testimony failed to show contributory negligence as a matter of law. Roman v. King, 289 Mo. 641, 233 S.W. 161, 166 [11] [12], 25 A.L.R. 1263; Brandt v. Thompson, Mo. Sup, 252 S.W.2d 339, 341 [1] [2, 3]; Gentili v. Dimaria, Mo.App, 89 S.W.2d 93, 95 [2]; Dalton v. John Maguire Real Estate Co, Mo.App, 221 S.W. 443, 446 [8, 9]; Lewis v. Gershon, Mo.App, 335 S.W. 2d 522, 524—525. Further, the failure of plaintiff to continue to use the handrail did not constitute contributory negligence as a matter of law. Stafford v. Fred Wolferman, Inc, Mo.Sup, 307 S.W.2d 468, 474 [5-6]; Monsour v. Excelsior Tobacco Co, Mo.App, 115 S.W.2d 219, 223 [9, 10]; Savona v. May Dept. Stores Co, Mo.App, 71 S.W.2d 157, 159 [4, 5]. Nor did plaintiff’s use of the steps without proper lighting constitute negligence as a matter of law. Swanson v. Godwin, Mo.Sup, 327 S.W.2d 903, 910 [6, 7].

On the record presented the issues of negligence and contributory negligence were for the jury. The Court did not err in refusing to direct a verdict for defendants at the close of all the evidence, hence the Court did not err in granting plaintiff a new trial, if there were errors in the instructions, a matter which we must now consider.

As stated, the trial court granted plaintiff a new trial, after verdict for defendants, on the ground that certain specified instructions “failed to contain proper and sufficient factual hypothesization of the evi-dentiary facts.” Plaintiff in her motion for a new trial charged that “Said Instructions D-4, D-5, and D-6 and D-ll are erroneous because said instructions did not hypothesize an essential evidentiary fact in that said instructions made no mention of the condition or structural make-up of said stairway.” Numerous other objections to defendants’ instructions were made in plaintiff’s motion for a new trial, some of which she now urges in support of the Court’s action in granting her a new trial.

Plaintiff, as respondent, summarizes her complaints against the mentioned instructions, as follows: “All of said instructions failed to hypothesize any facts or to detail and mention the condition of the steps or that plaintiff knew or should have known that to use the stairway would likely cause her injury. Said instructions enabled the jury to find the plaintiff contributorily negligent if the jury found that the following bare statements were true, namely: In D^4, ‘ * * * that the plaintiff failed to look where she was walking as she descended from the lower landing of the stairway mentioned in the evidence.’ In D-S, plaintiff, ‘ * * * after reaching the lower landing of said stairway failed to use or place her hand on the handrail as she continued to descend said stairway’, etc. In- D-6, ‘ * * * plaintiff should have known of the existence of the light switch in downstairs hall, which light switch controlled the light in the downstairs hall and that plaintiff failed to operate said light switch and voluntarily chose to use said stairway without artificial light in said entrance hall.’ In D-l 1, ‘ * * * plaintiff, in descending the stairway from the lower landing, before reaching the bottom of the stairway, started to turn to her right on one of the steps, and failed to exercise ordinary care in so doing1, etc. In none of these instructions is any mention made of the condition of the stairway, one of plaintiff’s conjunctive submissions, nor of the failure to provide a light switch at the top of the stairs which would illuminate the bottom (where plaintiff fell).”

Respondent argues that “in D^4, if plaintiff failed to look, no matter what the condition of the stairs or the failure to provide lights, she could not recover; in D-5, if plaintiff failed to use the hand-rail, she could not recover, no matter what the condition of the steps or the lights. In D-6, if plaintiff failed to use the switch downstairs and to use the stairs without light, she could not recover — no matter what the condition of the stairs and in D-ll, if plaintiff ‘started to turn to the right’ (nothing more) and failed to exercise care in so doing, she could not recover, no matter what the condition of the stairs or the lighting.”

Appellants insist that the Court erred in granting plaintiff a new trial because each of the mentioned instructions “fully hypothesized all essential evidentiary facts for a finding on contributory negligence.” In further support of these instructions appellants cite numerous invitee-landowner or possessor cases such as Dietz v. Magill, Mo.App., 104 S.W.2d 707, 710, 712 and Smith v. Alaskan Fur Co., Mo.Sup., 325 S.W.2d 740, 745, but the rule of law governing contributory negligence in an action by an invitee against a landowner or possessor of real estate is not the same as the rule governing contributory negligence as between a tenant and his landlord. We will now consider such cases.

In the case of Roman v. King, supra, 233 S.W. 161, 165, the Court pointed out that the “Mere continued use of a common passageway, after knowledge of its dangerous condition, is not of itself conclusive evidence of a lack of due care on the part of the tenant, since such knowledge does not require the tenant to desist from using same in a careful manner, nor render the careful use of same contributory negligence.”

In Brewer v. Silverstein, Mo.Sup., 64 S. W.2d 289, 291, the Court said: “Although plaintiff knew the step was defective, yet, if she reasonably believed she could, with care, safely go upon it, her knowledge of its defective condition did not require her to desist from using it nór reñder' the careful use thereof negligence on her part.”

In Lewis v. Gershon, supra, 335 S.W.2d 522, 524, the Court pointed out that in case of a tenant’s action against the landlord “actionable negligence may exist even though the injured jarty may be aware of the defect and its dangerous potentialities.” The Court also said: “In a business invitee case, plaintiff’s knowledge of the existence of a dangerous condition constitutes a defense to an action for injuries. But, in a landlord-tenant case, plaintiff’s knowledge of a defect in the premises is of force only in so far as it bears upon his contributory negligence; and a finding that he had no knowledge thereof is not an essential element of his cause of action. * * * He may have some knowledge of a defective condition in the premises and, nevertheless, use them, providing that he exercises due care in view of the hazard, unless it is of such a dangerous character that no reasonable person, in the exercise of due care, would use them.”

