author: LAMM, J.

text:
    BOUTON v. SAMUEL G. PIPPIN et al., Appellants.
    Division One,
    December 21, 1905.
    1. PRACTICE: Ejectment: Equitable Defense. The filing of an answer in a law case setting up equitable matter in pais, entitling defendants to affirmative equitable relief and praying for such relief, changes the case from one at law to one in equity.
    2. APPEAL: Part of Evidence. Where evidence indispensable to the whole controversy is omitted from the bill of exceptions, for instance, where the bill sets out all of respondent’s evidence and then adds that appellants “then introduced evidence tending to prove the issue made in their answer,” the Supreme Court cannot review the action of the trial court on the merits.
    3. EQUITY: Jury. In an equity case, the chancellor need not call a jury to his assistance. And if one is called, its office is not that of a trier of fact as the term is used in law cases, but is advisory only. The chancellor may adopt its findings or not as he chooses.
    4. -: — : -: Instructions. And as the appellate court determines the case on appeal on the evidence and equities arising therefrom, regardless of the jury’s findings, the faet that the chancellor gave instructipns to the jury, whether correct or erroneous, is not for consideration on appeal.
    5. EJECTMENT: Wife as Defendant. The wife of the husband in possession is not a necessary defendant in ejectment.
    6. -: -: Homestead. Where plaintiff claims title under a foreclosure sale of a deed of trust made by the husband prior to the enactment' of the Homestead Statute of 1895, his wife cannot defeat plaintiff’s ejectment by a showing that the land was their homestead and that she did not sign the trust deéd, for under the law then in force the husband alone could mortgage or otherwise convey the homestead without the wife joining, unless she had filed her homestead claim, etc.
    7. -: '-: Dower. The wife cannot in an ejectment against her and her husband have the court determine whether or not she has an inchoate right of dower in the land, on the ground that she did not sign the deed of trust under which plaintiff claims. B.ut the case should be dismissed as to her, as an unnecessary party, so that her right to assert dower may be preserved, if it should ever become consummate.

      8. -: -: -: Correction on Appeal. Where the wife was improperly joined as a defendant in ejectment, and asked the trial court to decree that she had inchoate dower in the land sold, which motion was overruled, the Supreme Court on her appeal will not grant her motion, for the determination of her dower right is no part of the ejectment, hut it will correct the decree, if otherwise proper, hy striking her name from the record as a party.
    Appeal from Hickory Circuit Court. — lion. Argus Cox, Judge.
    Modified and affirmed,

      Rechow & Pufahl for appellants.
    (1) The court should have given the instructions asked by defendants. They contained correct principles of law. The instructions asked by defendants and refused by the court covered the issues presented in the answer of defendants, while those given by the court only presented the same in part. (2) The court should have determined the rights of Mrs. Margaret J. Pippin. A court of equity will do, full and complete justice. Butler v. Lawson, 72 Mo. 246; Carby v. Bean, 44 Mo. 379; Real Estate & Savings Inst. v. Collonious, 63 Mo. 290; Woodward v. Mastín, 106 Mo. 362; Nelson v. Betts, 21 Mo. App. 220; Clem v. Ins. Co., 29' Mo. App. 666; Jordan v. Harman & Platt, 56 Mo. App. 197.- (3) A deed may be reformed and set aside as to one party when it is valid as to others. Mays v. Pryce', 95 Mo. 603. A court of equity has power to set aside a conveyance obtained by fraud and to protect the right of homestead and dower. Devorse v. Snider, 60 Mo. 235.

      J. H. Childers for respondent.
    The only interest Margaret J. Pippin had in the land was an inchoate dower right, which might ripen into a vested right or a chose action, or might not, depending upon whether she survived her husband. R. S. 1899, sec. 2933; Tiedeman on Real Property, sec. 115.
   LAMM, J.

Two of the appellants, William C. and Margaret J. Pippin, are husband and wife, and, as such, on the 25th day of November, 1890, to secure a promissory note, executed a deed of trust in the nature of a mortgage to one Sidway, trustee, conveying certain real estate in Hickory county, inter alia, eighty acres, to-wit, the east half of the northeast quarter of section 33, township 37, and range 20, the homestead of the said two Pippins — the legal title of all the real estate involved being in the husband. The secured note having been extended for a term and thereafter falling due, the deed of trust was foreclosed by a “substituted trustee” — one Hartman. The purchaser at such sale, plaintiff, received a trustee’s deed, and brings this action in ejectment, in conventional form, to recover possession of the land covered by the trust and trustee’s deeds. Why Samuel O. Pippin was made a party defendant is undisclosed.

Said Pippins interposed an answer — a general denial with certain affirmative matter — and thereby, among other things, in substance alleged that the said eighty acres were Wm. O. and Margaret J-. Pippin’s homestead; that Margaret J. refused to convey or mortgage the same; that she could neither read nor write; that neither the husband nor the wife knew the said homestead was covered by the deed of trust at its execution; that it was not included therein by their consent, and that the said deed of trust was not their act and deed, etc. These allegations were supplemented by others suggesting fraud or mistake, and followed by a prayer for specific affirmative relief that the deed of trust be reformed by excluding the homestead, etc., as well as for genreal relief.

Without objection, a jury was impaneled and certain formulated issues of fact submitted, whereby the jury was asked to decide (1) whether the husband understood the homestead was included in the trust deed; (2) whether Childers (what relation he bears to the controversy may only be guessed) understood the homestead was included; (3) and whether Hartman (what relation he bore to the controversy may only be guessed) understood the homestead was included at the date of the execution of the deed of trust. The jury having answered each and every one of these questions, yes, the court adopted its findings and rendered judgment for plaintiff. However, before so adopting the answers of the jury, Mrs. Pippin interposed a motion asking the chancellor to make a finding as to (1) whether she executed the deed of trust with knowledge that the homestead was included therein, and (2) as to whether she intended to join in any conveyance including the same, and (3) to ascertain and determine her rights without driving her to another action. This motion was overruled and " defendant then and there duly excepted at the time.”

The defendants filed a joint motion for a new trial, which being also overruled, they took steps to perfect an appeal, incorporating into the record a bill of exceptions showing that the plaintiff introduced a complete chain of title from the Government to the husband; the deed of trust, aforesaid; the appointment of Hartman as substituted trustee; the trustee’s deed executed by Hartman to plaintiff; and proved, aliunde, possession in defendants, damages, rents and profits.

The bill of exceptions disposes of the other evidence laconically, thus: “The defendants then introduced evidence tending tp prove the issue made in their amended answer. Plaintiff then offered evidence in rebuttal of the same.”

The bill of exceptions, moreover, shows that instructions were given for plaintiff and certain instructions refused for defendants, and that exceptions were taken and preserved.

On such record, where evidence indispensable to the just determination of the whole controversy is omitted, it would not only be impossible; but contrary to all precedent, for this court, however amiably disposed, to review the action of the learned trial court on the merits and correct errors, if any be found to exist. [Stern v. Foltz, 152 Mo. l. c. 560.]

Furthermore, the filing of an answer in a law case setting up equitable matter in pais, entitling the defendants to affirmative equitable relief and praying for such relief, under our form of practice, changes the case from one in law to one in equity. [Shaffer v. Detie, 191 Mo. 377, and cases cited.] And in equity cases, for reasons manifest, all the evidence should be brought up. [State ex rel. v. Jarrott, 183 Mo. 204; see Rule 7, of this court.] Inasmuch as these things axe true, the merits are not legitimately here. It is true there is an exception to the general rule, viz., where the matter complained of, and sought to have reviewed, goes to- the jurisdiction of the court, nisi, or to the right of such court to try the case at all, an equity case may be brought here without incorporating the evidence on matters not pertaining to the immediate purposes and object of the appeal and not essential to the determination thereof. [State ex rel. v. Gibson, 184 Mo. 490; State ex rel. v. Gibson, 187 Mo. l. c. 547.] But the case in hand does not fall within the exception.

However, the strict rule may be waived; because not only does respondent not invoke it, but the assignments of errors are in small compass and may be speedily disposed of, ex gratia. Those assignments are as follows:

“ (1) The court erred in giving the instructions on the part of plaintiff over defendant’s objection, and in refusing the instructions asked by the defendant.
“ (2) The court erred in overruling the motion of defendant Margaret J. Pippin, to malee a full and complete determination of the whole case, and especially in failing to determine her rights.
" (3) The court erred in adopting the verdict of the jury.”

The first and third assignments of error may he considered together.

Assuming, as said, that the case was changed from law to equity, it is an unbending rule that the chancellor need not call a jury to his assistance. [Ely v. Coontz, 167 Mo. l. c. 376.] If one be called, its office is not that of a trier of facts in the sense the term is used in a law case, but is advisory only. [Robinson v. Dryden, 118 Mo. l. c. 539; Hall v. Harris, 145 Mo. 614; Shaffer v. Detie, supra.] When the findings of a jury are made, the chancellor may adopt them or not as he chooses, [Lewis v. Rhodes, 150 Mo. l. c. 501.] And whether he does the one or the other, is interlocutory and not a definite of substantial step in a legal sense. If he do adopt the advice of the jury, nevertheless the decree must stand or fall here on the evidence and on the equities arising therefrom, regardless of such advice — he being the ultimate trier of facts below and the duty of this-court being to hear the case anew, with proper deference to him on appeal. [Lewis v. Rhodes, supra; Courtney v. Blackwell, 150 Mo. 245.]

The mere form, then, of the chancellor’s advice to the jury in the form of instructions, at least in the absence of material evidence, as here, is in the air and need not be considered; because the chancellor’s giving bad advice to the jury and it, in turn, giving back bad advice to the chancellor (a not unnatural result since one good turn deserves another), is at best but a Roland for an Oliver, raises a mere moot question in an equity case, and, like estoppel against estoppel, setteth the matter at large — making not a whit toward the end in view —the real issue and heart of the matter, which is: Was the case rightly decided — is the decree equitable? which questions alone concern us in equity.

