author: WOODSON, J.

text:
    J. M. WHITSETT et al., Appellants, v. CITY OF CARTHAGE.
    Division One,
    March 12, 1917.
    1. SEWER: Taxation of Agricultural'Lands. Notwithstanding plaintiff’s lands are used largely for agricultural and garden purposes, have not been platted into blocks and lots, constitute 160 of the 1600 acres in the sewer district, and the tax against them to construct the main sewer will be $36 per acre, and if constructed no laterals from it through the lands are at present contemplated, yet if there are 3500 inhabitants residing-within the district, there are churches, schools and hospitals, the sewer is to be constructed along the course of natural drainage, the district is now totally without sewers and there is no other feasible method for draining the lands included therein, and these agricultural lands within the city-limits when laterals are constructed can be draihed by the main sewer, its construction will not be enjoined on the ground that the ordinances authorizing it are unreasonable and oppressive.
    2. -;-: Public Health. All perso'ns-hold their property subject to the laws providing for the public health, safety, morals and general welfare; and if a main sewer is necessary for the public health of a large portion of a city, and will benefit not only the parts densely populated but in time the agricultural lands included in the district also, the owners of such lands cannot enjoin its construction on the theory that it is not necessary for the present enjoyment and use of those lands, they cannot be immediately served by it, and the costs to be taxed against them will be very heavy, possibly confiscatory.
    3. -: Benefits. It is not only benefits to real estate that are to be considered in sewer construction. Primarily the benefits are conferred on all the-people of a district, through sanitation and health conservation, and secondarily on the real estate taxed with the cost, in that it is made moj-e desirable for business and residential purposes and increased in value.
    4. -:-: Laterals. The owners of land not reached by lateral sewers are benefited by laterals which connect other improved lands in the district with the main sewer, since they serve to drain away the refuse that would endanger the public health.
    5. -: Laterals: Time of Construction. The law does not require all lateral sewers of a drainage district to be constructed at-the same time. They may be constructed as the necessity for them arises, and not before.
    6. -: Taxes in Proportion to Benefits. The fact that the benefits to lands taxed with the costs of a sewer do not exactly equal such costs will not invalidate the construction or the tax bills. Approximate equality is all the law requires.
    7. CITY EXTENSION; Validity. A contention that the city limits were not legally extended to embrace the lands to be taxed with the costs of constructing a main sewer because no notice of the election was given, will not be considered, if fifteen years have "elapsed since the extension was made.
    Appeal from Jasper Circuit Court. — Eon. D. E. Blair, Judge.
    Affirmed.

      Spencer & Grayston, A. L. Thomas and Shannon & Esterly for appellants.
    '(1) The foundation of the power to lay a special assessment or a special tax for local improvements of any character, whether opening, improving, or paving a street or sidewalk, or constructing a sewer or cleaning or sprinkling a street, is the benefit which the improvement or service confers on the owner of the abutting property or the owners of the property in the assessment or special taxation district which is different from the general benefit which such owners enjoy in common with the other inhabitants or citizens of the municipal corporation. Walker v. Jamison, 140 Ind. 591, 28 L. R. A. 679, 49 Am. L. R. 222; Union Trust Co. v. Pagan-stretcher, 80 Pa. St. 505, 21 Am. St. 112; Hale v. Kenosha, 29 Wis. 599; McQuillin, Municipal Corp., sec. 2018. Special assessments are explained and their judicial history given in Macon v. Petty, 34 Am. Rep. 457. (2) The whole theory of local taxation or assessments is. that the improvements for which they are levied afford a remuneration in way of benefit. A law which would attempt to make one person, or a given number of persons under the guise of local assessments, pay a general revenue for the public at large would not be an exercise of the taxing power, but an act of confiscation. In effect it would be transferring the property of one individual to another. These are the legal truisms which have long been entertained and firmly established. McQuillin, sec. 218; McCormack v. Patchin, 53 Mo. 33; St. Louis v. Clemans, 49 Mo. 552; Garrett v. St. Louis, 25 Mo. 505. (3) The principle underlying special assessments to meet the cost of public improvements is that the property upon which they are imposed is peculiarly benefited, and therefore the owners do not in fact pay anything in excess of what they receive by reason of such improvement. The exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him, is to the extent of such excess, a taking, under the guise of taxation', of private property for public use without compensation. Norwood v. Baker, 172 U. S. 269; McQuillin, sec. 2018; State v. Newark, 37 N. J. L. 415; Hutcheson v. Starrie, 51 S. W. 848. (4) The power to assess private property for public improvements, beyond' the uniform rate prescribed by the Constitution, is derivable only from the fact that such property is enhanced in value to the amount of the tax, beyond that of other citizens, by the public betterment. Any assessment not thus bottomed is void. Jaicks v. Oppenheimer, 175 S. W. ■ 972. (5) Although municipal corporations are prima facie the sole judges of the necessity of their ordinances, yet if one is altogether unreasonable and oppressive, it may be vacated for that reason alone. Hannibal v. Tel. Co., 31 Mo. App. 23; St. Louis v. Theater Co., 202 Mo. 699; St. Louis v. Russell, 116 Mo. 258; Salem ex rel. v. Young, 142 Mo. App. 170; State ex rel. v. Terminal Ry., 168 S. W. 1144; Tobacco Co. v. St. Louis, 157 S. W. 502; Zumault v. K. C. Air Line, 71 Mo. App. 676; Carrigan v. Gage, 68 Mo. 545; Lamar v. Wei dm an, 57 Mo. App. 507; Plattsburg v. Hagenbaek, 98 Mo. App. 671; Herman v. Handlan, 59 Mo. App. 490; Springfield v.. Jacobs, 101 Mo. App. 340; White v. Railroad, 44 Mo. App. 542. (6) While the courts may not interfere with the legitimate use of the legislative power delegated to a municipal corporation, they may interfere to prevent its abuse. Skinker v. Heman, 148 Mo. 355; St. Louis v. Weber, 44 Mo. 550; McCormack v. Patchin, 53 Mo. 33; Carrigan v. Gage, 68 Mo. 541; Halpin v. Campbell, 71 Mo. 493; Kelley v. Meeks, 87 Mo. 401; Tarkio v. Cooks, 120 Mo. 9; St. Louis v. Packing Co., 141 Mo. 375. (7) Where a sewer is constructed mainly for the benefit of the public, the city has no pdwer to pay for its construction by issuing special tax bills. i Heman y. Handlaw, 59. Mo. App. 490. (8) The reasonableness of an ordinance extending city limits may be questioned collaterally in a suit to collect a special tax bill. Salem ex rel. v. Young, 142 Mo. App. 170; Springfield v. Jacobs, 101 Mo. App. 340.

