author: HYDE, Judge.

text:
    August A. BUSCH, Jr., and Mercantile Trust Company, as Trustees under Indentures of Alice E. Busch, Deceased, dated February 14, 1939 and December 11, 1939, Plaintiffs, v. John Overton DOZIER and Daniel Bartlett, Sr., as Trustees under the Will of Elizabeth Overton Busch, Deceased, Lilly Marie Christy Busch Hermann, et al., by Gertrude Buholzer Busch, their guardian ad litem, in their own right and as representatives of the class of persons who may constitute the “next of kin" of the descendants of Lilly Marie Christy Busch Hermann, Carlota Clark Chouteau Flanigan, Elizabeth Overton Busch, Jr. (Burke), August A. Busch III and August A. Busch, Jr., Defendants.
    No. 49854.
    Supreme Court of Missouri, Division No. 1.
    Jan. 13, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Feb. 10, 1964.

      William Stix, Daniel Bartlett, Jr., St. Louis, for appellants.
    Lewis, Rice, Tucker, Allen & Chubb, Joseph W. Lewis, Charles L. Edson, Daniel E. Singer, St. Louis, for respondents Her-mann and others.
   HYDE, Judge.

Action for declaratory judgment to determine rights of the parties and instruct trustees. The principal issue is whether there was a valid exercise of powers of appointment given Elizabeth Overton Busch, now deceased, by Trust Indentures of Alice E. Busch, now deceased. The court found that Elizabeth did not validly exercise the powers and the trustees named in her will, John Overton Dozier and Daniel Bartlett, Sr., and her children by her first marriage. John Overton Dozier, Lewis David Dozier III and Marya O’Fallon Dozier, have appealed. We have jurisdiction because of the amount involved, more than $50,000.00 in accumulated income being in dispute when the decree was entered as well as the ownership of the appointive assets.

In 1939, Alice E. Busch (Mrs. August A. Busch, Sr.) executed two Trust Indentures establishing five separate trusts, her son August A. Busch, Jr., being one of the two trustees. Elizabeth Overton Busch (hereinafter called Elizabeth), then the wife of August, Jr., was the beneficiary of one trust, her two children by August, Jr., (Elizabeth Jr. and August III) were beneficiaries of two of these trusts and two children of August A. Busch, Jr., by his first marriage (Lilly Marie Christy Busch Hermann and Carlota Clark Chouteau Busch Flanigan) were beneficiaries of the other two trusts. The five children of August A. Busch, Jr., by his third marriage, are the other defendants herein. The assets of these trusts were mainly trust certificates for Anheuser-Busch stocks. Elizabeth was divorced from August A. Busch, Jr., at the time she made her will herein involved.

The trust created by Mrs. Busch, Sr., in each indenture for Elizabeth contained the following provisions (Sec. 7, Article Second) concerning succession:

“Upon and after the death of Elizabeth Overton Busch, wife of August A. Busch, Jr., the Trustees shall hold or dispose of the entire principal and undistributed net income, if any, of said separate trust estate hereby created for her, in such manner, to or for the benefit of such persons, in such amounts or proportions, and subj ect to such further trusts if any, and in every event subject to such terms, conditions and limitations as said Elizabeth Overton Busch shall have appointed by her last will^ provided, however, that such appointees are either descendants of August A. Busch, Jr., or descendants of said Elizabeth Overton Busch by her first marriage; and provided further that each such appointment and all successors in title in default thereof, shall keep all the shares of stock in Anheuser-Busch, Incorporated, and in related companies, in trust hereunder and subject to the voting powers in trust that are described in Article Fourth of this indenture during the life of said voting powers as provided in said Article Fourth; in the event that no such testamentary appointment shall have been made, or if made, shall not have appointed all of her said trust estate or interest therein, then the trustees shall distribute her said unappointed trust estate or interest therein, and the undistributed income thereof, in equal shares, per stirpes, among the other separate trust estates then held in trust hereunder, namely: (a) the separate trust estate existing under this indenture for the benefit primarily of each of the above named children of August A. Busch, Jr.; (b) each of the other trust estates, if any, existing hereunder for the respective descendants of any deceased children of August A. Busch, Jr.
“If any of said separate trust estates or interest therein shall prior to the death of Elizabeth Overton Busch, have been distributed to the beneficiary or beneficiaries thereof, then the said share that would pursuant to the foregoing provision have been added to said distributed trust estate or interest therein had the same not theretofore been distributed, shall be distributed by the trustees to the same persons or to their executors, administrators or assigns or next of kin, and in the same proportions in which, said earlier distribution was made.
“All the above and the later provisions herein, for the distribution of the principal, shall, unless otherwise expressly provided in the particular instance be given effect subject to the requirement that all shares of stock in Anheuser-Busch, Incorporated, and in related companies, shall remain in trust hereunder to protect the voting powers in trust that are described in Article Fourth in this Indenture during the life of said voting powers as provided in said Article Fourth.” (Emphasis ours.)

Elizabeth’s will contained the following reference to power of appointment: “All the rest, residue, and remainder of my estate, of whatever kind, real or personal, and wherever situated, whether in possession, right of possession, or expectancy, including all property and interest in property in respect to which I may have at the time of my death the power from any sources to appoint the disposal of by my will, I hereby give, bequeath, and devise unto my son, John Overton Dozier, and Daniel Bartlett, Sr., a member of the St. Louis Bar, as trustees, to hold the same IN TRUST for the following uses and purposes.” (The beneficiaries of this trust were Elizabeth’s five children, three by her first marriage and two by her marriage to August A. Busch, Jr., all treated equally.)

The contentions of the parties are:

Appellants say: “(1) The evidence of intention to exercise is overwhelming, because Elizabeth’s Will says that she is appointing ‘all property over which she had the power of disposal from any sources,’ she concededly knew that she had the powers in question, and the life estates and preferred remainders are within the limits established by the Indentures.
“(2) Elizabeth did exercise the powers in a manner complying with all requirements of the Indentures, because
“(a) Neither specific reference to the Indentures nor letter-perfect congruence with their scheme is anywhere required by them; and (b) While, and also because, the Indenture Trustees are. directed to hold the Anheuser-Busch stock in trust under the Indentures for the duration of the ‘voting powers in trust,’ the Indentures do not require meaningless repetition of that requirement by Elizabeth’s Will, and even if they did, equity would here cure such a minor omission.”
Respondents say: “1. Elizabeth did not in her Will validly exercise her power of appointment because she failed to meet the requirement of the Indentures that her appointment keep the Anheuser-Busch stock in trust thereunder and her purported appointment failed to comply with other restrictions therein set forth.
“2. Even assuming that Elizabeth in her Will met all the requirements set forth in the Indentures with respect to the exercise of her power of appointment, nevertheless, the evidence is insufficient to establish that Elizabeth in her Will intended to exercise such power.”

The trial court’s decree found in accordance with respondents’ contentions that Elizabeth “did not, in her Last Will and Testament, validly exercise, in whole or in part, the powers of appointment granted to her under the Indentures” and that appellants “failed to establish by a preponderance of the credible evidence an intention on the part of said Elizabeth Overton Busch, deceased, to exercise, in whole or in part, the powers of appointment conferred upon her under the Indentures.”

Respondents point out that the provisions of the trusts for the grandchildren of Mrs. Busch, Sr., (Sec. 8 of Article Second), although granting them powers of appointment, did not contain the provision herein-above italicized in the provisions of the trust for Elizabeth. However, the interest held in trust for each child was to be “subject to such terms, conditions and limitations, as said child of August A. Busch, Jr., shall have appointed by her or his last will, but subject to the provisions of the last sentence in Section (7) last above; provided, however, that such appointees are ‘members of the family’ as hereinafter defined, of said deceased child of August A. Busch, Jr.” Section 8 stated twice again that all distributions of these grandchildren’s shares should be “subject to the provisions of said last sentence in Section (7).” This sentence is the last sentence of the provision for Elizabeth’s power of appointment, here-inabove set out.

Article Fourth (referred to by this last sentence) directed the trustees “to vote all such shares of stock if and while held in trust hereunder, for such directors, officers, propositions and measures as said trustees may he directed from time to time by Adol-phus Busch III and August A. Busch, Jr., (sons of the settlor) while both are living.” It further provided that if one of the sons died (Adolphus died in 1946) the trustees should vote the stock as the surviving son directed but that after the death of both sons the “stock shall become free from the foregoing special provisions relating to voting the same.” There were other provisions for termination of the special voting powers, such as the sons being no longer interested in the company, liquidation, merger or exercise of discretionary authority granted to the trustees and the sons or the survivor of them to terminate.

Respondents contend that, to make a valid exercise of the power of appointment, Elizabeth was required to provide in her appointment some provision to keep the Anheuser-Busch stock in trust. They say “this requirement must mean more than that the Anheuser-Busch stock is to remain in trust under the Indentures.” They say that was all that was required of the grandchildren but that the provisions for Elizabeth’s power of appointment required her to specifically provide for keeping this stock in trust. They further argue that her failure to do so shows she did not intend to exercise the powers of appointment given her by Mrs. Busch, Sr. They also say that her designation of ineligible contingent re-maindermen, hereinafter discussed, shows that she did not intend to exercise these powers.

The American Law Institute, Restatement of Property, Sec. 341, states: “When the donee in a deed or will declares in substance that he exercises all powers that he has, this manifests an intent to exercise all such powers, including special powers.” See also American Law of Property, Sec. 23.38; 72 C.J.S. Powers § 40, p. 442; 1 Sugden on Powers, 3rd Ed., 416, Sec. 639. There hardly could be a blanket appointment in broader terms than “all property and interest in property in respect to which I may have at the time of my death the power from any sources to appoint the disposal of by my will.” So far as the record shows, Elizabeth had no other power of appointment than the ones given her by Mrs. Busch, Sr., and it is conceded that she knew of these powers.

