author: BOND, J.

text:
    ALBERT F. FRYE, Appellant, v. WILLIAM C. WARREN et al.
    Division One,
    March 2, 1915.
    APPELLATE JURISDICTION: Agent’s Commissions for Selling Land. The Supreme Court has no jurisdiction of an appeal from a judgment sustaining a demurrer to plaintiff’s petition and dismissing his suit, brought against both vendors and vendee, wherein he alleges that, as a real estate agent in pursuance to a contract with the vendors to sell their land, he was to receive as his compensation all the purchase price above $5000, and that he did sell it for $7000, by a binding contract, which both vendors and vendee have repudiated and refuse to enforce, and asking for a judgment for $2000, and that it be made a lien on the land. Said suit does not involve title to real estate.
    Appeal from Newton Circuit Court. — Son. Carr McNatt, Judge.
    Transferred to Springfield Court of Appeals.

      Albert Frye pro se and George Hiobbert also for appellant.

      Sorace Ruarle and Frank L. Forlow for respondents.
    STATEMENT.
    This case was submitted on briefs, thus depriving us of the benefit of an oral argument. The second amended petition is lengthy. It states in substance that the plaintiff is an attorney and real estate agent; that he was employed in the latter capacity by William C. and Mary J. Warren to dispose of forty acres of land owned by them in Newton county, Missouri; that his compensation was to be the excess over five thousand dollars for which he mig’ht be able to sell the land; that he communicated this employment to Thomas F. Coyne at Joplin, Missouri, who gave him a check for one thousand dollars as part payment for the land, at the rate of one hundred and seventy-five dollars per acre, and that he executed the following receipt to said Coyne.
    REC’D of T. F. COYNE a check for one thousand dollars to' bind the bargain for the sale of southeast quarter of section 19, township 27, range 32 at $175 per acre subject to the right of way. If right of way is a deed it will have to be less amount of right of way at $175 per acre. The balance to be paid within ten days or when the title is perfect. The owners to furnish abstract of title. The owners to make affidavit that the ground has never been drilled and to guarantee that farmers occupying the land will permit of the same being laid off in mining lots and mined.
    T. F. Coyne, -
    W. C. Warren,
    Mary J. Warren,
    Owners.
    , By A. F. Frye,
    Their Agent.
    That on the same day, November 22,1910, he procured the following agreement from William C. Warren:
    Saginaw, Newton Co., Mo.,
    November 22, 1910.
    “William C. Warren and Mary J. Warren, his wife, hereby acknowledge the sale of the southeast quarter of section 19, township 27, range 32, containing forty acres of land in Newton Co., Mo., to T. F. Coyne for $5000 by A. F. Frye, and the said Coyne has drawn his cheek on the Webb City Bank for $1000, payable to W. C. Warren, which they acknowledge the receipt of same as first payment, the balance of $4000 to be paid when abstract of title is furnished showing perfect title. Said Frye is to hold the $1000 check as agent of W. C. Warren until tomorrow, when the same is to be deposited in some bank in Joplin with the deed until the abstract of title is furnished showing title perfect as aforesaid when balance as aforesaid is to be paid and deed and abstract delivered.
    W. C. Warren.
    A. F. Frye.
    Witness: Henry C. Swore, J. P.
    It is understood that in case Marion Staples, my agent, has sold this property today to a bona fide purchaser for $5000 and entered in a written contract in my name, then it is at my option to terminate this agreement. If he has not sold it as aforesaid, I agree to notify him early in the morning and withdraw the property from his hands and close the deal as per this agreement. Should Mr. Staples refuse to terminate his agreement with me on the tender of his commission, then this contract is to be null and void at my option.
    W. C. Warren.'
    A. F. Frye.”
    That pending the preparation of an abstract of title, the deed from Warren and wife, and the check from Coyne, were deposited in a bank for cross-delivery on consummation of the transaction. The petition then states that owing to some hesitation upon the Warrens’ part to go forward in the matter, the plaintiff Frye, in Coyne’s name, brought suit in the circuit court of Newton county against them to enforce the specific performance of the contract and to compel the Warrens to convey the land'on the 26th of November, 1910. The petition does not state what became-of this action, but the statement of appellant shows, that Mr. Coyne interfered with him and dismissed the suit which he had brought in Mr. Coyne’s name in Newton county. The petition concludes, to-wit:
    “That the said Warrens, having made, executed and acknowledged their warranty deed on-November-22, 1910, purporting to convey the said land to the said Coyne, and having made affidavit that the ground had not been drilled over, and having guaranteed that the farmers occupying the land would permit the land to-be laid out into mining lots and mined, and they, the said Warrens, deposited the same in the said Cunningham Bank along with an abstract of title showing title vested in the said Warrens perfectly, and they also advised said Coyne of those facts and offered and tendered to him the said deed, abstract, affidavit, etc., and asked him to perform and execute the said contract on his part and receive the said conveyance and pay over the said purchase money for said land, this on or about. the - day of -, 1910, when the said Warrens stood ready and able and willing to carry out the terms-, of said contract on their part, plaintiff aiding therein- and urging such performance on both sides and in his. own interest and behalf on account of his beneficial interest therein as aforesaid, in pursuance of which the-said Warrens deposited said deed for Coyne in said bank.
    “That then the'said Coyne deferred and demurred in his turn, having come into communication with the forementionecl other persons who were alleged to have purchased said property through another agent of the said Warrens, claim of which was untrue as above mentioned, the said alleged purchasers being . . . and the said other agent being . . . and the said alleged other purchasers turning out to be friends and business associates of the said Coyne.
    “That defendants, having in view the advantages to plaintiff of the performance of said contract of sale as between contracting vendor and purchaser, and of the advantages of defendants on the other hand of not performing said contract, in this, that Coyne, his associates or friends might by later arrangements obtain the said property for somewhat less by dealing otherwise with the said Warrens, and that they, the said Warrens, might obtain for said property somewhat more by such arrangements and dealing — the defendants, their friends, associates and others unknown to plaintiff, have combined, confederated and conspired together, wrongfully and fraudulently, to deprive the plaintiff of his rights and interests in the said contract, land, sale money, proceeds and profits, by their acts and doings in and about the premises, all apparently by independent and several conduct, yet concurrently to the same end, by implied and express mutual consent and combination, and said Coyne has repudiated and stopped payment of his said $1000 check, and demanded its return.

    “That defendants, in .pursuance of the said combination, confederation and conspiracy, have severally and collectively denied the binding force of said sale contract and repudiated the same altogether, under sundry false and fraudulent pretenses and contentions, against the interests, rights and protests of plaintiff, who has a substantial and beneficial interest in the said contract, in the said land and its proceeds, being a party, as he was and is, to the said sale contract, to the extent of $2000 (of the contract price of $7000), due to be paid by said Coyne nominally to tbe Warrens and by them turned over concurrently to plaintiff for his said services.
    “That the defendants, for the wrongful purpose and with the fraudulent intent to deprive plaintiff of his said contracted commission and compensation, have taken the wrongful stand that they are under no obligation to, and they will not, further perform said contract or consummate said sale or conveyance to any extent, without which plaintiff can have no adequate legal right or remedy against either of them for the recovery of the said $2000.

      ‘1 That concurrently and co-operatively the defendants, in pursuance of the aforesaid conspiracy and combination, for the accomplishment of their fraudulent intent and design towards the plaintiff as aforesaid, wrongfully contribute to the defeat of plaintiff in his claim to the said $2000 of the price of the said property under said sale contract; that is to say, the said Coyne refuses to, and he will not pay or stand responsible for the purchase money for said land, and the said Warrens refuse to and will not deliver the said deed or convey said land to or for the use of said Coyne in pursuance of the said contract as negotiated by plaintiff, .though plaintiff has often demanded of them each severally that they do so, and that they fully execute and perform the said contract altogether, each upon his own part,-and that they pay the plaintiff and to his use the said sum of $2000', which they have refused and yet refuse to do.
    “That otherwise than by this suit plaintiff has no remedy, at law or in equity, whereby he may in anywise compel the said defendants, or either of them, to pay him the said sum of $2000, or any part thereof, or to indemnify him for any loss or damage resulting, as it very certainly will, from the aforesaid wrongs and injuries by their refusal to perform the said contract or to pay or provide for him the said sum as his just dues for Ms said services under the terms of his employment and the contract as aforesaid and in finding and producing a purchaser for and making sale of said property as aforesaid.
    “Plaintiff prays that the court adjudge and decree that the said defendants shall in all things and fully perform specifically the said contract of sale and conveyance upon the one hand and the purchase agreement upon the other hand to take and pay the said contract price for the said land and premises, viz., $7000 in full (for that he said Coyne has stopped payment upon and repudiated the said check), and that the defendants be required and compelled to pay plaintiff Ms share of the said purchase money, viz., $2000', with interest thereon, and that if for any reason the court find and decree that defendants may be relieved in any degree from such full performance upon renunciation or waiver of the advantages thereof as between themselves, the plaintiff nevertheless have and recover his said share of $2000 upon due accounting of the defendants therefor, and that the plaintiff have by decree herein a first lien and charge upon .the said land for satisfaction of his claim as allowed and adjudged by the court, and that the plaintiff have and be decreed such and all other relief and remedies as the court shall find Mm entitled to in equity and good conscience upon the facts that shall be established in the case, together with interest and costs, inclusive o'f damages for breach of contract upon the part of defendants if the circumstances preclude the more specific remedy.”
    Both Warren and wife and Thomas F. Coyne were made party defendants to the above petition. They demurred separately and the trial court sustained tbeir several demurrers and plaintiff declining to plead further dismissed his suit, from wMch he has duly appealed to this court.
   OPINION.