For a court of conscience to stick in the- mere bark and seek not the heart of the matter, would be to amuse itself with the shell and miss the kernel, to tighten the spigot and spend at the bunghole. Granting bad advice from a jury, or otherwise (a not infrequent incident), yet the decree may nevertheless administer nice and excellent equity, taking on no more effect from such advice than that produced by the unique appetite of the' lean kine on the Nile in Pharaoh’s dream (q.v.). And how can we say whether or not the decree was right, without the testimony before us ?

Even in a law case, where instructions must be judged of in the light of all the testimony, the absence of that will cast appellant. [Brand v. Cannon, 118 Mo. l. c. 597.]

The first and third assignments of error, therefore, will be disallowed.

A more serious question is presented in the second assignment of error. The record before us shows that the court refused to make a finding in regard to the rights of Mrs. Pippin, if any, arising from the allegations of the answer, and the present assignment strikes at such refusal. Did the chancellor err? We think not. Because:

In the first place, Mrs. Pippin was not a necessary or a proper party to this suit. The suit went to the right of possession and that right touched the husband alone or his tenant. The wife’s possession was the husband’s and he, and not she, was the necessary party. [R. S. 1899, sec. 3056.]

If Pippin had sustained his equitable defense, and had thereby got the trust deed reformed by eliminating the homestead, a different question would be sprung, but he failed in that behalf.

In the second place, the deed of trust was executed by him at a time when our present statute, forbidding the mortgage or other conveyance of a homestead, except by the joint act of the wife, was not in existence. That law was passed in 1895. [Laws 1895, p. 185.] Under the homestead law existing at the date of the execution of the deed of trust in question, there was only one limitation put upon the husband’s power to mortgage or otherwise convey the homestead standing in his name, and that was in case his wife had theretofore made, acknowledged, filed and recorded her homestead claim. [R. S. 1889, sec. 5435; Greer v. Major, 114 Mo. 145; Gladney v. Sydnor, 172 Mo. l. c. 325.]

In the third place, a sale made under a deed of trust of the date of this one, executed on the homestead by the husband alone (and that is as favorable an hypothesis as appellants are entitled to) would not affect the wife’s inchoate right of dower. But, on the other hand, the wife’s inchoate right of dower, outstanding, self-evidently does not defeat ejectment against the husband. [Bank v. Linzee, 166 Mo. l. c. 501.]

It necessarily follows, that if the court had made a finding in favor of Mrs. Pippin, finding the allegations: of the answer, as to her, true and had reformed the deed of trust accordingly, yet all this would not have-interposed a defense in ejectment, neither fin her own behalf or her husband’s, under this record. It may be that on his death such finding and decree would have furnished the substratum for a claim on her behalf for dower and homestead in the land, but to inject the litigation of that question into the issues here is to- make the parties litigant fight out and be burdened with the-cost of an irrelevant issue, an issue which is a parasite —a mistletoe, to borrow a trope, grafted upon the main tree-trunk of the litigation — in nowise decisive of the case.

But the chancellor, having refused to make a finding on the issues presented by Mrs. Pippin, should have relieved the situation from all embarrassment by striking her name from the record as a party, so that she, as the particular one of the three Pippins interested, may embark on the current or stream of any litigation she elects, and swim or sink, speaking figuratively, with no claim of res judicata apparently staring her in the face on a record whereby her equitable rights may be claimed to have been settled; because, if the deed of trust, as alleged, be a covinous contrivance and a fraud upon'her, the question ought not to be foreclosed on a record where the evidence is eliminated, as it is here. The ease of Mays v. Pryce, 95 Mo. 603, chiefly relied npon by appellants, was a ease where all the evidence was brought up and the wife’s land was involved. Consequently, it does not settle the questions confronting ns.

Having failed to protect her rights by striking her name from the record, we, ourselves, may do so on reason as well as precedent. [Orr v. Rode, 101 Mo. l. c. 400; Evans v. Kunze, 128 Mo. l. c. 680; Bensieck v. Cook, 110 Mo. l. c. 183; State ex rel. v. Tate, 109 Mo. l. c. 271.] We will therefore do here what the learned chancellor below might and ought to have done, viz., correct this judgment in accordance with its true legal effect, by striking from the record the name of Margaret J. Pippin, leaving her equities open.

And, as so modified, the judgment will be affirmed.

All concur, except Brace, P. J., absent.


source: Caselaw Access Project

author: MARSHALL, J.

license: Public Domain

text:
    GLOECKNER, Appellant, v. KITTLAUS et al.
    Division One,
    December 21, 1905.

      1. EQUITY: Performance of Contract. Where plaintiff and defendant entered into a contract for the purchase of laud, if plaintiff has not performed his part, a court of equity will not compel defendant to perform his part.
    2. -: Contract: For Contingencies Which Never Arose. It is unnecessary to determine the exact meaning of a contract made to coyer contingencies in reference to á transaction which never arose.
    S. -: -: In Writing: No Consideration. A written contract concerning the interests the parties thereto were to take in land to he sold at a partition sale, if supported by no consideration, and the lands were not purchased in pursuance thereto, is not valid.

      4. -; Property Held in Trust: Tender. Where plaintiff’s land was about to be sold to pay his share of the costs in a partition suit, and the land was sold to defendant under an understanding that he should hold it in trust for plaintiff as security for the money he had advanced to buy it, plaintiff cannot have it declared to be so held by defendant unless he tenders along with his bill the money so advanced.
    5. -: -: Creating of Relation. Where land was about to be sold to pay plaintiff’s debts, and he and defendant entered into an agreement by which defendant was to furnish the money and plaintiff was to have an interest in the property if it sold for less than $500, and was not.to bid for the property if the bidding went over $500 or was bid on by third parties, and it soid for $610, and plaintiff did not bid after the bidding reached $500, and stood by and saw the deed made to defendant without objection, he cannot afterwards maintain a, suit in equity for an interest in the property, for there was nothing in the transaction creating a trust relation between him and defendant.
    6. -: Contract Void for Uncertainty. A contract in writing, so ambiguous and uncertain in its terms that it is unintelligible, and a court of equity cannot enforce it in accordance with the interpretation plaintiff has placed upon it without ignoring the principles of justice, will be held to be void, and'the petition founded thereon to state no cause of action.
    Appeal from St. Louis County Circuit Court. — Now. John W. McElhinney, Judge.
    Affirmed.

      Warren D. Isenberg, E. J. O’Brien and August Rebenack, for appellant.
    (1) The answer admitted every material fact necessary to establish a constructive trust, but set up certain facts by way of avoidance that if true would not change the relationship or status of the parties, nor excuse in law or equity the acts of defendant Kittlaus in violating his duty to his friend. If his conduct is conscionable in equity, we fail to see it. The court should have given judgment on the pleadings. Dezell v. Fidelity Co., 176 Mo. 253; Lang v. Lang, 79 Mo. 644. (2) Any agreement or contract in writing whereby a person agrees that a particular parcel of land shall be dealt with in a particular manner for the benefit of others raises a trust in favor of such other person, and this trust may be manifested or proven by any writing in which the fiduciary relation between the parties and its terms can be clearly read. McArthur v. Gordin, 12 L. R. A. 667; Bragg v. Paulk, 42 Me. 502; Bair v. Berberich, 77 Mo. 414, 6 Mo. App. 537; Rose v. Bates, 12 Mo. 30 ; Rutherford v. Williams, 42 Mo. 18; McNew v. Booth, 42 Mo. 189. Where, as in this case, the agreements were made by Kittlaus with the advice of his attorney and Gloeckner was prevailed upon to be without counsel— to conceal from his counsel — especially where the relationship of the parties is one of explicit confidence in the honor and integrity of his friend, the imposition practiced later amounts almost to a conspiracy. Berlien v. Bieler, 96 Mo. 491; Mesker’s Appeal, 107 Pa. 612. The rule is that he who bargains in matters of advantage with a person placing confidence in him, is bound to show that a reasonable use has been made of that confidence. This applies to every person. Northcraft v. Martin, 28 Mo. 649 ; Bedford v. Moore, 54 Mo. 448; Clark v. Bank, 57 Mo. App. 277; Petit v. Carpenter, 86 Mo. App. 452; McClure v. Lewis, 72 Mo. 320; Euneau v. Rieger, 105 Mo. 659; Joplin v. Case, 104 Mo. 573; Martin v. Baker, 135 Mo. 495. In a partition sale the parties agreeing that one of their number shall bid off the property for the benefit of all parties, he is trustee for all the parties. Northcraft v. Martin, 28 Mo. 469. So a petition is not demurrable because a judgment is asked not warranted by the averments. The court will grant any relief consistent with the case made and the allegations of the petition. Northcraft v. Martin, 28 Mo. 469; Hamonds v. Cadwalader, 29 Mo. 169. Equity will relieve from fraudulent acts or omissions. Fraud arising from circumstances of imposition presents the plainest case for relief. Fraud properly includes all acts, omissions and concealments which involve legal or equitable duty, trust or confidence' justly reposed and are injurious to another, or by which an undue and unconscionable advantage is taken of another. Merriman v. Newman, 9 Heisk. (Tenn.) 269; Davis v. Scovern, 130 Mo. 315; Henderson v. Dickey, 50 Mo. 165. (3) The two writings pleaded by the plaintiff in the petition are but parts of one agreement as a whole and were both executed before the sale took place which was the occasion for entering into the same; and therefore the defendant’s objection that the second paper was without consideration cannot be seriously considered because of the admitted consideration of the first paid and because no money consideration was necessary for either. The consideration was united benefits and confidence. The loss of plaintiff’s claim on the land was sufficient, which passed by the sale. Leeper v. Taylor, 111 Mo. 324; Lami v. Ewing, 31 Mo. 75; Bispham’s Equity (2 Ed), sec. 67. The rule excluding oral testimony has no application to a distinct collateral contemporaneous agreement, independent of and not varying the written agreement. Liebke v. Methudy, 14 Mo. App. 65; Brown v. Bowen, 90 Mo. 184.