In Pitman v. Pitman, 314 Mass. 465, 50 N.E.2d 69, 150 A.L.R. 509, the rule of Sec. 341 of the Restatement of Property was cited and followed. The court said: “Pit-man made no specific mention in his will of the power created by the twelfth article, but his will contained a residuary clause devising and bequeathing his own property and that over which he had a power of appointment ir. equal shares to his three children, and if the exercise was valid the minor appointees would be freed from the limitations placed on them in &e case of a default of appointment. * * * The only property subject to a power to which the residuary clause could relate was the trust fund created by the twelfth clause of his mother’s will. * * * We think that his declaration that he was disposing of property over which he had a power of appointment, when he had no powers other than special or limited powers, manifests an intention to exercise the special power created by the twelfth article of the donor’s will and that he has done so.”

In the more recent case of Frye v. Loring, 330 Mass. 389, 113 N.E.2d 595, the will involved had a preamble stating “this to be my last will of all property of which I may die seized or possessed, or over which I may have any power of testamentary disposition at the time of my decease.” The will appointed to the testator’s wife income during her lifetime of the property to which the power of appointment applied but made no other reference to the power. However, the residuary clause gave his wife “all the rest, residue and remainder of my estate, wherever situated, real or personal, in trust or otherwise.” The court citing Sec. 341 of the Restatement of Property said: “Obviously the power was not exhausted by the appointment of a life interest by the third paragraph. Giving his intention expressed in the preamble full effect, as we must, we can only conclude that the unappointed interest subject to the power was disposed of in the residuary clause.” See also the following early Missouri cases which are in accord with the principles herein discussed: Bredell v. Collier, 40 Mo. 287, 328; Campbell v. Johnson, 65 Mo. 439; Papin v. Piednoir, 205 Mo. 521, 104 S.W. 63.

Our conclusion is that the rule of Sec. 341 of the Restatement of Property is applicable here and that the intent of Elizabeth to exercise the powers, given her in the Indentures of Mrs. Busch, Sr., is sufficiently manifested. We also conclude Elizabeth was not required in her appointment to provide for an additional voting trust for the Anheuser-Busch stock in order to make a valid exercise of these powers. Instead we consider the provisions of the Indentures for the Anheuser-Busch stock to be held in a voting trust were adequate and self enforcing for the purposes stated and required no consent, reaffirmation or creation of a separate additional voting trust by any of the trust beneficiaries to keep them in effect. These provisions in effect were made part of all authorized appointments, as limitations on the rights of all who could take .under them. Elizabeth had no power to change or limit them and nothing she could do in exercising her power of appointment could have any effect to do so. She and anyone claiming under her appointment took an interest in the stock subject to these provisions as to voting rights. Thus our .view is that this provision (“shall keep all shares of stock * * * in trust hereunder and subject to the voting powers in trust that are described in Article Fourth”) means that an appointment left the stock in trust under the voting trust established by the Indentures and that is all it means. Therefore, Elizabeth could add nothing to it by mentioning it or take anything away from it by not mentioning it. This is evident because the provision applied equally to an appointment made by Elizabeth and to “all successors in title in default” of an appointment by her, who were also required to “keep all the shares of stock * * * in trust hereunder.” Respondents have not claimed that, if she made no appointment, her successors in title would have to set up another voting trust for this stock before they could take the interests given them in default of an appointment by her or explain how they should do so. Thus we construe the provision “keep in trust * * * hereunder” to mean that anyone taking Elizabeth’s interest, either by her appointment or if no appointment as her successors in title, would hold the stock described under the Indentures and “subject to the voting powers that are described in Article Fourth” thereof.

Respondents make the further contention that the residuary section of Elizabeth’s will ignored and was in conflict with the requirements of the Indentures for her appointments in the following respects.

First: Elizabeth’s residuary trustees are given power to vote all stocks. However, Elizabeth had other stock and other property that went to these trustees and, under our construction of the voting trust provisions of the Indentures, these trustees would have no authority to vote any of the stock included in the voting trusts established by the Indentures until after their termination.

Second: Elizabeth’s residuary trustees were given power to sell her stocks. This power likewise is subject to the provisions of the Indentures for the stock included in these established voting trusts to remain under the voting trust provisions.

Third: Elizabeth’s will authorized distribution of stocks held in trust for any child of hers on the death of such child. This also would be subject to the provisions of these established voting trusts as to stocks included therein.

Fourth: The Indentures required that Elizabeth’s appointees must be either descendants of August, Jr., or descendants of Elizabeth by her first marriage. Respondents say that Elizabeth’s will provided for ineligible takers. Her will provided for her residuary trust estate to be divided into five equal shares, one for each child surviving her, with the income to be paid to them during their lives. Her will also provided that at the death of any child his share should go to his children or descendants if any survive him and otherwise to her other children or their descendants surviving.

Her will further provided for retaining in trust the share of any descendant, of a deceased child of Elizabeth, until he was 21 and that if such descendant should die before 21, his share should go “to the persons who may then be his or her heirs at law.” Such heirs could be persons who were not descendants of August, Jr., or descendants of Elizabeth by her first marriage. Her will also provided: “If all of my said children should die without leaving lineal descendants to take the trust estate, then upon the death of the last survivor of them, the entire trust estate shall go to those persons who may then be my heirs at law according to the laws of the State of Missouri then in force.” Such heirs, of course, would not be descendants of August, Jr., or of Elizabeth by her first marriage.

Although these contingent remainders could result in ineligible takers being the persons designated to take under Elizabeth’s will, this does not necessarily make her appointment invalid. These were very remote contingencies and Elizabeth had other property in these trusts which could go under these contingent remainders. “An attempt to exercise a power in excess of its terms is good within the limits of the power, unless the authorized and unauthorized parts are inseparably connected.” 72 C.J.S. Powers § 47, p. 459. This same principle was stated in 2 Sugden on Powers, 3rd Ed., 57, Sec. 62, in 1856, as follows: “Where a partial interest is given to an object of the power with remainders to persons not objects of it, and the doctrine of cy pres cannot be applied, yet the whole appointment will not be void, but merely that part which is not authorized by the power. This rale is observed as well at law as in equity.” See also Tiffany Real Property, Sec. 702, and cases cited; American Law of Property, Sec. 23.50; 41 Am.Jur. 861, Powers, Sec. 76; annotation 121 A.L.R. 1226.

In re Sessions’ Estate, 217 Or. 340, 341 P.2d 512, 529, citing many authorities, states: “The weight of authority is to the effect that a disposition of property under a power of appointment will not be held invalid in toto because a provision thereof is violative of the power, provided the invalid provision is severable from the valid provisions.” 41 Am.Jur. 862, Powers, Sec. 79, states: “Almost invariably the appointment of a life interest in itself valid is held good notwithstanding the remainder is ill appointed.” Surely this should apply to such contingent remainders as those in this case. For a case holding appointment invalid as to ineligible life tenants but valid as to the remainder, see Central Hanover Bank & Trust Co. v. Hutchinson, 22 N.J.Super. 78, 91 A.2d 654.

Sec. 362, Restatement of Property, states the rule thus:

“Where one part of an appointment is ineffective but another part would, if standing alone, be effective, such other part is given effect unless (a) the two parts are so mingled that it is impossible to fix the line of division between them, or (b) the donee’s scheme of disposition is more closely approximated by allowing both parts to pass in default of appointment than by treating as valid the latter part of the appointment and allowing only the property covered by the former part to pass in default.” (See Illustrations 1 and 2, IV, as to appointments to ineligible takers.)

Our conclusion is that Elizabeth’s appointments in trust for her five children, who were descendants of August, Jr., or of her by her first marriage, clearly authorized by the Indentures, were entirely severable from any designation of contingent remain-dermen who would be ineligible takers and that her scheme of disposition to her own children was her principal purpose in no way dependent upon the provisions for the contingent remainders. We, therefore, hold Elizabeth’s exercise of her powers of appointment valid.

The judgment is reversed and the cause remanded with directions to enter a judgment conforming with the views herein expressed.

All concur.


source: Caselaw Access Project

author: WELBORN, Commissioner. PER CURIAM.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Lester KING, Appellant.
    No. 50009.
    Supreme Court of Missouri, Division No. 1.
    Jan. 13, 1964.
    Rehearing Denied Feb. 10, 1964.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, Edward A. Glenn, Sp. Asst. Atty. Gen., Louisiana, Mo., for respondent.
   WELBORN, Commissioner.

This is an appeal by Lester King from.a judgment of conviction in the Saline County Circuit Court on a charge of offering violence to a guard of the Department of Corrections, an offense defined by Section 216.460, RSMo 1959, V.A.M.S. A jury found the appellant guilty and the court, acting under the Habitual Criminal Act, fixed his punishment at five years in' prison. After a motion for new trial had been overruled, an appeal was taken to this court. Appellant was represented by court-appointed counsel in the circuit court. No brief has been filed on behalf of appellant in this court and we, therefore, on this appeal consider the matters in his motion for new trial which properly preserved questions for review.

Section 216.460, RSMo 1959, V.A.M.S., under which the appellant was charged, reads as follows:

“If several prisoners combine or any single prisoner offers any violence to any officer, guard or employee of the state department of corrections, or to any inmate, or does or attempts to do any injury to any building or workshop, or other property, each of such persons is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in an institution to which he may be assigned by the state department of corrections for not less than two nor more than five years.”