BOND, J.

(After stating the facts as above.') — It is apparent from the face of the petition that we have no appellate jurisdiction of this cause. The amount involved is only two thousand dollars. The parties to the alleged agreement to sell the land described in the petition have avowed their unwillingness -to take any action looking to its enforcement and insist that they have entered into no binding obligation to sell and purchase. All these facts appear in the allegations of the petition. It is a novel idea that plaintiff, a stranger in title and interest to the land, has a right to come into a court of equity to compel the owners to sell to a party who has declined .to buy and to whom the owners have refused to sell each upon the statement that no binding contract exists between them for the transfer of the title.

The case must be transferred to the Springfield Court of Appeals, as not involving any amount or any question.giving this court appellate jurisdiction. For this reason we refrain from passing on the action of the trial court in sustaining the demurrers to plaintiff’s petition and relegate that question to the proper appellate forum. The cause is hereby transferred to the Springfield Court of Appeals.

All concur.


source: Caselaw Access Project

author: GRAVES, P. J.

license: Public Domain

text:
    HENRY WOODS et al., Appellants, v. J. HENRY JOHNSON.
    Division One,
    March 2, 1915.
    1. PRACTICE: Law Case: Tried by Court. The findings of fact in an action at law (ejectment) tried by the court without the intervention of a jury rest upon the same ground as to facts as do the verdicts of juries, and on appeal such findings will not be disturbed if they are supported by substantial evidence, or the evidence is conflicting.
    2. EJECTMENT: Government Corners: Conflict in Evidence. Original corners as established by the Government surveyors, if they can be found, or if the places where they were originally established can be definitely determined, are conclusive, without regard to whether they were located correctly or not. And where defendant undertook to establish from the Government field notes, monuments and living witnesses the location of a corner established by the Government, and plaintiffs proceeded on the theory that such corner was lost and introduced evidence tending to show it had been established at a place which showed the land to belong to them, and the issue being which was the true Government corner, and the evidence as to both being substantial, though much in conflict, a finding by the trial court sitting as a jury in favor of defendant is conclusive of that issue on appeal.
    Appeal.from' Oregon Circuit Court. — Ho». W. N. Evans, Judge.
    Affirmed.

      8. M. Meeks and O. L. Haydon for appellants.
    (1) The order of applying description of boundaries is: First, to natural objects; second, to artificial marks; third, to courses and distances given in the deed. Whitehead v. Ragan, 106 Mo. 236. (2) In establishing section lines, the witness of trees and monuments of the original surveys made by the United States government, no matter how inaccurate they may he, control over more recent surveys, though the latter may clearly show that the former were grossly erroneous. Mayor of Liberty v. Burns, 114 Mo. 430. (3) Known and fixed monuments will control though they conflict with courses and distances, even where there are two fixed artificial monuments in conflict with each other and both entitled to the same credit and value as a monument. In such case of ambiguity the one should be taken which corresponds with the descriptions and distances. Ziebold v. Foster, 118 Mo. 355. (4) The primary object to be attained in the establishment of lost comers is to put them, if practicable, in the exact spot they were put by the Government, and this object can best be accomplished when all traces of the corners are gone and there is no fixed monument called for, by-observing the courses and distances called for in the field notes of the original Government survey. Major v. Watson, 73 Mo. 66.

      E. P. Dorris for respondent.
    So-long as the monuments placed upon the earth’s surface hy the United States surveyors can be identified, there are no lost corners, and they control, no matter what more recent surveys, by courses and distances disclose. Jacobs v. Moesley, 91 Mo. 464; Knight v. Elliott, 57 Mo. 317. Measurements must yield to the true location controlled by the Government’s monuments, as indicated in the records. Brown v. Carthage, 128 Mo. 10. A Government corner must prevail over distances in the ascertainment of the true line. Mining & Smelting Co. v. Davis, 156 Mo. 422; Campbell v. Clark, 8 Mo. 553. Government corners must prevail. Major v. Watson, 73 Mo. 661; Carter v. Homback, 139 Mo* 238; Climer v. Wallace, 28 Mo. 556; Mayor of Liberty v. Bums, 114 Mo. 426. Field notes of the Government surveyors will control in ascertaining location of corners and boundary lines, even when the established comer by the surveyor cannot be found. Bradshaw v. Edelin, 194 Mo. 640. Government surveys are conclusive. Frederitzie v. Boeker, 193 Mo. 229. Conflict between plat and actual survey is controlled by the survey. McKinney v. Doane, 155 Mo. 289. Original comers as established by the government surveyors, if they can be found, or the places where they were originally established, if they can be definitely determined, are conclusive, without regard to. whether they were located correctly or not. 5 Cyc. 873. The general duty of a surveyor in instances like this are plain enough; he is not to assume that a monument is lost until after he has thoroughly sifted the evidence and found himself unable to trace it, and exhausted every recourse to which surveyors have access, as the original Government surveys must govern. Stewart v. Carlton, 31 Mich. 270; Diehl v. Zanger, 39 Mich. 601; Dupont v. Sparring, 42 Mich. 492. The evidence overwhelmingly supports the judgment, but if the evidence in any material particular is viewed as conflicting, the finding of the trial court will not be disturbed on appeal. Cole v. Mueller, 187 Mo. 638.
   GRAVES, P. J.

Action in ejectment for a small triangular strip of ground, embracing about ten acres in section 23, township 23 north, range 3 west, in Oregon county. The petition thus describes^ the disputed strip:

“A strip on the north side thereof being a strip described as follows, to-wit: Beginning at a point about 100 yards south of the northeast corner of said section 23, running west on a direct line to the northwest corner of the northwest quarter of the northeast quarter of said section 23, thence east along the north side of said section to the northeast comer of said section 23, thence south to the place of beginning. ’ ’

Ouster was alleged as of “-day of-, 1910,” damages claimed in the sum of fifty dollars, with monthly rents and profits fixed at one dollar per month.

By answer the defendant (1) admitted that he was in possession, but denied all other matters in the petition claimed, and (2) the defendant thus sayeth:

“Defendant further answering says that he is the owner and claims possession of the premises in question according to the true Government corner and corners and survey by the United States made and established, affecting said premises and has possession of said premises holding and claiming to the true corners and boundary lines thereof, according to the Government survey, exercising rights of ownership over the same and using it in connection with his adjoining farm, of which the land in question forms a part, for over twenty years. That last May he fenced said premises to the Government comer and boundary line, and has heretofore used the same in connection with his said farm and exercised acts of ownership over the same, and has had more than ten years’ open, adverse, continuous and peaceable possession of the same, prior to the filing of this suit; that plaintiffs, and those under whom they claim said premises, have recognized the same corners and boundary line affecting said premises, for over twenty years, as defendant now and has always claimed, and partly fenced to the same and acquiesced in the same and are estopped to deny the same as the true corners and boundary lines affecting said premises.

“Wherefore, defendant having fully answered, asks to be discharged with costs.”

The record shows no reply, but the cause seems to have proceeded as if one had been filed. Upon a trial before the court without the intervention of a jury, judgment-was entered for defendant from which the plaintiff has appealed.

The attached plat will show the land in dispute and help illustrate the subject. Defendant claims that the line marked “Heiskell Line” is the one established by the United States Government, and plaintiffs claim that the “Simpson Survey” is the line established by the United States Government. The case narrows to this issue.

TOWNSHIP 23, RANGE 3

I. This is an action at law tried before the court without the intervention of a jury. In such cases the findings of the court as to facts is upon the same plane as the findings of a jury in law eases, i. e., that such findings will not be disturbed upon appeal if they are supported by substantial evidence, or the evidence is conflicting. In one of the more recent cases, Smith v. Royse, 165 Mo. l. c. 657, Brace, P. J., said:

“The case was tried before the court without a jury. The declarations of law made by the court at the close of the case are not excepted to or brought here, and no exception is taken to. any action of the court on the trial. The only objections urg’ed to the judgment on this appeal are that the evidence did not affirmatively show that the plaintiff was an heir at law of William Downey, who died seized of the land, and that the damages are excessive. All the evidence in the case is brought here and we are asked to review it, and upon it, we are asked to find ag’ainst the circuit court upon these two points and reverse the judgment.

“This is purely an action at law, in which we are not called upon to determine the weight of the evidence. The finding of the trial court is final upon that question. [State ex rel. v. County Court, 51 Mo. 522; Hamilton v. Boggess, 63 Mo. 233; Gaines v. Fender, 82 Mo. 497; State ex rel. Watson v. Harper, 83 Mo. 670; Mays v. Pryce, 95 Mo. 603; Bartlett v. Kauder, 97 Mo. 356; Hahn v. Cotton, 136 Mo. 216; Sutter v. Raeder, 149 Mo. 297; Zimmerman v. Railway Co., 156 Mo. 561.]"

The same question is likewise touched upon by the same learned jurist in Comer v. Statham, 173 Mo. l. c. 248. Keeping in view this doctrine of the law this case is much simplified.

II. In the case at bar, the respondent clearly planted his claim to the disputed strip of land upon the fact of there being clear evidence of the Government corner of sections 13,14, 23-, and 24, township 23, range 3 west, in Oregon county. By this evidence he undertook to establish from the Government field notes, monuments and living witnesses the location of that established corner. On the contrary, appellants proceeded as if such corner was a lost corner, and introduced their-evidence as tending to show-where the corner should be. This was the battle line below, and must be the seat of war here. If the Government comer was established where respondent’s evidence tends to show it to have been established, then the finding nisi was correct. This was a question of fact for the court to find, which was found in favor of respondent. When so found upon substantial evidence, this court will not, under the authorities cited in our paragraph one review the facts. The evidence of the respondent was substantial upon this question and the finding nisi is binding here. In 5 Cyc. 873 it is said:

“Original comers as established by the Government surveyors, if they can be found, or the places where they were originally established, if they can be definitely determined, are conclusive, without regard to whether they were located correctly or not. ’ ’

This doctrine is thoroughly recognized in Missouri: Campbell v. Clark, 8 Mo. 553; Knight v. Elliott, 57 Mo. 317; Jacobs v. Moseley, 91 Mo. l. c. 464; Granby Mining and Smelting Co. v. Davis, 156 Mo. 422; Brown v. City of Carthage, 128 Mo. 10; Frederitzie v. Boeker, 193 Mo. 228.