      Geo. W. Crowder and Allen McReynolds for respondent.
    (1) Public improvements are not to be treated as evils which are to be judicially circumvented;, hence, laws anent public improvements should be subjected to a reasonable analysis only, with the view that they are passed in the spirit of justice, and for the general welfare of community life, in the interest (as to sewers) of the public health. Gist v. Construction Co., 224 Mo. 397; Waddell Inv. Co. v. Hall, 164 S. W. 541. (2) The controlling test of -benefits conferred, where a large area is sought to be drained by means of a trunk sewer for an outlet, is whether the lands included within the benefit district are, by reason of their topography, drainable into such trunk sewer hy means of district or lateral sewers. Page & Jones, Taxation by Assessment, see. 563, p. 917-921, sec. 658, p. 1114; St. Joseph v. Owen, 110 Mo. 445. (a) Such land may be assessed even though the city waterworks has not yet been extended to it. The presumption will be indulged' that the city authorities will perform their functions in good faith. Page & Jones,, Taxation by Assessment, sec. 563; McGee v. Walsh, 249 Mo. 266. (b) And, too, though such lands may be unimproved, and unplatted, and may have no occasion to make immediate use of the sewer. McGee v. Walsh, 249 Mo. 266; Dillon’s Municipal Corporations (5 Ed.), sec. 1460; Salem v. Young, 142 Mo. App. 160. (3) Plaintiffs cannot insist upon having the reasonableness of ordinance 103 determined, with respect to the inclusion of their lands, from the viewpoint of the condition in which they have voluntarily left such lands, or from any particular purpose for which they elect to hold such lands. Page & Jones, Taxation by Assessment, secs. 608, 609, p. 1012; Mitchell v. Negaunee, 113 Mich. 359, 76 Am. St. 468; Salem v. Young, 142 Mo.App. 160. (4) Land -is . benefited by the construction of a sewer, in contemplation of law, when such land is practically susceptible of being drained thereby. Page & Jones, Taxation by Assessment, sec. 563, p. 917. (5) The broad terms of section 9281 to 9298 inclusive, R. S. 1909, contemplate the assessment of all lands drainable into .the proposed trunk sewer, it being designed as an outlet for the entire drainage area, and no ultimate hardship can occur to these plaintiffs thereby. Secs. 9281-9298, R. S. 1909; Page & Jones, Taxation by Assessment, sec. 563, p. 921; McG-ee v. Walsh, 249 Mo. 266. '(6) It is not compulsory, nor even contemplated, by Secs. 9281-9298, R. S. 1909, under authority of which this proposed system of drainage has been worked out, that district or lateral sewers must be undertaken and constructed at the same time, and in the same connection; Page & Jones, Taxation by Assessment, sec. 327, p. 506. (7) Assessments may he properly levied to pay for the construction of a trunk sewer for the purpose of affording an outlet for a large drainage area on the theory that all lands drainable thereby are especially benefited by reason of having the means of an outlet for such lateral sewers as may be constructed from time to,time. Páge & Jones,'Taxation by Assessment, sec. 327, p. 506; Bassett v. New Haven, 55 Atl. 579; Alley v. Lebanon, 44 N. E. 1003; Hanscom v. Omaha, 7 N. W. 739; Ford v. Toledo,'59 N. E. 779; Imp. Co. v. Kansas City, 172 Mo. ,523.
   WOODSON, J.

— This suit was instituted in the circuit court of Jasper County by the plaintiff to enjoin the city of Carthage from constructing a main sewer therein in conformity to certain ordinances duly enacted by said city.

The trial resulted in a decree in favor of the defendant, denying the injunction, and after taking proper steps the plaintiffs duly appealed the cause to the Springfield Court of Appeals. Upon motion the cause was properly transferred by that court to this.

The construction of the sewer is resisted principally upon the grounds that the ordinances ordering it are unreasonable and oppressive. This calls for a statement of the substance of the evidence.

The facts of the case are briefly these:

On the first Tuesday in April, 1912, the defendant held an election for the purpose of adopting the provisions of sections 9281 to 9298, inclusive, Revised Statutes 1909, relating to the construction of sewers in cities of the third class, and by virtue of said election, said sections were adopted.

On the 11th day of August, 1913, the defendant passed Ordinance No. 102, dividing the territory of said •city into sewer districts, as contemplated by the provisions of said sections 9281 to 9298, inclusive.

On the same day, namely, August 11, 1913, the defendant passed Ordinance No. 103, providing for the construction of a main trunk sewer, to be paid for by special tax bills on the lands belonging to plaintiffs and other lands. •

Pursuant thereto, the defendant was about to advertise for bids for the construction of said sewer, when this suit was commenced, June 23, 1915.

The plaintiffs are owners of about 160 acres of land against which the defendant proposes to issue special tax bills to pay for the construction of said sewer. .

The plaintiffs’ evidence tended to prove that the lands belonging to plaintiffs are occupied and used exclusively as farm lands and for truck gardening, etc.; that they are not held for the purpose of being platted and sold as town lots; that they are not in demand for urban purposes; that the growth of the city in the past twenty-five years has not been such as to indicate that they will, within any reasonable length of time, be in demand for urban uses.

The lands of all the plaintiffs, except the Block forty-acre tract, are in the southwest quarter of section Nine, Township Twenty-eight, Range Thirty-one. The Block forty is the northwest quarter of the northwest quarter of said Section- Nine.

The southwest quarter of Section Nine is the extreme southwest' portion of the city. While one ten-acre tract in the north-central portion thereof was, many years ago, platted into town lots, it was a failure as a city addition. No streets or alleys have ever been opened or improved therein, and it is occupied as acreage property. None of the remainder of said quarter section has ever been platted.

The city owns the municipal light plant and waterworks. No portion of the lands belonging to the plaintiffs is provided with electric light or water service. The nearest light is located at the northeast corner of the southwest quarter of said Section Nine. The nearest water plug is located at the corner of Centennial Avenue and Forest Street, about four hundred feet east of the northeast corner of said quarter section. The policy of the city with reference to the extension of its water mains is that no extensions will he made unless the prospective consumption of water will produce an annual income of five per cent of the cost of the extension.

There are only twelve families, living on said quarter section, and it would cost several thousand dollars to extend the water mains to all parts of the same, so that the sewers, if constructed, could not he used by any of the plaintiffs.

In 1890, the population of the city was 7,981; in 1900, it was 9,416; in 1910, it was 9,483, and at the time of the trial of the case it was 9,211. About one-half of the unoccupied land within the city limits which is available for and adaptable to residence purposes, is within the proposed sewer district.

The lands belonging to plaintiffs, in the southwest quarter of Section Nine, lie south of Centennial Avenue, and are one-fourth of a mile west of Garrison. The southwest quarter of Section Nine, in which all the lands of plaintiffs lie, except the Block forty, is one-fourth of a mile west of Garrison Avenue. A good portion of the eighty-acre tract extending from Garrison Avenue on the west to Grand Avenue on the east, and from Centennial Avenue on the north to Fairview Avenue on the south, has been platted and offered for sale for the last twenty-five years. The street car track, on which cars are run each way every half hour, runs through this tract, on Main Street from north to south, and along the south side thereof on Fairview Avenue. A large portion of this territory was settled up twenty-five years ago. At the present time there are only thirty-sis dwelling houses on the north forty acres of that eighty-acre tract, and only nine dwellings on the south forty acres of said eighty-acre tract. On the north half of the eighty-acre tract immediately west of Garrison Avenue and south of Centennial Avenue there are only seventeen dwellings, and on the south half of the same -there are only nine dwelling houses.

■ There are only seventeen dwellings on the 160-acre tract immediately east of Grand Avenue and south of. Centennial Avenue.

All of the above described tracts embracing one-half section of land are well adapted to urban purposes, and each and every one of them is closer to the center of population of Carthage than any portion of the. southwest quarter of said Section Nine.

The evidence also tended to show that some- years ago the forty-acre tract immediately south of Fair-view Avenue and west of Hazel Avenue was platted into lots and sold at auction, both additions being on the street-car line, and that both additions have been abandoned as urban property, and divided up into acre property and used for farming purposes.