The information filed in the Cole County Circuit Court charged that, on December 24, 1961, the appellant, acting with fellow convicts, Rollie Laster, Jacob Eugene Wein-rich and Thomas Wendell Rea, feloniously offered violence to John Iven, a guard at the Department of Corrections, by threatening him with bodily harm by means of knives which they held in their hands. Upon application of three of the defendants, including the appellant, change of venue to the Saline County Circuit Court was ordered on April 16, 1962. On May 14, 1962, the Saline County Circuit Court appointed two members of the Saline County Bar to represent the defendants. On November 20, 1962, on motion of the appellant, separate trials were ordered and his case set for trial January 15, 1963.

At the trial, the state’s evidence showed the appellant had been convicted in the Cole County Circuit Court, on change of venue from Phelps County, of robbery, first degree, in November, 1955, and sentenced to fifteen years’ imprisonment and that, on December 24, 1961, he was confined in the Missouri State Penitentiary under that sentence.

John Iven, a guard at the Penitentiary, testified that, as a part of his duties, he drove a truck into the Penitentiary proper, on December 24, 1961, to pick up a load of bread for L-Hall, which is located outside the Penitentiary walls. After picking up an inmate driver inside the walls, he proceeded to the loading dock. While Iven waited on the dock for the driver to go to the bakery and pick up the bread, King, Laster, Rea and Weinrich surrounded him, with King and Laster standing in front of him, each holding a “shiv”, or homemade knife, in Iven’s side. Iven was ordered by the men to go to a toilet where they demanded his keys and whistle. When Iven told them that the driver had the keys, appellant ordered him to take off his overcoat, jacket and shirt, which were searched for the keys. When the driver returned to the dock, he was seized and brought to the toilet and the keys taken from him. Iven was then ordered by King to put his clothes on and was told by him “we are going out of here — you are going to drive us.” According to Iven, King put the blade to Iven’s back and marched him to the truck. King opened the door and, holding the blade in his hand, told Iven to get in. When Iven delayed, King shoved him into the seat and King got in under the wheel with the other three inmates in the rear of the truck. The truck was driven to a remote spot where the convicts tried to figure out where they would ride in the truck. One got in the bread box and Laster lay down on the floor boards by the front seat where he held a “shiv” on Iven. Iven was ordered by King and Laster to “drive them out of the penitentiary.” Iven drove to a tunnel gate where he stopped, telling Laster he had to get clearance to go through the tunnel. He turned off the ignition and ran to the tunnel door where a guard was stationed. He told the guard he was in trouble and called the Control Center. Subsequently, the four participants were apprehended, identified by Iven and charged with the offense here involved and also charged with attempted escape, in violation of Section 557.351, RSMo 1959, V.A.M.S.

One of the matters raised by appellant’s motion for new trial is a charge of error on the part of the trial court in overruling appellant’s motion to quash the information on the grounds that the conviction of appellant on the charge of attempted escape “arose out of and was a part of and merged with the instant charge * * * and for such reason Defendant would be twice in jeopardy if prosecution of Defendant is permitted under the information filed in this cause.” The conviction, on October 9, 1962, on the charge of attempted escape, in the Montgomery County Circuit Court on change of venue, was affirmed November 11, 1963. State v. King, Mo., 372 S.W.2d 857. The facts set out in the opinion in that case indicate that the evidence was essentially the same in both cases.

In determining whether or not a person may be charged with more than one offense arising out of a single transaction, we adhere to the rule that entirely distinct and separate offenses are not to be held merged because they happen to grow out of the same transaction. State v. Moore, 326 Mo. 1199, 33 S.W.2d 905, 907(4). In that case, the court held that, following a conviction for murder in the first degree for a killing in a robbery, the defendant could still properly be tried and convicted for the robbery. In that case, the court stated: “Murder and robbery are not and cannot be the same offense. It may be that during the same transaction both offenses are committed, yet they remain separate and distinct offenses and are not the same offense.” 33 S.W.2d 907.

Likewise, attempted escape and offering violence to a prison guard are separate and distinct offenses. Clearly either could be committed without necessarily involving the other. In this case, both were involved in the same transaction. However, just as in State v. Moore, the fact that both were so involved does not produce a merger of the two offenses. Therefore, the motion to quash was properly overruled. See also State v. Bobbitt, 228 Mo. 252, 128 S.W. 953, 959; State v. Chernick, Mo.Sup., 278 S.W.2d 741, 746(2, 3); State v. Ashe, Mo., 350 S.W.2d 768.

Appellant complains that the trial court erred in overruling his motion for a continuance to permit study of his physical and mental condition. As above mentioned, counsel for appellant were appointed by the Saline County Circuit Court on May 14, 1962. On November 20, 1962, after separate trials had been ordered, appellant’s trial was set for January 15, 1963. On January 14, 1963, appellant’s counsel filed a motion for continuance, alleging that “said Defendant is incapable by reason of his mental and physical condition and disabilities of adequately advising with his said attorneys and is incapable thereby of adequately preparing his defenses to the above and foregoing charge.” The motion further requested the court to appoint physicians to make a physical and mental examination of the defendant prior to the trial. The motion was taken up by the court on January 15. When appellant’s counsel were asked whether or not they wished to be heard on the motion, they replied that they had nothing to add to it and that the motion spoke for itself. The court thereupon overruled the motion for continuance. At the trial, appellant’s witnesses, five of his fellow inmates of the Penitentiary, each testified that, on the date of the offense, appellant was incapable of distinguishing between right and wrong. They based their opinions on the appellant’s actions, which included his reporting that he heard voices and his fear that his food contained poison.

The rule is well settled that the granting of a continuance in a criminal case is primarily a matter within the discretion of the trial court. Its action is not to be interfered with in the absence of abuse of discretion. State v. Vidauri, Mo.Sup., 305 S.W.2d 437, 440(4, 5); State v. Scott, Mo. Sup., 338 S.W.2d 873, 876(4-6). Here there was no showing offered in support of the request for a continuance. The trial court was not bound to accept the allegations of the motion. State v. Richardson, Mo.Sup., 343 S.W.2d 51, 54(5); State v. Le Beau, Mo.Sup., 306 S.W.2d 482, 486 (1-4). Appellant delayed until the day before the setting for trial his request for a continuance. Surely, if the appellant had been unable to advise with his attorneys, that fact would have been apparent prior to that date. Furthermore, the court had, at appellant’s request, ordered writs of habeas corpus ad testificandum for five inmates of the prison as witnesses in his behalf. Certainly the appellant’s ability to name such persons negated the contention that his mental condition was such that no defense for him could be prepared. The witnesses whom appellant requested did appear and did testify on his behalf. They testified in support of the defense on insanity and some of them also to an alibi on behalf of appellant.

Under all of the circumstances, we cannot say that the action of the trial court, in overruling appellant’s motion for continuance, was an abuse of the court’s discretion.

A third allegation of appellant’s motion for new trial is that the verdict is contrary to the weight of the evidence because five witnesses on behalf of appellant testified to his lack of mental capacity whereas the state offered no evidence on the subject. Therefore, according to appellant, the verdict of the jury was contrary to the court’s instruction on the issue of insanity. The burden of proving the defense of insanity by preponderance of the evidence was upon the appellant. State v. Barton, 363 Mo. 991, 255 S.W.2d 752, 755(1). “The issue as to defendant’s sanity at the time of the alleged offense was for the jury. State v. Quilling, Mo.Sup. [363 Mo. 1016] 256 S.W.2d 751.” State v. Barton, 255 S.W.2d 755. The jury had the right to believe or disbelieve appellant’s witnesses. Obviously they chose the latter course and they were not obliged to do otherwise. State v. Bannister, Mo.Sup., 339 S.W.2d 281, 282(3).

Appellant’s fourth assignment in his motion for new trial “that the verdict is against and contrary to the law under the evidence” presents nothing for review. Supreme Court Rule 27.20, V.A.M.R. State v. Mansker, 339 Mo. 913, 98 S.W.2d 666, 672(7).

Appellant alleges that the conduct of the prosecuting attorney in the course of the trial was prejudicial to the rights of the appellant in four respects.

The first is that, while the jury was in the jury box, the prosecuting attorney “paraded into the jury room five defense witnesses handcuffed, manacled and shackled with arms interlocked with the intent and purpose of creating in the minds of the jury that the defense witnesses were unreliable.” The transcript is silent with respect to such an occurrence other than for what is found in the motion for new trial. The allegations of such motion do not prove themselves. Therefore, this objection is not before the court for review. State v. Garcia, Mo.Sup., 357 S.W.2d 931, 935(8); State v. Smith, Mo.Sup., 298 S.W.2d 354, 356(2); State v. Whitaker, Mo.Sup., 312 S.W.2d 34, 37(2).

Appellant complains of the reference by the prosecuting attorney in his opening statement to the prior conviction of the appellant. The prosecuting attorney, in outlining the state’s case, stated that the evidence would show that appellant had been convicted and was serving a 15-year term for first degree robbery. Appellant’s counsel objected on the grounds that such prior conviction was beyond the issues, of the case.

The prosecuting attorney in his opening statement is entitled to relate what the evidence to he produced by the state will properly show. State v. Gerberding, Mo.Sup., 272 S.W.2d 230, 235(13). Reference to other criminal acts or convictions is not erroneous where evidence of such acts or convictions is relevant to the charge on which the defendant is being tried and the evidence is thereby admissible. State v. Gerberding, supra. Here the prosecution was for an offense which could be committed only by a prisoner of the Department of Corrections. Evidence to show that the appellant was within the purview of the statute was correctly admissible. The best evidence of such fact would necessarily be the record of his conviction and testimony concerning his confinement thereunder. Since the evidence was admissible, the prosecuting attorney could properly refer to it in his opening statement.

