text:
    GEORGE THEIS, Jr., Appellant, v. E. A. WOOD.
    Division One,
    December 23, 1911.
    1. PROMISSORY NOTE: Made in Kansas: Limitations. Where the note sued on was a contract made in Kansas, to be paid in Kansas, and the transactions relied on by the plaintiff holder to take the note out of the operation of the Kansas five-year Statute of Limitations occurred in Kansas, the legal effect of those transactions must be adjudged by the laws of Kansas.
    2. -: -: -: Part Payment: Effect as to Joint' Non-resident Maker. By the law of Kansas a part-payment by one of the joint makers of a note does not arrest the course of the Statute of Limitations as to the other. A partial payment by one of the joint makers, living in Kansas, without an acknowledgment or' promise in writing of the other residing in Missouri, made after the statute had already run for five years after the last payment, has no effect upon the rights of the maker residing in Missouri, and does not save the bar of limitations as against him. So that where the note made in Kansas, matured March 1, 1889, and the joint maker residing in Kansas made a payment of $5 on February 27, 1894, and on December 16, 1899, another of $42, the last partial payment did not save the note from the bar of the five-year Statute of Limitations as to the other joint maker residing in Missouri.
    ■3. -: -: -Absence from State: Suspension of Statute. Since a partial payment by one joint maker of a Kansas note did not have the effect of stopping the running of the Kansas Statute of Limitations as to the other, the absence of such other from Kansas and his continued residence in Missouri for seventeen years after the note matured and before suit was brought,, did not have the effect of saving the suit from being barred by the Missouri Statute of Limitations, which began to run in his favor as soon as the note became due. Therefore, the Kansas statute, declaring that the Statute of Limitations does not run in favor of a defendant while he is absent from the State, does not apply.
    Appeal from Pettis Circuit Court.—Hon. Louis Hoffman, Judge.
    Affirmed.

      G. G. Lawson and R. 8. Robertson for appellant.
    (1) The Missouri law governs as to the Statute of Limitations in this case. Cross v. Watts, 206 Mo. 373; Sterling v. Hunt, 10 Mo. App. 596; McMerty v. Morrison, 62 Mo. 140; Lyman v. Campbell, 34 Mo. App. 213; Morgan v. Railroad, 51 Mo. App. 523; O’Beer v. Bank, 33 L. R. A. 384; Thomas v. Clarkson, 6 L. R. A. (N. S.) 658; Flowers v. Foreman, 23 How. 132; Field v. Dickenson, 3 Ark. (3 Pike) 409; Hoggett v. Emerson, 8 Kan. 262. (2) The payment made by Mayse, joint maker with defendant on the note in 1899, was sufficient to stop the Statute of Limitation from running in favor of Wood, and it would commence running from that date. McClerg v. Howard, 45 Mo. 365; Harris v. O’Deal, 39 Mo. App. 270; Bender v. Markel, 37 Mo. App. 234; Regan v. Williams, 185 Mo. 628; County of Yernon v. Stark, 64 Mo. 408; Merritt v. Day, 38 N. J. L. 32; Burr v. Williams, 20 Ark. ,188; Beardsley v. Hall, 36 Conn. 270. (3) By the above cases, we can recover under Missouri law, irrespective of what the Kansas law might be, but even under the Kansas law this note is not barred, but an action thereon can be maintained in Kansas if Wood could be summoned there, and an action can. be maintained in Missouri under the Kansas law. Williams v. Railroad, 64 L. R. A. 794; Lane v. Bank, 6 Kan. 74; Hoggett v’. Emerson, 8 Kan. 262; Morrell v. Ingle, 23 Kan. 32; Colon v. Lanther, 37 Kan. 431; Anent v. Lowenthal, 52 Kan. 706; Investment Securities Co. v. Bergthold, 60 Kan. 813; Coale v. Campbell, 58 Kan. 480.

      G. W. Barnett and J. H. Bothivell for respondent.
    (1) The court did not err in giving a peremptory instruction for the defendant in this case. The admission is that the defendant Wood had resided continuously in Missouri for more than ten years before the bringing of this suit, and for that reason the cause of action was barred under the statutes of Missouri. Sec. 1888, R. S. 1909. (2) In those states where a payment by one joint maker-of a.note arrests the running of the Statute of Limitations as to the other makers, it is on the theory of virtual agency. Each is the agent of the other for the making of payments. It is a mutual agency created by and growing out of the note itself. Craig v. Callaway Co., 12 Mo. 97; Smith’s Admr. v. Irwin, 37 Mo. 174; Lane v. Doty, 4 Barb. (N. Y.) 532; Kallenbach v. Dickinson, 100 111. 427; Disborough.v. Bedleman, 21 N. J. L. 680. (3) As to whether the note in this case created each joint maker an agent for the other in the matter of making* payments on the note, with power to bind each other by such payments so as to start the running of the Statute of Limitations afresh from that point, depends on what the law of Kansas is and was on that subject. The note is a Kansas contract and the law of Kansas must be read into it. The parties are presumed to know the law and to have contracted with reference to the law of the State where the contract was made and where it was to be performed. Under the laws of Kansas no such implied agency was created by the making of the joint note. Under the laws of Kansas which must govern here, the payment by one joint maker of a note does not stop the runniiig of the Statute of Limitations as to the other joint maker but only as to the party making the payment. Steele v. Souder, 20 Kan. 39. (4) Not only did the note fail to create any agency as to each other for the purpose of making payments such as to toll the statute, but, at the very time the payment was made by Mayse, the effect of that payment must be determined by the law of Kansas where the payment was made, which law in effect declares that such payment does not. arrest’ the Statute of Limitations as to the other joint maker. The making of the payment is governed by the law of Kansas, and not of the forum, because the making of a payment is contractual in its nature. It is the recognition of the debt and is a new promise to pay the balance. The law of the place where the contract is made must govern. Regan v. "Williams, 185 Mo. 632; Lane v. Doty, 4 Barb. 532; Disborough v. Bedleman, 20 N. J. L. 277; Kallenbach v. Dickinson, 100 111. 427'; 25 Cyc., 1368 and 1369; Howard v. Fletcher, 59 N. IT. 151; Gillman v. Stevens, 63 N. H. 342; Lacoste v. Benton, 3 L. R.' A. 220; Electric Co. v. Palmer, 53 N. W. 1137; Gates v. Tebbetts, 100 Mo. App. 590; Bank v. Salman, 117 Mo. App. 512; Foundry Go. v. Jackson, 128 Mo. 119; Baker v. Stonebraker, 36 Mo. 338; Roberts v. Modern Woodmen, 133 Mo. App. 207. (5) Tbe payment by H. C. Mayse, the joint maker, in the State of Kansas, made December 16, 1899, did not prevent the Statute of Limitations from running ag’ainst the defendant, Wood, in Missouri. The Statute of Limitations as to such actions in Kansas is five years. Sec. 3811, Statute of Kansas. At the time this payment was made by Mayse, he had made no previous payment since February, 1894; more than five years had elapsed since a payment by Mayse, and at the time of the payment in question relied upon by plaintiffs to toll the statute, the cause of action had been barred by the statute of Kansas as to Mayse. He was under no legal obligation to pay the same. His payment was voluntary. His relation as co-obligor with Wood on the note had been severed by reason of the note being barred as to him. There was no longer any implied agency on his part. They were no longer joint obligors. After the debt had been barred as to him, and he was released, Mayse could not, as agent of Wood, by making a payment, arrest the statute as to Wood, as he was not bound to pay the same, and his action in making the payment affected no one but himself. There must be a community of interest and a common obligation to pay. Payment after severance of the joint liability by one of the joint debtors will not prevent the statute from running as to the other. 25 Cye., 1386 and 1387; Davis v. Coleman, 7 Ired. (N. C.) 424; Lane v. Doty, 4 Barb. (N. Y.) 530; Disborough Ex’r v. Heirs of Bidleman, 21 N. J. L. 677; Disenborough v. Heirs of Bidleman, 20 N. J. L. 275. One joint maker cannot toll the statute as to the other after the debt is barred. Craig v. Callaway Co., 12 Mo. 97; MeClurg v. Howard, 45 Mo. 367; Smith’s Admr. v. Irwin, 37 Mo. 169; Block v. Darwan, 51 Mo. 31; Regan v. Williams, 185 Mo. 628. Under a' statute of this kind all the persons liable on the joint contract must depart from the State of Kansas in order to arrest the statute in said State as to the party who departs, as such nonresident party could he sued in Kansas by service of summons on the resident joint maker of the note. Brown v. Delafield, 2 Denio (N. T.) 447; Ware v. Galveston, 3 U. S. 170; Reybold v. Parker, 6 Houst. (Del.) 544.
   VALLIANT, J.