      Q. Wm. Senn, W. R. Schery and Rassieur, Schnurmaclier & Rassieur for respondents.
    (1) (a) Where a contract or writing is not ambiguous and the language thereof is used in the usual, general, and not technical, sense, the court will not resort to parol evidence, but the construction of the contract or writing is a matter of law for the court. McClung v. Whitney, 82 Mo. App. 631; Blake v. Jaeger, 81 Mo. App. 242; Koehring v. Muemminghoff, 61 Mo. 403; Tracy v. Iron Works, 104 Mo. 193; Walker v. Engler, 30 Mo. 130; Chrisman v. Hodges, 75 Mo. 415; Halliday v. Lesh, 85 Mo. App. 285, 288. (b) And the acts of the parties to a contract or writing, in performance of the same, will have great, if not controlling, influence in the interpretation of the same. Henning v. Ins. Co., 47 Mo. 431; Depot Co. v. Railroad, 131 Mo. 305. (c) A contract or writing, null or void for uncertainty, creates no cause of action, nor will the court, for the failure of the parties to fully provide as to the subject-matter in all respects, undertake to malm any contract between them. Burks v. Stam, 65 Mo. App. 460; Huse v. Heinze, 102 Mo. 249; Mallinckrodt v. Nemnich, 83 Mo. App. 16; Staluth v. Guaranty Co., 81 Mo. App. 632; Iveaton v. Boughton, 83 Mo. App. 165; 7 Am. and Eng. Ency. Law (2 Ed.), 116; Bishop on Contracts (’87), secs. 117, 316, 390. (2) Any modification of an existing contract must be supported by a new and independent consideration. Henning v. Ins. Co., 47 Mo. 431; Wilson v. Russler, 91 Mo. App. 281. (3) In order to bring plaintiff, as against defendant Kittlaus, within the principle of constructive trusts or trusts arising out of fraud, it must appear that plaintiff, relying upon defendant, had been by the latter induced not to bid or otherwise to protect his interest; or that in some other respect a consideration had passed from him, or a detriment been suffered by him, in reliance upon the undertaking of defendant to act in his stead and for him; or that defendant Kittlaus had by his acts or declarations deterred plaintiff or others from bidding at the sale. The authorities contained in appellant’s brief so decide.
   MARSHALL, J.

This is a proceeding in equity to set aside a conveyance of fourteen and fifteen one-hundredths acres of land in St. Louis county, from the defendant Kittlaus to the defendant Wittich; and to declare the defendant Kittlaus a trustee for the plaintiff for an undivided five-sevenths interest in the land; and to charge the two-sevenths interest remaining .in Kittlaus with a lien for five-sevenths of $165, received by Kittlaus for the condemnation of one and fifteen one-hundredths acres for a railroad right of way, and for a partition, and sale of the land, and a division of the proceeds among the parties, in the proportions stated. The trial court rendered a judgment for the defendants, and the plaintiff appealed.

the issues.

The petition alleges that in April, 1897, the plaintiff became the purchaser of the undivided interest of one Ponath, amounting to 17.382 acres in a larger tract of land in St. Louis county; that a partition suit was then pending against Ponath for the land, and that the plaintiff, on his own motion, was made a party to the suit; that by the decree in partition the plaintiff was awarded seventeen and three hundred and eighty-two one-thousandths acres, and the same was charged with the plaintiff’s portion of the costs in partition, amounting to $329.50; that the plaintiff was unable to pay said costs, and that the land was about to be sold to satisfy said costs; that desiring to save the land, the plaintiff induced the defendant Kittlaus to advance or loan him a sum of money sufficient to bid in the land, and in pursuance to that arrangement, entered into a written contract with the defendant on the 15th of April, 1898, which provides as follows:

“First. That at a certain sheriff’s sale, to take place on the 18th day of April, 1898, in the county of St. Louis, Missouri, of 17.382 acres, more or less, of land in said county under an execution against one Edward H. Ponath and others, the said Louis Kittlaus will put up and pay, if a joint bid hereinafter mentioned is successful, upon a joint bid by said Louis Gloeckner and said Kittlaus for such property so to be sold, the sum of $500 and no more; and that said Gloeckner will put up and pay the additional sum, if any, upon each joint bid.
‘ ‘ Second. That said Louis Gloeckner shall be the party to make such joint bid, and shall exercise his own discretion in making and continuing such hid, but said Gloeckner shall make no bid at said sale for or with any person other than the said Kittlaus, or enter into any agreement providing for or effecting the same. .....t
‘ ‘ Third. If the j oint bid of said Gloeckner and said Kittlaus at said sale is successful, then the title to said property is to be transferred to them in the following proportions, to-wit, to Louis Gloeckner an undivided five-sevenths interest; to Louis Kittlaus an undivided two-sevenths interest.
“Fourth. Nothing herein contained shall be construed to prevent said Louis Kittlaus from bidding at said sale, on and for his own and sole account, so long as any bidder or bidders other than or besides said Louis Gloeckner shall continue to make or offer any bid or bids.”

That thereafter on the 18th of April, 1898, said Kittlaus and plaintiff entered into a further agreement as follows:

“It is hereby agreed that if Louis Kittlaus buys at sheriff’s sale 17.382 acres on the 18th day of April, 1898, in the county of St. Louis, State of Missouri, for a sum of money exceeding five hundred dollars, he is to share with Louis Gloeckner as follows: If the land is bought by Louis Kittlaus for a sum between $501 to $700, he agrees to give Louis Gloeckner eight hundred dollars’ worth of same property. If land is bought for $701 to $1,000, he agrees to give Louis Gloeckner six hundred dollars ’ worth of property in land. ’ ’

The petition then alleges that under the agreement and modification of the agreement, aforesaid, it was agreed and mutually understood that Kittlaus should do all the bidding at said sale on the joint account of Kittlaus and the plaintiff, and that an undivided two-sevenths should be conveyed to Kittlaus as compensation for his advancement of such money, on any successful bid that he might make at said sale up to the sum of $500, and’ that the remaining five-sevenths 'should be conveyed to the plaintiff as representing his interest in the land exclusive of the $500 to be advanced by Kittlaus, and that in the event competitive bids should run over $500, or a minor part or portion of such land should be sold to any other bidder, then in such event said agreements between plaintiff and defendant were understood to preserve plaintiff’s title and interest in the land; that at said sale plaintiff and defendant were present; that plaintiff refrained from bidding on the land in pursuance to the said agreement with Kittlaus, and that Kittlaus bid in 15.30 acres of the land for the sum of $450, and was entitled to receive a deed for two-sevenths thereof, and the remaining five-sevenths were to be deeded to the plaintiff; that in violation of the agreements and understandings aforesaid, and with intent to cheat and defraud plaintiff, the defendant caused a deed to the whole of the 15.30' acres to be made to him, and has refused to* convey any part thereof to the plaintiff; that on the 22nd of January, 1900, Kittlaus received $165 from the condemnation proceeding of 1.15 acres of the land taken for a railroad right of way; that on the 14th of March, 1902, Kittlaus conveyed the land to the defendant Wittich for a pretended consideration of $1,200, but that said conveyance was actually without consideration, and was made pursuant to a conspiracy between Kittlaus and Wittich to defraud plaintiff, and that Wittich had knowledge of plaintiff’s rights in the premises.

The answer is a general denial, except as otherwise admitted in the special pleas. The special pleas admit the setting aside of the land to the plaintiff in the partition suit and the charging thereon of the costs stated, but allege that the interest so set apart to the plaintiff was subject to the interest of Ponath and Brueggemann in the land, and that said partnership* estate was insolvent, and that “the demands against the same entirely exhausted said interest and land; ’ ’ admit the execution of the first agreement of the 15th of April, but aver that under that agreement Kittlaus had a right to bid on'his own account so long as any bidder or bidders other than the plaintiff should continue to make bids at the sale, and that there were other such purchasers, and that Kittlaus purchased the land on his own account and for his benefit; deny that Kittlaus agreed to loan or advance the plaintiff $500 ; admit that the second agreement of April 18, 1899, was made, but deny that it was a modification or change in the agreement of April 15th, and aver that it was without any consideration and was not binding upon Kittlaus; aver that at the sale the plaintiff made bids on joint account of himself and Kittlaus, and that Kittlaus made.bids on his individual account, and that two and eighty-two one-hundredths acres were sold to a third party for $165, the plaintiff and Kittlaus both ceasing to bid therefor when it reached that price; that the 15.30 acres were next offered for sale, and the plaintiff made a joint bid therefor, in the proportionate amount of $500, to-wit, in the sum of $335, and that thereupon other bidders than Kittlaus increased the bid, made by the plaintiff, and the plaintiff not having means to pay any sum in addition to the sum to be paid by Kittlaus, ceased bidding, and thereupon Kittlaus continued to bid on his own account against such other bidders, and finally purchased the 15.30 acres for $450; deny that Kittlaus obtained the deed from the sheriff to himself with intent to cheat or defraud the plaintiff, or that he violated .his duties to the plaintiff; admit that Wittich took the conveyance from Kittlaus with notice that plaintiff claimed an interest in the land; admit that Kittlaus received the $165 in the condemnation proceeding, but allege that Kittlaus expended a large sum of money, to-wit, $450, for the protection and in defense of the title to and possession of.the land, and aver that plaintiff has not tendered to the defendants, or either of them, the amount alleged to have been loaned by Kittlaus to the plaintiff to buy in the land, nor has he tendered or offered to pay to Kittlaus dny portion of the amount expended in defending the title to the land.