Related to this objection is a further objection to evidence concerning the appellant’s prior conviction. The objection is that the prosecuting attorney “did during the entire trial from the voir dire to the closing arguments repeatedly refer to in the presence of the jury the prior convictions of the defendant Lester King.” The objection is that the matter of prior conviction was, under the Habitual Criminal Act (Section 556.280, RSMo 1959, V.A.M.S.), a matter for the court only and that the repeated references to it by the prosecuting attorney in the presence of the jury created bias and prejudice against the appellant in the minds of the jurors. Appellant was charged and tried under the Habitual Criminal Act. In accordance with the procedure now prescribed, evidence of his prior conviction was first heard by the court out of the presence of the jury. We find no reference in the voir dire examination by the prosecuting attorney to appellant’s prior conviction. It was, as above mentioned, referred to in his opening statement and the judgment of conviction was introduced in evidence. However, we do not find “repeated” reference to such conviction nor was there any reference to it in the closing argument. As above stated, such evidence was relevant in this case. The procedure of the Habitual Criminal Act does not preclude the presentation to the jury of evidence of a prior conviction insofar as such evidence is relevant to some-issue other than the application of the.Habitual Criminal Act.

Appellant’s final objection is to the closing argument of the prosecuting attorney. He complains that the prosecuting attorney argued that the State of Missouri would not have gone to the trouble and expense of trying the appellant unless “the defendant was guilty” and that such argument was prejudicial and contrary to the presumption of innocence which favored the appellant. We do not find the exact argument of which the appellant complains. In his closing argument, the prosecuting attorney did say: “And, King is the fourth member in this attempted escape. Why do you think the State goes to all of the trouble to file charges against him, come all the way up here, spending so much being up here, bringing any witnesses up here, then spending all the time, and Mr. Jenkins’ time; if he is not the fourth member, we are sure wasting the tax payer’s money.” However, no objection was made to this argument. Therefore, nothing is preserved for review with reference to it. State v. Smith, Mo.Sup., 324 S.W.2d 702, 706(4); State v. Burns, Mo.Sup., 328 S.W.2d 711, 713(3). Certainly the argument was not so glaringly offensive or prejudicial as to excuse appellant’s failure to object. State v. Goodwin, Mo.Sup., 352 S.W.2d 614, 620 (7, 8).

The matters of record (Supreme Court Rule 28.02, V.A.M.R.) have been examined and no error appears therein.

The judgment is affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM.

The foregoing. opinion by WELBORN, G, is adopted as the opinion of the Court.

All of the Judges concur.

      . In the escape case, appellant was charged with attempting to escape by “forcing one John Iven by threats of bodily harm to drive a truck through the penitentiary yard * * * through the penitentiary gates ⅜ * ⅞.” Section 557.400, KSMo 1949, V.A.M.S., defined the offense of attempting to escape from the Penitentiary by force or violence to any person. Attempts without force were punishable under the attempt statute. Section 556.150, RSMo 1959, V.A. M.S. See State v. Crouch, Mo.Sup., 316 S.W.2d 553. In 1959, Section 557.400 was repealed and Section 557.351 enacted, defining the offense of escaping or attempting to escape from institutions of the Department of Corrections. Laws of Mo., 1959 H.B. 10. The present statute does not distinguish between attempts to escape by force or violence and attempts without force or violence. The charge in appellant’s case was under the new statute. Therefore, the element of threat of bodily harm to the guard was not an essential element of the charge in that case.


text:
    STATE of Missouri, Respondent, v. Thomas KENT, Jr., Appellant.
    No. 50056.
    Supreme Court of Missouri, Division No. 1.
    Feb. 10, 1964.

      Thomas Kent, Jr., pro se.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Ronald R. McKenzie, Sp. Asst. Atty. Gen., Hannibal, for respondent.
   HYDE, Judge.

Defendant, charged under the Habitual Criminal Act (Sec. 556.280), was convicted of possession of a narcotic drug and sentenced to ten years’ imprisonment. Sec. 195.020. (Statutory references are to RSMo and V.A.M.S.) Defendant has appealed but has filed no brief so we consider all grounds stated in his motion for new trial, made in accordance with Supreme Court Rule 27.20, V.A.M.R., which serve as assignments of error on appeal. (See also Rule 28.02.)

Defendant contends the evidence was not sufficient to make a submissible case or to sustain a conviction for the offense charged. Defendant offered no evidence and his motion for a judgment of acquittal was denied. Therefore: “In determining the sufficiency of the evidence to sustain a conviction, we consider as true the evidence favorable to the State and the favorable inferences reasonably to be drawn therefrom; and evidence to the contrary is rejected.” State v. Hutchin, Mo., 353 S.W.2d 701, 702, and cases cited.

The evidence showed that in the afternoon of August 15, 1962, after receiving a phone call, Detective Altemus went with Detective Beeks to the Franklin Hotel in St. Louis. Altemus went to Room 316, found the door open, went in and found three people there. On his way there, Beeks saw-defendant with a brown paper bag in his right hand and followed him toward the window to the fire escape. He lost sight of defendant for about a second at the fire escape when he was behind something but found him on the fire escape and saw he did not have the paper bag. Beeks did not see defendant throw the bag but looked over the fire escape and saw a brown paper bag three stories below in the alley. He brought •defendant to Altemus, left him in his •custody, and went down to the alley where he retrieved the brown paper bag. In the paper bag was a cloth tobacco bag in which there was a cellophane container containing 15 gelatin capsules which were found by the police chemist to contain heroin. Beeks also picked up five similar empty capsules on the ground directly under Room 316 which showed traces of heroin.

In his motion, defendant contends: “The State’s testimony that a police officer saw defendant holding a brown paper bag as he went through a window, and then later found a brown paper bag on the ground three stories below underneath the window containing heroin is not sufficient evidence that defendant had possession of narcotics as charged.” Defendant also argues that Beeks stated it was impossible for defendant to have thrown the empty capsules from the fire escape to the place where they were found since the fire escape was on the south side of the building and the empty capsules were found on the west side. Defendant in his motion argues that the verdict, therefore, is based on guesswork and speculation. However, the finding of the five empty capsules was in no way essential to proof of the State’s case of •defendant’s possession of narcotics although it might indicate possession and use of narcotics by someone in the building. The .State made a case for the jury by very strong circumstantial evidence by showing Beeks saw defendant run to the fire escape with a brown paper bag in his hand, found him on the fire escape without it, saw such a paper bag below the fire escape in the alley and upon retrieving this bag of the same size, color and shape as the one he saw in defendant’s hand found in it 15 capsules containing heroin. He also said he saw no other bag in the alley. See State v. Woolsey, Mo.Sup., 328 S.W.2d 24; State v. Reagan, Mo.Sup., 328 S.W.2d 26; State v. Davenport, Mo.Sup., 360 S.W.2d 710. Furthermore Beeks testified to statements made by defendant, as follows: “Q What did he say to you? A He stated that he was good for this particular rap. Q What else, if anything, did he say, as far as his participation with that item? A Well, he said the stuff—he mentioned he was working for somebody and the stuff was his and he was good for the rap.” Defendant also stated the name of the owner for whom he worked. Therefore, we hold the State made a submissible jury case and defendant’s motion for acquittal was properly denied.

Grounds 1 and 2 of defendant’s motion stated that Beeks testified at defendant’s preliminary hearing that “defendant had the bag in his left hand and not in his right hand” as he stated at the trial and also stated there “that defendant at no time had made any confession to him.” These claims were raised by Ground 1 as error at the trial in refusing a continuance to so show (although the court did suspend the trial for several hours for defendant to get the preliminary transcript) and in Ground 2 as newly discovered evidence. However, the court held a hearing on defendant’s motion for new trial, at which the transcript of Beek’s testimony at the preliminary was produced and it showed that Beeks then testified that when he saw defendant in the hotel he “noticed a brown paper bag in his right hand.” The transcript also showed Beeks was not asked at the preliminary hearing whether defendant made any confession or admissions to him. Thus Grounds 1 and 2 were without merit.

Ground 3 alleged error in permitting the State to show that a telephone call was made to the officers before they went to the hotel and this is claimed to have permitted reliance on hearsay evidence and a tip to the police to prove defendant’r guilt. However, when Altemus in answer to a question as to what occurred on August IS, 1962, stated that a phone call was received that afternoon, he was stopped by an objection before he could say any more about it. All objections concerning the call were sustained and therefore we find no prejudicial error was shown.

Ground 4 alleged error in permitting the State to argue that defendant was a seller of narcotics when there was no evidence to so show. However, defendant overlooks Beeks’ testimony as to the statement made to him by defendant as to working for the owner of the narcotics. Furthermore, defendant’s counsel in his argument to the jury first brought up the issue as to whether defendant was a seller and asked the State to concede that defendant “never did sell narcotics,” which the State refused to do. Thereafter defendant’s counsel, after attempting to minimize defendant’s offense, said: “[Gjentlemen, let’s bring in the pusher. Let’s bring in the man who is doing this thing. Let’s bring in the man who is clearly wrong and let’s convict him.” What was thereafter said in the State’s final argument was in the nature of reply to the argument of defendant’s counsel, by arguing that defendant himself was guilty of a serious crime in possessing narcotics and saying he was like a storekeeper. The objection by defendant’s counsel that “there is no evidence of selling narcotics” then vyas sustained. Therefore, we find no prejudicial error in the exercise of the discretion the trial court had concerning retaliatory arguments. See State v. Martin, Mo.Sup., 347 S.W.2d 680, 682; State v. Cusumano, Mo., 372 S.W.2d 860, 866, and cases cited.