Reverting to the plat, which is made a part of the statement, respondent claims the Government corner was established at the intersection on the Heiskell line, whilst the appellant claims that such Government comer was or should be at the intersection of the Simpson line or survey. Upon these two disputed questions, there is much conflict of evidence. For respondent the evidence tended strongly to show that the original Government comer was at the intersection on the Heiskell line. If that intersection was the corner established by the Government, then no amount of measurements can change it, and it fixes the boundary line. In finding for the respondent the trial court had to find that the intersection of the Heiskell line was the true and original Government corner. This finding has substantial evidence in the record to support it, and this court cannot interfere with such finding of facts. No instruction was asked or refused, and we have the simple question as above indicated. The judgment must be affirmed and it is so ordered.

All concur.


text:
    W. C. CALLAND et al., Appellants, v. CITY OF SPRINGFIELD et al.
    In Banc,
    March 3, 1915.
    1. CONSTITUTION: A Harmonious Chart. The Constitution of Missouri was designed hy its framers to be a single, symmetrical and harmonious chart of government, free from repugnancy and ■ conflict in any of its provisions.
    2. -: -: Classification of Cities: Taxation. The Constitution in requiring the General Assembly by general laws to divide cities into four classes and to give each class the same powers and to subject them to the same restrictions had in view their organization, and plainly referred to their constituent agencies and governmental functions; it did not mean that the rate of taxation for municipal purposes must be inflexibly the same in all cities of the class, whether or not one city of the class might, because of its population, be entitled to become a city of a higher class.
    3. -: -: Cities of the Third Class: Rate of Taxation. There is no conflict in the provision of the Constitution authorizing a city having a population of thirty thousand to levy taxes at a rate not to exceed one hundred cents on the one hundred dollars’ valuation, and the other provision requiring the General Assembly to divide the cities of the State into four classes and to so define their powers that “all such municipal corpora- ' tions of the same class shall possess the same powers and be subject to the same restrictions.” The last provision does not mean that a city of the third class, which has a population in excess of thirty thousand, cannot levy a tax of one dollar on the hundred, simply because it is and has for many years been a city of the third class, although the statute says that cities of the third class shall he those containing three thousand and less than thirty thousand inhabitants. The two provisions, when read together, mean that a city having thirty thousand inhabitants or more may levy taxes not exceedii „ one hundred cents on the hundred dollars’ valuation, whatever class it may belong to.

      4. -: Rate of Taxation: Vote of People: Census. Sec. 9248, R. S. 1909, in so far as it undertakes to make a tax for municipal purposes in excess of sixty cents on the hundred dollars’ valuation depend upon a majority vote of the people is unconstitutional, since it is an attempt by the Legislature to take away a constitutional grant of power, and to restrict the exercise thereof. But in so far as it authorizes a census to be taken by the city for the purpose of ascertaining whether the city possesses the requisite population entitling it to impose a tax of one dollar on the hundred, it is constitutional.
    Appeal from Greene Circuit Court. — Non. Guy D. Kirby, Judge.
    Affirmed.

      J. J. Gideon, G. W. Goad, N. T. Lincoln and J. B. Fenton, Jr., for appellants.
    (1) The constitutional limitations on the rate of taxation under section 11, article 10, is self-enforceing as a limitation on taxation, by cities. But the Constitution of its own force confers no power upon cities to levy taxes. The taxing power in cities is derived from the General Assembly, and not directly from the Constitution. Constitution, see. 1, art. 10; Brooks v. Schultz, 178 Mo. 222; Arnold v. Hawkins, 95 Mo. 569; State ex rel. v. Van Every, 75 Mo. 537. (2) The tax levy in controversy is in violation of section 7, article 9, and section 11, article 10, of the Constitution. Under said section 11, no city of the third class under 30,000 population can levy taxes exceeding sixty cents on the one hundred dollars. Under said section 7 the city of Springfield has no power to levy any tax, general or special, which cannot be levied by any and every other city of the third class. Murnane v. St. Louis, 123 Mo. 479; Kansas City v. Scarrett, 127 Mo. 642; St. Louis v. Dorr, 145 Mo. 466; Kansas City v. Stegmeyer, 151 Mo. 189; Owen v. Baer, 154 Mo. 434; State ex rel. v. Borden, 164 Mo. 221; E/tling v. Hickman, 172 Mo. 237; Ex parte Handler, 176 Mo. 383; State ex rel. v. Clayton, 226 Mo. 292; Hall v. Sedalia, 232 Mo. 344; Ward v. Paving Co., 79 Fed. 390; Paving Co. v. Ward, 85 Fed. 27; People ex rel; v. G-aulter, 149 111. 39; Saunders v. Seehorn, 98 Cal. 227. The meaning of the language used in section 7, article 9, of the Constitution, is clear and unambiguous, and it is the duty of the court to declare, that said language means what it says. Neither is there any conflict between said section 7, article 9, and section 12, article 10. Both may be enforced according to the terms thereof without reading an exception into either, by construction. 8 Cyc. 730, 733; McGrew v. Railroad, 230 Mo. 535; Wells v. Railroad, 110 Mo. 296; Burns v. Gibson, 195 Mo. 251; Barnard & Co. v. Knox Co., 105 Mo. 390; State ex rel. v. Gammon, 73 Mo. 521; Cooley’s Constitutional Limitations, p. 70; Sutherland on Statutory Construction, pp. 461, 462; Chance v. Marion Co., 64 111. 66; Cant-well v. Owens, 14 Md. 215; Hill v. Chicago, 60 111. 91. (3) If the court holds that the tax levy in controversy is not in violation of article 7, section 9, and section 11, article 10, of the Constitution, then said levy is void under the terms of the Act of 1905, now Sec. 9248, R. S. 1909, as said,section 9248 is not unconstitutional, (a) On account insufficient title. State ex rel. v. County Court, 128 Mo. 441; State ex rel. v.- Brown, 115 Mo. 175; State v. Doerring, 194 Mo. 407; State ex rel. v. Ranson, 73 Mo. 86; O’Brien v. Ash, 169 Mo. 283; Nalle v. Insurance Co., 250 Mo. 452; State v. Vandever, 222 Mo. 206; State v. Gordon, 223 Mo. 1. (b) On account of the local option clause. Hall v. Sedalia, 232 Mo. 344. (4) If the court holds that section 9248 is void on account of insufficient title, or the local option clause, then the whole act is void including repealing clause. This would leave the Act of 1893 (Sec. 5853, R. S. 1899) valid and in force and which prohibits the levy of the tax in controversy. Copeland v. St. Joseph, 126 Mo. 417; Birch v. Plattsburg, 180 Mo. 419; Kansas City v. Cook, 69 Mo. 127; State ex rel. v. Wardell, 153 Mo. 323; State v. Kring, 74 Mo. 612; State ex rel. v. Miller, 231 Mo. 498; State v. Thomas, 138 Mo. 95. (5) The twenty cent levy in controversy is void for the reason that it is a special tax, for a special purpose unauthorized by law. State ex rel. v. Van Every, 75 Mo. 437; Arnold v. Hawkins, 95 Mo. 569; Railroad v. Apperion, 97 Mo. 308; State ex rel. v. Shortredge, 56 Mo. 130; State ex rel. v. Salem, 45 Mo. 242; State ex rel. v. Eailroad, 169 Mo. 563. ■

      Leonard Walker and Barbour & McDavid for respondents.
    STATEMENT.
    Plaintiffs, who are resident taxpayers of the city of Springfield, Missouri, owning real estate therein, which is assessed for taxing purposes, bring this action on behalf of themselves and others similarly situated, to restrain said city from the collection of a special tax of twenty cents on the one hundred dollars levied by it for the special purpose of maintaining, keeping up and supporting a fire department. Joined with said city as a codefendant, is the city collector of taxes. The petition set out in extenso the ordinance of the city, under which the item of taxation and all other taxes for the fiscal year 1913 were to be assessed and provided for, and attacked the validity of the provision levying a tax for the support of the fire department on certain statutory and constitutional grounds hereafter noted.
    The answer of the defendants was a general denial, coupled with certain allegations in avoidance of the attack made in the petition upon the validity of the ordinance.
    After the joinder of these issues by reply, the case was tried upon an agreed statement of facts setting íorth in substance that the city of Springfield has been for twenty-five years a city of the third class; that by an ordinance duly enacted, No. 7856, and approved by the mayor on July 2, 1913, the city taxes were levied for the ensuing fiscal year; that the aggregate amount of the taxes thus levied for all purposes was one dollar on the one hundred dollar valuation of the property taxed; that all of the taxes were levied on the same day and under one and the same ordinance and, including the item of twenty cents on the one hundred dollars, were levied to meet the general current expenses of the city to be incurred during the year following; that the city owned and maintained four different permanent fire stations and buildings, thoroughly furnished with modern appliances, and employed fifty experienced firemen to carry on that department, and that the sum levied for the support and maintenance of that department is a reasonable one. The total valuation of the taxable property of the city for the year beginning July 1, 1903, was $17,154,495; that according to the last census taken in 1910 by the Federal Government the city of Springfield had and now has thirty-five thousand two hundred and one inhabitants; that no census of the city’s inhabitants has been taken since.
    The agreed statement of facts set forth the manner of the enactment of section 9248 of the Revision of 1909. The court found the issues in favor of the defendants and dismissed plaintiffs’ bill. The legal questions presented by the pleadings and the relevant evidence will be discussed in the opinion.
    Plaintiffs duly perfected their appeal to this court.
   OPINION.