This suit was instituted April 5, 1907, based on a promissory note for $2475.60, dated December 1, 1888, due March 1, 1889. The note was made in Kansas and payable there; it bears on its face interest at the rate of twelve per cent per annum, and was nearly twenty years past due when the suit was begun. The defendant was one of the two joint makers, the other was H. O. Mayse; the payee was IT. P. Scrogin, cashier of the State Bank of Ashland, Kansas, the owner of the note. The petition alleges that in 1896 the bank transferred the note to the plaintiff; it also alleges that on February 27, 1894, defendant paid on the note the sum of five dollars, and that on December 16,1899, the defendants paid on the note the sum of $42, which sums were duly credited on the note, the balance remaining unpaid.

Defendant’s answer admitted the execution of the note and denied all other allegations of the petition; it also pleaded the Statute of Limitations, both of Kansas and this State, and other statutes of Kansas. The Kansas statutes referred to in the answer were introduced in evidence by the defendant', and also.a decision of the Supreme Court of that State construing one of the statutes pleaded. Those statutes and the decision will be referred to hereinafter.

The testimony on the part of the plaintiff tended to show as follows:

The consideration for the note was money loaned by the bank to the makers, to enable them to buy some town lots they desired to invest in. February 27, 1894, Mayse paid on the note five dollars, which was duly credited; the note was then held by the bank. The president of the bank testified that he had frequently asked Mayse to pay the note, but the latter always said he was financially unable to do so; seeing the note about to become outlawed, witness told Mayse that he did not intend to let the note become outlawed, and he must make a payment or suit would be broug’ht; then Mayse made the $5 payment. Along in 1892 or 1893 the bank went into liquidation, payed its debts and ceased to do business. At that time the witness and Theis, the plaintiff, owned all the shares of - stock in the corporation, and, therefore, after paying the debts, those two divided the remaining assets between them; this note fell to the plaintiff’s share, and witness, as president of the bank, indorsed the note to plaintiff. It was then past due.

The $5 payment is indorsed on the back of the note thus: “Paid Feby. 27, 1894, $5.00, by IT. 0. Mayse.” The alleged $42 payment is indorsed thus: “Dec. 16/99 By account $42.00.” The plaintiff, Theis, as a witness in his own behalf, testified that he made that indorsement, and when asked to state how the payment was made said: “Mr. Mayse ran,a paper there [in Ashland, Kansas] and he did some printing for me, and there was a running account between us, and when we settled it he owed me $42, and I asked bim if I could credit it on that note, and he said it would be satisfactory and I did it.” This was done in Ash-land, Kansas. Afterwards in 1901 or 1902, plaintiff released Mayse from his obligation on the note and then put the note in his hands for collection against defendant Wood, who at that time was, and for many years prior had been, living in Missouri. Mayse was an attorney at law in Kansas, as well as a newspaper proprietor. Theis testified that the consideration paid him by Mayse for the release was one hundred and fifty or one hundred and seventy-five dollars; it' was not paid in money, but in legal services.

Defendant’s evidence was to the following’ effect:

December 8, 1888, defendant Wood (and wife) and Mayse executed a deed to Scrogin, cashier of the bank above mentioned, conveying to him, for the bank, the town lots which were purchased by them with the money borrowed on the note' from the bank. The consideration mentioned in the deed was $2300, but no> money passed. The real consideration, according to Wood’s testimony, was an agreement with Scrogin, the cashier, to the following effect: As Wood was about to leave Kansas to make his home in Missouri he went to Scrogin at the bank and told him that the only thing he had available for the payment of the note was the land the money was spent for; Scrogin proposed that defendant and Mayse , (who was assistant cashier) make him a deed to the land “and as I got you into the deal, if you can pay it by the time the note is due all right, and if you can’t that will end the matter and we will keep the deed.” On cross-examination by plaintiff’s attorney defendant testified that the understanding was that if the land should be sold for more than the debt they were to have the surplus; if sold for less before the note was due, the sum was to be credited on the note; if sold after the note was due, they were to be released. So the deed was executed and Wood came to Missouri and has lived here ever since; he never after heard from the bank on the subject: In March, 1901, defendant .received a letter from Mayse saying that he had bought the note and saying: “Of course I did not pay anything like the face value for it, as it was outlawed as to me, but not as to yon; but I did not want it standing against me, and I do> not believe you want it standing against you, when you can buy it for a paltry sum comparatively. ’ ’

At the time he wrote that letter he was, according-to plaintiff’s testimony, the attorney for the plaintiff, holding this note for collection. Again, in April, 1906, .he -wrote defendant saying that he had taken np the note to save his own credit and that of defendant, and asking defendant to arrange his part of the note or any part of it, and then stating if defendant wonld not do anything about it he would go to Sedalia and 'bring suit, concluding by saying: “If yon will pay a reasonable amount I will accept rather than make the trip and bring the action.” The next defendant heard of the matter was from plaintiff’s attorney in Sedalia by letter dated February 13, 1907. Mayse and defendant were not partners, the only joint transaction they ever had was the purchase of those town lots, and the execution of this note. Defendant left Kansas in December, 1888, came to Missouri, and has resided here ever since.

Defendant read in evidence certain statutes of Kansas, to-wit-: Revised Statutes of Kansas, 1885, sections 3808, 3811, 3813,. 3878, of the Code of Procedure; also sections 1194, 1190, 1193 and 4452, Revised Statutes of Kansas of 1901.

As the case in our opinion will turn on the effect of those statutes, their contents will be shown in the opinion later. In rebuttal the plaintiff introduced a statute of Kansas to the effect that the Statute .of Limitations does not run in favor of a defendant while he is absent from the State; also a statute authorizing interest as high as twelve per cent on bonds, notes, etc. At the close of all the evidence ■ the court instructed the jury that the plaintiff was not entitled to recover and the verdict must be for defendant. The jury rendered a verdict as directed, and the court rendered judgment accordingly for defendant; from that judgment, after due proceedings, the plaintiff has prosecuted this appeal.

I. We need not discuss the evidence relating to the agreement under which the deed was made to Scrogin for the bank, because the plaintiff’s testimony on that point was contradicted by the testimony for the defendant, therefore the court could not have taken that into consideration in giving the peremptory instruction for a verdict for defendant. If it had been necessary for the defendant to rely on that agreement as a defense, the question would have been one for the jury. Therefore that defense as pleaded, may for the purpose of this appeal be passed over.

II. Plaintiff relies on the alleg’ed part payments by Mayse to stop the running of the Statute of Limitations.

This note was due March 1, 1889. By the Kansas Statute of Limitations suit on a note is barred five years after its maturity; by that statute suit on this note would have been barred in Kansas March 1, 1894; this suit was begun April 5, 1907, seventeen years after the maturity of the note. Two days before the expiration of the five years life of the note in Kansas, Mayse made a payment of five dollars for the avowed purpose of stopping the running of the statute. That payment as to Mayse at least kept the note alive until February 27, 1899, but at the date of the alleged second payment, December 16, 1899, the renewed life of the note had expired, and it was again barred. Not- only is the legal effect as claimed by the plaintiff of that alleged second payment challenged, but the good faith of the transaction is also questioned. Mayse, so far as the evidence shows, was insolvent ; although he was living in the same town where the bank was located and where the parties interested resided, yet they had never been able to collect but $5 from bim and that was under threat of a suit, and then when more than five years had again passed and there had been a running account between him and the plaintiff which when settled showed a balance in his favor of $42, plaintiff proposed to credit it on the note and he consented. If Mayse had had $12 in hand and had gone to Theis and paid him the money as a part payment on the note we would have had a different transaction to consider. But under the circumstances and in view of Mayse’s financial condition it is hard to say that he and the plaintiff did not have some ulterior motive than a straight honest part payment on a debt. The note was then or soon after placed in his hands for collection as attorney for the plaintiff, and we have seen the letters which in that capacity he wrote to defendant. ’As he was then the attorney for the plaintiff and the letters were written about the plaintiff’s business in his hands, the plaintiff is responsible for them; they show anything but good faith.