Ground 5 alleged error in permitting the State to infer that the Grand Jury had considered the case and found defendant guilty but we find no basis in the record for this claim either as to showing such a statement or any objection making reference to such a matter. Moreover, the record shows no indictment but only an information on which defendant had a preliminary hearing. In Ground 6, there is no claim of error as to any additional matter but it is stated that “the cumulative effect of all this testimony and argument was so prejudicial and inflammatory as to make it impossible for the jury to give defendant a fair trial.” However, our rulings as to the specific claims of error show there is no merit in this claim.

Ground 7, stating only that the court’s instructions “gave the jury a roving commission to find the defendant guilty and * * * constitute the misdirection and misstatement of the law”; and Ground 8, stating the verdict was against the weight of the evidence, although they could be considered by the trial court, are too general to preserve anything for appellate review. Nevertheless, because of our authority stated in Rule 27.20(c) we have considered the instructions and find no prejudicial error therein.

However, the Attorney General’s brief commendably calls our attention to the fact that, while a prior felony conviction of defendant was shown, there was no evidence whatever offered to show that after sentence in that case defendant was “subsequently placed on probation, paroled, fined or imprisoned therefor” as required by Sec. 5S6.280 to make the habitual criminal statute applicable. We have examined the record as required by our Rules 28.02 and 28.08 and find it sufficient with respect to the sufficiency of the information and verdict, but because of the State’s failure to make sufficient proof to show the habitual criminal statute applicable, it will be necessary to follow the same procedure stated and applied in State v. Hill, Mo.Sup., 371 S.W.2d 278, 282, 283.

Therefore, the sentence herein is declared void, the judgment is reversed and the cause remanded with directions to the court to-cause the defendant to be brought before it to hold a hearing on the issue of the applicability of the habitual criminal statute to defendant and if proved that, after being sentenced on his former conviction, he was either placed on probation, paroled, fined or imprisoned therefor, to pronounce sentence and judgment against defendant taking all proper procedural steps required therefor by law and the rules of this court but in the alternative if the habitual criminal statute be found inapplicable to the defendant to grant him a new trial on all issues.

All concur.


author: WELBORN, Commissioner.

text:
    STATE of Missouri, Respondent, v. Earl Vandyne WORLEY, Appellant
    No. 49881.
    Supreme Court of Missouri, Division No. 1.
    Feb. 10, 1964.

      Richard L. Daly, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., James J. Murphy, Asst. Atty. Gen., Jefferson City, for respondent.
   WELBORN, Commissioner.

By information in the St. Louis Circuit 'Court, appellant Earl Vandyne Worley was charged as an habitual criminal (Section 556.280, RSMo 1959, V.A.M.S.) with illegal possession or control of marijuana, in “violation of Section 195.020, RSMo 1959, V.A.M.S. A jury found him guilty of the offense charged and the trial court found that appellant had been previously •convicted of two felonies, not involving the narcotics laws. The trial court fixed appellant’s punishment at imprisonment for ten years. This appeal is from such judgment and sentence.

On the trial, the state’s evidence showed that, near 10:00 P.M., on March 10, 1962, Detectives Frederick Abernathy and Isaiah .Brown of the St. Louis Metropolitan Police Department, while driving in, a police car north on Union Boulevard, noticed a man duck behind a Chevrolet sedan on a restaurant parking lot at 1122 North Union Boulevard. The man’s actions caused the officers to stop. Both got out of the police car. Abernathy, as he did so, noticed that the man got in the back seat of the Chevrolet, on the left side. The officers approached the car from the right side and, at their direction, five occupants emerged from it, all on the right side. The last man to emerge was the person whose activity had originally attracted the officers’ attention.

The officers inquired of the men concerning their activities. While they were - doing so, Abernathy noticed a small brown paper package on the floor in the rear of the Chevrolet, on the right side. Abernathy picked up the package and asked to whom it belonged. The man who had ducked behind the car and who was the. last to. emerge from it said that it was his. This, man was the appellant. According to the officers, appellant stated that “he smoked a little pot (marijuana) and drank a little beer occasionally.” He told the officers that he had purchased the contents of the package earlier that evening from a fellow he did not know. Worley was placed under arrest. The package and its contents were delivered to the police laboratory. Examination of the package at the laboratory revealed that it contained “dried leaf particles of the plant Cannabis Sativa, otherwise known as marijuana.”

The appellant presented no evidence.

On this appeal, appellant’s first contention is that the trial court erred in overruling his objection to the testimony of the police officers to the statements of the appellant at the time of his arrest. The contention is that the state’s evidence, independent of the appellant’s admissions, was insufficient to establish the corpus delicti and that, therefore, the statements should not have been received in evidence..

The rule relied upon by appellant is stated in City of St. Louis v. Watters, Mo.App., 289 S.W.2d 444, 446, as follows: “It is established law in Missouri that when the corpus delicti has not been sufficiently proven, an uncorroborated extrajudicial confession of guilt cannot be regarded as evidence tending to show guilt.” See also State v. Haun, Mo.Sup., 324 S.W.2d 679, 681(1); State v. McCord, 237 Mo. 242, 246, 140 S.W. 885, 886(3-5); State v. Kollenborn, Mo. Sup., 304 S.W.2d 855, 858(3-6). ’ Appellant’s position is that, since the offense charged was illegal possession of marijuana, proof of the corpus delicti required proof that the drug was illegally possessed and that its mere presence on the floor of the car did not establish its “possession.” Therefore, appellant argues, testimony should not have been received that appellant admitted that the package was his.

“In this state the corpus delicti has never been construed to require or consist of more than- these two elements: (1) Proof, direct or circumstantial, that the specific loss or injury charged occurred; (2)" someone’s criminality as the cause of the loss or injury. Or tersely, (1) the act; (2) the criminal agency of the act (other than the accused’s confession).” State v. Hawkins, Mo.Sup., 165 S.W.2d 644, 646. See also State v. Price, 361 Mo. 1034, 238 S.W.2d 397, 399; State v. Hardy, 365 Mo. 107, 276 S.W.2d 90, 92 (2-5). The essentials of the corpus delicti in this case would be supplied by evidence of the presence of the illegal -drug in such circumstances as would warrant the conclusion that it had been in the possession of some person. The circumstances of the location of the' drug at the time of its discovery, its packaging and the proximity of persons to the drug at that time are sufficient to warrant, in this case, the inference of possession for purpose of the corpus delicti. Such evidence in this case was sufficient to establish the corpus delicti and to make the appellant’s statements admissible.

The appellant urges that proof of the corpus delicti should require proof of the criminal agency of the defendant, and not merely criminal agency generally. The appellant acknowledges that, in State v. Hardy, 365 Mo. 107, 276 S.W.2d 90, this court expressly corrected statements in State v. Humphrey, 358 Mo. 904, 217 S.W.2d 551, and State v. Emerson, 318 Mo. 633, 1 S.W.2d 109, which appeared to make criminal agency of the defendant an element of the corpus delicti. See also State v. Price, 361 Mo. 1034, 238 S.W.2d 397, 399, likewise correcting such statement. As has been pointed out, requirement of proof of the criminal agency of the defendant requires proof of the entire charge in order to establish the corpus delicti. 23 C.J.S. Criminal Law § 916(1), page 626. Such requirement is inconsistent with the theory of the corpus delicti, which is, in essence, “the fact that a crime actually has been committed.” 23 C.J.S. Criminal Law § 916 (1), page 623. State v. Sinovich, 329 Mo. 909, 46 S.W.2d 877, 881. We are not persuaded by appellant’s argument that we should require proof of the criminal agency of the defendant before admitting his confession in order to avoid the possibility of conviction of persons who, for various reasons, confess to crimes not actually committed by them.

The appellant’s second ground for reversal of the conviction is that, even with the statements of appellant, there was not sufficient evidence from which the jury might find appellant guilty. The appellant argues that, while his statements admitted his ownership of the contents of the package, they showed no custody, control or management, which, according to appellant, are necessary elements o.f possession. However, the fact of appellant’s possession, as with the elements of any criminal charge, could be established by circumstantial evidence. The appellant’s proximity to the place where the package was discovered, his opportunity to have placed it there and his admission that it was his, having been acquired by him earlier in the evening, would be sufficient evidence from which to conclude that appellant had previously had actual physical possession of the drug.

Furthermore, in order to establish a violation of Section 195.020, the evidence need not show actual physical possession on the part of the defendant. The illegal possession may be constructive. State v. Edwards, Mo.Sup., 317 S.W.2d 441, 447 (7); State v. Caffey, Mo.Sup., 365 S.W.2d 607. From the evidence the jury could have concluded that, at the time of its discovery, the package was in the constructive possession of the appellant. He admitted its ownership. There was no disclaimer of intention on his part to maintain his right to control the package and its contents. Nor would the fact that, in the officers’ testimony, the past tense was employed, i. e., that the package “was his,” indicate that the appellant had abandoned his right to control of the package. We, therefore, conclude that the evidence was sufficient to sustain a verdict of guilty.