BOND, J.

(After stating the above facts.) — The theory, of the petition in this case is that the portion of the ordinance of Springfield, enacted July 2, 1913, to levy taxes for that year, which levied a tax of twenty cents on one hundred dollars of property valuation for the support of the fire department was void under the constitutional provisions (Section 11, article 10, and section 7, article 9):

First, for that the said city being one of the third class, although of thirty-five thousand two hundred and one population, and hence entitled to levy taxes not exceeding one dollar per one hundred dollars of property valuation (Constitution, art. 10, sec. 11) was debarred from exercising that power by the terms of another section of the Constitution (Art. 9, sec. 7) requiring the Legislature to divide the cities and towns of the State in four classes, so that each class shall “possess the same powers and be subject to the same restrictions,” and the admitted fact that Springfield had not chosen to become a city of the higher class'to which its population exceeding thirty thousand entitled it, wherefore if it were allowed to levy its taxes upon the constitutional basis of population (Art. 10, sec. 11) it would thereby have a taxing power which other cities of the same class with population of less than thirty thousand would not enjoy, and hence would contravene the terms of the provision of section 7 of article 9 of the Constitution above quoted.

The Constitution was designed by its framers to be a single, symmetrical and harmonious chart of government of the people of the State free from repugnancy or conflict in any of its provisions, and presenting a single scheme of correlated parts for the control and regulation of all organs and departments of the State Government. The rules for interpreting its provisions are the same as those prescribed by law for the construction of statutory enactments which are in pari materia or parts of a single statutory plan or code.

Applying these rules to the two sections of the Constitution above referred to, and it will be seen that there is no necessary conflict between their respective provisions; the' one section (Art. 10, sec. 11) provides in explicit terms a direct and specific grant of power of taxation to cities in the following language:

“For city and town purposes the annual rate on property in cities and towns having thirty thousand inhabitants or more shall not, in the aggregate, exceed one hundred cents on the one hundred dollar valuation. ’ ’

The other section (Art. 9, sec. 7), after referring to the Legislature the duty of providing “for the organization and classification of cities and towns” and limiting these to four, adds, to-wit:

“And the power of each class shall be defined by general laws, so that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions.”

This general language of the Constitution is necessarily referable to the objects had in view, that is “the organisation” and division of all cities and towns into four classes. Therefore, in providing that when thus classified they should have similar powers and be under similar restrictions, the Constitution plainly referred to the constituent agencies and governmental' functions which necessarily composed “the organization” of the cities and towns as a body politic under a particular class.

The section of the Constitution in question was in furtherance of the thought only that all towns and cities falling in a particular class should possess all the power and agencies conferred upon that class by the accordant acts of the Legislature. [R. S. 1909, sec. 8526, and chap. 84, art. 4.] The Constitution in that section was not dealing specifically with the matter of limiting the power of cities and towns to levy taxes, bnt had an eye solely to sameness of organization, administration and government on the part of snch cities and towns as should fall into a particular class.

When it came to the great question of the power of cities and towns to deal with the matter of taxation, the Constitution conferred that faculty upon them through authority to be granted by the General Assembly (Art. 10, sec. 1) and limited the exercise of that function by other sections specifically dealing with the rate and basis of municipal taxation (Constitution, art. 10, secs. 11 and 12).

By the first of these sections, as has been seen, the Constitution in express terms conferred upon any town or city of over thirty thousand inhabitants the right to assess and collect taxes for municipal purposes at the rate of one dollar on the one hundred dollars valuation. This provision is in no wise repugnant to any of the provisions of the independent' section of the Constitution (Art. 9, sec. 7) dealing with the sameness' of the organization, officers, departments, and government of all cities and towns belonging to the same class. The two sections are entirely reconcilable, the one ■dealing in general terms with the “general powers and restrictions;” and the other specifically pointing out-the constitutional basis limiting the rate of taxation according to population, and applicable, irrespective of classification, to any town or city having the requisite population.

Neither does it (Constitution, art. 10, sec. 11) discriminate in favor of one city over another belonging to the same class, for by providing population of thirty thousand and over as a basis for a rate of taxation of ■one dollar on the one hundred dollar valuation, the Constitution has in itself provided a classification into which cities and towns will fall according to population, in an equal and reasonable way, and one which comports with the essential purpose of the Constitution to fix the rates of taxation, according to the growth, development and needs of the various cities of the State.

Our conclusion is, that under the admitted facts, the city of Springfield had a population exceeding the constitutional basis for the rate of taxation fixed by it, and having restricted the aggregate of its assessments 'within the constitutional limits ($1 on the $100 valuation) there is nothing in the two sections of the Constitution referred to in the learned brief for appellants which disables the city of Springfield in collecting the tax for the support of its fire department, it not being claimed that such was not an essentially municipal purpose. The rulings in the cases cited by appellant, on the points in judgment, are not contrary to this conclusion.

II. The next point insisted upon by appellant is that the levy for the support of the fire department, conceding it to be otherwise for a legitimate municipal purpose, was not preceded by a vote of the qualified voters of the city prescribed by statute where a city of the third class levies taxes exceeding sixty cents on the one hundred dollars. [Sec. 9248, R. S. 1909.] That section of the statute was passed in 1905 (Laws 1905, p. 78) as an amendment of section 5853 of the Revision of 1899. The prime purpose of the later, as well as the original statute, was. to authorize the taking of a census of its population by cities of that class in order to determine their constitutional power to impose taxes for. city purposes. The section of the Constitution (Art. 10, sec. 11) which has been adverted to in the former paragraph graded the rate of taxation which cities and towns were empowered to levy by reference to their respective populations, and in order to determine that question it provided that the rates specified should be governed by the number of inhabitants, according to the last census taken under the authority of this State or the United States.

Obviously, the chief object of the act under review, as well as the preceding act' for which it was substituted, was to enable the cities entitled to the aggregate of taxation specified in the constitutional provision, to take advantage of a State census as well as a Federal census, and thus not require them (when otherwise entitled to levy such a rate) to wait for a new Federal census. This was a wholesome purpose on the part of the Legislature, for it would result in giving the city a right to levy the taxes granted by the Constitution contemporaneously with the growth of its population, trade and industries, and thus prevent the delay and embarrassment in the conduct of necessary municipal enterprises incident to a sole reliance upon the Federal census. To the extent of providing for the taking of a State census in order to permit cities and towns to exercise in full vigor the constitutional limit of taxation accorded to them, the act in question is clearly valid, and it is clearly invalid in so far as it undertakes, in addition to that beneficent purpose, to impose another condition than that prescribed by the Constitution, to-wit, the approval of the constitutional limit of taxation, by a majority vote of the qualified voters whenever the levy proposed, though otherwise proper, exceeded sixty cents on the one hundred dollars valuation. The Constitution gave the Legislature the right to provide for the exercise of the taxing power by towns and cities in any method other than those specifically provided by the Constitution. This reservation upon the part of the Constitution was for the evident purpose of preventing any change by the Legislature of the limitation by the Constitution. A grant of power by the organic law cannot be taken away Lr the Legislature. Our conclusion is, that the ordinance in this case, under the agreed statement of facts showing that the taxation of one dollar for the one hundred dollars’ valuation, was laid upon the specific basis, population, provided by the Constitution, was in all respects valid, and that the portion of the act of the Legislature (R. S. 1909, sec. 9248) attempting to condition it upon a popular vote was ineffectual.

The judgment in this case is affirmed.

Broivn and Walker, JJ., concur; Graves, J., concurs in result; Woodson, G. J., dissents; Faris, J., dubitcmte; Blair, J., not sitting.


author: BROWN, C.