The petition in this case states that “the defendant” made the five dollar payment in February, 1889, and that “the defendants” made the $12 payment in December, 1894. The proof does not sustain either of those allegations.

In the petition Mayse and Wood are both named as defendants, but when the case was called for trial plaintiff dismissed as to Mayse, and the suit was prosecuted against Wood alone. There was no evidence that Wood made either of the alleged payments or that either was made with his knowledge or consent. Therefore it is not true as a matter of fact that “the defendant,” if that was intended to mean Wood, made the first payment, or that “the defendants,” if that was intended to include Wood, made the second payment ; and that it was untrue was a matter within the plaintiff’s own knowledge. The only excuse therefore that the plaintiff could have had for making those statements was that he considered that a payment by one of the joint makers of the note was, in legal effect, a payment by both. But even in that view the statement was not correct, because by the law of Kansas a part-payment by one of the joint makers of a note does not arrest the course of the Statute of Limitations, and the plaintiff, being a citizen and resident of •Kansas and his attorney being a citizen and resident of Kansas, knew that to be so. The Kansas statute on this subject introduced in evidence is: “In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same, shall have been made, an action may be brought in such cases within the period prescribed for the same after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby, ’ ’ In Steele v. Souder, 20 Kan. 39, the suit was on a joint promissory note by two makers; one had made a part payment, which it was claimed arrested the statute as to both. Construing this statute, the court said: “So far as acknowledgment and promise are concerned, the language of our statute is clear, and excludes all suspension of the statute except by personal written action. As to payment, the language is not so clear, and may be open to at least two constructions.” The court after further discussion of the subject said that the true construction of the statute was that payment, like acknowledgment, keeps the note alive only as to the party-paying, saying: “No valid reason exists why payment should be more potent than acknowledgment or promise. Indeed, payment was treated by the courts as simply evidence of acknowledgment. . . .We conclude, then, that payment suspends the running of the statute only as against the party making the payment. ’ ’ This note was a contract made in Kansas, to be paid in Kansas, and the transactions relied on by plaintiff to take the note out of the operation of the Kansas Statute of Limitations occurred in that State and their legal effect is to be adjudged by the law of that State. We hold, therefore, that the alleged payments by Mayse had no effect on the rights of defendant Wood.

III. Appellant contends that the Statute of Limitations in Kansas has never run in favor of Wood because he has been absent from that State ever since the maturity of the note, and at the trial appellant introduced in evidence a statute of Kansas bearing on that subject. But there is no such question in this case; no such issue was tendered in the petition. The theory of the plaintiff’s petition is that the note was kept alive by the two alleged payments; that was the only issue bearing on the Statute of Limitations that was tendered in the petition. On that issue the plaintiff’s own evidence showed that he was not entitled to recover. Appellant cannot take refuge under the law of Missouri in reference to a part payment by one of the joint obligors as affecting the liability of the other, because the legal effect of the part payment is to be determined by the law of the place where it occurred, it is in the nature of a contract. Business transactions are presumed to be done in view of the law of the place where the transactions take place and with the intention of incurring the’consequence imposed by that law. So the consequence of a part payment made in Kansas is to be determined by the law of Kansas, not by the law of Missouri.

There is a learned discussion in the brief concerning another statute of Kansas invoked, by respondent as influencing the statute offered by appellant in reference to the absence of defendant from the State of Kansas, but for the reason above stated we do not deem it necessary to enter that discussion.

Under the issues pleaded and the evidence adduced this note was -barred as to defendant Wood by the Statute of Limitations of Kansas when this suit was begun; and the alleged payment by Mayse in Kansas in December, 1899, not having the effect by the law of that State of an acknowledgment of the debt by Wood, or of arresting the Statute of Limitations as to him, it has not that effect in this State, and therefore the Missouri Statute of Limitations bars the action as to him.

Even if Wood’s absence from Kansas had the effect to suspend the Kansas Statute of Limitations as to him, it would not have the effect to suspend the Missouri statute which began to run in his favor, he being- in this State, as soon as the note became due:

The sum of the plaintiff’s case is this: He came into court April 5, 1907, with a suit based on a note due March 1, 1889, and, anticipating that a plea of the Statute of Limitations would be interposed, he attempted to avoid that plea by stating in his petition that the note sued on was a Kansas contract and that certain payments had been made on it; those statements were made for purpose of showing that the Statute of Limitations was arrested; but, as we have already seen, neither the facts in the evidence nor the law of Kansas sustain those statements. The plaintiff’s action on his own evidence is barred by the Statute of Limitations and the trial court was justified in giving the peremptory instruction • fpr a verdict for defendant. The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    JOHN T. JACKSON et al., Appellants, v. KANSAS CITY BOLT AND NUT COMPANY.
    Division One,
    December 23, 1911.
    1. PLEADING: No Defense in Answer: No Demurrer or Exceptions. Where the answer contained a general denial and special defenses, and there was no motion to strike out the special-matter pleaded, nor a demurrer to such special matter, and the case does not involve a counter-claim, setoff or recoupment, an assignment by plaintiffs on appeal that the special matter pleaded in the answer “does not state facts sufficient to constitute a defense to plaintiffs’ action,” will not be considered, since it is an assignment of error not challenged below.

      2. APPEAL: Abstract: No Exceptions. The mingling and running together of matter of exception and matter of record in the abstract, without earmark, caption, head note or suggestion of where the one or the other begins or leaves off, is not such an abstract as can be approved; and where the only exception to the overruling of the motion for a new trial is found in the record proper, the evidence and instructions cannot be considered.
    Appeal from Jackson Circuit Court.—Eon-. E. E. Porterfield, Judge.
    Affirmed.

      L. T. Collier for appellants.-

      Lathrop, Morroiv, Fox S Moore for respondent.
    The abstract of tbe record does not comply with the rules of this court in that it does not set out separately the bill of exceptions and the record proper. The two are so mixed together and confused that no one can tell where the bill of exceptions begins and the record proper ends. In fact, neither begins nor ends at any particular place, but they are both mixed together. Stark v. Zehnder, 204 Mo. 449; Thompson v. Ruddick, 213» Mo. 564.
   LAMM, J.

Arthur Jackson (unmarried) and Grover Hammond were minors in defendant’s employ on March 27, 1907. On that day in defendant’s shop at Sheffield, Grover in anger smote Arthur above the ear with an iron bolt, wherefrom Arthur languished and presently died.

Plaintiffs, parents of Arthur, sue defendant in three counts, each praying judgment for $10,000 and sounding in tort.

The gravamen of the first is defendant’s wrongful and negligent employment of Grover to work with Arthur (said Grover being a person of weak and unsound mind, incompetent, dangerous and apt to do bodily barm to others), he, Grover, being* negligently-retained in defendant’s employ, for that it knew him to be incompetent, unsafe and dangerous and apt to do bodily harm to others, etc.

. The third is like unto the first with variation of allegation immaterial here.

The court took the first and third counts from the jury by instructions in the nature of demurrers at the close of plaintiffs’ cáse; but at the same time refused to take the second count from the jury.

Attending to the second count, it charges, in substance, that Arthur was employed by defendant at the same time it employed Grover, that the latter was of a weak and unsound mind, incapable of judging between right and wrong, and that defendant was well aware of such mental unsoundness and incapacity at the time. That on or about March 27, 1907, defendant, through its superintendents and foremen, having authority over both youths, negligently ordered and directed Grower to “hit and knock down any of the employees of defendant” molesting him in the performance of his duties as servant of defendant, or any one who should interfere with the performance of such duties. Thereupon, on the direction of such agents, then and there engaged in the prosecution of the business of defendant, Grover slipped behind Arthur while the latter was in the line of his duty as defendant’s servant, and dealt him a mortal wound on tbe head with an iron bolt.

Defendant answered by a general denial and other defenses immaterial to a determination of this appeal.

Plaintiffs’ reply denied the new matter in the answer.