Appellant’s third objection to the judgment below relates to the failure of the state to negative by its evidence that the appellant’s possession of the marijuana was within one of the exemptions from, or exceptions to, the application of Sections 195.010 to 195.210, RSMo 1959, V.A.M.S. In this connection, appellant attacks the constitutionality of Section 195.180, which purports to relieve the state of the burden of negativing any “exception, excuse, proviso, or exemption, contained in this law” and to place the burden of proof of such matter upon the defendant.

The respondent suggests that these matters are not properly before this court for review because they were not mentioned In appellant’s motion for new trial. Our practice requires that the defendant in a criminal proceeding set out “in detail and with particularity” in his motion for new trial alleged errors on the part of the trial court. Supreme Court Rule 27.20, V.A. M.R. Compliance with this requirement is essential to the preservation of questions for review by this court. Having failed to assert the matters here relied on in his- motion for new trial, the question has not been preserved for review. State v. Demaree, Mo.Sup., 362 S.W.2d 500, 505; State v. Miller, Mo.Sup., 360 S.W.2d 633, 636.

Furthermore, appellant’s contention with regard to the unconstitutionality of Section 195.180 is raised for the first time in his brief in this court. “Constitutional questions must be raised at the earliest opportunity consistent with good pleading and orderly procedure * * ⅛.” State v. Brookshire, Mo.Sup., 325 S.W.2d 497, 500. Failure to raise the constitutional question in the trial court precludes our consideration of it here. State v. Lofton, Mo.Sup., 1 S.W.2d 830, 832(2, 3); State v. Gibson, Mo.Sup., 300 S.W. 1106, 1107(5, 6).

We have examined the matters of record specified by Supreme Court Rule 28.02. The information charges the offense generally in the language of the statute (Section 195.020). It charges unlawful possession or control. In State v. Virdure, Mo.Sup., 371 S.W.2d 196, an information charging these matters disjunctively was held sufficient. We conclude that the information in this case is, likewise, sufficient. The verdict is responsive to the charge in the information. The trial court, having found that appellant had twice been convicted of felonies, not involving narcotics laws, sentenced appellant to a term of imprisonment within the limits prescribed by Section 195.200, RSMo 1959, V.A.M.S. The appellant was accorded allocution and judgment duly entered.

Finding no error in the proceedings in the trial court, the judgment is affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM.

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.

All of the Judges concur.


author: COIL, Commissioner.

text:
    Elbert R. WHEELER and Edith Wheeler, Respondents, v. Stella Harper RINES, Allen Rines, Appellants, Elton Harper et al., Defendants, Stellie Harper Rines, Executrix of the Estate of E. W. Harper, Deceased, Appellant.
    No. 49899.
    Supreme Court of Missouri, Division No. 1.
    Jan. 13, 1964.
    Motion for Rehearing or Transfer to Court En Banc Denied Feb. 10, 1964.
    Powell, Jones & Ringer, Dexter, Sharp & Hatley, Malden, for defendants-appellants.
    Paul McGhee, Bloomfield, for respondents.
   COIL, Commissioner.

In this case, tried to the court on stipulated facts, respondents, plaintiffs below, sought to quiet title to land in Stoddard County. Appellants are three of the defendants below who appealed from the trial court’s judgment quieting title in respondents.

On April 1, 1960, E. W. Harper who owned the land executed and delivered to Mr. and Mrs. Elbert Wheeler a warranty deed which included the standard provisions of such a deed, reciting that for $500 and other valuable consideration he did “Grant, Bargain and Sell, Convey and Confirm” to the Wheelers the described land. Immediately following the description was this language : “THIS DEED, IS Not To Take Effect till after The Death Of the Said E. W. Harper.” The deed contained a standard habendum clause.

At the same time, i. e., on April 1, 1960, Mr. Harper executed a will, by the terms and provisions of which he bequeathed to named nephews and nieces, including appellant Stella Harper Riñes, one dollar each and bequeathed the remainder of his estate to the Wheelers, grantees in the deed.

On June 2, 1960, Mr. Harper executed another will which, after his death on November 30, 1961, was duly probated. The provisions of that will revoked the prior one and bequeathed to named nephews and nieces, not including appellant Stella Harper Riñes, the sum of one dollar each and bequeathed to Stella the remainder of his estate.

On November 22, 1961, Mr. Harper executed and delivered to Mr. and Mrs. Allen Riñes (Allen being the husband of Stella) a general warranty deed purporting to convey the same property as that described in the deed of April 1, 1960. The November 1961 instrument contained the standard provisions of a general warranty deed and provided that for the recited consideration of “ONE DOLLAR and other valuable” (sic), the grantor did “Grant, Bargain and Sell, Convey and Confirm” to the Riñeses the land there described. The description was followed by this language: “Grantor.? herein reserves a life estate with full control, rents and profits therefore during his natural life.” The deed contained a standard habendum clause.

The deed dated April 1, 1960, was recorded on December 4, 1961, after the death of grantor. The deed dated November 22, 1961, was recorded on November 24, 1961, prior to the death of grantor.

The foregoing facts which were stipulated were all the evidence upon which the case was submitted. Thus, there is nothing before us tending to show the circumstances under which the documents were executed.

Appellants contend that the April 1, 1960, deed shows on its face that it was intended as a testamentary disposition and thus, inasmuch as it was not executed in accordance with the requirements for the execution of a will, it was wholly ineffective to pass any estate or interest. It is our view that appellants’ contention must be sustained for the reasons which follow.

The question in this type of case is always whether the grantor intended by the document he executed to pass a present estate or interest, or intended that no estate or interest would pass until his death. In the cases cited and relied upon by respondents the grantor used language which clearly showed his intention to reserve a life estate and, in addition, used language indicating that the deed was not to be effective until his death. In those cases the court correctly found that the grantor used the language with respect to the fact that the instrument was not to take effect until his death in order to make explicit or to emphasize the fact that the grantor intended to reserve a life estate. The deed in the present case, unlike those considered in the cases cited by respondents, contains no language which may be construed as reserving a life estate, unless we correctly may hold that the language used, standing alone and without any evidence of surrounding circumstances, indicates both that grantor intended to reserve a life estate and to convey a present interest. The words used were, we repeat:

“THIS DEED, IS Not To Take Effect till after The Death Of the Said E. W. Harper.”

As we see it, the foregoing language is explicit and plain. It stands alone and it means what it says — that the deed was not to take effect until after the grantor’s death. There is no language in the deed clearly reserving a life estate and there is no other language in the deed indicating that grantor intended to reserve a life estate or intended to convey a present estate.

The only Missouri case we have found which is like the present one, in that the deed contained no reference to a life estate and contained language almost exactly like that in the present deed, is Terry v. Glover, 235 Mo. 544, 139 S.W. 337. The court described the deed there in question: “The instrument on its face makes no mention of a life estate or of a remainder, but purports to he a conveyance in fee by the grantor to his wife. The language of the deed is: ‘That the said party of the first part (George Glover) in consideration of the sum of one hundred dollars and love and affection to him paid by the said party of the second part (his wife, Louise Glover) the receipt of which is hereby acknowledged, do by these presents grant, bargain and sell, convey and confirm unto the said party of the second part, her heirs and assigns, the following described lots, tracts or parcels of land lying being and situate in the county of Livingston and state of Missouri, to wit: [Then follows a description of the land which we will omit; after that description comes this sentence:] This deed not to go into effect until after the death of the said George Glover.’ The widow insists that those words constitute a reservation of a life estate in the grantor, and that the preceding words of ‘grant, bargain and sell’ convey to her an estate in fee in remainder. In her answer she says that such was the intention of her husband when he executed the deed, and if the language employed does not express that purpose the scrivener who wrote it made a mistake, and she prays that the deed be reformed to express that intention. The plaintiffs contend that the deed correctly expresses the purpose of the grantor, and that it is therefore ineffectual as a deed, is testamentary in character, and, not being executed as a will, is without force; * *.” (Our italics.) 139 S.W. 338.

In that case there was a question whether the deed had been delivered, but with reference to whether it was testamentary in character, the court said:

“But even if the instrument had been delivered it was invalid as a deed of conveyance, because, by its own terms, it was not to take effect until after the death of the grantor, it was testamentary in its character, and, not being executed according to the requirements of law for the execution of a will, it is invalid as such.” 139 S.W. 339.

Respondents correctly contend that we should consider the April 1 will along with the April 1 deed and that, so doing, it appears that the grantor intended by the deed to grant the remainder in the described property to respondents and, by his will, to grant the residue of his estate to respondents. For, they say, “If Harper had intended otherwise the deed would have been entirely superfluous.” It may be that (assuming that the April 1 will was not revoked) the Wheelers would have received the land in question under the April 1 will; but the fact, standing alone, that a deed might have proved to have been unnecessary under certain conditions, does not indicate that the grantor meant something other than he said by his specific unqualified language that the deed was not to take effect until after his death.

Respondents also suggest that there was a “delivery” of the April 1 deed. Of course, whether there was a “delivery,” in the sense that the grantor intended to pass a present estate, is, in large measure, the very issue before us. For it is well settled that to effect a “delivery” the grantor must not only part with physical dominion and control of the instrument and manually deliver it, but he must do those acts with the intention that the deed pass a present estate or interest to the grantee. Delaney v. Light, Mo., 263 S.W. 813, 818 [4, 5]; Clark v. Skinner, 334 Mo. 1190, 70S.W.2d 1094, 1099 [10, 11]; Klatt v. Wolff, Mo., 173 S.W.2d 933, 936 [3-9]. We have no doubt that by the stipulation which provided that each deed was “executed and delivered” to the respective grantee, the parties referred to a manual delivery; a transfer of possession of the deed. It is true that the fact of a manual delivery to and the possession of a deed by the grantee is a circumstance to be taken into account in at tempting to determine whether the grantor intended to pass a present estate or interest. But in the present case the facts are, as shown by the stipulation, that while respondents had physical possession of the April 1, 1960, deed, they did not record it until after the grantor’s death. It seems, therefore, that whatever effect the manual delivery of the deed and respondents’ physical possession thereof might otherwise have had, is overcome by the further fact that respondents’ action with respect to recordation was consistent with the intent (indicated by the explicit language used) on the part of the grantor not to pass to them any estate or interest until his death.