The case made is this:

The plaintiff had a judgment against Ponath. Ponath owned an interest in a larger tract of land, of which the land in controversy was a part, and a partition suit was pending therefor. The plaintiff caused Ponath’s undivided' interest to he sold and became the purchaser thereof. He then, on his own motion, was made a party to the partition suit, and in that suit was awarded 17.382 acres. But his interest was charged by the decree in partition with the payment of $329.51, his proportion of the costs in the partition suit. The plaintiff was in financial distress and was unable to pay the costs. In addition Ponath had previously executed a mortgage on the whole land for $5,000, and a suit to test Ponath’s right to thus mortgage partnership property was pending. Plaintiff’s attorney advised him to permit the land to be sold under execution to satisfy the costs and to clear up the title; and further advised him either to buy it himself, or if he was unable to do so, to procure some friend to do it for him. The plaintiff and Kittlaus were members of a Turner society in St. Louis, the plaintiff being an officer and Kittlaus an instructor in the society. They had been friends for seven or eight years. Plaintiff applied to Kittlaus for assistance in the matter, with the result that they procured an attorney to draw up the agreement of April 15, 1898, hereinbefore set out. The plaintiff’s attorney was not informed of this arrangement, hut throughout the transaction rested under the impression, given him by the plaintiff, that Kittlaus was simply acting as his friend in the matter. The land was to he sold on the 18th of April, 1898, in St. Louis county. On that day the plaintiff and Kittlaus went to Clayton, and before the sale entered into the written agreement hereinbefore set out, on the 18th of April, 1898. There was no consideration paid by the plaintiff to Kittlaus for entering into that agreement. They kept that agreement secret and did not disclose it to their attorneys.

The plaintiff’s testimony tends to show that two and a fraction acres were first pnt np and that plaintiff made no bid therefor, and that Kittlaus and third persons bid thereon, and the land was finally sold to such third persons. Then the 15.30 acres were offered for sale. Plaintiff made no bid therefor at all. He says in his oral testimony that the reason he did not do so was that he and Kittlaus understood the agreements to be that Kittlaus was to do the bidding, and that the plaintiff was to abstain from bidding, and the petition so alleges. Plaintiff’s testimony further shows that Kittlaus and other persons bid on the 15.30 acres, and that it was finally knocked down to Kittlaus for $450.

The. testimony on behalf of the defendant tends to show that the plaintiff made bids for the 15.30 acres, and that when the bids had reached $380 to $385, Kittlaus told Gloeckner that the $500 had been exhausted— that is, $380 for the 15.30 acres and $160 for the two and a fraction acres, amounted to more than $500, and that thereupon plaintiff ceased bidding, and Kittlaus commenced to bid against the third parties, who were also bidding, and finally became the purchaser for $450. The defendant, Kittlaus, further says that when plaintiff did not bid on the two and a fraction acres, he asked him why he had not done so, and plaintiff replied that he understood it was $160 an acre, and thereupon Kittlaus asked him where his legal adviser was, and plaintiff replied that his legal adviser thought it was advisable for him to stay away from the sale. Plaintiff’s adviser testified that he was present at the sale, standing between the plaintiff and Kittlaus. Kittlaus said plaintiff’s adviser was present, but was not taking any part in the sale, was ninety feet away from the place of sale, and “was walking up and down with an umbrella under his arm on the pavement outside of the building.”

The testimony of both parties shows that after the land was knocked off to Kittlaus, the plaintiff and Ms attorney and Kittlaus went to the sheriff’s office, and there Kittlaus paid the $450, and took the sheriff’s receipt therefor, after it had been examined by plaintiff’s attorney, who says he thought he was acting at that time for both parties, and that subsequently a deed was made by the sheriff to Kittlaus.

The sale took place on the 18th of April, 1898, and the deed was made to Kittlaus, and duly recorded, within about a week thereafter. Plaintiff knew, at that time, that a deed to the whole property was made to Kittlaus, and made no objection to the conveyance being so made. Plaintiff says he had no conversation with Kittlaus from that time until 1902, when Kittlaus told him that the litigation concerning the property, which was then pending in this court (and which Kittlaus had been conducting and paying all the expenses incident to it), was about won, and Kittlaus asked plaintiff if he would stand some of the expenses, and that plaintiff replied that if the old contracts were cancelled he would stand some of the expenses of the litigation, but that if the old contracts were not cancelled, then, the matter must stand in the way it then was. Plaintiff further says he told Kittlaus at that time that he had made a contract and ought to stand by it; that he had given him a good chance to make a whole lot of money out of it; that he only wanted to get “my money again.” That Kittlaus said, “If I don’t want to spend any money in case the suit is lost, then we leave it the way it is. ’ ’ Kittlaus’s version of this branch of the case is, that in the fall of 1901, the plaintiff notified him he wanted to see him, and when they met, he explained to plaintiff how the litigation concerning the property stood and how hard he had fought the same, and that he understood plaintiff still asserted some claim to the property, and asked him if he was willing to stand a portion of the expense of the litigation in case the suit was lost, and that plaintiff refused so to do, stating that he had no more agreements to make; that lie wanted one-lialf of the property; and thereupon he (Kittlaus) said, “Now leave it go as it is, and take chances on the court’s decision favorable or unfavorable; ’ ’ that plaintiff said he would stand no part of the expenses, and would not pay a cent thereof, unless Kittlaus would give him half of the property, and this Kittlaus flatly refused to do.

The litigation was won by Kittlaus, and thereupon plaintiff asserted a claim to a five-sevenths interest in the property. Kittlaus refused to allow him any interest in it.

When cross-examined with reference to the $500 mentioned in the first agreement, and with respect to whether or not he, plaintiff, was to repay that amount to Kittlaus, and as to whether he had ever offered to pay that amount, or any other -amount, the plaintiff said he did not exactly understand that branch of the case, but finally took the position that he was under no obligation to return the whole or any part thereof, or to pay any part of the expenses of the litigation concerning the property, taking the position that the two-fifths interest in the property to be allowed Kittlaus was to compensate him for the $500 advanced by him to bid in the whole property.

Upon this showing the chancellor dismissed the bill and entered judgment for the defendants, and, after proper steps, the plaintiff appealed.

I.

The theory of the plaintiff seems to be that Kittlaus was to advance $500 to bid in the property, and to have a two-sevenths interest for so doing, and that the plaintiff was to have a five-sevenths interest free of all claims; and further that the arrangement between them was that Kittlaus was to do the bidding at the sale and that the title was to be conveyed in the proportions aforesaid, to the parties, and that relying upon that, the plaintiff refrained from bidding at the sale, and hence that Kittlaus took the property charged with a trust.

There is no basis for such a theory under the issues in this case. The petition sets out the original contract of April 15th, and also the alleged written modification thereof on the 18th of April. Neither of those contracts required or contemplated that Kittlaus should be the bidder for the property on joint account. On the contrary, the first contract expressly provided that the plaintiff should do the bidding and should buy the property in on joint account, and that the plaintiff should furnish the excess over $500 which the defendant was to advance or loan in order to acquire the title. The modification of the contract does not specify who should do the bidding. There is, therefore, no foundation in the pleadings for the claim that Kittlaus was to be the bidder, and that the plaintiff was to refrain from bidding. It is true the petition states, after setting out the contracts, that the' parties mutually understood that Kittlaus should do the bidding, and that the plaintiff should refrain from so doing, but there is no provision, even in the oral agreement, to that effect, and such a condition or deduction cannot be drawn from the language of the written contract itself, but on the con-' trary is directly contrary to the express terms of the contract.

The testimony for the plaintiff tends to show that lie did not bid at all. If that is taken as true, then the plaintiff did not perform his part of the contract. It is nncontradicted that the plaintiff did not furnish the excess over $500, necessary to buy in the property on joint account. He says he had no money with which to do so, and that Kittlaus knew that fact. But the contract required him to do that, if the land sold for more than $500. The land did sell for more than $500. Under this view, therefore, the plaintiff failed to show that he had complied with his part of the contract, and, therefore, was not entitled in equity to compel the de^fendant to perform Ms part. The original contract,. however, is sui generis, in this, that while it required the plaintiff to become the purchaser of the property, and required the defendant to put up $500, and the plaintiff to put up the excess over that amount necessary to purchase it, it also provided that if any third person bid on the property, Kittlaus should be at liberty to also bid against such third person, and to buy the property for his own use and benefit. Third persons did bid on the property, and plaintiff’s version is that he did not do so. Kittlaus, therefore, was at perfect liberty, under the terms of the contract, to bid on the property and to buy it on his individual account. He did so. The plaintiff stood by and saw him do so and made no objection. Kittlaus contends that in so doing he purchased the property as his own, and the subsequent proceeding's and conduct of the parties for four years thereafter cannot be construed in any other light than that both the plaintiff and Kittlaus so regarded the transaction. For after bidding in the property Kittlaus went to the sheriff’s office, the plaintiff and his attorney accompanying him, paid the amount of the bid to the sheriff, and within a. week thereafter took the deed to himself and duly recorded it. All these matters were known to the plaintiff, yet he asserted no claim to the property. The plaintiff also kpew that there was litigation concerning the title, and that Kittlaus was defending that litigation, and bearing the expenses thereof. During' all that time the plaintiff asserted no claim. When Kittlaus asked him to share a part of the expenses of that litigation, he refused to do so, unless Kittlaus would cancel the prior contracts, and give him a half interest in the property. This Kittlaus refused to do. Such conduct on the part of the plaintiff is not calculated to impress a court of equity very favorably, nor to lead it to believe that he understood that Kittlaus purchased the property on joint account, but rather leads to the conclusion that all parties understood that Kittlaus, in purchasing the property, was exercising the right given him by the contract, to do so if the third persons bid on it. This conclusion is reached without taking into consideration the testimony of Kittlaus, that the plaintiff hid on the 15.30 acres, until the proportionate part of the $500 was exhausted, and that he then warned him that if he continued to bid, he would have to furnish the excess money himself, and, thereupon, the plaintiff ceased to hid, and then, for the first time, Kittlaus hid against the third person.