On issues so framed by that answer on the second •count, the jury found for defendant and plaintiffs come up by appeal, assigning error (1) in the giving of instructions, (2) in overruling the motion for new trial and (3) in excluding competent proof.

There is another assignment of error to the effect that, saving the general denial, defendant’s answer “does not state facts sufficient to constitute a defense to plaintiffs’ action.”

I. Referring to the last assignment, we rule as follows:

There was no motion, nisi, to strike out the special matter pleaded in the answer, nor did plaintiffs demur to such special matter. Present a general denial in the answer, absent a motion to strike out or a demurrer, we think it is clear in a case that does not involve a counter-claim, setoff or recoupment, as here, that we have nothing to do with defendant’s answer as a pleading.

If, coupled with a general denial, an improper defense is specially set up in an answer and plaintiffs (as here) plead over and (following defendant afield) raise an issue by their reply on such alleged improper allegations of the answer, they have another string to their bow, they may still object to evidence supporting the improper defense, or to instructions grounded on that defense, and may save their exceptions to adverse rulings and bring the matter here for a review of the error in admitting the evidence or in giving the instructions.

But the assignment of error we are dealing with asks us to rule on the sufficiency of the answer, barring the general denial, without a challenge below. In the view we take of it we ought not to respond to plaintiffs’ request, for we are forbidden by statute to pass on exceptions not ruled below. Moreover, it would be a vain and useless thing for us to pass upon the sufficiency of the special defense pleaded, when defendant, under its general denial, put plaintiffs to full proof of their case in chief, and when there was left to plaintiff (if timely used) an adequate remedy for any error based on the admission of evidence relating to an improper defense or in giving instructions anent that defense.

The point is ruled against plaintiffs.

II. The assignment of error just disposed of strikes at the record proper. But errors, if any, in giving instructions, overruling the motion for new trial or excluding competent proof are mere matter of exception, and can only be preserved and presented here in a bill, and they can become effective only when covered by the motion for a new trial and by an exception saved in a bill to overruling such motion. So runs the law .

On this head apply the maxims: What does not appear where it should appear is the same as if it did not appear at all.' What does not appear is the same as if it does not exist. The reasoning with respect to things which do not appear and things which do not exist must be the same. In this, case plaintiffs have chosen a method of abstracting their record steadily comdemned. They have "mingled and run together matter of exception and matter of record, without earmark, caption, head notes or any suggestion of where the one or the other begins or leaves off. Against this unhappy plan nothing can now be judicially said which has not been said before. [If we may pause to moralize a bit, we observe as follows: The road to error is easy. Happy is he who can learn prudence from the danger and misfortune of others.] That plan puts us to picking and choosing, sorting out,' guessing and assigning a place and office to matter abstracted, without any record guide to a correct result. It is said in the abstract that a bill of exceptions was settled and filed, but neither by direction or indirection, sign or suggestion does it point out what such bill contains or what it does not contain, nor can we make out. The only place in the abstract where an exception appears to overruling the motion for new trial is the following:

. “Thereafter, at said January term, 1908, of said court and on the 21st day of March, 1908, the following entry of record was made in said cause:
“ ‘John T. Jackson and Mary E. Jackson v. Kansas City Bolt & Nut Company, a Corporation. 34088.
“ ‘Now at this-day, plaintiffs’ motion for a new trial is by the court overruled, to which ruling of the court plaintiffs excepted and it is ordered by the court that plaintiffs are given until on or before the 1st day of July, 1908, to file herein their bill of exceptions.’ ”

Wherefrom.. it appears that such exception was saved of record in the order overruling the motion (precisely where it could not be saved) and not in the bill of exceptions itself where it alone could be saved. Just so long as the office of a bill of exceptions is to gather and contain the exceptions, just so long in reason must the abstract of the bill of exceptions shoio that the bill of exceptions contains the exceptions. We have always so. written the law. It results that the abstract in hand is fatally defective. Vide, Kalokas v. Railroad, 223 Mo. l. c. 460, et seq., where some of the cases are reviewed.

As there is no error in the record proper, and as . there is no bill of exception here, which we may surely know preserves the exceptions relied on to reverse the case, the judgment is affirmed.

All concur.


author: VALLIANT, J.

text:
    C. B. STEWART et al., Appellants, v. J. W. COSHOW et al.
    Division One,
    December 23, 1911.
    1. PLEADING: Conclusions of Law: Heirs at Law and Next of Kin. An allegation in the petition in a will contest that plaintiffs are “heirs 'at law” of the testator is a legal conclusion, but that they are “next of kin” to him is not. Both together are such a statement of an issuable fact as is not vulnerable to attack by a general demurrer.
    2. WILL: Creating Public Cemetery or Private Burying Ground. The testator’s will said that his purpose was to so dispose of his estate “as will most benefit my large circle of relatives and friends,” and then gave his real and personal estate to certain trustees, who were to “set apart such of my real estate as in -.their judgment may be necessary,, including the old family burial ground where my father and mother and many of their descendants and relatives are buried, for cemetery purposes . . . and to use the net income, rents and profits arising from my said estate for the purpose of improving, decorating, adorning and enlarging said cemetery grounds,” and then recited that “in making this disposition of my property I believe I put it to better use than to have it distributed in small parcels to my heirs at law.” Held, that the will did not contemplate only the private burying ground in which his father and mother and their many descendants and relatives were buried, -which he did not own, but contemplated such other parts of his “real estate” as was needed for the establishment of a cemetery in which to bury his “large circle of relatives and friends,” and therefore a public cemetery.
    3. -: -: Codicil. Nor did the fact that the testator in the will directed the trustees to form themselves into a corporation, and in the codicil revoked that requirement, make the cemetery created by the will any the less a public cemetery.
    4. -: -: Corporation. It is not necessary under the laws of this State for the establishment of a public cemetery that a corporation be formed to hold title and manage it (Secs. 1302,, 1310, 1311, R. S. 1909), although that course is expressly authorized'by statute (Sec. 3435, R. S. 1909).
    5. -: Devise of Land for Public Cemetery: Perpetuity. The rule against perpetuities is designed to forbid the creation of a future estate, that will not vest within the lifetime of a person in being and twenty-one years and ten months thereafter. A will which vests real estate in trustees for the establishment of a public cemetery, to take effect immediately on the testator’s death, does not establish a perpetuity, although it invests the estate in them and their successors in trust forever.
    6. -: -: Statute: Dedication: Condemnation. Be-' sides, the statute (Sec. 1303, R. S. 1909) expressly authorizes the dedication of land to the purpose of a public cemetery, and 'even the condemnation of land for the enlargement of a cemetery (Sec. 1310).
    7. --: -: Public Charity. A public cemetery is a public charity; and is classed as such both in the Constitution and the statutes.
    Appeal from St. Charles Circuit Court—Ho». Jamies D. Barnett, Judge.
    Affirmed.