Both parties have cited the recent case Cook v. Daniels, Mo., 306 S.W.2d 573. There, the deed (following the description of the land) contained this provision: “ ‘The Grantor herein conveys to the said Myrtle Weaver, his wife, and to the heirs of her body, all his right, title and interest in the above land, to be effective at his death, reserving herein a life estate in said land, intending at the death of his wife, Myrtle Weaver, for the land to descend to the heirs of her body.’ ” The court, in holding such a provision constituted a conveyance of a present interest, pointed out that there was a clear reservation of a life estate, that the grantor conveyed "all his right, title and interest * * * to be effective at his death,” and said further that, considering the entire reservation clause, it was grantor’s intent that the grantee should not have the right of possession until grantor’s death and that the words, the “deed shall be effective and in full force from and after my decease,” were intended to emphasize the fact that a life estate had been reserved

In the present case, there is no “entire reservation clause”; there is no clear reservation of a life estate; there are only the words, standing alone, “THIS DEED, IS Not To Take Effect till after The Death Of the Said E. W. Harper.”

This court in the Cook case, supra, relied upon and quoted with approval from Barker v. Barker, Mo., 219 S.W.2d 391, another case relied upon by respondents. In the Barker case (219 S.W.2d 392), the clause following the description was: “I hereby reserve a life interest in the property described in this deed, and said deed shall be effective and in full force from and after my decease.” Again, there was a clear reservation of a life estate indicating that the testator, by the further language as to the deed’s effective date, was only emphasizing the fact that a life estate had been reserved.

In Christ v. Kuehne, 172 Mo. 118, 72 S.W. 537, relied upon by respondents, the case in so far as here pertinent is correctly summarized in the first syllabus: “A deed conveyed property to the grantor’s wife, ‘to have and to hold from and after the death’ of the grantor ‘for and during her natural life,’ and after her death to the grantor’s heirs forever; ‘it being understood that this conveyance is made upon the express condition’ that the grantor should ‘during his lifetime retain the possession and control of the premises hereinbefore described.’ Held to pass a present interest in the property, and not to be testamentary in character.” In O’Day v. Meadows, 194 Mo. 588, 92 S.W. 637, Mr. and Mrs. O’Day quit-claimed an estate in certain described land, “commencing upon the death of the said John O’Day and continuing so long as said Clymena Alice O’Day shall live.” The court was of the opinion that Mr. O’Day intended to reserve a life estate so long as his wife lived, the possession and enjoyment of which were postponed until his death, and thus that the deed was not testamentary in character.

We are of the opinion that the Barker, Cook, Christ and O’Day cases, supra, as well as the two other cases cited and relied upon by respondents, are distinguishable from the present one for the reason we have heretofore stated, viz., in the cited cases there was language from which it could be determined that it was the intent of the grantor to pass a present interest, usually by reason of language clearly reserving a life estate, while in the present case there is nothing which tends to indicate that grantor intended to pass a present estate or interest. On the contrary, the plain meaning of the only pertinent language, this deed is not to take effect till after the death of the grantor, is that Mr. Harper intended that no estate or interest would pass until his death.

The judgment is reversed and the case remanded for entry of a judgment consistent with the views herein expressed.

HOUSER and WELBORN, CC, concur.

PER CURIAM.

The foregoing opinion by COIL, C., is adopted as the opinion of the court.

All concur.

      . Wimpey v. Ledford, Mo., 177 S.W. 302; Dawson v. Taylor, Mo., 214 S.W. 852.


author: HOLMAN, Judge.

text:
    STATE of Missouri, Respondent, v. Earl Arthur LOWE, Appellant.
    No. 49252.
    Supreme Court of Missouri, Division No. 1.
    Feb. 10, 1964.
    Earl Arthur Lowe, pro se.
    Thomas F. Eagleton, Atty. Gen., Julian L. O’Malley, Asst. Atty. Gen., for respondent.
   HOLMAN, Judge.

Defendant, Earl Arthur Lowe, 'was found guilty of the offense of robbery in the first degree and his punishment was fixed by the jury at imprisonment in the penitentiary for a term of five years. See §§ 560.120 and 560.135, RSMo 1959, V.A.M.S. He has appealed from the ensuing judgment.

Mrs. Cornelia Crawford resided with her husband at 800 West 52nd Street in Kansas City. At about midnight on May 8, 1961, Mrs. Crawford was awakened and saw a ■person standing in her bedroom. Thinking it might be her husband she called him by name, and the person then flashed a light in her face and told her to leave the light off, lie quietly, and she wouldn’t get hurt. Immediately thereafter she turned the light on and screamed to her husband who was sleeping in a room nearby. The person in her room then struck her in the temple with his fist, picked up her pocketbook which contained $5.00 and some other personal belongings and then went to her husband’s bedroom and demanded money from him. Shortly thereafter he ran down the stairs and left the house.

At the trial Mrs. Crawford identified the defendant as the person who was in her bedroom. Also, one Mary Ellen Harness, age 17, testified that she was living with the defendant at that time and was with him on the night of May 8; that she remained in the car while appellant entered the Crawford home; that he returned in 15 or 20 minutes and told her that “he had to hit this woman.”

Appellant testified in his own defense and denied having committed the crime with which he was charged.

While we are not called upon to review the sufficiency of the evidence in this case it is apparent that there was ample evidence to support the verdict of the jury.

The verdict was returned October 24, 1961. Thereafter, the defendant was given an additional thirty days in which to file his motion for new trial. No motion for new trial was filed and on December 11, 1961, defendant was brought before the court, and, in the presence of his attorney, was properly granted allocution and sentenced in accordance with the verdict. His notice of appeal was filed on the same day. The court sustained defendant’s motion to appeal as a poor person and he was furnished a free transcript. He has not filed a brief in this court. In the circumstances presented we are limited in our review to an examination of the record, as required by S.C.Rule 28.02, V.A.M.R.

The information charged, in part, that defendant, “on the 9th day of May, 1961, at the County of Jackson and State of Missouri, with force and arms, in and upon one Cornelia P. Crawford unlawfully and feloniously did make an assault and [description of property omitted] the money, goods, chattels and personal property of the said Cornelia P. Crawford from the person and in the presence and against the will of the said Cornelia P. Crawford then and there by force and violence to the person of the said Cornelia P. Crawford and by putting the said Cornelia P. Crawford in fear of an immediate injury to his [her] person, feloniously did rob, steal, take and carry away * * It contains almost the exact language of the information approved as sufficient in State v. Hood, Mo.Sup., 313 S.W.2d 661. The allegations include all of the essentials of the offense of robbery in the first degree as specified in § 560.120, supra. The information is clearly sufficient. State v. Herron, Mo.Sup., 349 S.W.2d 936.

The verdict was as follows: “We, the jury, find the defendant, Earl Arthur Lowe, guilty of robbery, first degree and assess his punishment at five (5) years in the state penitentiary.” It specified a finding of defendant’s guilt of the crime with which he was charged and fixed the punishment within the limits (minimum) prescribed by § 560.135, supra. The verdict was in proper form. As heretofore stated, defendant was granted - allocution and duly sentenced.

Finding no error upon the record before us, the judgment is affirmed. .

All concur.


text:
    PEACOCK HOMES, INC., a Corporation, et al., Respondents, v. Willis W. BENSON, Collector of Revenue of St. Louis County, Missouri, and Phil G. Deuser, Assessor of St. Louis County, Missouri, Appellants.
    No. 49559.
    Supreme Court of Missouri, Division No. 1.
    Feb. 10, 1964.
    Norman C. Parker, County Counselor, St. Louis County, Gerald J. Bamberger, Joseph B. Moore, Asst. County Counselors, for appellants.
    Kerth, Thies & Schreiber, Alfred H. Kerth, A. H. Hamel, Clayton, for respondents.
   COIL, Commissioner.

On December 31, 1955, respondents, four Missouri corporations owning real estate in St. Louis County, filed an action against the assessor and collector attacking the assessments and the tax bills issued to plaintiffs based thereon; all of which allegedly had resulted from a report of the Missouri State Tax Commission and the adoption thereof .by the St. Louis County Board of Equalization whereby valuations on land and on town lots were increased and assessments made on the new valuations. We shall hereinafter refer to the parties as they were designated in the trial court. Plaintiffs sought to enjoin the assessor and collector from instituting proceedings to collect such taxes and to require them to cancel the records fixing the assessments and to not certify any tax bills based thereon, and prayed that plaintiffs be permitted to pay into court an amount which the court would fix as due for taxes and thereby relieve plaintiffs of penalties and interest “assessed against delinquent taxpayers.”

The trial court issued a show cause order as to a temporary injunction, returnable January 13, 1956, and, on the same day plaintiffs’ oral motion that the court forthwith fix the amount of the “proper assessment of plaintiffs’ respective properties to enable plaintiffs to pay into the registry of this court an amount sufficient to pay the taxes lawfully required to be paid by each of these plaintiffs and thereby relieve the plaintiffs of penalties and interest assessed against delinquent taxpayers [was] passed for hearing to 13th day of January, 1956.” (Bracketed insert ours.)