The original arrangement, as embraced in the written contract or as disclosed by the oral testimony, is very difficult of understanding. The plaintiff, himself, did not seem to understand, when interrogated, whether or not he was to repay Kittlaus the $500 to be advanced by him, hut he finally took the position that the conveyance to- Kittlaus of the two-sevenths interest was to< compensate him for the $500, and that the plaintiff was to return no part thereof, but that he was to have the five-sevenths interest in the property free of all claims. Two-sevenths of $500 would amount to $142.85. If plaintiff’s position is correct, therefore, Kittlaus was to give $500 for the privilege of getting property of the value of $142.85. The whole property actually sold for $610. Two-sevenths of that sum would amount to $174.28. Under plaintiff’s theory, therefore, Kittlaus was to pay $500 for a two-sevenths interest in the property, which was worth only $174.28. This conclusively demonstrates that the contract never contemplated anything of that character, hut clearly contemplated that, for his services in advancing the $500, Kittlaus was to receive back the $500 advanced, and a two-sevenths interest in the property. If that is not the true construction of the contract, then the absurdity is presented of Kittlaus giving or agreeing to give $500 for land that was only worth $174.28, and of making the plaintiff a present of property worth $437.72. To place such a construction on the contract would be to establish an unprecedented instance of disinterested friendship.

It will be observed, however, that the plaintiff sets out both the original contract of April 18th, and, what he denominates the modification thereof, of the 18th of April, and treats the latter as a mere modification of the former and not a substitution for it, and then the pleader avers that it was mutually understood and agreed, between the parties, under the. modified agreement, that the -plaintiff should refrain from bidding, and that Kittlaus should do all the bidding at the sale on joint account.

The agreement of April 18th is a most remarkable agreement, and is inconsistent with the agreement of April 15th. Under the original agreement Kittlaus was to furnish $500 and the plaintiff was to furnish any amount in excess thereof necessary to buy the property. Kittlaus was to have a two-sevenths interest and the plaintiff a five-sevenths interest. The plaintiff was to do the joint bidding, and if third persons bid, Kittlaus was to have a right to bid on his own account. The modified agreement provided that if Kittlaus paid more than $500 for the property, the plaintiff was to share in the property in the following proportions,, that is, if the' property sold for a sum between $501 and $700, the plaintiff was to have “$800 worth of same property;” and if it sold between $701 and $1,000, the plaintiff was to have “$600 worth of the property in land.” Nothing was said in the modified agreement about the plaintiff doing the bidding, nor does that agreement seem to contemplate that the plaintiff was to furnish the excess over $500 as the original agreement provided. Yet under the modified agreement, if Kittlaus bought the land for a sum between $501 and $700, the plaintiff was to have $800 worth of the same property, etc. In other words, if the property sold for $501, Kittlaus was to pay the $501 and to give the plaintiff $800 worth of the same property that had sold for $501. Or, otherwise stated, Kittlaus, by some process that is inconceivable, was immediately to make the property that had sold for $501 worth $800. Thus the plaintiff would get the property at the enhanced value over and above its salable value, and no provision was made for Kittlaus getting anything. Under this arrangement it would require Kittlaus to expend $800, that is, $501 he paid at the sale, and $299- to make the property worth $800-, and the plaintiff would get it all, and Kittlaus nothing.

If this is not the true meaning of -this remarkable agreement then.the only other construction that can be put upon it is that the parties must have considered the land worth at least $1,500 to $1,700, and that it would not sell, in any event, for more than $1,000. The land actually sold for $610. Tet the uncontradicted evidence in the case is, that the portion of the land purchased by Kittlaus was the poorer portion, which was subject to overflow, and that it had no outlet. And further, that it sold for its full value, if not more.

But it is useless to pursue this feature of the case further, for the simple reason that there was clearly no consideration to Kittlaus to support the agreement of April 18th, nor is the petition predicated upon that agreement, for the plaintiff claims an undivided five-sevenths of the property, as provided for in the original agreement, and because the contingencies covered by the modified agreement never arose. The original agreement contemplated the purchase of the 17.382 acres for $500, which was at the rate of $28.76 an acre. The 15.30 acres at that price would amount to- $440.02, which was about the price Kittlaus paid for it. The 15.30 acres brought just above the price the parties contemplated when they made their first agreement; and the second agreement, even if it was a valid contract, would not apply to the facts in this case.

The bill contains no offer to refund any part of the $500, and the plaintiff contends that he- was not obliged to return it, because of his theory of the case, aforesaid. Such a theory is so highly improbable that no court would adopt it, if any other construction of the contract was possible. Without an offer to refund, the bill stated no cause of action, and the demurrer which the defendant interposed should have been sustained.

The extreme novelty and uniqueness of the plaintiff’s position is further illustrated by his refusal to contribute anything towards the expense incurred by Kittlaus in defending the title to the property. The plaintiff says he offered to pay a part, not specified, of such expense, if Kittlaus would cancel all prior contracts, and give him a half interest in the property. Such generosity on his part is incompatible with his prior and subsequent conduct in the case, for if he was entitled, as he here claims, to the five-sevenths interest in the 15.30 acres, and was not obliged even to refund the proportionate part of the purchase price that had been paid by Kittlaus, it is inconceivable why he should agree to pay any part of the expenses and take only a half interest in the property instead of retaining the five-sevenths interest, without paying anything. •

Plaintiff cites and relies upon cases which hold that where property is sold in partition, and one of the tenants in common buys it in his own name, in consideration of the other tenant in common refraining from bidding at the sale, the one who buys it in holds it in trust for all. Those cases have no application to the case at bar, for the manifest reason that in such cases the tenant in common who refrains from bidding, furnished a part of the consideration for the purchase of the land, to-wit, his proportionate share of the property. Moreover, this is not a case of a tenant in common bidding at a partition sale. It is simply a case of the land of the plaintiff being subjected to seizure and sale for the payment of his debts, and, under even the strongest view of the case taken by the plaintiff, of Kittlaus furnishing all the money, and, according to plaintiff’s theory, of getting for his pains only an aliquot portion of the money furnished by him in land, and of giving the bulk of the land to the defendant for nothing.

Plaintiff also cites and relies upon a line of cases which hold that where one furnishes the money and another buys the property, and takes it in his own name, a resulting trust arises in favor of the party who furnished the money. But it requires no great degree of perspicacity to see that such is not this case. The plaintiff furnished no money at all and according to his theory was not required to furnish any and was not able to furnish any.

If such a case as this could be held to create a resulting trust, it would afford a very advantageous method for a debtor to have his debts paid, and still retain or preserve five-sevenths of the property levied on for the payment of his debts. Almost any debtor would be glad to enter into such an arrangement. It would be the work of supererogation to attempt further amplification or demonstration in this case. The petition does not state a cause of action, and the plaintiff’s testimony not only contradicts the written instrument, but, if true, presents a condition beyond the conception of the ordinary human mind, and one which the plaintiff failed to comply with on his part.

The judgment of the cii-cuit court is right and it is affirmed.

All concur, except Brace, P. J., absent.


text:
    THE STATE ex rel. HENSON v. SHEPPARD, Judge.
    In Banc,
    December 22, 1905.
    1. PROHIBITION: Demurrer. A demurrer to the petition and rule in prohibition admits every allegation of the petition well pleaded.
    2. OFFICER: Removal from Office: Constitution. The Constitution in saying that “the General Assembly shall, in addition to other penalties, provide for the removal from office of county, city, town or township officers, on conviction of willful, corrupt or fraudulent violation or neglect of official duty,” did not limit the Legislature’s power to provide for the removal or suspension of an officer to a “conviction of willful, corrupt or fraudulent Violation or neglect of official duty.” The words “in addition to other penalties” are significant. The entire section means that the Legislature must provide for removal of an officer on conviction, but may add other penalties.
    3. -: Constitution: Power of Legislature Generally. A legislature has power to enact any law not prohibited by the Constitution. This is a fundamental difference in the powers of Congress and of the General Assembly. The rule of construction of the State Constitution and of the Federal Constitution is radically different. Congress can enact no law unless the power is found among its powers enumerated in the Constitution of the United States. The Legislature can enact any law legislative in its character which it is not by the Constitution forbidden to pass.
    4. PUBLIC OFFICE: Natural and Property Right: Public Agency. The right of a citizen to hold a public office is not a natural right, nor is it inherent in the citizen, nor is it in strict sense property, or a grant or vested right arising from contract; it is a public agency which, barring constitutional inhibition, may be abolished, curtailed or regulated by legislative enactment. Nevertheless, a duly elected public officer cannot be removed or deprived of its emoluments except in conformance with statutory authority.
    5. -: Removal. The statutes of this State limit the power of circuit courts to remove a public officer for some misconduct in office, official misfeasance, nonfeasance or neglect of official duty. They have no inherent power to remove or suspend him upon an information filed charging him with having committed a crime in no wise pertaining to his official duties.
    6. -: Circuit Clerk: Charged With Murder. The circuit court has no inherent or statutory power to remove from office a circuit clerk charged with murder, and deprive him of the emoluments of the office so long as the charge is pending, by the appointment of another person to perform all the duties of the office in the interim.
    7. -: -: -: Clerk Pro Tempore. But it would be unseemly to permit a circuit clerk charged with murder to have official custody of his own indictment, his own recognizance, the evidence before the coroner and before the committing magistrate, and to have power over all processes, entries and proceedings in his own case. Historically the duties devolving on the circuit clerk are those formerly performed by the judge, and the law rule is that no man may act as judge in his own case, and the policy of our statutes, in many instances, point in the same direction. Hence, the court should accept the voluntary offer of the clerk to appoint a clerk pro tempore, to perform all the duties, ordinarily incumbent upon the circuit clerk, in connection with the murder charge; and, where no such offer is made by the clerk, the court should, nevertheless, appoint a clerk for the particular case.
    Prohibition.
    Writ made absolute.