      Conran & Corley for appellants.
    (1) The will of Alonzo B. Howell creates a trust in perpetuity. The property is to be held in trust forever. Randall on Perpetuities, p. 48; Wash-burn on Real Prop. (6 Ed.), p. 217; Duke of Norfolk’s case, 1 Yern. 164. The rule against perpetuities is firmly established as the law in Missouri, as well as in all the other States of the Union. Bank v. Longfellow, 96 Mo. App. 385; Lockridge v. Muriner, 109 Mo. 162; Johnson v. Holifield, 79' Ala. 423’; 2 Perry on Trusts and Trustees (5 Ed.), sec. 687; 2 Underhill on Wills, 1195. The rule against perpetuities applies to trusts, as well as to other estates, and in the case of a private trust, or a trust for a private use, a perpetual.restraint on the power of alienation renders it absolutely void. 2 Perry on Trusts and Trustees (5 Ed.), 302; 1 Perry on Trusts and Trustees (5 Ed.), sec. 95; 2 Id., sec. 732; Schumacher’s Estate v. Reel, 61 Mo. 592; Pennoyer v. Wadhams, 20 Ore. 279; Chambers v. St. Louis, 29 Mo. 543. (2) Definition of public charity. “A gift to a general public use which extends to the poor as well as to the rich.” Jones v. Williams, Amb. 652. The definition most frequently quoted is by Mr. Justice Grey in Jackson v. Phillip, 14 Allen 556. The Statute of Uses, 43 Elizabeth C. 4, has always been looked to, in America, as furnishing a summary of what uses are to be considered charitable. Bispham’s Equity, 119'. It is settled that the statute of charitable uses is in force in Missouri. Chalmers v. St. Louis, 29 Mo. 543. While this statute cannot be looked to as the sole test of what is a public charity, it has been held that one of the things accomplished by it was “It established an enumeration, or kind of definition, standard or test, to which all gifts and grants in trust could be Brought in order to' determine whether they were charitable.” 2 Perry on Trusts and Trustees (6 Ed.), sec. 696; Buchanan v. Kennard, 234 Mo. 117. Many objects not therein enumerated have been declared charitable, but they must fall within the “equity” of the statute. Morice v. Bishop of Durham, 10 Vez. ■523; Bispham’s Principles of Equity, sec. 119. (3)The trust created by the will of Alonzo B. Howell, so far as it relates to the establishing of a cemetery, is not .a public charity and is void; insofar as said trust relates to the improving, decorating, adorning and enlarging of said cemetery, it is not a public charity, and is void. A cemetery is not enumerated in the Statute of Uses nor is the improving, decorating, adorning or enlarging of a cemetery. Anderson v. Atcheson,-130 Iowa 744; Dwenger v. Geary, 113 Ind. 106; In re Ralsten’s Estate, 1 Ches. Co. Rep. 482; Dexter v. Gardner,. 7 Allen, 247; In re Vaughan, 33 Ch. D. 187. It is a charitable use because its purpose is the promotion of religion and morality. Beatty v. Kurtz, 2 Pet. 566;- Mannix v. Purcell, 46 Ohio St. 130; Matter of Deauville Cemetery Assn., 66 N. T. 569; Hopkins v. Grimshaw, 165 U. S. 342; Board of Health v. Van Hoesen, 87 Mich. 533; In re Eureka Basin Co., 96 N. Y. 42; Gilmer v. Lime Point, 18 Cal. 229; Evergreen Cem. Asse. v. Beecher, 53 Com, 551; Hartson v. Elden, 50 N. J. Eq. 522; Donnelly v. Catholic Cem. Assc., 146 Mass. 16. (4) The whole purpose of the trust is to provide for the perpetual care, improvement, decoration, adornment and enlargement of the Howell family burial ground, a private family burial ground, which is not a legal pub-' lie charity, and is void. Hornberger v. Hornberger, 12 Heist. 633; Morse v. Natick, 176 Mass. 513; Fite v. Beasley, 12 Lea, 328; Detuilly v. Hartman, 37 N. J. Eq. 347; Pease v. Pattison, 32 Ch. D. 154; Cunnack v. Edwards, 2 Ch. 679; In re Buck, 2 Ch. 727; Lloyd v. Lloyd, 10 Eng. L. & Eq. 139. (5) The trust is so vague and indefinite in its objects and beneficiaries that it cannot be upheld as a charitable trust, and is void. Hadley v. Forsee, 203 Mo. 418; John v. Smith, 91 Fed. 827; Crerar v. Williams, 145 111. 625; Nichols v. Allen, 130 Mass. 211; Donohugh’s Appeal,. 86 Pa. St. 306; Old South Society v. Croker, 119 Mass. 1; Fay v. House, 136 Cal. 599. (6) The trust created by this will is not a statutory trust, for which property may be given in perpetual restraint of the power of alienation by reason of statutory permission. Morse v. Natick, 176 Mass. 510; Mason v. Library Assc., 237 111. 442; Cooley’s Const. Lim. (7 Ed.), p. 95; Sedg. on Stat. & Const. Law, 313.

      G. W. Wilson for respondents.
    (1) The rule against perpetuities has no application in the case at bar. First. Because the rule relates to remoteness in the vesting of titles. No such question is present, because the title vested in the trustees immediately when the property was turned over to them under the order of the probate court and the terms of the will. Gates v. Seibert, 157 Mo. 267; Bank v. Longfellow, 96 Mo. App. 385. Second. Because the gift is for a public charity, and the title having immediately vested in the trustees the rule against perpetuities is inapplicable. Gates v. Seibert, 157 Mo. 267; Bank v. Longfellow, 96 Mo. App. 385: (2) A gift to provide and maintain a public cemetery or a place for the burial for the dead, is a gift for a •charitable use, and is plainly recognized as such by the laws of Missouri. The gift in this case, to trustees for the purpose of organizing a cemetery association for the purpose of providing and maintaining a public cemetery, such as is contemplated in •oiir statute, and was in the mind of the testator, is a gift to a charitable use—for the establishment and maintenance- of a public charity. Such institutions are plainly recognized as public charities by the laws ■of our State. Constitution, art. 2, sec. 8; Constitution, art. 10, sec. 6; R. S. 1909, secs. 3435', 3439; R. S. 1909, chap. 18'; Tracy v. Bittle, 213 Mo. 310'; Campbell v. Kansas City, 102 Mo. 339. (3) There is nothing in the contention that the trust is too vague and indefinite to be upheld. A degree of indefiniteness is a distinguishing characteristic of a charitable gift •always. The object of this charity is amply definite. Chambers v. St. Louis, 29 Mo. 543; Howe v. Wilson, *91 Mo. 45 ; Powell v. Hatch, 100 Mo. 598.
   VALLIANT, J.

This is a suit in equity, the purpose of which is to have a will decreed to be void because of a certain alleged infirmity appearing on its face. The will purports to give the chief part •of testator’s property, real and personal, to certain persons therein named in trust to establish and maintain a cemetery. The circuit court sustained a demurrer to the petition and, plaintiffs declining to plead further, judgment for defendants was rendered, from which plaintiffs appealed. The whole case for our consideration therefore appears on the face of the petition.

The plaintiffs, thirty-two in number, say they are the next of kin and heirs at law of the testator, Alonzo B. Howell, deceased; that they are not the only heirs at law of the testator, but there are others who are “very numerous and widely scattered,” and the plaintiffs sue for themselves and the other heirs. The petition states that the testator’s estate consisted of about 500 acres of land and over $7,000 in money The will is copied in the petition and is as follows:

“I, Alonzo B. Howell, of the county of St. Charles, in the State of Missouri, being now advanced in years and of an infirm state of health, and conscious of my liability to sudden death—yet at the same time of sound mind and memory, and desirous of so disposing of my estate, both real, personal and mixed as will most benefit my large circle of relatives and friends, do hereby make, ordain, publish and declare this my last will and testament, hereby revoking all former wills by me made.
“It is my will and desire to be buried in a manner suitable to my situation in life, and I leave the conduct and management of my funeral to my executors hereinafter named and appointed.
“It is my will and desire that all my just debts and the expenses of my funeral 'be paid by my executors as soon as conveniently may be after my demise.
“It is my will and desire that my said executors erect at my grave a monument such as in their judgment may be most suitable and becoming.
“All the rest, residue and remainder of my estate, both real, personal and mixed I give, devise and bequeath to ¥m. M. Stewart, Mike Sutton, John W. Coshow, Isaac N. Howell and John Burton as trustees, and to their successors in office and trust forever, for the purpose of organizing and incorporating themselves into a. cemetery association under the laws of the State of Missouri. Said trustees and their successors to set apart such of my real estate as in their judgment may be necessary, including the old family burial ground where my father and. mother and many of their descendants and relatives are buried, for cemetery purposes, and said trustees and their successors are hereby empowered to make such rules and regulations in reference to said cemetery as in their wisdom and judgment may be just and proper. And I hereby give and grant to said trustees authority and power to use the net income, rents and profits-arising from my said estate for the purpose of improving, decorating, adorning and enlarging said cemetery grounds, and for all services rendered by them or any of them in their capacity as such they are to be paid out of said income, so that no part of the principal of. my estate shall be encroached upon at any time, unless the same be required for'such improvements. In making this disposition of my propr erty I believe I put it to better use than to have it distributed in small parcels to my heirs at law.
“My said trustees and their successors in office are to receive annually reasonable compensation for the care and management of all funds and property in their hands as well as for the care of the cemetery.
“I hereby name and appoint Wm. M. Stewart and John W. Coshow, executors of this will.
“Witness my signature this August 29th, 1896.
“Alonzo B. Howell.
" Codicil.
“Whereas, I, Alonzo B. Howell, of the county of St. Charles and State of Missouri, have by my last will and testament in writing duly executed, bearing date August 29, 1896, given, bequeathed, and devised my entire estate real, personal and mixed (with the exception of reasonable amount for funeral expenses and the erection of a suitable monument at my grave). All the rest and residue of my estate to Wm. M. Stewart, Mike Sutton, John W. Coshow, Isaac N. Howell, and John Burton as trustees, and their successors in office, in trust forever for the purpose of organizing and incorporating themselves into a cem* etery association under the laws of the State of Missouri.
“Now, I, said Alonzo B. Howell, do make this codicil to my said will, and I do hereby revoke said provisions in reference to said cemetery association as a corporation under the laws of the State of Mis-, souri, and also as to Isaac Howell as one of the trustees. And I hereby appoint Wm. M. Stewart, John W. Coshow, Mike Sutton and John Burton as trustees for the care, improvement and maintenance of said cemetery as is directed in my said will, except that they shall not be required to organize as a cemetery association under the laws of the State of Missouri, and I direct that my executor shall as soon as convenient after my decease, pay to said trustees, W. M. Stewart, Mike Sutton and John Burton for their services as said trustees, fifty dollars each, and to John Coshow five hundred dollars for his services as trustee. And I give and bequeath to George ' Sudbrock, who now rents my farm, for having taken care of me in infirmity and continuing the same for the rest of my life, the sum of two hundred dollars to be paid as soon as convenient after my decease.
“And I hereby direct my executor hereinafter appointed (John W. Coshow) to take care of my sis* ter, Mary E. Fisher according to his best judgment and especially to see that she shall not lack the comforts of life.
“And I do hereby appoint John W. Coshow my sole executor of this, my last will and testament, hereby revoking the appointment of Wm. M. Stewart as named in the will aforesaid.
“And I hereby further direct that my executor, John W. Coshow, shall not be required to give as executor-of this my last will and testament any bond, trusting fully to his honesty and faithfulness in said capacity.
“Witness my signature this March 25th, 1808.
“Alonzo B. Howell.”

It was duly executed and attested.

The will was probated, the estate was administered, final settlement made by the executor and 'the property delivered to the trustees, Stewart, Sutton and Coshow; John Burton, named in the will as trustee, died without having qualified as such.

Appellants in their statement of the case make some allegations of facts which are not in the petition, but as we are to consider the case only as on demurrer to the petition those statements will not be noticed.

I. . Respondents make the point that the petition is defective in not stating the degree of relationship the plaintiffs bore to the testator. The petition states that they are “next of kin and heirs at law” of the testator. Respondents say that is a mere legal conclusion and not an issuable fact. To say that they are heirs at law it a legal conclusion, but to say that they are next of kin is hardly a conclusion of law. To say that they are of kin is a statement of fact, but to say “next of kin” is to say of closer kin than-others, which is a conclusion, the correctness of which is not apparent until we know what other kin there were and the degree of relationship. But this objection does not appear to have been made in the trial court. If defendants there had desired to have the plaintiffs make a more specific statement on that point they could have moved to require plaintiffs to make their allegation more definite and certain, or, perhaps a special demurrer would have reached the point, but in the face of a general demurrer the allegation that the plaintiffs are next of kin and heirs at law is sufficient.

II. ■ Plaintiffs’ main point is that the trust intended to be created by the will is not a trust for a charitable use, and therefore it is invalid, because it purports to tie up the estate in perpetuity. The plaintiffs’ contention contains two propositions to-wit: First they say a gift to establish and maintain a public cemetery is not a gift to a charitable use; second, that, however that may be, this is not a gift to establish and maintain a public cemetery, but a private family burying ground.

(a) We will consider the second proposition first. The only language in the will on which plaintiffs can rely for that proposition is that which authorizes the trustees “to set apart such of my real estate as in their judgment may be necessary, including the old family burying ground where, my father and mother and many of their descendants are buried, for cemetery purposes.” The petition states that the burying ground mentioned in the will was then and is now “a private burying ground, and did not at any time belong to testator, and testator’s trustees could not care .for or manage said burying ground without the consent of the owner thereof; and the same could not be made a part of any cemetery, without the consent of the owner.” Of course the trustees could not tape possession of the family burying ground or assume the care and maintenance of it without the consent of the owner, but that would not defeat the whole scheme. The cemetery to be established was to include the “old family burying ground, ’ ’ but was riot to consist of that alone; the use of the word “including” shows that the cemetery was to be something more; and for its establishment the trustees were to use such part of the testator’s “real estate as in their judgment may be necessary.” There were'500 acres, more or less, and of that area there was to be as much included in the cemetery as the trustees saw fit, and the rest was to be used for maintenance. The cemetery was to be established on land that belonged to the testator, and if, as the petition says, the private family burying ground was not on land that belonged to testator, it could not have been the cemetery designed in the will. In the preamble to the will the testator indicates the public character of the cemetery he seeks to establish; he says that his purpose is to so dispose of his estate, real, personal and mixed, “as will most benefit my large circle of relatives and friends.” The cemetery is to be for the benefit of the large circle of his relatives and friends. The use is not restricted to the family, not to the next of kin, not even to relatives, far or near, but it goes also to the large circle of friends, and there is no specification as to who is included in the word friends. That word may be used in a narrow or broad sense, as a reference to Webster’s big dictionary will show, and it is' often used in a sense so broad as to include a whole community, towards whom' the writer or speaker feels kindly. At the close of the bequest and devise the testator says: “In making this disposition of my property I believe I put it to better use than to have it distributed in small parcels to my heirs at law.” When we reflect that there are thirty-two plaintiffs claiming to be heirs at law, and that they say in their petition there are other heirs who ‘‘ are very numerous, and widely scattered,” we see reason in the disposition of his property made by the testator; rather than have it broken into “small parcels” and widely distributed, he thought best to keep it together and give the community in which he had lived the benefit of it in the form of a public cemetery. We are not called to pass judgment on the wisdom or justice of the disposition the testator,made of his property; there being no question as to his mental capacity and freedom to act, he could dispose of his own .as he saw fit, provided it be given to a lawful use.

There is no difference, as to character, between the cemetery called for in the body of the will and that called for in the codicil. In the body of the will the trustees are required to organize a corporation, but in the codicil that requirement is revoked, and also one of the persons named as trustees is omitted, but otherwise the provision for the cemetery is not altered. The language of the codicil on this point is: “And I hereby appoint Wm. M. Stewart, John W. Coshow, Mike Sutton and John Burton as trustees-for the care, improvement and such maintenance of said cemetery as is directed in my said will, except that they shall not be required to organize as a cemetery association under the law of the State of Missouri.” It is not necessary under the law of this State for the establishment of a public cemetery that a corporation be formed to hold the title and manage it (Secs. 1302, 1310, 1311, R. S. 1909), although that would be a convenient course, and is expressly authorized by statute (Sec. 3435, R. S. 1909). Under the will and codicil, the trustees may or may not as they see fit, organize a corporation. Gathering the testator’s intent, as we must, from the whole body of the instrument, including the codicil, we hold that it was .his purpose to establish a public cemetery, not a private family burying ground.

(b) Viewing the will as designed to establish a public cemetery there it nothing in it repugnant to the rule against perpetuities. The rule against perpetuities is designed to forbid the-creation of a future estate that will not vest within the lifetime of a person in being and twenty-one years and ten months thereafter. [Gates v. Siebert, 157 Mo. 254, l. c. 267.] The estate here created vests immediately in the trustees. The rule against perpetuities is not violated because the use to which the land is dedicated may continue in perpetuity, if it were otherwise,- then no cemetery could be established except for a limited period. Besides, our statute expressly authorizes the dedication of land to this purpose (Sec. 1303, R. S. 1909), and even the condemnation of land for the enlargement of the cemetery (section 1310'). Land can only be condemned for a public purpose; Hadley v. Forsee, 203 Mo. 418, reported also in 14 L. R. A. (N. S.) 1, where there is a very elaborate and learned discussion of the subject in a note by the editor, wherein a large number of authorities are reviewed. In the conclusion of the note the -writer says: “Nor does the rule against perpetuities apply to gifts for charitable uses, and a bequest for a charitable purpose is not rendered indefinite and uncertain, so as to affect its validity by the fact that it creates a perpetuity.”