In Gaines v. Schneider, Mo.App., 323 S. W.2d 401, 404 [2], the Court pointed out that “the continued use by a tenant of a portion of the premises which is defective and which it is the landlord’s duty to repair, does not, standing alone, convict the tenant of contributory negligence as a matter of law if he continues to use the same, provided it reasonably appears that he can safely do so with the exercise of care. * * * Unless the defective condition is so open, obvious and dangerous (what is described in some cases as ‘glaringly dangerous’) that it can be said that no reasonably prudent person would have done as the injured party did, the issue of contributory negligence is one for the jury.” And see Coats v. Sandhofer, Mo.App., 248 S.W.2d 455, 458 [5, 6].

In ruling appellants’ contention that the trial court erred in overruling defendant’s motion for a directed verdict, we have reviewed the evidence in a light favorable to plaintiff. It now becomes necessary to state that defendants’ evidence tended to show that there was no wax on the steps; that the Venetian blinds on the door were never closed; that the drapes on the door were white and narrow; that the steps of the stairway were regularly cleaned by hand; that they had not been varnished for two years; that the design and construction of the steps conformed to the custom and practice of the locality and was proper; that the use of varnish was recognized as an acceptable practice; that varnish did not make steps slippery, nor was varnish considered slippery material; and that the steps were in good condition and the stairway well lighted when plaintiff fell.

Disregarding the conflicts in the evidence with reference to the condition of the steps, defendants’ Instruction D — 4 submitted to the jury a finding as follows: “ * * * you are instructed that if you find and believe from the evidence, that the plaintiff failed to look where she was walking as she descended from the lower landing of the stairway mentioned in the evidence, * * * and if you further find that by the exercise of ordinary care, she saw, or could have seen the condition of said stairway below said lower landing, if so, and she thereby failed to exercise the care which an ordinary prudent person would have exercised under like or similar circumstances, and if you find that by reason of the foregoing, the plaintiff was negligent, and if you find that such negligence (if you find plaintiff was negligent), directly and proximately caused or contributed to the plaintiff’s injuries, then your verdict should be for the defendants regardless of what you find with respect to the conduct of the defendants submitted in other instructions.” (Italics ours.)

There was no evidence in the record that “plaintiff failed to look where she was walking as she descended from the lower landing,” nor that she did not see the condition of the stairway below said lower landing, but the instruction submitted no finding as to the condition of the steps from which an inference could be drawn that plaintiff failed to exercise ordinary care or that she was negligent in using the said stairway. In determining "the condition of said stairway below said landing” the jury was not' required by the instruction to find the facts in conformity to either plaintiff’s evidence or defendants’ evidence.

The defects in Instruction No. 4 are somewhat similar to an instruction. considered by the Court in Douglas v. Douglas, Mo.Sup., 255 S.W.2d 756, 759, where an instruction failed to hypothesize the facts constituting the “condition of the floor,” although using those words, when there were two totally different versions of “the condition of the floor” shown by the evidence. And see Thaller v. Skinner & Kennedy Co., Mo.App., 339 S.W.2d 487; Russo v. Garrison, Mo.App., 357 S.W.2d 257, 259 [1]; Voyles v. Columbia Terminals Co., Mo.App., 239 S.W.2d 559, 561 (second instruction). While these cases are not tenant-landlord cases, nevertheless, they well illustrate the defects in the instruction now under consideration, D-4.

While the amended petition charged that the defendants “failed to provide an electric [light] switch at the -top of said stairway that would turn on a light to illuminate the lower portion of said stairway” and said issue was supported by evidence and submitted by plaintiff’s instruction, and while plaintiff had only used these stairs on two prior occasions and had not been instructed as to the lighting provided, and she had no knowledge as to the lights controlled by the two switches to the right of the outside entrance door, nevertheless, the defendants’ offered and the Court gave Instruction No. 6 submitting a finding, as follows:

“ * * * that if you find and believe from the evidence that on the occasion mentioned in evidence that the plaintiff, in the exercise of ordinary care should have known of the existence and location of the light switch in the downstairs hall mentioned in the evidence, which light switch controlled the light located in the downstairs hall, if you so find, and if you further find that plaintiff failed to operate said light switch and voluntarily chose to use said stairway without artificial light in said entrance hall and in so doing failed to -exercise ordinary care, if you so find, then the Court instructs you that the plaintiff assumed whatever, if any, risk arose from the lack of such artificial light in said entrance hall,' and that plaintiff is not entitled to recover against the defendants on account of any alleged lack of light on said stairway.”

As stated, appellant relies on the Dietz and Smith cases which do not control the issue of contributory negligence as applicable to plaintiff in this case. Instruction D-6 is clearly erroneous on the basis of the landlord-tenant cases hereinbefore referred to. The evidence did not show the steps in question to have been so obviously dangerous that plaintiff should not have used the stairway provided for the common use of the several tenants. “The duty of inspection was on the landlord, not on the tenant, and if the stairway was not obviously unsafe, the latter assumed no risk in using it.” Dalton v. John Maguire Real Estate Co., supra, 221 S.W. 443, 446 [8, 9]. the instruction further directly conflicted with one of plaintiff’s assignments of defendants’ negligence, to wit, in failing to provide a light switch as charged in her amended petition, and submitted by Instruction No. 1, and supported'by Barber v. Kellogg, supra.

It will not be necessary to set out or further review the other .instructions mentioned in the order granting a new trial to plaintiff. It is sufficient to say that in the event of another-trial defendants may redraft the several instructions to conform to the law of the case.

The order granting a new trial to plaintiff is affirmed.

All concur.