      N. A. Mozley, J. M. Atkinson, D. B. Deem and Phillips & Phillips for relator.
    (1) The facts are admitted by the pleadings, hence, the court has only to pass upon a question of law. (2) We do not understand that respondent, or his counsel, claim that the proceeding to suspend relator from his office has any reference, even remotely, to the statute of the State in relation to the removal of circuit clerks from office, but if such claim is made, the most casual examination of the statute in connection with the motion filed by the prosecuting attorney to suspend, will demonstrate its utter fallacy. The motion to suspend relator avers that he is wholly incapacitated to act as clerk because tbe prosecuting attorey has filed two informations against him charging murder in the first degree, and it avers nothing else. The statute provides that where a circuit clerk has been guilty of a misdemeanor in office, charges to remove him from office shall be filed by the prosecuting attorney, and, pending the hearing-on said charges, the court may suspend him. Pence, it is too plain for argument that, so far as statutory warrant is concerned, suspension cannot be had except as incidental to the proceeding to remove. In other words, suspension per se is not provided for by the statute. R. S. 1899, secs. 529 to 534; R. S. 189-9, secs. 8853-8854. (3) Where, as in this State, express provision is made for the removal of a circuit clerk from his office, and the grounds of such removal are limited to misconduct in office, he can be removed for no other cause, and the misconduct must be of a kind affecting the performance of his official duties. State ex rel. v. Hickson, 41 Mo. 211; 7 Cyc. Law and Procedure, 204-5; 6 Am. and Eng. Eney. Law (2 Ed.), 136; Dowling v. Smith, 9 Md. 242; Colt v. State, 28 Ark. 417; Ex parte Lehman, 60 Miss. 967; 10 Cen. Dig., 83; Honey v. Graham, 39 Tex. 11. And where the mode of procedure is pointed out by statute for the removal from office of a clerk, it must be followed. 7 Cyc. Law and Procedure, 205. The Constitution provides: “All officers, subject to the right to resign, shall hold, office during their official term, and until their successors shall be duly elected or appointed and qualified.” This plain provision of the Constitution says relator shall hold his office during his official term and until his successor shall be duly elected or appointed and qualified, But seemingly determined to put the question beyond the possibility of cavil, the same Constitution provides: “The General Assembly shall provide for the remoyal from office of county . . . officers on conviction of willful, corrupt or fraudulent violation of official duty.” Art. 14, sec. 7. Suppose the General Assembly should pass a law providing that a circuit clerk should be suspended from office whenever the prosecuting attorney shall file an information against him charging murder, it could not he upheld, for the reason that such an act would he outside the constitutional grant to legislate upon that subject. (4) The General Assembly, however, in dealing with this subject, has kept itself commendably within the limits of constitutional warrant by providing that a circuit clerk may be removed from office upon conviction of misdemeanor in office, by providing also that charges must he filed, which the clerk may put in issue, and that a jury trial may be had. (5) As will he seen by certified copy of the motion attached to the petition for the writ in this case, relator offered in the court below to disqualify as clerk so far as the two cases against him were concerned and asked that a temporary clerk be appointed, which motion the court overruled. Relator is now willing that a temporary clerk for said two cases be appointed and that he may have the custody and care of all records, files and papers belonging to said cases and perform all of the duties of clerk respecting the same, but he denies that said judge has any power or right to suspend him from office generally merely because he is charged with murder in said court.
   LAMM, J.

Suggestion for prohibition. Relator is the duly elected, qualified and acting clerk of the circuit court within and for Butler county. Respondent is the duly appointed, qualified and acting judge of said court. On the 22nd day of June, 1905, there were filed in said court by Joseph T. Davidson, prosecuting attorney of Butler county, two informations: in one, Henson stands charged with feloniously, willfully, deliberately and premeditately, with malice aforethought, assaulting one William Heck with a loaded shotgun on the 14th of April, 1905, and then and there feloniously killing said Heck by said assault and weapon; in the other, he is charged with murdering one Sylvester IT. Adams on the same day, in the same manner and with a similar lethal weapon.

Henson, being arrested and refused bail, was released on bond by proceedings in habeas corpus in this court, and by an entry of record in the Butler Circuit Court the cases were set down for hearing on August 14, 1905.

An abridgment of the proceedings below will not be uninstructive on the issues presented here. Attending thereto, it appears that on the 15th of July, Henson filed in propria persona sedente curia a suggestion to the effect that he was clerk of the circuit court of Butler county, with the ex-officio, duty of issuing process, swearing witnesses and jurors, of making record entries and having the custody of court files and records; that he stood charged in informations, preferred and on file in said court, with the crime of murdering two men, Heck and Adams; was in custody of the law, but was innocent of said charges; that as clerk he had custody of the papers and the files in the cases wherein he was defendant and was burdened with the duty of issuing subpoenas, etc., and writing record entries ordered by the court therein. That he neither wished to incur the unseemly embarrassment or the responsibility incident to the personal performance of clerical duties in said causes, and, to that end, had agreed with the prosecuting attorney that some competent person be appointed by the court to perform the duties of circuit clerk, respecting said causes only, which agreement was to be spread of record to the end that the State as well as Henson be precluded from questioning the legality or validity thereof. That the prosecuting attorney receded from the agreement and, inasmuch as he had done so, he (Henson) now requested the court to designate some suitable person to qualify as a clerk pro tern, or as deputy circuit clerk and who might be charged with the safekeeping of all files and papers, issue all process, write all record entries and do all things required by law neeessary to be done in and about said causes only; or in lieu thereof that the court designate some suitable person to act as clerk of said court respecting said causes only, and that the record show that such person so designated as clerk was designated upon the motion and at the request of defendant in said causes or that such other and additional orders be entered of record as will effectually bind defendant respecting the same.

Notwithstanding said suggestion so made by Henson, the presecuting attorney, acting we doubt not out of abundance of caution, concluded to follow lines laid down by himself. To that end, he filed in the said court his ex-officio complaint on the 21st day of July, 1905, whereby he set forth his own official title and duties, as well as Henson’s, and averred that Henson shot and killed Adams and Heck on the 14th day of April, 1905, in said Butler county, and for said killing stood charged in two informations with murder in the first degree; that the trial is fixed for August 14, 1905, that Henson is under bond in the sum of $10,000 in each case and has custody of the records and files in said causes. That in order to get ready for trial, it is now necessary to have process issued for witnesses and make various and divers entines of record in said causes, wherefore it is declared and insisted upon that Plenson is incapacitated to be the custodian of his own bonds and recognizances, to be the custodian of the evidence taken before the coroner’s jury and the committing magistrate, to be custodian of the informations preferred against him, to issue process for witnesses against himself and to make record entries in either of said causes. And the complaint ends with a prayer that the court make an order suspending said Lida M. Henson “from doing or performing any of the duties of the clerk of the circuit, court of Butler county, Missouri, and to maintain and enforce such order of suspension so long as said charges of murder in the first degree against him ... shall remain pending and undetermined” in said court, and “to appoint some competent person to perform all the duties of clerk of said court so long as said suspension order remains in force.

Subsequently and on the 24th day of July, 1905, defendant through counsel demurred to the aforesaid complaint, substantially on the grounds following: (1) for that the complaint does not purport to be based on knowledge furnished by the court, in the shape or form of notice, to said prosecuting attorney, stating the charges against said defendant, nor is it based on the oath or affirmation of any other person or persons; (2) for that none of the charges relate to any misdemeanor in the office of circuit clerk, and the defendant before conviction is presumed to be innocent of the charges actually preferred: (3) for that the circuit court is without power to grant the relief prayed for in said complaint; (4) and for that said-complaint does not state facts sufficient to state a cause of action.

So much for the status below.

On the 25th day of July relator served notice on respondent of his intention to apply here for a writ of prohibition and on the 1st day of August did present his petition for such writ, which in substance sets forth the aforesaid facts and avers, inter alia, that notwithstanding his said demurrrer filed below wherein the attention of respondent was directed to his lack of power, and notwithstanding the fact that the said complaint of the prosecuting attorney does not charge relator with the commission of any misdemeanor or misdeed whatever in relation to his duties as clerk of said court or in office, respondent assumed jurisdiction to hear said complaint and did hear the same, and, without authority or jurisdiction, was proceeding to suspend relator from his said office and appoint some other person in his stead, and would have appointed some'other person to fill said office had not relator served bim with notice of his intention to apply here for a writ of prohibition. That upon the service of said notice respondent announced to relator and all concerned that he would withhold final judgment until the 12th day of August, 1905, at which time he would in all things sustain the complaint of the prosecuting attorney and would suspend relator from office and appoint some other person in his stead unless this court interfered for relator’s protection. That respondent is without power to try relator or do what he threatens to do because: (1) no charges are preferred against relator which allege the commission of a misdemeanor or misdeed in the performance of his duties as clerk of said court; (2) that respondent has no right or power to suspend relator except under such power as is conferred by statute (R. S. 1899, sec. 529), and that his attempt to exercise such power is unwarranted and an excessive exercise of jurisdiction; (3) that relator is presumed to be innocent of the crime charged against him in the informations and that the mere filing of said informations does not in anywise incapacitate him from the just and proper performance of his duties as clerk, etc., all of which he stands ready and willing and is entitled to perform.

Accompanying the suggestion for prohibition is a duly authenticated exemplification of the informations against relator, the entries of record, the complaint for his removal or suspension, his offer to have a clerk pro tern or deputy appointed to take charge of the papers and files pertaining to said criminal cases and perform the functions of clerk in and about said cases, his demurrer to the complaint below, etc.