text:
    J. W. CARTER, Trustee, v. JAMES J. BUTLER, Executor, et al., Appellants.
    In Banc,
    March 3, 1915.
    1. PLEADING: Failure to State Cause of Action: Point Raised on Appeal. While a petition may be attacked at any time on the ground that it fails to state a cause of action, yet when the question is raised in due time by motion or answer, so as to facilitate and simplify the trial of the real issues, it will be received with greater favor, and permitted a wider field of operation, than when interposed after the labor, expense and delay of a trial.
    2. -: -: -: Action on Note: Plaintiff's Right to Sue: Trustee for Collection. In an action on a note, a petition which states that the note was indorsed for collection to a bank; that later the payees, W and L, transferred and assigned an interest in the note to the G. Company; that the note was placed in the plaintiff’s hands and he was authorized and directed to collect it and pay to the. G. Company its interest therein, states facts showing sufficient title in the plaintiff to maintain the suit as trustee for W, L, and the G. Company, the question not having been raised by motion or answer in the trial court.
    3. NEGOTIABLE INSTRUMENTS: Transfer: Indorsement for Collection: Suit by Trustee Appointed by Payees. Section 10001, R. S. 1909, providing that an instrument is negotiated when it is transferred so as to constitute the transferee the holder — if payable to bearer, by delivery, if payable to order, by indorsement followed by delivery — and Sec. 10004, declaring that a special indorsement specifies the person to whom or to whose order the instrument is to be payable, and the indorsement of such indorsee is necessary to the further negotiation of the instrument, do not attempt to provide an exclusive method for the transfer of such instruments, but apply only to such transfers as shall preserve “negotiability,” and accordingly where the payees of a note transferred it by indorsement to a bank for collection and that bank indorsed it to another for the same purpose (the banks gaining thereby no interest in the instrument except that of collecting it and accounting for the proceeds), one whom said payees have by written contract appointed their trustee for collection may sue upon the note although it bears upon its back the indorsement mentioned.
    4. -: -: -: -: Subsequent Indorsees. If any person who has indorsed a bill of exchange or note to another, whether for value or for purpose of collection, shall come into the possession thereof again, he shall be regarded, unless the contrary appear in evidence, as the bona fide holder and proprietor of such bill or note, and shall be entitled to recover, notwithstanding there may be on it one or more indorsements in full subsequent to the one to him, without producing any receipt or indorsement back from either of such indorsees, whose names he may strike from the instrument, or not, as he may think proper. [See, also, Sec. 10018, R. S. 1909.]
    5. -: -: -: -: Payees the Holders: Instructions. Where the payees of a note indorsed it to a bank for collection, and that bank indorsed it to another, and after the latter failed to collect it at maturity the payees appointed the plaintiff trustee to make collection and apply the proceeds, it is immaterial, in the plaintiff’s suit on the note, how the question of his right to sue was submitted to the jury, there being nothing in the case to rebut the presumption, arising from their possession, that the payees are the holders. [Sec. 10160, R. S. 1909.]
    6. ACTION ON PROMISSORY NOTH: Given for Mining Claims: Failure of Consideration: Appeal. Where the defendants to a suit on a note proceeded in the trial court upon the theory that failure of title to a part of the mining claims for which the note was given was a complete defense, and no evidence was given as to the value or relative value of the land to which the defective titles applied, they cannot upon appeal obtain a retrial on the theory that there was a partial failure of consideration. [See Sec. 9999, R. S. 1909.]

      7. -: -: -: Retaining Possession of the Land. Purchasers of mining claims, the title to a part of which proved defective, cannot, while holding possession of the land, defend against the payment of their note for the'purchase price as for failure of consideration.
    8. -: -: -: Burden of Proof. Since a promissory note imports a consideration, the burden of proving lack or failure thereof rests upon those resisting its payment, and where the answer to an action on a note admitted that its consideration was the transfer to the defendants of mining prop- . erty with a warranty of title, the burden was upon the defendants to show that the property had not been delivered to them or that they had been deprived of some of it on account of failure of title, the word “transfer” implying delivery of possession.
    9. -: -: -: -: Evidence. Even assuming, although the contrary is true, that the burden of proving a consideration for a promissory note rested with the one suing on it, the testimony of one of the defendants to an action on a note given for mining property, who replied to a question whether they had held the property ever since they received it, that he supposed that would be it, was sufficient evidence that possession had been delivered and that the defendants had not been deprived of any part of the property through failure or defect of title.
    Appeal from St. Louis City Circuit Court. — Hon. W. B. Homer, Judge.
    Affirmed.

      Thomas K. Skinker and Barclay, OrtMvein é Wallace for appellants.
    (1) The petition does not state a cause of action in omitting to state facts to show that plaintiff is the holder of the note. The petition avers the title to the note to be in the Bank of Commerce by regular indorsement. Spears v. Bond, 79 Mo. 467; R. S. 1909, sec. 10004. This point is never waived. Lilly v. Menke, 126 Mo. 190. (2) The evidence of plaintiff shows that the title to the note is in the National Bank of Commerce by regular indorsement, which, under the Negotiable Instruments Law, makes this plaintiff an improper party to maintain this action. R. S. 1909, sec. 10004. (3) Suit on such a note must be brought by the real party in interest, otherwise the defendants would not be protected by payment to another. Wells v. Moore, 68 Mo. App. 501; Spears v. Bond, 79 Mo. 467. (4) Where an answer sets up plea of failure of consideration in a note (because given for a defective title) and there is a general denial thereof by the reply, the “issue made by the replication to the defendant’s answer was the only issue to be tried.” The issues of the pleadings are those on which alone the cause should be tried and determined. Stewart v. Hadley, 55 Mo. 245; Northrup v. Ins. Co., 47 Mo. 435; Musser v. Adler, 86 Mo. 449. (5) It was error by the learned trial Judge, by the instruction given of his own motion, to spring a new theory of the case, outside the issues of the pleadings, and outside the evidence, action and theory of both parties at the trial, because both parties are bound and limited by the theory on which the cause was actually shaped in the pleadings and tried under them. The rule that a party is limited on appeal to the theory on which he tried the case in the lower court is established by many decisions, of which only a few are cited, as it is familiar law here. Whetstone v. Shaw, 70 Mo. 575; Walker v. Owen, 79 Mo. 568; Min-ton v. Steele, 125 Mo. 181. That decisive instruction was further erroneous because there is no proof that defendants “were put in possession of said mining claims.” On the contrary one of the payees was shown to be in possession; and if not personally, then as representative of another company (the National Copper Mining Co.) in which he and Dr. Westlake and others were all interested. It is error to give an instruction not supported by the testimony. (6) Under the Missouri statute (changing the older English rule) a plea of failure of consideration (in whole or in part) is permissible in an action oh a note, without returning the property for which the note represents the purchase price. Our law on this subject is and was intended to change the prior rule of the British law on that subject. R. S. 1909, sec. 1974; Danforth v. Crookshanks, 68 Mo. App. 315-; Brown v. Weldon, 99 Mo. 564. The purpose of that Missouri rule is to avoid circuity of action and multiplicity of suits. That purpose as well as the statute itself has been inadvertently overlooked in one or two exceptional cases which are out of line with the statute and with many analogous decisions involving the law of sales, where the property has been delivered to the vendee. R. S. 1909, sec. 1974; Brown v. Welden, 99 Mo. 564; Danforth v. Crookshanks, 68 Mo. App. 317; Werner v. O’Brien, 40 Mo. App. 483. (7) A rule which has been stated in some early cases in Missouri to the effect that in a suit for the purchase money of land the' defendant (while retaining possession) cannot .defend on the ground of defective title, is unsound in principle as it ignores our statute. R. S. 1909, ¡sec. 1974. It has been denied in many cases as applied to personal property, although there is no difference in principle as we can discern between the two subjects. Hannah Co. v. Holley Co., 140 S. W. 923; 30 Am. & Eng. Ency. Law (2 Ed.), 209; Brown v. Weldon, 29 Mo. 564; Smith v. Means, 155 S. W. 454; Crenshaw v. Looker, 185 Mo. 388; Sinnamon v. Moore, 161 Mo. App. 168; Sanders v. Mosbarger, 141 S. W. 720; Stark Co. v. Mayhew, 141 S. W. 433; Shephard v. Padgitt, 91 Mo. App. 473; Ferguson Co. v. Farmer, 128 Mo. App. 300; Broderick v. Andrews, 135 Mo. App. 57; Mobile v. Nelson, 154 Mo. App. 616; Branson v. Turner, 77 Mo. 489; Miles v. Withers, 76 Mo. App. 87; Jones v. Shaver, 6 Mo. 642; Benton v. Klein, 42 Mo. 97; Keith v. Hobbs, 69 Mo. 84; Wade v. Scott, 7 Mo. 509; Jolliffe v. Collins, 21 Mo. 338. (8) The nature of mining lodes is so close akin to that of the ore which forms the chief value thereof, that the rule of law as to such property is thus stated: ‘ ‘ The purchaser of a mine, who buys under a contract for a future title, even though lie takes possession of the mine and manages the property, if it was the intention of the parties that he should immediately take possession, this will not constitute a waiver of objections to a defect in the title by the purchaser.” "White, Mines (1903), sec. 95, p. 126; Stephens v. Guppy, 3 Russ. 171; Babcock v. Case, 61 Pa. St. 427; Tuck v. Downing, 76 111. 71. In cost book companies: Curling v. Plight, 2 Phil. 614.