That the system of sewer districts attached and made tributary to the main sewer in controversy contains about 826 acres, and that only about 26 acres the same have close water connection, and that the water mains would have to he extended before the remaining 800 acres could he benefited by the construction . of said sewer or by the construction of district sewers to connect therewith; and there is no intimation in the defendant’s evidence, or elsewhere in the record, that the city proposes or contemplates the construction of the necessary extension of its mains.

In District 44 there are 87 acres and 5 houses, in District 35 there 68% acres.and 9 dwelling houses. In District 24 there are 140 acres and 24 residences. The cost of the construction of the main sewer would be $36.60 per acre.

The evidence shows that the lands belonging to plaintiffs are worth about $200 per acre, without improvements, in five-acre tracts.

The evidence tending to show the facts regarding the lands in the southwest quarter of Section 9 is also applicable to the Block forty-acre tract,

Carthage was incorporated under a special charter in 1873. At that time.the southwest quarter of Section Nine was not included within its limits. Subsequently the city attempted to extend its limits so as to include said territory, but no notice of the election held for that purpose seems to have been given.

No provision is made by Ordinance No. 103 to construct laterals to connect the lands in controversy with the proposed sewer and in fact it does not seem to be the purpose of the city to do so.

The evidence for the defendant tended to show that the city of Carthage is a city of the third class under-the laws of the State of Missouri. It has a population of approximately ten thousand inhabitants, and lies on a slope south of the banks of .Spring River. Its natural drainage is from the south to the north. The the distance from the river to the south bluff of Spring River in the city of Carthage varies from a mile to a few feet. At the east end of town the limestone bluff diminishes and disappears. Towards the west side the bluff comes almost to the river.

The natural drainage of the town is in three areas: the central area, which is geographically very much smaller than the rest of it, but which includes the business portion of the city; the eastern area, which is made up of a long draw and its tributaries which drain the eastern portion of the city; and the western area, which covers probably half of the geographical area of the 'city, and is that territory which is tributary to a long draw extending from the southern part of the town in a northwesterly direction to a point outside of the corporate limits.

The central area has been sewered for a number of years. Recently a sewer was constructed in the eastern portion of the city and that part of the town has the sewerage which is necessary for the proper drainage of a healthful community.

The western drainage area, which is described above, includes in its natural-drainage boundaries some of the best' residence sections' of the city, and the lack of sewerage has been a menace to the health of this .portion of the city, and an object of incessant agitation and interest on the part of many citizens of that part of the city. In that section there are school houses, churches, a hospital, and other public buildings which go to make up an important part of the community life.

At the general municipal election in April, 1912, the city of Carthage duly adopted sections 9281 to 9298 inclusive, Revised Statutes 1909, and the result of said election on the proposition to adopt, was duly proclaim- • ed as provided by said section 9281.

Thereafter, on the 11th day of August, 1913, the council passed ordinance No. 102 subdividing the unsewered territory of the city into sewer districts, numbered from 10 to 69, inclusive, there being at the time of the adoption of said laws, nine sewer districts supplied with sewers under the statutes operative prior to. said adoption.

After the passage and approval of ordinance No. 102, and on the same date, the council passed ordinance No. 103 providing for and ordering the construction' of the trunk sewer here in question, declaring therein -that sewer districts numbered 17 to 44 inclusive were deemed to be benefited thereby, except district No. 20, which was found by the council not to be drainable into said trunk sewer, and, therefore, not benefited by the construction thereof. The council, further, by said ordinance No. 103, adopted the plans and specifications for said trunk sewer, and defined the out-boundary lines of said benefit territory, embracing therein sewer districts numbered 17 to 44 inclusive, except district No. 20.

The lands of defendants lie in districts 24, 35, and 44, and range in quantities from 4 to 50 acres, aggregating 138 acres. All said lands lie in the southwest quarter of section 9, township 28, range 31, except the block 40, which lies in the northwest quarter of the northwest quarter of said section 9. It is' not disputed that the lands lying within the sewer districts constituting the benefit territory, including the lands of all the appellants, occupy the same drainage, area which this trunk sewer has been designed to serve, and that none of said districts can have any other outlet than through this trunk sewer, except through parallel lines running to Spring River, which is more than a half mile distant from the point on the western boundary of the city, at which all said lines would have to leave the city limits.

The sewer in question is a large trunk sewer commencing at a given point between districts 40 and 42,.pas-sing thence through the low grounds in the drainage area to a given point at the western boundary of the city, on the line separating districts 17' and 18, and thence, beyond the city limits, a distance of more than one-half mile to and into Spring River, in which said sewer is to discharge.

This trunk sewer will presently serve by means of district or lateral sewers 3500 to 3600 people, residing in the various districts — more than one-third of the population of the city. Besides, there is included within the territory which said sewer is designed to serve, a hospital and other public buildings herein above mentioned.

The above statement of the case is largely taken from the briefs of counsel for' both the plaintiffs and defendant, which are substantially correct.

I. As shown by the statement of the case, the plaintiffs seek to enjoin the construction of the main sewer mentioned therein for the reason, principally, that the ordinance authorizing its construction is ununreasonable, unjust and oppressive, in that their lands, used for agricultural and garden purposes, through which a part of the sewer passes, and which will have to hear a large portion of the cost of construction, will not be correspondingly benefited thereby, practically amounting to a confiscation of the same.

This contention of plaintiffs is untenable. The evidence shows that the city of Carthage has a population of approximately ten thousand, and lies on the southern slope of the banks of Spring Eiver, the natural course of drainage — the slope being from south to north; the distance from bluff to the river varies from a few feet to a mile. At the east end of the town the bluff diminishes and disappears, while at the west end it is higher and almost extends to the river.

The natural drainage of the city is divided by natural conditions into three areas, the eastern, central and western; the eastern is made up of a long draw and connecting depressions and tributaries; the central is separated by rising ground from the eastern and western areas, and is much smaller than either of the other two, but includes the business portion of the city; and the western, which embraces practically one-half of the entire area of the city, about 1600 acres, and is tributary to a long draw or depression extending from the southern part of the city in a southwesterly direction to a point outside of the corporate limits.

The eastern and central areas have been properly sewered for drainage and sanitary purposes, but the western area is without sewers, and that portion of the city is dependent almost entirely upon vaults, basins and natural drainage; this has been a constant menace to the health of that portion of the city.

About thirty-five hundred people reside in this area, and there are situate therein schools, churches and the city hospital, and other public buildings.

These conditions clearly show the crying necessity for proper sewerage in that portion of the city.

Opposed to that necessity, the plaintiffs, citizens of Carthage, refer to the large cost of the sewer, about $36 per acre, their large real estate holdings,, about one hundred and sixty acres, in the remote parts of said western drainage area,. embracing about eight hundred and twenty-five acres, and contend that on account of the size of those holdings, the small number of residences thereon and the comparatively small benefits they will derive from the sewerage, a great hardship would be worked upon them — amounting to injustice and oppression, if not a confiscation of their property.

That contention must, also be viewed from a different angle from that suggested by counsel for plaintiffs.

■ In pursuance to the requirements of section 9282, Revised Statutes 1909, the city by ordinance No. 102, divided the unsewered territory of the city into sewer districts, numbered from 10 to 69, inclusive, there being at the time of the adoption of said section, nine sewer districts supplied with sewers under the statutes in force prior to said adoption.