- Appellants in their brief seem to concede that if this is a gift to a public charity it does not violate the rule against perpetuities, 'and that if it is authorized by statute it is valid. That it is authorized by statute is shown by the statutes above quoted, and that it is classed as a public charity, although not so expressly named, is shown by other statutes and by the Constitution. Section 8, article II, of the Constitution, authorizes corporations to be formed to hold title to “church edifices, parsonages and cemeteries.” Section. 6, article X, exempts cemeteries from taxation, and in the same connection exempts property “used exclusively for religious worship, for schools or for purposes purely charitable.” Section 3435, Revised Statutes 1909, authorizes the formation of corporations for certain purposes and therein “any association formed to provide for some good in the order of benevolence, that is useful to the public,” specifying in that connection any “association, congregation, society or church or organization formed for religious purposes, and any association formed to provide or maintain a cemetery;” and after enumerating a number of other purposes it concludes: “and in general, any association, society, company or organization which tends to the public advantage in relation to any or several of the objects above enumerated.” Thus we see the General Assembly, without expressly saying that any particular purpose is a public charity, yet, treating of that subject, enumerates several purposes as in that class, and among them cemeteries. In a very recent case this court has held that a devise to trustees for the purpose of establishing and'maintaining a “hospital for sick and injured” was a gift to charitable use, although not specified in the English Statute of Charitable Uses. [Buchannan v. Kennard, 234 Mo. 117.] And it was held in that case that it was none the less a public charity because its beneficence was not limited to the poor, but might be shared by the rich- in that case the court, per Kenhtsb:, J., said: “From the foregoing authorities it clearly appears that the statute (43 Elizabeth, Ch. 4) cannot be looked to as the sole test of what is a public charity, but that many other uses, not named, and not within the strict letter of the statute, but which, coming within its spirit, equity and analogy, are considered charitable.” In that case, like the case at bar, the will provided that the hospital was to be conducted “under such rules and regulations as said trustees and their successors shall from time to time establish and maintain. ’ ’ In Campbell v. Kansas City, 102 Mo. 326, the court, discussing a dedication of land to the public for a cemetery, used this language: “Now it seems to us that the dedication in this case falls fairly enough within the general definition of charitable and pious purposes.”

We hold that the devise in question was to a charitable use, and is sanctioned by our law. The learned trial judge had the correct view of the law. The judgment is affirmed.

All concur.’


author: WOODSON, J.

text:
    CENTRAL TRUST COMPANY OF MOBILE v. EDWARD D’ARCY, Trustee of F. H. SMITH LUMBER COMPANY, Appellant.
    Division One,
    December 23, 1911.
    1. JUDGMENT: Against Insolvent Company: Subsequent Suit Against its Trustee: Res Adjudioata. A judgment obtained against an industrial corporation in this .State after it had conveyed all its property to a trustee to pay certain debts and persons, in a suit in which the court had jurisdiction both of the company and the subject-matter, is valid and binding upon the parties thereto, and the matters and things adjudicated by that suit cannot be retried in a subsequent suit by the same plaintiff against the trustee to compel him to pay the judgment ■ out of the funds in his hands.
    á. -: -: Assignment: Right of Creditor to Sue. The fact that the corporation, prior to the institution of the suit against it, conveyed all its assets and properties to a trustee, for the purposes of paying its debts, did not exempt it from suit by its creditors. The law gives the right of action, and that right cannot be taken away by the voluntary act of the debtor.
    3. -: -: Trustee or Assignee Not a Party. Where the insolvent company made an assignment of all its properties to a trustee to pay its debts, a subsequent suit by a bank to establish a claim against it as guarantor of the debt of another company, should be brought against said insolvent company; and if it permits judgment to go against it by default, its trustee, when the claim is presented to him for allowance and payment, and when upon his refusal suit is brought against him to compel payment, cannot be heard to defend on the ground that the former suit was not brought against him and that he was not heard. He accepted the trust for the purpose of paying the insolvent company’s debts, and the suit established the fact that it was the debtor and that the plaintiff was its creditor, and the suit was therefore properly brought against it.
    Appeal from St. Louis City Circuit Court—Row. Geo. R. Shields, Judge.
    Affirmed,

      G. L. Edwards and Ediuard D’Arcy for appellant.
    (1) The judgment in the case against the F. H. Smith Lumber Company was obtained without a hearing of the only party entitled to be heard, and is, therefore, void. Keele v. Keele, 118 Mo. App. 262; Windsor v. McVeigh, 93 U. S. 274; Hovey v. Elliott, 145 N. Y. 126; S. C., 167 U. S. 409, 42 L.°Ed. 215; Pennoyer v. Neff, 95 U. S. 673, 24 L. Ed. 565; Dartmouth College Case, 17.U. S. 581. (2) The petition in the suit against the F. H. Smith Lumber Company is fatally defective, for the reason that it fails to show a valid contract of guaranty by the F. H. Smith Lumber Company to the Central Trust Company. It shows on its face that the offer was never accepted as made. Potter v. G-ronbeck, 117 111. 404; 20 Cyc. 1404, n. 45>, and 1411, n. 86; 15 Laws of England, 449, n. k.; 7 Id., 350; Morten v. Marshall, 2 H. & C. 305. (3) Unless the pleadings state a cause of action, a judgment founded thereon is void. Weil v. Green County, 69 Mo. 286; Roden v. Helm, 192 Mo. 71; Campbell v. Greer, 197 Mo. 463; Dunlap v. Kelly, 105 Mo. Appi. 1; Clem v. Meserole, 44 Fla. 234.- (4) The judgment is founded on the pleadings, and the points decided must be within the issues raised by them, or the judgment is void. State ex rel. v. Muench, 217 Mo. 124; diaries v. White, 214 Mo. 204; Hope v. Blair, 105 Mo. 93; Munday v. Vail, 34 N. J. L. 418.

      Alexander Young for respondent.
    (1) The judgment by default against the F. H. Smith Lumber Company, which is the basis of this suit, was regular and according to law, by reason of said defendant’s failure to answer or demur. Sec. 1799, R. S. 1911. (2) The petition in that case states a meritorious cause of action against F. H. Smith Lumber Company, defendant therein, and shows a valid contract of guaranty; the guarantor having knowledge of its acceptance it is bound by it. Notice of the acceptance may be proved by circumstances. Childs v. Rankin, 9 Mo. 673; Tolman v. Means, 52 Mo. App. 385; Manufacturing Co. v. Shreve, 94 Mo. App. 518.
   WOODSON, J.

The respondent, the plaintiff below, brought this suit against the appellant, to compel him, as trustee of the assets of F. H. Smith Lumber Company, to allow, and pay out of the trust funds in his hands, a certain judgment obtained by the former against the latter.

The facts of the case are practically undisputed, and are as follows:

The respondent was a banking and trust company, organized and doing business under the laws of the State of Alabama, with its place of business at Mobile, in that State.

The F. H. Smith Lumber Company was incorporated and doing business under the laws of Missouri, with its chief office in the city of St. Louis, where it had extensive lumber yards, for the storage of lumber, bought by and shipped to it from various States of the Union, and from which it made sales of lumber and shipped the same to its numerous customers throughout this country and Europe.

The Hardwood Export Company was incorporated under the laws of Illinois, with its chief office at the city of Cairo. This company also had and maintained an office in the city of St. Louis, and another at Mt. Vernon, Alabama, at or near which place it owned many thousands of acres of timber lands, also extensive sawmills, drying houses, kilns, sheds and other appliances and machinery used in manufacturing its timber into lumber and preparing it for sale.

The business relations that existed between these two lumber companies were very close, and apparently they were financially interested in each other. At any rate, the dealings and transactions between them were numerous and extensive, the latter sawing its timber into lumber and preparing it' for market, and the former purchasing much if not all of it, and selling it to its own customers throughout the United States and Europe.