      Bishop & Cobbs for respondent.
    (1) Defendants’ objection to the petition cannot be sustained, (a) Because an objection to the introduction of testimony on account of alleged insufficiency of petition comes “too late to deserve favorable consideration.” Storage Co. v. Kuhlmann, 238 Mo. 703; Goldsmith v. Candy Co., 85 Mo. App. 600. (b) Because the petition is sufficient. It is based on a promissory note and alleges possession under written assignment. It is not necessary to use the term, “holder.” Possession alone is prima-facie evidence of right to sue, but plaintiff alleged and proved not only possession but also authority from owners to collect. Sec. 10021, R. S. 1909; Boeka v. Nella, 28 Mo. 180; Morris v. Morris, 28 Mo. 114; Lewis v. Bowen’s Admr., 29 Mo. 202; Davis v. Carson, 69 Mo. 609,1. c. 610; Dawson v. "Wombles, 123 Mo. App. 345. (2) The bank has no title to or interest in the note. Plaintiff alleged and proved that the note was indorsed and delivered to bank for collection only. After protest, the. bank returned the note to payees, who were liable to bank as indorsers, and who, after taking the note back, delivered it to plaintiff under written assignment, (a) Indorsement to bank could have been stricken out. Sec. 10018, R. S. 1909. Section 10004 is not in conflict with section 10018. (b) Indorsement to bank was properly disregarded. Beattie v. Lett, 28 Mo. 597; Bank v. Fesler, 89 Mo. App. 224. (3) This suit was brought by the “real party iu interest.” Plaintiff was trustee of an express trust under the assignment in evidence, and was the only proper or necessary party. Sec. 1730, R. S. 1909; Snider v. Express Co., 77 Mo. 527; Springfield for use v. Weaver, 137 Mo. 670; Bank v. Edwards, 84 Mo. App. 469; Gerney v. Moore, 131 Mo. 668; Barnes v. McMullins, 78 Mo. 277; Barber v. Stroub, 111 Mo. App. 60; Greer v. Zinc Co., 126 Mo. App. 173; Johnston v. O’Shee, 118 Mo. App. 293; Simmons v. Wittmann, 113 Mo. App. 374; Jones v. Railroád, 178 Mo. 542; Lee v. Railroad, 195 Mo. 519; Sawyer v. Railroad, 156 Mo. 475. (4) The case was tried and decided on the only real issues involved. The allegation in answer that title “was not sound and good” is not sufficient as a plea of total failure of consideration. Failure of consideration must be properly pleaded to be considered. Here it was neither properly pleaded nor proved, (a) The note was prima-facie evidence of consideration. Sec. 9995, R. S. 1909. (b) Failure of consideration is a matter of defense to be properly pleaded and proved by defendants. Sec. 9999, R. S. 1909; Holmes v. Farris, 97 Mo. App. 311. (c) The burden of proving total failure was on defendants. Thompson v. Crutcher, 26 Mo. 321; Kent v. Miltenberger, 13 Mo. App. 513. (d) Plea of defect in title only, without alleging and proving dispossession, is not sufficient as a total failure of consideration. Pershing v. Can-field, 70 Mo. 143; Cartwright v. Culver, 74 Mo. 182; Davis v. Watson, 89 Mo. App. 26; Hunt v. Marsh, 80 Mo. 398. (5) No new theory was sprung by trial court. Changes in theory apply only on appeal, not to trial courts. The question of possession of the mining claims was in the case from the beginning and was properly submitted to the jury. The instructions given were in exact accordance with the law and the evidence. (a) 'Mining claims are real estate. Mining & Smelting Co. v. Rucker, 28 Fed. 221;McFeters v. Pier-son, 15 Colo. 203; Manuel v. Wulff, 152 U. S. 510; Hardware Co. v. Frank, 25 Mont. 348; State v. District Court, 24 Mont. 332; Harris v. Equator M. & S. Co., 8 Fed. 866; Melton & Fisher v. Lambard, "51 Cal. 259. (b) The receipt of title imports receipt of possession. Clark v. Ins. Co., 52 Mo. 276; 13 Cyc. 572, 6, d. (c) The burden was on defendants to prove that they had not received possession, or that they had been dispossessed. Thompson v. Crutcher, 26 Mo. 321; Holmes v. Farris, 97 Mo. App. 311; Tow Co. v. Orphius B. I. Co., 52 Mo. App. 529; Knoche v. Whittman, 86 Mo. App. 568. (d) Defendants received and held possession of mining claims. They did not deny possession, and their possession was taken for granted throughout trial. They admit in their answers that the mining claims were transferred to them. Change of possession is implied, especially in mining claims. The contention that Laughlin (one of the payees) was in possession falls, because he was shown to be employed by defendants. McManus expressly admitted possession. If defendants had not been in the possession and enjoyment of these claims, they would have pleaded want of possession and asked a return of the cash payment made on account of same. Defendants admitted possession and also liability by paying $1500, three months after note was given, (e) The court submitted the question of possession to the jury by proper instruction. It was the only defense on the merits open to defendants in this case. Cartwright v. Culver, 74 Mo. 182; Pershing v. Canfield, 70 Mo. 143; Davis v.'Watson, 89 Mo. App. 26; Hunt v. Marsh, 80 Mo. 398. (6) The Missouri statute permitting a plea of failure of consideration in a suit on a note (Section 1974) cannot avail defendants in this case, (a) “Notwithstanding this provision, we are still left to general principles to ascertain what is a failure of consideration.” Smith v. Buzbee, 15 Mo. 247. (b) It does not relieve defendants of necessity of returning the consideration or proving it to be worthless. Brown v. Weldon, 99 Mo. 568; Rogers v. Publishing Co., 118 Mo. App. 12. (c) Defendants did not and could not prove that the consideration was worthless, and they made no offer to return it. The evidence showed no failure of consideration, but only that, at the time of giving the deed, the title to 33 out of 160 acres was in controversy. That controversy was removed. Defendants suffered no damage and have shown none. (7) Defective title to real estate purchased does not constitute failure of consideration. (a) Rule as to real estate is different from personal property.' After acquiring an unquestionable title to about 130 acres and after holding and enjoying the whole 160 acres, defendants cannot defeat a suit for the purchase money by showing that, at time of receiving deed, title was defective as to 33 acres. Davis v. Watson, 89'Mo. App. 26; Cartwright v. Culver, 74 Mo. 182; Hunt v. Marsh, 80 Mo. 398; Pershing v. Canfield, 70 Mo. 143. (b) Rule, even as to personal property, requires defendant to either return the property, or prove it worthless, or prove loss or damage. Numerous cases cited by counsel are all personal property cases and.taken together establish the rule that, even in suits for the purchase money of personal property, the defendant cannot establish total failure of consideration without either returning the property or proving it worthless.
   BROWN, C.

Petition filed November 9, 1909, in the circuit court for the city of St. Louis. The plaintiff sues as trustee of The Gila Farm Company, Oliver J. Westlake and Charles J. Laughlin, upon a promissory note signed by Edward Butler and Thomas Ward McManus, dated May 1,1907, payable to said Westlake and Laughlin or order on or before May 1, 1908, for $25,000, with interest from date at the rate of five per cent per annum, on which $1500 had been paid and indorsed July 31, 1907. The petition states that “on the 15th day of June, 1908, the said Oliver J. Westlake and Chas. P. Laughlin entered into an agreement in writing, whereby they transferred and assigned, for a valuable consideration, to the The Gila Farm Company, a certain defined interest in said note, to-wit: an interest of $18,000, together with interest thereon at the rate of five per cent per annum from the first day of May, 1908, which said agreement is filed herewith, and marked exhibit B; that said note was placed in plaintiff’s hands, and by said agreement plaintiff was authorized and directed to make collection of said note, and out of the proceeds thereof to pay to said The Gila Farm Company, the said sum of $18,000, together with interest thereon, as hereinbefore set out.”

The defendants each filed a separate answer, which, with a general denial, pleads as follows:

“1. Avers that plaintiff has not legal capacity to maintain this suit, in manner and form as the same is brought. Wherefore this defendant prays to be hence discharged with his costs.

“2. For further defense this defendant avers that there is a defect of parties plaintiff, in that said plaintiff, trustee, cannot lawfully maintain this action, in manner and form as the same is brought. Wherefore this defendant prays to be hence discharged with his costs.

1 ‘ 3. This defendant for further defense avers that some of those named as beneficial plaintiffs herein are not necessary parties to a complete determination of the action, and therefore should not have been joined therein. Wherefore because of said redundancy of parties this defendant prays to be hence discharged with his costs.

“4. This defendant for further defense avers that plaintiff, as alleged trustee, is not the real party in interest to prosecute or maintain this action, in manner and form as the same is brought. Wherefore this defendant prays to be hence discharged with his costs.

“5. This defendant for further defense admits execution of said note, and admits that defendants paid thereon, heretofore, the sum of $1500'; and for further defense he avers that the consideration for said note was a transfer of certain mining property in New Mexico hy the payees therein to the makers of said note, the title to which property was then and there warranted and agreed hy the payees in said note to he sound and good, hut said consideration for said note has failed, in- that the title to said mining property for which said note was executed and delivered was not sound and good hut was defective, wherefore because said consideration failed, no one claiming through the payees of said note can lawfully maintain an action thereon. ”■

Plaintiff replied hy general denial.

The note was duly protested for nonpayment at St. 'Louis at the instance of the National Bank of Commerce May 1, 1908, and written on its hack were the following indorsements without date: “Pay to the order of Silver City National Bank, Silver City, N. M. Charles P. Laughlin. Oliver J. Westlake.” “Pay Nat’l Bank of Commerce in St. Louis, or order, Silver City Nat’l Bank, Silver City, N. M. J. W. Carter, Cashier.”

The evidence tended to prove, and was undisputed, that the payees indorsed the note to' the Silver City National Bank, of which the plaintiff was cashier, for collection, with direction to forward it to St. Louis for collection, and to get collection on it, without designating to whom it should he sent in St. Louis. Colonel Carter stamped on it the indorsement to the National Bank of Commerce in St. Louis and mailed it. After it was protested it was returned to the Silver City National Bank, where it remained until the institution of this suit.

Plaintiff introduced the following instrument:

“Know all men by these presents, That we, Oliver J. Westlake and Charles P. Laughlin, in consideration of the sum of one dollar to us in hand paid by the Grila Farm Company, the receipt whereof is hereby acknowledged, do hereby sell, assign, transfer, and set - over unto the said the Grila Farm Company, the certain hereinafter defined interest in that certain promissory note dated May 1, 1907, made by Edward Butler and Thomas Ward McManus, payable to the order of us, the said Oliver J. Westlake and Charles P. Laughlin, on or before one year from its date for the sum of $25,000, with interest thereon from date until paid at the rate of five per cent per annum, the said interest therein so transferred and assigned as aforesaid being the sum of $18,000 together with interest thereon at the rate of five per cent per annum from the 1st day of May, 1908. The said promissory note is now in the hands of J. W. Carter for collection and he is hereby authorized and directed to make collection of the same and to pay to said The Grila Farm Company the said sum of $18,000 together with said interest as aforesaid, out of the proceeds of the same. We do further covenant and agree that if the said note be collected by us or in any other manner than through the said J. W. Carter, we will at once turn over and pay to- said the Grila Farm Company, the said sum of $18,000', together with said interest as aforesaid, out of the proceeds thereof. We do further covenant, warrant and agree to and with said the Grila Farm Company the said promissory note constitutes a valid and binding indebtedness of the said Edward Butler and Thomas Ward McManus to us, and that the same is now due and payable. In witness whereof, we have hereunto set our hands and seals this 15th day of June, A. D. 1908.