Subsequent to the passage of said ordinance No. 102, the city enacted ordinance No. 103, ordering the construction of the main sewer here in controversy, declaring therein that sewer districts numbered 17 to 44, inclusive, were deemed to be benefited thereby, except No. 20, which the counsel found could not be drained into said sewer or benefited thereby; also adopted plans and specifications for the construction of said sewer, as required by said sections of the statutes.

Plaintiffs’ lands lie in districts twenty-four, thirty-five and forty-four, and vary in quantities from four to fifty acres, aggregating according to defendant’s evidence, one hundred and thirty-four acres, and that of plaintiffs to one hundred and sixty acres.

It is not denied that the main sewer in question will, by means of district or lateral sewers, drain all of plaintiffs ’ lands when constructed and connected with it; but the main bone of their contention is that this main sewer will be of no benefit whatever to them until the lateral sewers are constructed and connected therewith, which are not authorized to be constructed by said ordinances, and therefore their lands will be taxed at $36 per acre without any corresponding benefit; it is also contended that even though the lateral sewers were to be constructed, then their construction would cost approximately $190 in addition per aeré, making a total cost of about $225 per acre for the- construction of the main and lateral sewers.

For tbe sake of argument, let us assume these figures to be correct (which is only an assumption, as the lateral sewers have not been ordered constructed, and consequently no plans or specifications therefor have been made, nor have estimates and bids been made of the cost of furnishing the materials and performing the labor necessary for their construction), then it is apparent that from this record there is no present necessity for the lateral sewers and we must presume that the city council will not violate its duty and order their construction in the absence of such necessity; however, should it so do, then and not now, would be the proper time to challenge the reasonableness and validity of ah ordinance ordering their construction.

Under the foregoing view of the case we have only to do with the construction of the main sewer in question, the only one ordered constructed: It may for argument’s sake be conceded that the plaintiffs’ property will not, at the present, receive as great a relative benefit from this sewer as will the other residences in that part of the city; but that is due to the fact that their property is not so densely populated, and consequently .that part of their farms and truck patches not used for residence purposes does not need such drainage. But that is not all that is in this case; every person in this State and country holds his property subject to the laws providing for the public health, safety, morals and general welfare, and, if taken or damaged for any one or more of those purposes, then he is entitled to just compensation therefor ; likewise, his property must bear its just portion of the cost and expense of securing that protection. Both of those propositions are elementary; and it cannot be disputed that the main sewer in question is of great necessity for the preservation of the public health of the entire western portion of the city; not only that part of it densely populated is benefited, but also that part occupied by the plaintiffs. No one could seriously contend that the deposit of the refuse of that part of the city into vaults or the discharge of it upon the surface of the ground, so as to find its way to Spring River through or along the natural draws or depressions before mentioned, would be, and, as the evidence shows, is, a continuing menance to the public health, especially to all that part of the city including the plaintiffs. The public health is menaced and endangered by the aggregation of filth and refuse of the entire district, and is not limited to accumulations thereof upon or about each separate lot or tract of ground located therein. We know from the laws of gravity, observation and experience, that garbage and refuse of a city and elsewhere, if not removed and cared for, will seep through the earth and drain down hill to the lower levels, and there become more poisonous, sickly and'deathly than upon the higher grounds; this is true for the reason that the rains, snows and seepage will dispose of and carry much of it to the low places; so from a sanitary point of view, the disposition of the sewage of that part of the city lying higher up the slope than the property of the plaintiffs, is of equal benefit, if not greater to plaintiffs, than it is for the people residing above them. The chief purpose of a sewer, system is the protection of the public health, and as we have seen, the plaintiffs’ property will be equally protected in that regard by the sewer in question; and it is not therefore true, as contended for by counsel, that they are not benefited thereby, or that they are not equally protected with the other residents of that part of the city.

Counsel for plaintiffs seem to think that the benefits to real estate only can be considered in the construction of sewers. While in a technical sense that may be true, but in a practical sense, it is only indirectly true; in a primary sense, the benefits are eonferrd upon the entire people of the district, and secondarily upon the real estate, by virtue of its being thereby made more desirable for business and residential purposes, which correspondingly increases the value of the land — presumably equal to the cost of construction, but perhaps not exactly in all cases.

The lateral sewers, as previously shown, will receive the refuse of the upper part of the city, and discharge it into the main sewer, and thereby prevent the same from being discharged into natural and open drains running-through or near plaintiff’s property, and thereby prevent it from seeping through the ground and otherwise flowing upon plaintiffs’ property, which, if not thus prevented, would render their section of the city unsanitary; and in that way the plaintiffs will receive as much or more indirect benefit from said lateral sewers as the densely populated part of the district will from that part of the main sewer which runs through or near plaintiffs’ property; and if it is a hardship upon the plaintiffs to have to contribute to the payment of the main sewer before they connect their lateral sewers with it, then they are more than compensated therefor by receiving the benefits of the lateral sewers located above, as previously mentioned. The cost of the construction of the latter, according to plaintiffs’ own figures, is far in excess of the cost of the construction of the main sewer; this throws some light upon the relative benefits received by each section of the district. In that way plaintiffs receive the benefits of the main and lateral sewers located above them, without paying one penny therefor, and when they construct their lateral sewers and connect them with the main sewer in question, then the entire district will be completely drained with equal benefits and equal cost; if any difference in cost, it is in favor of the plaintiffs, because they will not be required to construct their part of the lateral sewers until the necessity of that section of the district demands it.

The law does not require all of the lateral sewers of a drainage district to be constructed at the same time; they may be constructed as the necessities therefor may demand. [City of St. Joseph to use of Gibson v. Owen, 110 Mo. 445.]

In fact, the city has no authority to construct them until such necessities do arise; otherwise the ordinance would be unreasonable, unjust and oppressive.

But should it be conceded that the cost and benefits are not exactly equal, that, however, would not invalidate the proceedings or the tax-bills issued in payment of the improvements — this not being an Utopian government, exact equality in taxation cannot be obtained, approximate equality is all the law requires, and in my opinion, that has been accomplished in this case. Especially is that true since that portion of the city situate on the elevation above the property of plaintiffs is thickly populated and is at present in need of lateral sewers, and must, if not already built, be constructed at once, and the burden thereof must be borne by that part of the district only, and not contributed to by the plaintiffs.

II. Counsel for plaintiffs also raise the question as to whether or not the extension of the city limits embracing their lands was illegal on account of lack of notice of the election held to extend the limits.

The evidence upon this question is not sufficient to justify the court in giving it serious consideration; besides that, the contention seems to be too stale to justify consideration, fifteen years having elapsed since the extension was made.

In the case of State ex rel. v. Westport, 116 Mo. 582, where the delay had been only twelve years, this court refused to consider the question in a direct proceeding by quo warranto, holding the parties had slept too long on their rights, if any they had, and were therefore estopped.

The case of State v. Leatherman, 38 Ark. 81, is to the same effect.

In Perkins v. Fielding, 119 Mo. 149, this court held that the validity of an ordinance could not be collaterally attacked on the ground the council was not legally constituted.

There is no merit in this contention.

There are other minor questions presented, but they do not affect a proper disposition of the case.

For the reasons stated, the judgment of the circuit court is affirmed.