On application here, a preliminary rule was granted and sent down by Division No. 2 to show cause, returnable to Court in Banc. To this rule respondent makes his return by way of demurrer, the grounds of which, in substance and effect, axe, (1) because the petition does not state facts sufficient to constitute a cause of action; (2) because the facts stated in the petition do not entitle relator to the relief prayed; and (3) because the facts stated in the petition show that the respondent has legal authority to suspend relator as clerk so long as the charges of murder are pending against him.

Upon this return being made, relator moved for judgment non obstante, and thereby the issue presented to us is whether under our Constitution and laws a circuit judge has power to remove or suspend a circuit clerk, duly elected, qualified and acting as such, and standing ready and able to perform his clerical duties, because he is charged with crimes, not misdemeanors in office, but othewise, and appoint a temporary clerk to perform all the duties of circuit clerk and enjoy the emoluments of the office ad interim while said criminal charges are pending. The controversy, in the shape the pleadings assume, resolves itself into a question of law, for the demurrer admits every allegation of the petition well pleaded.

The controlling contentions of-relator are, in effect, as follows:

1. That the State Constitution prohibits the removal or the suspension of any officer except on conviction of willful,corrupt or fraudulent violation or neglect of official duty, and that if the statutes are construed to permit any other exercise of power, whether differing in degree or to be applied under other contingencies, such statutes are void.

2. That the statutory power given to the circuit court to suspend the clerk and appoint a clerk pro tempore is no warrant of authority for the power claimed by respondent under the conceded facts of this case.

3. To the above may be added a consideration of the offer or suggestion of relator that the circuit court select a suitable person to act as deputy or as clerk— a locum tenens, so to speak — solely in the criminal charges pending against him.

Of these seriatim-.

I. The constitutional provisions invoked here are:

Art. 14, sec. 5. “In the absence of any contrary provision all officers now or hereafter elected or appointed, subject to the right of resignation, shall hold office during their official terms, and until their successors shall be duly elected or appointed and qualified.”

Art. 14, sec. 7. “The General Assembly shall, in addition to other penalties, provide for the removal from office of county, city, town or township officers, on conviction of willful, corrupt or fraudulent violation or neglect of official duty.”

In construing section 7, supra, the phrase, “in addition to other penalties,” is of live significance. The constitutional mandate is to the effect that the Legislature shall provide for the removal from office of any officer convicted of willful, corrupt or fraudulent violation or neglect of official duty, not that the Legislature shall do nothing more. The contention of relator is that the expression of one thing excludes everything else. In other words, having said that an officer shall be removed on conviction, it follows, says relator, that he cannot be removed or suspended short of conviction, and this under the maxim expressio %mius. But this view entirely eliminates the important modifying phrase, “in addition to other penalties.” “Penalties,” as used above, means “punishment, fine, forfeiture, deprivation of some office or right for some offense, misconduct, misdemeanor or delinquency.” [State ex rel. v. Walbridge, 119 Mo. infra.] The entire section means that the Legislature must provide for the removal of an officer on conviction, but it leaves the question of other penalties solely within the realm of legislative enactment, and so it has been held. [State ex rel. v. Walbridge, 119 Mo. l. c. 390, et seq.]

Moreover, the contention of relator does violence to a fundamental canon for construing our State Constitution, in that, contrary to the rule for construing the Federal Constitution and the powers delegated to the Congress, the Legislature of Missouri, speaking generally, has power to pass any law not prohibited by the Constitution. [Ex parte Joseph Roberts, 166 Mo. l. c. 212.] Or, stated aliter, “the rule of construction of State constitutions is entirely different from that of the Constitution of the United States. In the latter you look to see if the particular power is among the enumerated powers gramted to Congress; in the former you look to see if it is legislative in its character, and whether it is prohibited to the Legislature.” [See Reverdy Johnson’s argument in Dowling v. Smith, 9 Md. l. c. 261.]

No such offense can be imputed to the framers of our Constitution as that they denied the power to the people, acting through their Legislature, to provide for temporarily suspending an unfaithful officer caught, so to speak, red-handed in misconduct in his office.

Being of the foregoing opinion, it results that the Constitution is. no bar to the legislation presently to pass in review, and, therefore, the first contention of the relator must be disallowed.

II. Attending next to the statutes anent the subject-matter in hand, the material parts follow:

Section 528. “If any clerk shall knowingly'and willfully do any act contrary to the duties of his office, or shall knowingly and willfully fail to perform actvy act or duty required of him by law, he shall be deemed guilty of a misdemeanor vn office.”

Section 529. “When any court, or the judge of judges, or a majority of them in vacation, shall believe from their own knowledge or from the information of others, on oath or affirmation, that the clerk of the court in which they preside has been guilty of a misdemeanor in office, they shall give notice thereof to the Attorney-General or prosecuting attorney, stating the charges against such clerk, and requiring him to prosecute the same; and they may suspend such clerk from office until a trial can be had, and appoint a temporary clerk, who shall possess the same qualifications, take the same oath, and give like bond as other clerks, and who shall possess the same power, perform the same duties and receive the like fees as other clerks, and shall continue in office until the regular clerk shall resume his office or a successor shall be elected. ’ ’

Section 530. “Whenever the Attorney-Q-eneral or prosecuting attorney shall be required to prosecute charges against any clerk, he shall make out each charge in due form, and cause a copy thereof to be served on him, 'together with a notice requiring him to appear before the court, on some day in term time, to be specified in such notice, and answer the said charges."

Section 536. “In addition to the mode herein provided, any clerk may," for any misdemeanor in office, be removed and otherwise punished by indictment in the circuit court. ’ ’

Section 8853. “Any person elected or appointed to any office or employment of trust and profit, under the laws of this State, or any ordinance of any municipality in this State, except such officers as may be removed by impeachment, who shall fail to personally devote his time to the performance of the duties of such office or employment of trust or profit, and any county, city, town or township officer who shall be guilty of any willfid, corrupt or fraudulent violation or neglect of any official duty, shall foxrfeit his office, and be removed thex*efrom as hex-einafter provided. ’ ’

Section 8854. ‘ ‘ Upon complaint made to any prosecuting officer of any violation of the foregoing section or any part thereof by any such officer or employee within his jurisdiction, said prosecuting officer shall file a complaint, verified by the affidavit of such coxnplainant, unless such officer files the same officially in the cirouit court of the proper county, specifying the violation complained of, and citing the party to appear on the first day of the next term of said court and answer said complaint, a copy of which said complaint shall be served on the party complained of, at least fifteen days before the first day of such terra of court, by the sheriff thereof, and such court at such term shall proceed, with the aid of a jury if demanded, to try such cause, unless the same be continued for cause, as in civil cases. ’ ’

Barring sundry immaterial details of procedure, the foregoing is the body of the law pertaining to- the matter in hand.

Preliminary and leading up to a consideration of these statutes, it may be said that the right of a citizen to hold a public office to which he has been duly elected was early held by the highest courts of certain states of this Union to be both property and privilege. [Honey v. Graham, 39 Tex. 31; Hoke v. Henderson, 4 Lev. Law l. c. 17, et seq; Wammack v. Holloway, 2 Ala. 31.] This theory, however, seems to be a mere shadow of the English common-law doctrine (not permissible in a democracy) that an office is an incorporeal hereditament. The generally accepted American view is that eligibility to office is not a natural right inherent in a citizen, that an office is not a grant or a vested right arising from contract, that it is not property in the rigid sense that an ox or an ass or land is property. [Throop’s Public Officers, sec 119.] And such has always been the view of this court from Primm v. City of Carondelet, 23 Mo. 22 (1856), down to State ex inf. v. Evans, 166 Mo. 347 (1901). A public elective office is a public agency which, barring any constitutional inhibition, express or implied, may be abolished, curtailed or regulated by legislative enactment.

Nevertheless, it does not follow because a public office created by law is not property in a precise sense, that a duly elected incumbent is at the whimsical sport of chance, caprice or of intermeddlers or of any form of illegal and unauthorized interference. A privilege or status so conducive of longevity and delight that, once incumbents of office, “few die and none resign” (see Jefferson’s letter to Elias Shipman of New Haven, July 12, 1801, where the substance of this doctrine is announced) may not be held by a thread so slender and precarious. [State ex rel. Millett v. Field, 37 Mo. App. l. c. 98.] Speaking to the point in hand, Judge Andrews in Nichols v. MacLean, 101 N. Y. l. c. 533, aptly says: “But within these acknowledged limits, the right to an office carries with it the right to the emoluments, of the office. An office has a pecuniary value, although primarily it is an agency for public purposes. ’ ’ So that, given that one but “reads his title clear to” a public office, he may not be rudely cast out from its solatiim, its emoluments, except on due process and by the rigor of penalties denounced by positive law. The undemocratic doctrine announced in the phrase sic volo, sic jubeo, stet pro ratione voluntas, is not applied by the courts of a free people. [Dubuc v. Voss, 19 La.. Ann. 210.]

Respondent should, therefore, put his finger upon the statute which gives him jurisdiction to do what he admits he was about to do in this case. This he has not done. In the presence of the full and explicit provisions of written law above, there can be no excuse for falling back upon any reserve or inherent power, if such exist. Power delegated to. him must be found in his statutory warrant of attorney, or be a necessary incident thereof. Both the letter and the rationale of the statute limit his right to suspend the clerk and oust him from all his duties to a case where the office has suffered; where the public have suffered, in that the incumbent has been an unfaithful servant in his office; has been guilty of a misdemeanor in office; or is charged with a misdemeanor in office; some official misconduct,, misfeasance, non-feasance or neglect of official duty. The meaning at large of the phrase “misdemeanor in office” is not so definite and certain as to preclude judicial interpretation, but in Missouri the lawmakers have precluded the necessity of such construction by defining it themselves. [Sec. 528, supra.]