“Oliver J. Westlake, (seal).

“Charles P. Laughlin, (seal).”

The note was given as part of the consideration for the purchase by Butler and McManus of eight mining claims or lode locations in Grant county, New Mexico, covering an area of slightly more than 160 acres. The sale was made in the latter part of April, 1907, while Butler and McManus were in Silver City, for $40,000. One thousand dollars was paid down in cash. On May 18, 1907, $14,000 was paid, and the note and deed, both of which were then in the Silver City National Bank for that purpose, were delivered, the note remaining in the bank for safe-keeping. The granting-clause of the deed is as follows:

“That the said parties of the first part, for and in consideration of the sum of one thousand dollars, to them in hand paid by the said parties of the second part, the receipt whereof is hereby acknowledged, have remised, released and quitclaimed, and by these presents do remise, release and quitclaim unto the said parties of the second part, their heirs and assigns: “All the following described real estate and mining property, situate in the Burro Mountain Mining-District, county of Grant and Territory of New Mexico, to-wit:

“The Ajax Lode mine and mining claim, the location notice whereof is duly recorded in the office of the probate clerk and ex-officio recorder for Grant county, New Mexico, in book 19 of Mining Locations, at page 427.” ' -

Then follows, in the same form, the description of the Ajax No. 2, the Ajax No. 3, the Ajax No. 4, the Princeton, the Hazleton, the Black Oak and the Big Horn Lode mines and mining claims.

The habendum and covenants are as follows:

“To have and to hold the lands, tenements hereby conveyed unto the said parties of the second part, their heirs and assigns forever, and the said parties of the first part do covenant and agree with the said parties of the second part that said mines and mining claims are free from all taxes and liens of whatever nature or kind, and that they have good right and lawful authority to sell and convey the same.”

The defendants took possession of the land described in the deed. The defendant Laughlin was their superintendent and manager, working an adjoining mine called “The National,” and supposed to be their superintendent or general manager. The defendant McManus testified about the possession as follows: “Q. You have held it ever since you received it from them? A. I suppose that would be it.”

Sometime after the conveyance to defendants it was discovered that the whole of the Black Oak claim, containing 21.741 acres, upon which there were several buildings, as well as small fractions of the Hazelton claim (6.050 acres) and the Ajax claim (5.394 acres), in all 33.185 acres, conflicted with surveyed land theretofore patented to one Simmons. The plaintiff proved title to the land conflicting with this patent in the Lyons and Campbell Ranch and Cattle Company and offered a copy of the record of a master’s deed in Grant county, New Mexico, certified by the probate judge and ex-officio recorder of deeds of said county, purporting to convey the same land to the Gila Farm Company, New Mexico, a corporation. This deed recited that the grantor was appointed special master or referee by the district court of the third judicial district of the Territory of New Mexico for the county of Grant in a cause pending in said court entitled “The Farmers’ Loan and Trust Company, a. corporation, Trustee, plaintiff, v. Lyons & Campbell Ranch & Cattle Company et al., defendants.” That they advertised the property for sale in a newspaper published in said county on Tuesday of each week, beginning August 20, 1907, and ending September 17, 1907; that the Gila Farm Company was the highest bidder for it and other property both real and personal at the price of $100,000, for which it was struck off and sold to that company. This deed purported to have been acknowledged before a notary public of Grant county, and there was written on it the following: “This deed, together with the sale represented thereby, is approved this 19th day of September, 1907, at Silver City, New Mexico. Frank W. Parker, Judge, Etc.”

The defendants objected to its introduction as follows: “It does not appear by what authority this deed is made, whether it was authorized by the order of court, or what were the circumstances upon which it is based. Nor does it appear that the formal steps of the order under which it purports to have been made were observed. The order itself does not appear. Also this deed is irrelevant to the present inquiry because made on the 19th of September, 1907. On the 14th of May, 1907, there was no sufficient title in these parties to support the deed, which they then made to defendants. I imagine it is intended to be at least a chain of title through subsequent events; all of which is irrelevant because there being nothing but a general denial here by way of reply, the only issue is whether they had the title at the time that this deed of May 14, 1907, was executed and delivered.” No objection was made on the ground that it was a copy or that it was not properly authenticated. The objection was overruled and the deed admitted, to which the defendants duly excepted. The plaintiffs then introduced a general warranty deed in the usual form, conveying all that part of the claims conflicting with the Simmons patent, by the words grant, bargain, sell and convey, from Westlake and Laughlin and their wives to the defendants. This deed was dated May 1,1908. It contained all the usual covenants of seizin, right to convey, against incumbrances and for quiet enjoyment. The evidence tends to show that a general warranty deed dated April 30, 1908, from the Gila Farm Company to Westlake and Laughlin, for an expressed consideration of $18,000, was tendered by plaintiffs to MeManus August 21, 1908. At the close of the trial the court of its own motion gave the jury the following instruction :

“1. The court instructs the jury that if you find from the evidence that the plaintiff, J. W. Carter, is the holder of the note introduced in evidence, and that the consideration of said note was the transfer of certain mining claims referred to in the evidence from the payees in said note, Westlake & Laugklin, to the makkers of said note, Edward Butler and Thomas Ward McManus, defendants in this case, and that said Butler and McManus were put in possession of said mining claims by said Westlake & Laughlin under their deed of date May 14, 1907, which is in evidence, and that said Butler and McManus have since that time had peaceable possession of said mining claims, then your verdict should be for the plaintiff for the amount of said note with interest, after deducting all payments made thereon.”

The defendants asked the court to instruct peremptorily for each defendant, which it refused to do, to which defendants excepted at the time.

The defendants asked for seventeen other instructions which were refused by the court and exceptions saved to each. These will be noticed in this opinion as necessary.

I. The appellant, at the very outset, comes to the vitals of his case with the complaint that the petition does not state a cause of action because it omits to state'facts to show that the plaintiff is the holder of the note sued on, but, on the contrary, avers the title to be in the Bank of Commerce by regular indorsement. While that objection must be considered at any stage of the case, and sustained if well taken under the circumstances, we have said frequently and in many forms that when the question is raised in due time by motion or answer, so as to facilitate and simplify the trial of the real issues, it will be received with greater favor, and permitted a wider field of operation, then when interposed after the labor, expense and delay of a trial. [Ice, etc., Co. v. Kuhlmann, 238 Mo. 685, 703.] As said by Judge Valliant in Haseltine v. Smith, 154 Mo. l. c. 413, “if a party lies in wait for his adversary the court should not allow him an advantage that he could not have attained in the open field.” Our rules of procedure should admit of greater flexibility in attaining right and justice promptly arLC^ cheaply than in avoiding it. Judged by this standard we think the petition fairly presents the facts upon which the plaintiff claims such a title to the note sued on as enables him to maintain this action, and we will therefore consider that question upon its merits, in the light of the whole record.

' II. The note sued on is payable to order, and appellants call attention to the fact that it shows, on its back, a perfect title by indorsement in the National Bank of Commerce, “which,” they say, “under the Negotiable Instruments Law makes this plaintiff an improper party to maintain this action;” and they cite sections 10001 and 10004, Revised Statutes 1909, in support of this conclusion. The first of these sections is as follows : “An instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof. If payable to bearer it is negotiated by delivery; if payable to order it is negotiated by the indorsement of the holder, completed by delivery.” The other section cited (10004) provides, among other things, that “a special indorsement specifies the person to whom or to whose order the instrument is to be payable; and the indorsement of such indorsee is necessary to the further negotiation of the instrument.” The appellants infer from this that the law relating to negotiable instruments has been so changed that no interest in the contract expressed by such paper can be transferred or acquired in any other way than that provided in these two sections, and that the word “negotiated” as used in them is equivalent to the words “assigned” or “transferred” in their broadest sense, and that the word “holder” covers all the ground included in the words “owner” and “party in interest.” A glance at the law itself quickly dispels that illusion. These words are highly technical when used in connection with this class of instrument and its peculiar properties. The word “negotiate” is derived from the word “negotiable,” and when both words are used in connection with the same subject they partake of the same meaning. Abbott, in his Law Dictionary, under the title “negotiate,” defines it as follows: “To transfer, under rules of the commercial law, an evidence of debt or instrument for payment of money, so that the holder’s title is independent of any equities existing against the transferor; to transfer by indorsement.” The learned author adds that “negotiable” and “negotiability” include this meaning only. Mr. Bouvier, in his dictionary, says that “negotiation as used by writers on mercantile law means the act by which a bill of exchange or promissory note is put in circulation, by being passed by one of the original parties to another person. [Walker v. Ocean Bank, 19 Ind. 247.]”

Section 10001 expressly recognizes that a transferee is not always the holder in the sense implied by the act, and this is fully explained by section 10019, which is as follows:

“Where the holder of an instrument payable to his order transfers it for value without indorsing it, tile transfer vests in the transferee suck title as the transferrer had therein, and the transferee acquires, in addition, the right to enforce the instrument against * one who signed for the accommodation of his transferrer, and the right to have the indorsement of the transferrer if omitted by accident or mistake. But for the purpose of determining whether the transferee is a holder in due course, the negotiation takes effect as of the time when the indorsement is actually made.”