All concur, Bond, P. J., in result.


source: Caselaw Access Project

author: BROWN, C. PER CURIAM.

license: Public Domain

text:
    HARRIETT U. DALTON et al. v. WILLIAM SIMPSON et al; MARY SIMPSON, Appellant.
    Division One,
    March 12, 1917.
    1. HOMESTEAD: Money in Lieu of Dwelling. The existence of the home, and not the money which represents its value, is the foundation of the homestead statutes. They refer only to the dwelling house for the family and the surrounding soil from which the sustenance of the home is to spring.
    2. -: In Partition: Governed by Section 6713: Power of Court. Since the Partition Act is silent as to homesteads, resort must be made to section 6713, Revised Statutes 1909, which is a part of the Homestead Statute, whenever lands in which a homestead exists are brought into partition. Under that statute the only power the court has is to sever it from the balance of the real estate sought to be partitioned.
    3. -:-: Section 6714. The Legislature meant, by Sec. 6714, R. S. 1909, which authorizes the sale of the homestead in certain contingencies and which is the only provision of law by which it is possible for the courts to deprive the widow and minors of their homestead, to guard their rights with care. It cannot be used as a device by which adult heirs and other plaintiffs in partition may swallow the homestead or extinguish it by relegating the widow ■ and minors to the value of the homestead or to the net income arising from such value.
    4. -: Not Subject to Partition. A homestead as such is not subject to partition. If it can be severed and set apart irom the rest of the real estate, it cannot be sold at the partition sale.
    5. PARTITION: Severance and Subsequent Sale of Homestead:, Bill of Exceptions. Where the proceedings in a partition suit have been regular up to the time the report of the commissioners appointed to admeasure and set off the homestead has been filed, the court cannot thereafter, order the homestead sold and the value thereof placed in the hands of a trustee for the use of the widow and minors: and if such an order is embodied in a judgment subsequently rendered ordering distribution, it as well as the judgment are for review on appeal, as matters of record proper, and a bill of exceptions is not necessary.
    Appeal from St. Charles Circuit Court. — lion. Edgar B. Woolf oik, Judge.
    Reversed and remanded {with directions.)

      C. W. Wilson and J. W. Wilson for appellant.
    (1) The widow of the deceased homesteader was and is entitled to have her homestead allotted to her in kind, inasmuch as it clearly, appears that the homestead was and can be allotted in a compact body, leaving the residue of the land in a compact body of 50.23 acres. B. S. 1909, sec. 6708-6714; Schaeffer v. Beldsmeier, 9 Mo. App. 444. (2) The only condition under which the statute authorizes the court to order the homestead sold, is in the case where the dwelling house, outbuildings, and lands in connection therewith, in which a homestead shall exist, shall exceed the value provided by the statute, and a severance of the homestead would greatly depreciate the value of the residue or be a great inconvenience to the parties interested, and it appears that such homestead cannot be occupied in severalty without great inconvenience to the parties interested in the homestead or the residue. B. S. 1909, sec. 6714; Schaeffer v. Beldsmeier, 9 Mo. App. 444. (3) If the homestead, as in the case at bar, can be occupied in severalty with perfect convenience and the residue can be used in severalty with perfect convenience, the mere fact that the land as a whole would sell for a little more if sold as one tract than it would bring if sold in two separate tracts, does not authorize the sale of the homestead against the will of the homesteader. The statute plainly bases the right to order the sale upon the proposition that it must “appear that the homestead cannot be occupied in severalty, without great inconvenience to the parties interested in the homestead or in such residue.” * (4) But if section 6714 applies to this case, then, if the court found the homestead could not be occupied in severalty, it should have fixed the value of the residue and afforded the homesteader the opportunity to pay the price of the residue, which she asked to be done. B. S. 1909, sec. 6714.

      W. R. Dalton and B. H. Dyer for respondents.
    (1) "Where a homestead is a part only of an estate held in common it is subject to a proceeding in partition. Beckner v. McLinn, 107 Mo. 289; Secs. 6714, 2559, R. S. 1909. (2) A motion for new trial or a motion to modify a decree must be filed within four days and if filed after four days, and especially 'if not filed until after the adjournment of the term at which the trial was had, it comes too late to perform any office in the case and no exceptions can be predicated thereupon. Smith v. Smith, 192 Mo. App. 105; Windes v. Earp, 150 Mo. 600. (3) Appellant having failed to file a motion for a new trial upon the rendering of the interlocutory judgment of partition and order of sale made at the June term, 1913, or to save her exceptions to such interlocutory judgment by a term bill of exceptions, such interlocutory judgment became final and is immune from attack at a subsequent term of the court. Windes v. Earp, 150 Mo. 605; Richardson v. Schuyler County, 156 Mo. 407. (.4) Appellant having acquiesced in the ruling of the court rendered at the June term, 1913, until the succeeding November term, thereof, and having failed to except to the interlocutory judgment entered at the June term, 1913, on August 8, 1913, and to save her exceptions by a timely bill of exceptions, will be held to have abandoned her exceptions and to have thereby contributed to the final judgment rendered in the case, and her attack on the interlocutory judgment made for the first time at the next succeding term comes too late to have any effect upon the interlocutory judgment. Blanchard v. Dorman, 236 Mo. 435; Simpson v. Scrog-gins, 182 Mo. 560; Reineman v. Larkin, 222 Mo. 156; St. Louis v. Lawton, 189 Mo. 474; State v. Larew, 191 Mo. 192; Windes v. Earp, 150 Mo. 600; Richardson v. Schuyler County, 156 Mo. 407; Moran v. Stewart, 246 Mo. 462; Mexico v. Barnes, 158 Mo. App. 612; Smith v. Baer, 166 Mo. 392; Asphalt Co. v. TJllmann, 137 Mo. 543; Bohn v. Lucks, 165 Mo. App. 701. (5) The statute authorizing the court to deal with the homestead and to order a sale of the whole premises if the case require it, and to apportion the proceeds between the parties and to make all such orders in the premises as shall be equitable and just, is an ample and full investiture of the court with authority and jurisdiction to do precisely what the court has ordered and done in this case. Beekner v. McLinn, 107 Mo. 277; Secs. 6714, 6715, R. S. 1909.
   BROWN, C.

— This is a partition for about 91 acres of ground in St. Charles County, Missouri. _ Originally Harriet U. Dalton, John C. Brown and Lucy L. Brown were plaintiffs, and William Simpson, Seony. Simpson, Prank Simpson, Bertha Simpson, Joseph Simpson, Lora Simpson and Beulah Simpson were defendants. The petition is as follows:

“Plaintiffs state that they and defendants are the owners in fee in common and in possession of the following described real estate in St. Charles County and State of Missouri, to-wit:”

(Plere follows a description by metes and bounds of the land involved which constitutes a compact contiguous tract, although somewhat irregular in shape. The petition then proceeds):

“That plaintiff Harriet U. Dalton, is the owner of an undivided three-ninths interest in and to said real estate; that plaintiff John C. Brown is the owner of an undivided one-ninth interest in and to said real estate; subject to the inchoate right of dowér of his wife, LucyL. Brown; that plaintiff Lucy L. Brown is the wife of said John C. Brown and has an inchoate right of dower in the first two tracts above described; that defendant William Simpson is the owner, of an undivided one-ninth interest in said real estate subject to the inchoate right of dower in his wife, Seony Simpson; that the defendant Seony Simpson is the wife of said William Simpson and has an inchoate right of dower in the first two tracts above described; that defendant Prank Simpson is the owner of an undivided one-ninth interest in and to said real estate, subject to the inchoate right of dower in his wife, Bertha Simpson; that Bertha Simpson is the wife of said Prank Simpson and has an inchoate right of dower in the first two tracts above described; that Joseph Simpson, Lora Simpson and Beulah Simpson, each own an undivided one-ninth interest in said real estate; that said Frank Simpson, Joseph Simpson, Lora Simpson and Beulah Simpson are all minors and have no legal guardián or curators; that said real estate is not susceptible of division in kind without great detriment to the interest of the parties owning the same. Plaintiffs ask for the appointment of a guardian ad litem for said minors to' look after their interest herein. "Wherefore plaintiffs pray the court for a judgment for partition for said real estate in accordance with the interests of the respective parties hereto as herein set out and for an order for the sale of said land for the purpose of partition and for the distribution of the proceeds of such sale tó the parties hereto according to their respective rights therein, and for such other and further orders and judgments as to the court may seem just and right.”