It stands admitted by the pleadings in this case that Henson is able, capable and willing to perform and is performing, without slip, partiality or covin, all the duties of circuit clerk, and it is proposed to take that office from him, to appoint another person to it and its emoluments and honors, ,who shall hold the place as long as the charges of homicide lodged against him are pending, and these charges may drag their slow lengths through.the courts during the balance of Henson’s term; so that, attended by a presumption of innocence, he receives his official conge and quietus out of hand:

The frequent statutory reference to official misconduct and misdemeanors in office leaves no room to doubt-of the mischief struck at, and by no allowable legal construction can a homicide, disconnected from the performance of official acts, come within the purview of, or mischief to be retarded by, the provisions under review.

State ex rel. v. Walker, 68 Mo. App. l. c. 119, considers the question in hand, and the doctrine there formulated is as follows: “It is very well settled in this country that the misconduct for which an officer may be removed must be found in his acts and conduct in the office from which his removal is sought and must constitute a legal cause of removal and affect the proper administration of his office. [Speed v. Common Council, 98 Mich. loc. cit. 364.] The cause must be one which specially relates to and affects the administration of the office and must be restricted to something of a substantial nature, directly affecting the rights and interests of the public. The cause must be one touching the performance of his duties showing that he is not a fit or proper person to hold the office. In the absence of a statutory specification, the sufficiency of the cause should be determined with reference to the character of the office and the qualifications necessary to fill it. [State ex rel. v. Common Council, 53 Minn. 238; State ex rel. v. Love, 39 N. J. Law 14; State ex rel. v. McGarry, 21 Wis. 502; People ex rel. v. Thompson, 94 N. Y. 451.] ”

The statutes of Arkansas on the points under consideration are substantially our own. In Ooit v. State, 28 Ark. 417, these statutes are construed. The case was one wherein the clerk was charged with forgery and the court, nisi, suspended him. In disposing of the matter, it was said:

“Before a clerk of the circuit court can be suspended under this statute, it must be shown affirmatively that he has been guilty of some misdemeanor in office; or that he is incapable of discharging the duties of his office according to law. ... It was designed to protect the public from the wrongs which might be committed by a dishonest, or an incapable or a drunken official.
“This is a summary proceeding, and a court will not be warranted in suspending one of its officers only upon the most convincing and indubitable proofs that the best interest of the public will be subserved by such suspension, and such evidence should be placed on record in such substantial manner as would show that the action of the court was based upon tangible premises.....
“A ‘misdemeanor in office’ is to use improperly or to abuse the functions of an office, to do some act by virtue of an office which is not lawful to do. It is not every misdemeanor or every crime which may be charged against a circuit clerk that will warrant a suspension of him from his duties.
“He may be charged with an assault, or even of robbery, or any other misdemeanor or crime alleged to be committed in a manner entirely unconnected with the duties of his office, yet he would not be liable to a suspension under the provisions of this statute. The act charged must be directly pertaining to or connected, with his office, and tending to raise a violent presumption that he was an unfit person to be intrusted with its duties.”

To mhke an end of the matter in hand, it is our opinion that respondent could not legally suspend Henson from all his official duties and emoluments because of the charges pending against him, and that his attempt to do so was in excess of his jurisdiction and created an emergency in which the writ of prohibition, on well-recognized principles, will go.

HL. There remains to consider the temporary writ which did not prohibit respondent from appointing a temporary clerk for the immediate purposes of Henson’s pending cases, but which merely prohibited bim from carrying out his admitted purpose of removing Henson temporarily, but fully, from all his official duties during the pendency of said cases, the question being whether the temporary writ should be made absolute. Incidentally, in connection with the consideration of this question, the offer of Henson spread of record to permit respondent to select such clerk pro tempore —a clerk pro hoc vice —must be held in mind.

If Henson had actually exercised clerical duties in his own cases and the validity of such acts was questioned here, a different question would naturally arise. If such question were up, we would have no difficulty, or hesitancy, in saying that his acts would be valid, because in a certain sense a clerk is a mere ministerial officer, and official acts of a merely ministerial character, performed by an interested party, are not, on that account alone, invalidated when assailed ex post facto. For instance, a clerk may issue process in his own behalf. [Huff v. Shepard, 58 Mo. l. c. 245.] And so it has been held by Redfield, J., in Vermont (Mut. F. Ins. Co. v. Cummings, 11 Vt. 503); and by the Supreme Court of North Carolina (Evans v. Etheridge, 96 N. C. 42); and this is the general doctrine of the books. [Throop’s Public Officers, chap. 26.] A clerk in issuing process, whether mesne or final, is the mere instrument or hand of the court. [See Mut. Ins. Co. v. Cummings, supra.] So, too, a clerk in making record entries does not act independently of the judge, hut makes such entries under his vigilant eye. [R. S. 1899, sec. 1594.] And, self-evidently, in a press or under the spur of emergency, a judge might write his court records and make his own entries. It has even been held that a clerk is not an essential element in a legally organized court (though that question is not necessary to the decision of this case and is not decided). For example, in Mealing v. Pace, 14 Ga. 596, the clerk of the court died and, during the interregnum, the court by an order entered in its own handwriting stood adjourned. If this adjournment was valid, there was no error; if invalid, there was error. In speaking to the point, Lumpkin, J., said: “AYhile we hold that he is a very proper officer to keep regular and fair minutes of all the proceedings of the court of which he is clerk, . . . still, we are quite clear, that the court can live and move and have its being without him. It can keep its own minutes, by entering them itself, and signing them, as is now done; and make its own adjournment from day to day, or for a longer time, to suit its own and the public convenience, without a clerk. Nor is there anything in our statutes which is repugnant to this conclusion. There are some things, perhaps” (the italics are in the original), “which the clerk alone can perform; but as to adjournments, he has neither part nor lot in the matter.”

Indeed, in time past the custody of court records was intrusted to one of the judges, custos rotolorum. [See, Tit., Master of the Rolls, Black’s L. Diet.] The word “clerk” (known to our forefathers as “dark”) at root denoted a member of the clergy and the time was when the Law and the Gospel flowed from the same fountain, judges of courts were taken from the ranks of the clergy (1 Bl., p. 17), and the maxim nvllus clericus, nisi causidicus was in full vigor of bloom and fruitage. However, in progress of time, clerks and judges became sharply differentiated. A small or great “court hand” became in vogue as need called. The manifest impossibility of a judge’s having charge of and writing the records and issuing writs became apparent, and the offices of clerks of court were created. In our State a clerk is not a constitutional officer in the sense a sheriff is, but his office is recognized in the Constitution and is provided for by express statute and may not be dispensed with. Howbeit, it does not follow that a clerk of a court, charged with the heavy crime of murder in the first degree and arraigned in his own court, should be compelled to act as clerk at the trial of his own case, and ultimately sign, peradventure, his own death warrant. Such condition is abhorrent to right feeling, the fitness of things and the decencies of life, and ought not to be demanded or tolerated by the law. Manifest scandals and misgivings would flow from such unseemliness and indecency. Not alone because it would be unnatural and unmerciful to compel a man to act as clerk where his own life or death was trembling in the scales of justice, but poor human nature may well be deemed inadequate to resistance of the temptations incident to such opportunity. Deep and keen is the significance of che Master’s formula, “Lead us not into temptation,” and not without force is the admonitory precept of that great jurist, who was taught his law at the feet of Gamaliel, “Abstain from all appearances of evil.’’ The law should first cast the mote out of its own eye before it can see clearly the beam in another’s.

In this case, relator has the custody of his own indictments, his own recognizance, the evidence before the coronor and before the committing magistrate, and hovers over all process, entries and proceedings. It is a debt due to justice, ex debito justitiae, that this should not be. If there were no precedent for a locum tenens, a clerk for that turn, we would make one. But there is a precedent (Ex parte Lehman, 60 Miss. 967), and that precedent will be followed. In that case the clerk of the court was charged with forgery, and, as such clerk, he had charge of the record evidence of his forgery and offered to yield possession of his office so far as to permit its duties in relation to the indictments against himself to be discharged by another. The court below refused this offer and peremptorily suspended the clerk from every function and privilege of his office, depriving him of all its emoluments, and another person was appointed in his stead. Refusing to yield to this order, he was imprisoned as for contempt. Thereupon he sued out a writ of habeas corpus and it was held that he should be released, that the court below erred in not accepting the offer of the defendant.

The policy of our legislative enactments seems to point in the same direction. For instance, in Missouri a judge may not sit in his own case (sec. 1602, R. S. 1899), may not practice law (sec. 1612), neither he nor the clerk may have a partner practing law in the court of which they are severally judge and clerk (sec. 1614), a juror may not serve who is interested in a case or related to a litigant (sec. 3785), a probate judge or his clerk may not draw or witness any will or make any settlement for any administrator over which such court may have jurisdiction (sec. 1760), and neither of them may act as administrator or executor (sec. 6). So, too, a clerk of an administrator’s sale must be disinterested (sec. 118), and an administrator may not act in the allowance of a claim in his own favor (sec. 205). Moreover, a sheriff may not act when he is a party (sec. 10049). But the clerk may appoint a suitable person to execute process (sec. 1599).

No man, says the wise Latin maxim, may act as a judge in his own case. And while in this case Henson is not the judge, yet his duties are those formerly performed by judges, and possibly to some extent may be so performed still, and while not strictly judicial, they are so closely allied to judicial duties as to come somewhat within the mischief denounced by that controlling maxim.

The temporary writ will be made absolute, and respondent, while not allowed to remove relator from his office and its emoluments pending his trial, will be allowed to appoint a suitable person who may qualify as, and perform all the duties of, clerk in that instance, have charge of all files in these criminal cases and make all entries and' sign all writs and process as such clerk, pro tempore. The costs of this proceeding are hereby taxed against the relator herein.

All concur, except Brace, P. J., absent.