In furtherance of that relation and the dealings between them, on August 10, 1903, the E. H. Smith Lumber Company made and delivered to the respondent, the Trust Company, the following written guaranty, viz.:

Mobile, Ala., Aug. 10, 1903.
Central Trust Company, City:
Gentlemen:—In consideration of our interest in the Hardwood Export Co., we hereby guarantee the payment of any moneys that may be advanced by you to the Hardwood Export Company of Mt. Vernon, Ala. They proposing from time to time to obtain loans from you for which they will give you their promissory notes signed by their manager. Mr. J. C. McKinnon will have entire charge of the finances at Mobile and will sign such notes, etc.
Yours truly,
F. H. Smith Lumber Co., of St. Louis, Mo.
Per J. M. Bullard, Secy, and Treas.
J. M. Bullard.

The Trust Company, with this guaranty in its possession, 'and relying upon it, thereafter, on November 11th, 1903, lent to said Hardwood Export Company $5,000, taking its note therefor, executed as provided for in said-guaranty, and due ninety days after date. On December 12, 1903, while still holding and relying upon said guaranty, the Trust Company loaned to the said Hardwood- Export Company a further sum of $5,000, evidenced by a note of that date, due in sixty days thereafter,- also executed as provided by said guaranty. These loans were made in the due course of business; and, under the laws of Alabama, said notes bore eight per cent interest.

On December 24, 1903, the Hardwood Export Company became insolvent and was unable to pay its debts. According to dne process of law, all its property and effects were sold, and the proceeds thereof were legally distributed among its creditors, $599.48 of which was paid to the Trust Company on said notes, leaving a balance due thereon of $9400,.52, with interest.

■ On December 24, 1903, the F. H. Smith Lumber Company, by its deed of that date, c.onveyed all its property of every kind to a trustee, in trust for the following purposes, viz.: '

1. To ’ pay the reasonable attorneys ’ fees for services rendered in the preparation of this conveyance, to pay all costs and expenses, including reasonable counsel and attorneys’ fees, incurred in executing the trust herein, including compensation to the said trustees, the survivor and successor thereof, for executing the said trust, as is referred to and stated hereinafter, the amount of' premiums for the bonds required of said trustees hereinafter provided for, all taxes on the trust property due and payable at any time, all premiums for insurance on said property, all claims and demands for work and labor done or material furnished, which by the statutes of any State or States are made a lien upon any of the property held under said trust, and which by virtue of said statutes are entitled to priority of payment over other debts and to pay all indebtedness of every kind and nature incurred or created by said parties of the second part, their survivor or successors, in executing this trust.

2. To pay from time to time from the cash on hand, to the present creditors of said party of the first part, pro rata according to the indebtedness of said party of the first part to them owing, such sums as said parties of the second part may deem safe and convenient to pay, taking into consideration the condition of said trust estate, and after all debts, demands, claims and liabilities incurred and created by said parties of the second part, their survivor or successors, in executing this trust shall have been paid, and all debts, claims and demands and liabilities of the said party of the first part now existing, with interest thereon at the rate of six per centum per annum shall have been paid, then the said parties of the second part, their survivor or successors, shall reconvey to said party of the first part all the property, of. every kind and nature whatsoever, in their hands or to them belonging under this conveyance.

The trustee of the latter company has been collecting up the assets thereof and applying the same to the payment of its debts, as provided for by said deed of conveyance, excepting said debts of the Trust Company, which he refused and still refuses to pay, or any part thereof, out of the assets of said company, although .having in his hands sufficient assets to pay the same percentage of its debt, that he has paid to all the other creditors.

Upon that state of facts the Trust Company, the respondent, instituted a suit against the F. H. Smith Lumber Company, and the trustee aforesaid, for the purpose of recovering, against it, the balance due on said two notes, under the provision of said written guaranty. Subsequently, the Trust Company dismissed the suit as to the trustee, and the Lumber Company having failed to answer, a judgment by default was rendered against it, upon its guaranty, for the balance due on the two notes executed by the Hardwood Export Company to the Trust Company.

This judgment was presented to the trustee of the F. H. Smith Lumber Company for payment,' which was by hinrrefused. Thereupon the Trust Company, the respondent here, instituted this suit against the said trustee to compel him to pay to it its proportional part of the assets conveyed to him by that company on December 24, 1903.

A trial was had, which resulted in a judgment in favor of the Trust Company, and against the trustee, requiring him to pay to it its proportional part of the assets in his hands. Prom that judgment, the trustee has appealed to this court.

I. Counsel for both parties have presented and discussed many legal propositions, but under the view we take of the case, the legal questions involved are limited to a very small compass.

Counsel for appellant are undertaking to retry, in this case, all of the matters and things which were tried and adjudicated in the former case of the Trust Company against F. H. Smith Lumber Company; so at the very threshold of this case we must first determine whether or not the judgment in that case is valid, and if so, to what extent it is binding upon the appellant, the trustee thereof.

As previously stated, the facts of this case are •practically undisputed, and that being true, there can be no question but what the Trust Company loaned $10,000 to the Hardwood Export Company, evidenced by the two notes before mentioned, and guaranteed by the guaranty of the F. H. Smith Lumber Company previously mentioned. Not only that, the circuit court of the city of St. Louis had jurisdiction of the parties to that suit, namely, the Trust Company and the P. H. Smith Lumber Company, for the reason that the former entered its appearance by bringing that suit, and the latter being a domestic corporation (which was duly served), with its chief office and place of business in the city of St. Louis, it was amenable to the process of the circuit court of that city. That court being a court of general jurisdiction, it unquestionably had jurisdiction of the subject-matter of that suit, namely, the notes and guaranty previously mentioned.

Those facts being conceded to be true, the conclusion must necessarily follow, that the judgment rendered therein, in favor of the Trust Company and against the P. H. Smith Lumber Company, is valid and binding between them. The mere fact that prior to the date of the institution of that suit, the Company conveyed its assets and property to a trustee, for the purposes stated in the deed of conveyance, did not exempt it from suit by its creditors. The law gives the right of action and that right cannot be destroyed by the voluntary act of the debtor. This is elementary, and needs no citation of authorities in support thereof.

We are, therefore, clearly of the opinion-that the judgment in that case is valid and binding upon the parties thereto.

II. This brings us to the consideration of the second proposition, namely, to what extent, if any, is that judgment binding in this suit, on the trustee, the appellant?

Counsel for appellant take the position that the judgment in the case of the Trust Company, the relator here, against the P. H. Smith Lumber Company, “was obtained without a hearing of the only party entitled to be heard (namely, the trustee, and appellant) and is therefore void.” In support of that position, we are cited to Keele v. Keele, 118 Mo. App. 262; Windsor v. McVeigh, 93 U. S. 274; Hovey v. Elliott, 145 N. Y. 126; same case, 167 U. S. 409; Pennoyer v. Neff, 95 U. S. 714, and Darthmouth College Case, 17 U. S. 581.

After a critical analysis of those cases, we find that they announce the old-and familiar rule, that a party cannot be deprived of his property without due process of law, that is, a judgment against a party without notice is void. But that is not the question here presented. The trustee is not the owner of the property conveyed to him by the. deed of trust dated December 24, 1903. He accepted the conveyance upon the terms stated therein, that is, for the purpose of paying the debts of the P. H. Smith Lumber Company. Now, who were the creditors of that company, and how could their debts be established?

In this case, only those are creditors who became such by contract with it, and not by a contract with this trustee, the appellant here; and the only way that such a claim or debt could be established against that company was by suit brought and prosecuted to judgment, just as was done in the case of the Trust Company, the respondent here, against the P. H. Smith Lumber Company.

"When that judgment was rendered against the Lumber Company, the Trust Company, the respondent here, became the former’s judgment creditor, and under the terms of the deed of trust it became the plain duty of the trustee to so recognize that fact, and it became his duty to pay to it its proportional part of the funds coming into his hands. That judgment was final and unappealed from, and it is binding upon the parties thereto.

Practically all of the matters and things here presented for consideration by counsel for the trustee, are matters, if true, which should have been set up as a defense by the Lumber Company in the former suit; but having failed to do so, the trustee of its assets is in no position to attack that judgment in this collateral proceeding. Clearly he derives no such authority from the deed of trust, and we have been cited to no law which would authorize any such conduct on his part. ■

Having discovered no error in the record, we are of the opinion that the judgment should be affirmed, and it is so ordered.

All concur.