The defendants were duly summoned at the November term, 1912, of the St. Chárles Circuit Court, during which Osmund Haenssler, Esq., was appointed guardian ad litem of the four infants and answered as follows: “That he has not sufficient knowledge of the matters alleged in plaintiffs’ petition either to admit or deny the same and asks that plaintiffs-be required to make strict proof of the allegations and averments in their petition contained. ’ ’

During the same term and on December 24, 1912, said cause was called and submitted on the pleadings and evidence, and the court entered its jugment defining the rights of the parties and for partition and ordered that the property be sold by the sheriff at the following March term, which was done on March 4th at public vendue for cash to John C. Brown,the highest bidder, for $1250; the thirty-five-acre tract last described in the petition being separately sold subject to the homestead rights of the widow and minor children for $110, and the remainder being separately sold to the same bidder for $1140. The sheriff made his report at the same term. On the 12th of the same month the appellant, Mary Simpson, widow of Wiley D. Simpson, filed in the court her motion to be made a party and to set aside the sale and for the assignment of homestead and dower, which was sustained, the sale set aside, as was also the interlocutory judgment rendered at the previous term, that proper steps might be taken to assign the homestead and dower. A new interlocutory judgment was entered adjudging that the defendants Mary Simpson, widow, and Frank Simpson, Joseph Simpson, Lora Simpson' and Beulah Simpson, the minor children of Wiley D. Simpson, deceased, were entitled to a homestead in the property described in the petition, and appointing commissioners to set it out, and to make report of their proceedings at the following June term. They proceeded to the performance of that duty, setting off for that purpose forty acres from the, south side of the tract in a compact body on which was situated the dwelling house and appurtenances of the deceased owner, in which the widow and minor children resided at the time, and valued it at $1500. They filed their report on June 28th, and thereafter, at the same term, and on the 5th day of August, 1913, while the court was still in session, the plaintiffs filed their exceptions and objections thereto, which omitting the caption and signature is as follows:

“Come now the above- named plaintiffs and object and except to the report of the commissioners appointed herein, filed in this cause on June 25, 1913, and move the court to disapprove said report and reject the same, and for ground for their objections to said report plaintiffs state that said commissioners in their said report have allotted and set apart to defendant Mary Simpson, widow, and Frank Simpson, Joseph Simpson, Beulah Simpson and Lora Simpson, minors, as homestead, 40 acres of land, as same is-described in said'report; that said 40 acres of land so set apart as homestead to said named defendants greatly exceeds in value the homestead to which said defendants are lawfully entitled, said 40 acres being not less than $2000 in value, whereas said defendants are entitled to a homestead not to exceed the sum of $1500 in value; that to set apart to said named defendants a homestead in kind out of the lands described in plaintiffs’ petition and especially to set apart to said named defendants the 40 acres of land described in said report as a homestead, will greatly depreciate the value of the residue of the premises described in plaintiffs’ petition, which, are the lands sought to be partitioned by these proceedings, and will result in great inconvenience to the parties interested in such residue; that if the whole of the lands described in plaintiffs’• petition were sold as one tract they would bring the sum of $3250, .that being the reasonable market value of the said lands taken as a single tract of 90 acres, more or less, but that if the 40 acres described in the commissioners’ said report and set apart by them as a homestead be severed from the residue of said premises and said residue be sold separately said residue of 50 acres will be so injuriously affected by such severance of a homestead that the same will not bring more than $750.
“Wherefore plaintiffs pray the court, the above stated facts being considered, to set aside its interlocutory judgment entered in this cause ordering that a homóstead in kind be set apart to defendants Mary Simpson, Frank Simpson, Joseph Simpson, Beulah Simpson and Lora Simpson and that the court now order the whole of the lands and premises described in plaintiffs’ petition to be sold intact as one piece without the setting apart of a homestead in kind to said named defendants and that a trustee be appointed by the court to collect and receive the value of such homestead in money, to-wit, the sum'of fifteen hundred dollars, out of the proceeds of the sale of said real estate, and that said trustee be empowered to invest or loan out the said sum of money and be ordered to' pay over the income to be derived from the same to said named .defendants during the widowhood of defendant Mary Simpson and the minority of defendants Frank Simpson, Joseph Simpson, Beulah Simpson and Lora Simpson, and that all the balance of -said proceeds of sale be distributed among plaintiffs and defendants according to their respective rights in said real estate.”

On the 8th day of August, 1913, said objections and exceptions came on to be heard, and the court, after hearing evidence, sustained them, set aside its last interloeutory judgment and entered a new one directing the sale of the land as a whole to be made at the November term, 1913, to which the appellant excepted, but neither filed nor took leave to file any bill of exceptions during that term.

At the said November term and on the 3rd day of November, 1913, appellant filed her motion to set aside the said interlocutory judgment of August 8, 1913, and to prohibit the sheriff from making sale of the premises thereon because: (1) it was contrary to. law and the provisions of the statute; (2) it appears from the record and report of the commissioners that the homestead was susceptible of allotment and separate use without inconvenience to the occupant, either of the homestead or residue of the land, and without material depreciation in value of the residue; (3) the sale of the whole tract as a single parcel was ordered without ascertaining and fixing the value of the residue and according the owner of the homestead the option and privilege of paying the ascertained value of such residue as provided by law; (4) it is illegal, unfair, inequitable and unjust in arbitrarily and unconditionally requiring the whole tract to be sold as one body without permitting the offering of the homestead tract and residue separately, so as to determine by actual experience whether it would sell for more as one body than in separate tracts; (5) because the court did not give appellant the option and privilege of paying the value of the residue and retaining the homestead as required by law; (6) the judgment does not permit the proceeds of the homestead to be invested in the purchase of another homestead. The foregoing objections are set out with great detail in the statement of facts supporting them, and. the motion concludes as follows: “And the said defendant, Mary Simpson, widow and homesteader as aforesaid, prays the court for an order setting aside the said interlocutory decree and order of sale, and suspending the sale of the said property, until the further order of this court; that, upon a hearing of the facts, this court confirm and establish the report'of commissioners herein filed, setting apart the said homestead in kind; or, if the court shall find that the homestead, as set off by said commissioners, exceeds in value the sum of fifteen hundred dollars, it appoint other commissioners to set off such homestead and report their proceedings to this court; that, if upon a full hearing of the facts, the court shall be of the opinion that a homestead cannot be set off in kind and occupied in severalty without greatly depreciating in value the(residue of the said property, it proceed to hear the necessary evidence, and ascertain, determine, and 'fix the value of such residue, and give this defendant, the homesteader, the option and opportunity of paying to the other parties, or into court for their use, the value of such residue, and upon such payment, by its decree, vest the full title in and to such residue in this defendant; that, in the event the court finds that a homestead cannot be set aside in kind and occupied in severalty without greatly depreciating in' value the residue of the said property, and that, after it determines and fixes the value of such residue, this defendant fails or refuses to pay such value and take the property and the court orders its sale, the court provide and direct, in its order, not only that the said property be offered for sale as one tract or body, but also that it direct that, at such sale, it be offered in separate tracts, and if it appear, on such sale, that the residue and the -homestead shall sell for approximately as much when offered in separate tracts as when offered as one body, then the allotment in kind be confirmed and the proceeds of the residue be distributed to the parties according to their several interests; that, if the entire property be sold and conveyed, the court, in its order and decree, provide and authorize the fifteen. hundred dollars, the value of the homestead, to be invested in the purchase and acquisition of another homestead for the use, occupancy, and enjoyment of the parties, and that this court, in its decree, make all such orders as shall be equitable and needful in the premises.”