On January 27, 1956, Brentwood School District sought to intervene. .(The record •shows no disposition of that application, but from the fact that the school district approved a later order of the court, we guess that the intervention was in fact permitted.)

On February 2, 1956, the assessor and collector filed their joint return and motion to dismiss, alleging, inter alia, that the petition did not state facts upon which relief could be granted.

On March 26, 1956, the trial court entered this “memorandum and order”:

“Plaintiffs and defendants appear by attorneys.
“Plaintiffs present and submit to the •Court their oral motion for authority to pay into the registry of the Court, for the purpose of avoiding penalties and interest pending a final decision in this cause, the sum of $144,801.12, being the total amount of real estate taxes for the year 1955 levied against the parcels of real estate described in Counts I to IV, inclusive, of plaintiffs’ petition, based on a total assessed valuation of $4,686,120.00 at a tax rate of $3.09 per $100 of assessed valuation. Motion sustained.
“It is ordered by the Court that plaintiffs be and they are hereby authorized and directed to pay into the registry of this Court the sum of $144,801.12 without prejudice to the rights of plaintiffs or defendants and subject to the further order of the Court.
“It is further ordered that Raymond O. Douglas, Circuit Clerk forthwith pay to the defendant, Willis W. Benson, Collector, out of the sum deposited in the registry of this Court as aforesaid, the amount of $114,392.88, being 79% of the total amount of taxes levied and being 79% of the taxes levied against each of parcels of real estate described in Counts I to IV, both inclusive of plaintiffs’ petition, and the said defendant, Willis W. Benson, Collector, is hereby authorized and ordered to distribute said amount of taxes in the proportions required by law, such payment to defendant Willis W. Benson, Collector, being made with the consent of the plaintiffs and otherwise without prejudice to the rights of the parties herein.” (Our italics.)

The foregoing order was approved by plaintiffs, defendants, and by intervenor-applicant school district.

On April 28, 1961, the “matter was submitted on written briefs” to be filed thereafter and, on January 10, 1962, the court sustained defendants’ motion to dismiss plaintiffs’ petition and, on February 6, 1962, the court entered this “memorandum and order” (which is the judgment from which the appeal was taken) :

“Upon oral motion of Attorneys for Plaintiffs the Court sets aside its order made and entered in this cause on January 10, 1962 sustaining Defendants’ motion to dismiss Plaintiff’s petition, etc.
“Upon further oral motion of Attorneys for Plaintiffs it is hereby ordered and adjudged that the Clerk of the Circuit Court of St. Louis County, Missouri forthwith pay over to the Collector of Revenue of St. Louis County, Missouri (Successor to Defendant Willis W. Benson, Collector of Revenue of St. Louis County, Missouri) the sum of $30,408.24 heretofore deposited in the registry of the Court, and,
“It is further ordered and adjudged that the Collector of Revenue of St. Louis County, Missouri upon receipt of said amount apply the same on account of the following 1955 Real Estate tax bills, to-wit:
10134 $ 4,005.57
10135 28,329.74
10153 5,435.62
10154 18,658.35
10155 23,316.83
10156 24,319.54
10157 3,987.03
10158 5,412.75
10234 17,227.06
10235 5,245.58
10236 8,863.05
and to cause the same to be distributed as required by law.
“Defendants’ motion to dismiss Plaintiff’s petition sustained on the following grounds:
“(1) Plaintiffs have failed to exhaust their remedies by review or at law.
“(2) Plaintiffs have failed to state a cause of action upon which relief can be granted.
“Costs against Plaintiffs.” (Our italics.)

On February 16 the then assessor and collector, as successors to the original defendants, filed their joint motion “to amend judgment or in the alternative for a new trial” wherein they averred that the trial court was at all times without jurisdiction to permit and authorize plaintiffs “to pay their lawful real estate taxes for the year 1955 into the registry of the Court for the purpose of avoiding statutory penalties and interest” for the period since January 1, 1956, and that the trial court erred in its “Memorandum and Order” in which it “sustained Plaintiffs’ oral motion to pay $144,-801.12 into the Court’s registry for the purpose of avoiding penalties and interest pending a final decision in this Cause,” for the reason that such amounted to “judicial legislation” and interfered with the provisions relating to the payment of penalties and interest on delinquent taxes as contained in Section 139.100 RSMo 1959, V.A. M.S.; that the court erred in failing to “order the additional payment of lawful interest and penalties due and owing” on February 6, 1962, “on the sum of $30,408.-24, which sum represented the unpaid balance on the Plaintiffs’ lawful real estate taxes for the year 1955”; that the order of March 26, 1956, was not a final order or judgment and that the present motion constituted the “earliest point in the proceedings” since March 26, 1956, when defendants could lawfully raise and preserve “this point” and the motion prayed that the court amend its memorandum and order of February 6, 1962, by vacating and setting aside its order of March 26, 1956, “insofar as the same attempted to stay lawful penalties and interest from accumulating on the unpaid portion of Plaintiffs’ delinquent real estate taxes for the year 1955; and further, to order the Plaintiffs to pay the additional statutory amounts accrued, to Defendant James Frank Bell, Collector, as the statutory penalties and interest due on said date (February 6, 1962) on Plaintiffs’ 1955 real estate taxes involved herein, or in the alternative to grant said Defendants a new trial for the reasons hereinabove set forth.”

The motion to amend or for new trial was overruled and defendants below appealed from the judgment entered on February 6, 1962, heretofore set forth in full.

In our view, defendants are not aggrieved parties within the meaning of Section 512.020 RSMo 1959, V.A.M.S., and thus have no right to appeal. See National Surety Corp. v. Fisher, Mo., 317 S.W.2d 334, 338 [1]; Boland v. Dehn, Mo.App., 348 S.W.2d 603, 604 [2]; McCormack v. Dunn, 232 Mo.App. 371, 106 S.W.2d 933, 935 [2-5]. The judgment appealed from disposed of all issues favorably to defendants and they received all the relief they sought and all they could have received under the facts and issues before the trial court.

We, of course, agree with defendants’ contention that courts “in the absence of statutory authorization * * * have no power to relieve delinquent taxpayers from penalties imposed by statute * * * [nor are] statutory penalties * * * procedurally circumvented and the legislative exactions judicially vitiated by payment, pending litigation, of the amounts of contested taxes into the registry of the court pursuant to court order entered before or after the taxes were delinquent.” American Airlines, Inc. v. City of St. Louis, Mo., 368 S.W.2d 161, 167. (Bracketed insert ours.)

The difficulty with defendants’ position is that there was no issue before the trial court which called for the application of those principles. The rather extensive review of the record we have made herein demonstrates the validity of that conclusion. Summarizing the record facts, plaintiffs, by averment in their petition and thereafter by oral motion, sought to pay into the registry of the court an amount of money sufficient to pay “taxes lawfully required to be paid” and thereby be relieved of penalties and interest assessed against delinquent taxpayers. Defendants filed their motion to dismiss. On March 26, 1956, the trial court entered an order (set forth in full above) sustaining plaintiffs’ motion to pay into the registry of the court $144,801.12, being the total real estate taxes levied for the year 1955 against the property involved and, as part of the order, specifically provided that the sum was authorized and directed to be paid into the registry of the court “without prejudice to the rights of plaintiffs or defendants,” and further ordered that 79% or $114,392.88 be paid forthwith to the collector to apply against the taxes levied against plaintiffs’ property. That “memorandum and order,” as noted, was approved by plaintiffs, defendants, and by intervenor-applicant school district. The “matter” was then submitted to the court on its merits. The “matter” can mean only the question whether plaintiffs’ petition should be dismissed; that was the only issue before the court. That question was briefed and thereafter, on February 6, 1962, the court sustained defendants’ motion to dismiss the petition and thus adjudged that plaintiffs’ petition should be dismissed for the stated reason (in so far as here pertinent) that it failed to state facts on which relief could be granted. The court included in its judgment an order that the remainder of the money in the registry of the court be paid to the collector of St. Louis County and that “upon receipt of said amount [the collector was to] apply the same on account of the following 1955 Real Estate tax bills * * * ” (bracketed insert ours), after which the tax bills to which the amounts were to be applied were listed.

It seems apparent that defendants obtained the only relief they sought, viz., the dismissal of plaintiffs’ action. There was no issue or question, so far as the record shows, as to the disposition of the $30,000 remaining in the registry of the court; but surely the fact that the St. Louis County Assessor and Collector could not have been aggrieved by an order that the collector be paid an additional $30,000 unconditionally, is obvious. The portion of the judgment ordering the $30,000 paid to the collector contained no language which could be construed to mean that the trial court had adjudged that the 1955 tax bills were thereby paid in full or that plaintiffs were not or would not be liable for penalties and interest.

The plain decisive fact is that defendants did not seek in the present suit to recover taxes or interest and penalties on delinquent taxes; they did not file a counterclaim as was done by the St. Louis County collector in American Airlines, Inc. v. City of St. Louis, supra, 368 S.W.2d 169. Defendants’ motion to amend the judgment or for a new trial is necessarily unavailing; first, because defendants had received all the relief they had sought and, secondly, it is plain that a motion to amend a judgment or for a new trial may not be considered as the proper assertion of a claim (by suit or counterclaim) for penalties and interest due on delinquent taxes.

Inasmuch as our holding herein results in the dismissal of the appeal, we do not reach other questions briefed by the parties.

The appeal is dismissed.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

The foregoing opinion by COIL,' C., is adopted as the opinion of the court. ■

All concur.