This section conclusively shows that it was not intended by section 10004, or by any other provision of the act, to prescribe any exclusive method by which contracts of this character might be transferred. It only prescribes the manner in which their negotiability, that is to say, their independence of equities existing against the transferor, may be preserved. In other respects it leaves the laws in force at the time of its passage untouched except'in so far as the rights-of the transferee are enlarged by the terms of the section. One of these enlargements is the right to still have the indorsement of the transferor if it has been omitted by accident or mistake,- and to thus become, a holder in du-ecourse. We thus see that the word holder, as used in section 10001 to represent the position of the indorsee, has reference to such a title as may constitute him a “holder in due course” as those words are used in the act. For all other purposes than to preserve its negotiability in the sense we have mentioned, and its negotiability is not involved in this case, the Negotiable Instruments Law of 1905 left this instrument transferable in the same manner and as freely as if it had not been enacted. So far as the right of plaintiff to maintain the action is concerned, it depends upon the right . of the payees at the time of the execution of the contract of June 15, 1908, pleaded and shown by plaintiff as the foundation of his title. It is sufficient in form to constitute him the trustee of the parties to it for that purpose.

III. Before the note became due the payees took the usual steps for the collection of such paper by indorsing it to their local bank, The Silver City National Bank, for that purpose; and that bank in turn, as the custom is in such cases, indorsed and transmitted it to the National Bank of Commerce in St. Louis, the home of the makers, where it must be presented for payment, for the like purpose. Neither of these indorsements gave the indorsee any interest whatever in the note. It simply constituted him a naked trustee of an express trust to collect it and account, like all trustees, for the fund, to whom it might concern. The prevalence of and necessity for such indorsements to meet the demands of commercial transactions which include the world in their field, in which paper drawn in our homes is frequently collected in the antipodes, is no doubt one of the reasons for the growth and firm establishment of the. rule which in its effect transforms commercial paper payable on its face and by indorsement “to order,” into paper payable “to bearer” in the possession of any of its payees and indorsees. In Dugan v. United States, 3 Wheat. 172, perhaps the leading modern case upon the subject, the Supreme Court of the United States formulated the rule as follows: “After an examination of the cases on this subject (which. cannot all of them be reconciled), the court is of opinion that if any person who indorses a bill of exchange to another, whether for value or for the purpose of collection, shall come to the possession thereof again, he shall be regarded, unless the contrary appear in evidence, as the bona-fide holder and proprietor of such bill, and shall be entitled to recover, notwithstanding there may be on it one or more indorsements in full subsequent to the one to him, without producing any receipt or indorsement back from either of such indorsees, whose names he may strike from the bill, or not, as he may think proper.” This case was decided in 1818. In 1859 Mr. Story, in Ms excellent work on Promissory Notes, sec. 452, said of it that it seemed to be tbe better opinion maintained in America, notwithstanding some early doctrine the other way. In the same year the doctrine to its fullest extent was unqualifiedly indorsed by this court in Beattie v. Lett, 28 Mo. 596, and it has now been placed entirely beyond our control by the Legislature, in section 10018, Revised Statutes 1909, which is as follows: “The holder may at any time strike out any indorsement which is not necessary to his title. The indorser whose indorsement is struck out, and all indorsers subsequent to him, are thereby relieved from liability on the instrument. ’ ’ Section 10160 defines “holder” to be “the payee or indorsee of a bill . . . who is in possession of it.” This definition was evidently intended to meet the legal situation we have just been considering by excluding from its terms all payees and indorsees not in possession, as well as by including the payee or indorsee in possession for the time being.

Applying these principles: The plaintiff brings tMs note into court with a written contract by which the payees appoint him trustee for its collection and application to the purposes stated. He does not claim to hold it for himself, but for the payees. The instrument of appointment expressly negatives any interest in the plaintiff by reserving to the payees the right to collect it themselves. The payees having, through their agent, the possession of the note, are, under the statute, the holders of it, having the right to sue for its collection, and having that right they have the right under section 1730, Revised Statutes 1909, to contract, either orally or in writing, with the plaintiff to sue for their benefit and the benefit of others to whom they desire to appoint the proceeds. It is not necessary that they should prove, or that the plaintiff should prove for them, that they are the holders. The law raises a prima-facie presumption to that effect from the fact that they are the payees in possession, and there being nothing in this case to rebut that presumption, it is immaterial in what form the question of the right of their trustee to maintain the suit was submitted to. the jury.

IY. The question of failure of consideration is next interposed as a defense. In approaching this it is well to say that there is nothing in either the pleadings, proof or position of the parties to the transaction that carries a hint of unfairness or undue advantage. Each ox the parties had active interests in the particular locality where the mining property which was the subject of the transaction is situated, and, so far as appears in the evidence, they had equal opportunities to judge of its value. It is conceded by the plaintiff that, at the date of the deed, the title of the grantors to one of the eight claims that constituted the consideration of the note sued on, and also to a small portion of each of two others, was defective. Whether this, under the pleadings and evidence, constitutes a defense to this suit on the notes is the question.

In this inquiry we are still aided by the Negotiable Instruments Law. It provides (sec. 9999): “Absence or failure of consideration is a matter of defense as against any person not a holder in due course; and partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise.”

The answers stated that the sellers and payees in the notes given for the mining property warranted the title to be sound and good, that it was not sound and good, wherefore the consideration of the notes had failed. The case was tried by defendant upon that theory alone. No evidence was given as to the value or relative value of the land to which the defective titles applied, nor was there any data to guide the jury in an attempt to find such values, and the defendants made no attempt by their instructions to have the question of partial failure of consideration submitted to them, but asked that they be instructed as follows:

“If you believe from the evidence that the note sued on in this action was' executed and delivered by defendants to Oliver J. Westlake and Charles P. Laughlin, as part consideration for the purchase by defendants from said Westlake and Laughlin of certain interests in real estate, to-wit, mining claims, in the county of Grant, Territory of New Mexico, and that a conveyance thereof was made, as shown by the deed offered in evidence herein, dated May 14, 1907; and if you further find that, at the time of said conveyance to defendants, said Westlake and Laughlin did not have title to a portion of said property so conveyed, and did not then have good right to sell and convey the said interests (described in said deed), but that the title thereto was (at the time said note was executed and delivered) in a person or persons or corporation other than said Westlake and Laughlin, and if you further find from the evidence that said property named in said conveyance consisted of contiguous mining claims, and purchased by defendants for mining purposes, then your verdict should be for defendants.”

Having tried the case upon the theory that the fail-, ure of the title to any part of the mining claims which constituted the consideration of the note was a complete defense to this action, and having asked the court to so instruct, it is now too late to ask a retrial upon a theory, and calling for a line of evidence, not suggested in the case we now have before us. [Tube Works Co. v. Ice Machine Co., 201 Mo. 30, 59.]

Y. We now come to the real question submitted by the court to the jury as follows: “If you find from the evidence . . . that said Butler and McManus were put in possession of said mining claims hy said .Westlake and Laugh-lin under their deed of date May 14, 1907, which is in evidence, and that said Butler' and McManus have since that time had peaceable possession of said mining claims, then your verdict should be for the plaintiff for the amount of said note and interest after deducting all payments made thereon. ’ ’ The effect of this instruction, under the pleadings and evidence, was to tell the jury that if the defendants had taken possession of the land under the deed, and the title to some part of it had proven defective or failed, they could not retain the whole and resist the payment of the purchase price. No principle of law can be more firmly established in this State than the above, and there is no principle of right or justice that calls for a reexamination of the numerous cases in which it has been asserted. [Mitchell v. McMullen, 59 Mo. 252; Connor v. Eddy, 25 Mo. 72, 75; Wheeler v. Standley, 50 Mo. 509, 511; Cartwright v. Culver, 74 Mo. 179; Hunt v. Marsh, 80 Mo. 396, 398; Davis v. Watson, 89 Mo. App. 15, 26.] These cases all unite in affirming the doctrine that where one purchases land, taking a deed therefor with covenants of warranty, and goes into possession, he cannot, while holding possession of the land, defend' against the payment of his note for the purchase price as for a total failure of consideration. He is limited in his defense to the damages he has suffered by the breach of the warranty of title. This case affords an excellent illustration of the principle. The deed, so far as its granting words go, is a simple quitclaim. When the grantees succeeded to their grantors’ possession, they had everything that the deed for which the note was given purports to give them; the possession of the land and such title as the grantors had to sustain it. There was nothing else connected with the consideration of the note but the covenant that the claims were free from taxes and other liens, and that the grantors had good right to convey them. The only “failure of consideration” in the transaction was the breach of this covenant. The extent of the grantors’ liability was such damage, if any, as the defendants suffered from it. This defense, however, seeks to turn it into an instrument by which they can keep the entire property without paying for it. The trial, court committed no error in refusing to submit the case on that theory.

VI. The note in suit imported a consideration, and the burden rested upon the defendants to prove affirmatively that it was lacking or had failed. The answer admitted that the consideration was the transfer to defendants of certain mining property with a warranty of title, and that the title was defective. The word transfer implies delivery of possession. They could not have chosen a broader word to express it. Bouvier defines it as “the act by which the owner of a thing delivers it to another with the intent of passing the right he has in it to the latter.” To the same effect are Ex parte Thomason, 16 Neb. 238, and Robertson v. Wilcox, 36 Conn. 426. If the possession of the property had not been delivered to defendants, or if they had been deprived of any part of it on account of failure or defect of title, the burden was on them to show it. But even were Ibis burden upon the plaintiff it was well sustained. The statement of Mr. McManus already quoted amounted to an admission that the possession had been delivered to the defendants and that they had held it up to the time he testified.

We find no error against the appellant, and the judgment of the St. Louis City Circuit Court is affirmed.

PER CURIAM. — This cause having been transferred to Court in Banc from Division One, on the dissent of Woodson, J., and having been reargued and submitted, tbe foregoing opinion of Brown, C., is adopted as tbe opinion of tbe court.

All concur except Woodson, G. J., who dissents.