This motion came on to be heard on the next day (November 4th), was overruled, and appellant duly excepted. The sheriff proceeded on the same day to sell the land at public sale, and the plaintiff Harriet U. Dalton being the highest bidder therefor at $2238.50 it was sold to her for that price.

The sheriff reported this sale to the court on November 10th and on the 13th day of the same month, while the. court was still in session the appellant filed her motion to set aside the last sale and to set aside and modify the interlocutory decree of August 8, 1913, and confirm the report of the commmissioners theretofore made, setting out the homestead. This motion, in addition to repeating substantially the grounds set forth in the motion previously filed, and determined November 4, 1913, setting up inadequacy of the consideration received, and the fact that the.last sale had demonstrated that the" setting out of the homestead would not depreciate, for purposes of sale, the value of the residue of the land, which had brought more at the separate sale first held than at the last sale when the entire tract was sold without division. The motion concluded as follows:

“This defendant prays that said report of sale and said sale be set aside; that the order of sale and judgment of August 8, 1913, herein be get aside and that the report of commissioners heretofore herein filed allotting' and setting off a homestead in kind, be approved and .confirmed; or if the court be of the opinion that the value of the homestead as allotted in said report exceed $1500, it appoint new commissioners to set off a homestead in kind; that the court then order the residue of said land to be sold by the sheriff, so that full title to the same may be given, but in its order fix the value of said residue and give this defendant, the homesteader, an opportunity to buy the same at the appraised value, if it does not bring more at such sale, and this defendant offers to take said residue upon a full title thereto being made to her at the price and sum of $850; or if it appear more equitable and just in the judgment of the court, that this court set aside the said sale in so far as the homestead allotted in kind by the commissioners is concerned and confirm the report of commissioners, allotting the homestead in kind, but confirm the sale as to the residue and order a deed .for said residue to he made to the purchaser, John O. Brown, plaintiff herein, upon the payment to the sheriff of $755.75, the value of said residue, as shown by deducting the value of the homestead from the total price.
“Defendant asks for all other just and proper orders in the premises.”

Thereafter at the same term this motion came on to be heard and was overruled, to which the appellant excepted. Thé court thereupon approved and confirmed the report of sale and made its final order of distribution, and appellant duly excepted. During the hearing of the motion last mentioned the report of the first sale already referred to was introduced in evidence, as well as the report of the commissioners thereafter appointed to set out the homestead. After motion for a new trial filed in due time and overruled' this appeal was taken from the final judgment.

I. The elaborate argument of the respondents is devoted entirely to the question whether we have before us in the bill of exceptions which constitutes a part of the record, the facts necessary to the consideration of this case upon its real merits. This, in the view we take, seems unimportant. The' reasons for our conclusions in this respect will sufficiently appear as we proceed to notice what seem to us to be the real questions in the controversy.

II. . The suit was originally instituted to partition ninety acres of land of which Wiley D. Simpson died seized, upon which was -situated the dwelling house - and appurtenances where he then resided with his wife and children, four of the latter being m^norg a-j. p[ie time of the trial. The parties, plaintiffs and defendants, -were his children or their representatives in interest. The widow who, with his four minor children, was living in the family residence, was not made a party, the petition béing' framed upon the theory that thirtyffive acres of the land, including the dwelling, had been set off to her and the minors as a homestead by the probate court, and the sale of this tract, subject, to the homestead, together with the remaining fifty-five acres, was asked.

The suit was returnable to the November term, 1912, of the St. Charles Circuit Court, at which an interlocutory judgment was entered' defining the interests of the parties according to the petition and ordering the sale of all the land subject to the assumed interests of the widow and minors in the thirty-five acre tract. The sheriff sold the land to the plaintiff John C. Brown for $1250 subject to the homestead interests, and upon the coming in of his report at the March term, 1913, the appellant filed her motion to be made a party and to have the homestead set off, which had not in fact been done. She was admitted as a defendant, the sale and interlocutory decree were set aside, and a new interlocutory decree entered appointing commissioners to set out the homestead. They set off forty acres of the land, including the dwelling, and reported at the June term.

It was then that this trouble began. The plaintiffs filed exceptions to the report, asking that the interlocutory decree entered at the March term be set aside; that the entire land be sold in a single body; that $1500 of the proceeds be placed in the hands of a trustee, to be appointed, to invest the same and pay the income to the parties who would from time to time be entitled to the homestead. This motion was sustained, the report of the commissioners set aside and a resale ordered as asked, and the question now presented is the propriety and validity of that decree.

Before the sale under this last order at the November term the appellant filed her motion to prevent it, and after the sale filed a similar motion to have it set aside. In both these motions she asked for the assignment of her homestead.

The homestead laws are sui generis. Their object is to preserve inviolate a modest home for the family, which is the potential unit of civilization. They refer only to the roof that covers it, and the surrounding soil from which its sustenance.is assumed to spring. When these are converted into, money its existence ceases, and can only be restored by its reconversion into.bonse and land. This principle is tbe stone which is the head of the corner of all statutory constructions relating to the subject. The existence of the home and not of the money which represents its value is the foundation on which such statutes stand. They must be construed in harmony with that purpose, and must be .carefully scrutinized before they can be held to intend its defeat.

. Our own statutes leave no room for uncertainty in this respect. The article relating to partition, under which this suit was brought, describes with great particularity the estates subject to its provisions, but is silent as to the homestead (R. S. 1909, sec. 2559)$ so we must go to the homestead law for information as to the duty and powers of the court with reference to it in such proceedings, and find them concentrated in section 6713 of our present Revision. It is as follows:

“Whenever, in any case not in this chapter otherwise provided for, it shall become necessary, in any proceeding at law or in equity, to sever or set out any homestead from other real estate, the court in which such proceedings shall be pending may appoint three commissioners to appraise and set out such homestead, which commissioners, after being sworn to the faithful' discharge of their duties, shall appraise and set out such homestead in the same manner as is provided in fhid chapter for setting out homesteads in case of the levy of execution, and make report of their doings to such court, which report shall be confirmed by such court, unless good cause be shown to the contrary; and a record thereof shall be made in the records of lands, where a deed of such homestead would by law be required to be reported, which shall operate as a severance of such homestead from such other real estate.”

This court has not left us without authority that this section means what it says, no more, no less. In Simpson v. Scroggins, 182 Mo. 560, 571, referring to it we said:

“Doubtless in this partition proceeding, when the court ascertained the existence of a homestead, it proceeded to sever it from the balance of the real estate sought to be partitioned, in pursuance to the provisions of the foregoing section. In this character of proceeding, that was the only power the court was authorized to exercise.”

In the later case of Brewington v. Brewington, 211 Mo. 48, the heirs asked for the sale in partition of the homestead in connection with contiguous lands, alleging that the value of both would be greatly depreciated by a separate sale. This the trial court refused, holding that the homestead was not subject to partition in that action, and this court in sustaining its judgment said: “That a homestead may be set out by á partition proceeding, no one questions; but in this case the homestead has been set out and the question is whether, having been set out, it may be partitioned among' the heirs prior to the youngest attaining its majority?

“That a homestead, as such, is not subject to partition results from the inherent'character of the estate and the purpose it subserves under the policy of our laws. [Rhorer v. Brockhage, 86 Mo. 544; Simpson v. Scroggins, 182 Mo. l. c. 571, 574; Quail v. Lomas, 200 Mo. l. c. 687.]”

That ease coincides in all respects with the one before us. It comments on Beckner v. McLinn, 107 Mo. 277, and so far as the opinion in that case implies a contrary doctrine, necessarily overrules it.

The Legislature in the next section (6714) gives emphasis to its intention to limit the power of the court in partition cases, as well as in all other proceedings in which other interests are involved, to meddle with the homestead otherwise than to detach it in kind from the subject of the litigation, so that the interests of the widow and children in its preservation and devotion to the beneficent purpose for which it was created might not be smothered among interlocking issues. It foresaw that circumstances might arise in which the protection of these interests would require the sale of the property, and section 6714 was enacted to' safely provide for such contingencies. It provides that: “Whenever any dwelling house, outbuilding and the land in connection therewith,'in-which-a homestead shall exist, shall exceed- the respective value mentioned in section 6704, and a severance of such homestead would greatly depredate the value of the residue of the premises, or he of great inconvenience to the parties interested either in such residue or in such homestead, either party may apply to the circuit court by petition, setting forth the facts, for relief; and upon the hearing of such petition, if it shall appear that such homestead cannot he' occupied in severalty without great inconvenience to the parties interested in such homestead or in such residue, the court may order such homestead to he transferred to such other parties, and the payment of the value of the homestead interest to the owner thereof; or, at the option of such owner, may order such other parties to transfer such residue to him, and order him thereupon to pay such other parties the value .thereof, to be fixed by the court; or, if the case require it, the court may order a salé of the whole premises, and apportion the proceeds between the parties; . and such court may make all such orders in the premises as sháll he equitable and needful. ’ ’

This is the only provision of the law by which it is possible for the court to deprive the widow and minor children of the deceased householder of the title vested' in them by the provisions of section 6708, and it guards their rights with care.

There are many cases we can imagine in which this provision may be necessary and useful, but we find nothing in it that indicates the intention of the Legislature to nullify the purpose of the law by forcing a sale because contiguous lands may have a sentimentál value from their proximity to a cottage wth its curtilage and buildings. We can imagine that if the cottage itself represented the full measure of value allowed for a homestead, it might he just and reasonable to give the widow and children an opportunity to purchase these appendages, which would have their real value from their connection with a home; or, if she should be unable to do so, to give the persons to whom they would go an opportunity to purchase the cottage which, as a home, would give them their value; and the Legislature in the section we have just quoted has shown its foresight with respect to this and other similar conditions that might arise by authorizing a suit in which the widow and children shall have the privilege or “option” to save their home by the purchase of the curtilage. This must be done in a proceeding by petition for •such relief, “setting forth the facts,” and cannot be made a device by which the plaintiff in a partition suit may swallow the homestead as is attempted in this case. This widow availed herself of every opportunity to deny the power of the court to do this and to demand her rights. She offered to purchase the entire farm outside the homestead, either at a valuation to be fixed by the court, or at a price to be ascertained by actual experiment. On what principle the court, assuming to act under the provisions of section 6714, did this, does -not appear. The reason which actuated it in finally approving a sale by which the outside lands, sold in connection with the homestead, brought less than had been realized in a separate sale, does not appear, nor do counsel attempt to justify it in argument. The judgment stands here simply as the culmination of an attempt to bar the homestead right of the widow and relegate her to a net income of perhaps seven dollars per month instead of the roof and ground to which she had the right to look for shelter and sustenance for herself and the children. It must look to the law alone, unaided by any principle of equity, for success.

III. It is true, as contended by respondent, that all matters of exception taken upon the trial of a partition case resulting in the “judgment that partition be made,” and declaring “the rights, titles and interests of the parties,” must, like all other exceptions, be saved by bill or leave to file a bill during the same term. [Blanchard v. Dorman, 236 Mo. 416, and cases cited.] It is equally true that the interlocutory judgment is a part of the record which we are called upon to examine, and of the judgment which must he affirmed, reversed or modified by this court. Had the appeal been taken directly from it the question would have been presented whether it is sustained by the. record proper before this court; and the same question arises in this appeal from the final judgment of which it is a part, and which is dependent upon it for support.

The petition discloses on its face the facts necessary to determine that question. It states that a homestead had been assigned from the very land in question, but does not ask for its sale, nor is the appellant made a party. . In the condition of the pleadings as they then stood no foundation was laid for either the setting off of the homestead or for its sale, nor were the parties present to authorize such proceedings. At the March term these conditions were changed by the coming in of the appellant as a party, the setting aside of the original judgment, and the entry of the new judgment that the homestead be set off to her and the minors, which was done by the commissioners appointed for that purpose, who reported at the June term.

Up to that point all the proceedings had been regular so far as the interest of the appellant is concerned. She had got what she asked and was entitled to, and the action of the court up to the time of the filing of 'the report should stand. The motion then filed by the plaintiffs set out fully the right of appellant and the children to the homestead, and thus, as we have seen in the preceding paragraph, negatived the right of the court to make the order of sale, which was therefore irregular and erroneous upon the record proper and should be set aside. For this purpose it was under the control of the trial court until, with its record infirmities, it became merged in the final judgment we are now reviewing. [Aull v. Day, 133 Mo. 337; Fogle v. Pindell, 248 Mo. 65, 71-2; Davidson v. Real Estate Co., 249 Mo. 474, 493-6.] The case last cited is rich in the citation of authorities directly applicable here. The question here is whether the final judgment is supported by the record upon which it was entered and upon which it must stand for its regularity.

It is unnecessary for ns to decide whether or not, had this motion been a petition under section 6714, it would have been insufficient' on the ground that it stated no facts to support the conclusion in which it was based. It is a proceeding in this case, and must stand or fall accordingly.

Having arrived at this conclusion it is unnecessary to deal at this time with the subsequent proceedings of the trial court as-shown by the record, including the hill of exceptions taken during the November term, 1913.

We therefore reverse the judgment of the St. Charles Circuit Court, and remand the cause to that court with directions that all orders and judgments in said cause made subsequently to the coming in and- filing of th’e report of the commissioners appointed by said court at its March term, 1910, to admeasure and .set off to the appellant and minor children of Wiley D. Simpson a homestead in the premises therein described, he set aside, so that said cause shall stand in said court upon said report, with leave to the parties respectively to proceed further with reference thereto as they shall be advised; and that the court proceed to final judgment in said cause in accordance with the views herein stated.

Railey, C., concurs.

PER CURIAM.

— The foregoing opinion of Brown, •C., is adopted as the opinion of the court.

All of the judges concur.