author: WALKER, P. J.

text:
    THE STATE v. ALLEN STEMMONS, Appellant.
    Division Two,
    July 30, 1918.
    1. SEDUCTION: Corroboration. While it is not necessary, in a prosecution for seduction, that there shall be two witnesses to sustain the charge, nor need the corroborative evidence be tantamount to another witness, it must be sufficient to counterbalance the testimony of the accused and thus remove the legal presumption .of his innocence.
    2. -: -: Promise of Marriage. In a prosecution for seduction corroborative testimony is required only as to the promise of marriage, and may consist of circumstances, but must come from others than the prosecutrix. It may consist of evidence of such conduct on the part of the parties as usually accompanies a promise of marriage, or admissions of the defendant, or continued attentions by him to prosecutrix, covering a long time, including frequent visits, during which she kept no other company, and proof of preparations for marriage made by prosecutrix following a continuous courtship is competent.
    3. -: Promise of Marriage: When Made. In a prosecution for seduction it is not necessary that the promise of marriage be made immediately preceding the intercourse; all that is necessary to show is that if made then or previously defendant thereby accomplished prosecutrix’s seduction.
    '4. --: Proof That Prosecutrix Was Unmarried. It is essential in a seduction case that it be made to appear by evidence that prosecutrix was unmarried; but such status may be shown by facts and circumstances. So where prosecutrix testified that she had- never had sexual intercourse with any one except defendant, that he told her that if she got into trouble on account of her relations with him he would marry her at once, she bore her parent’s name, was questioned throughout the trial as ‘’Miss,” was referred to as “this girl,” and the details of her manner and place of living and of her associations with defendant indicated an unmarried status, the evidence was sufficient to support a finding ' that she was unmarried, although there was no affirmative statement 'by any witness that she was unmarried.

      5. -: Barter for Promise. The forceful facts of this case, showing the bringing into play by defendant of the arts and blandishments of the seducer, leave nothing on which to base a contention) that, instead of being seduced within the meaning of the statute, prosecutrix bartered away her virtue in exchange for a promise of marriage.
    6. -: Instruction: Argumentative: Comment on Evidence: Attributing Pregnancy to Betrayal. An instruction which is argumentative in form, and an improper comment on the testimony of prosecutrix, should be refused; and an instruction in a seduction case, which tells the jury that they should “scrutinize the testimony of the prosecutrix very closely, for the law assumes that a woman, finding herself pregnant, has the most potent motives to assert her condition was brought about by a promise of marriage, for very obvious reasons: she must excuse the act to her family, to her friends and to society, and every consideration would impel her to attribute it to deception and betrayal,” is such an instruction.
    7. -: -: Corroboration of Promise: Preparations for Marriage. There being positive testimony by others than prosecutrix that after the promise she had made preparations for marriage, and defendant having made no effort to show that they were not made nor to question their good faith, the trial court did not err in giving an instruction authorizing the jury to consider the preparations she had made for housekeeping as one of the corroborating circumstances of the promise of marriage, “although it has not been shown that defendant had knowledge of such preparations.”
    Appeal from Jasper Circuit Court. — Hon. R. A. Pearson, Judge.
    Affirmed.

      J. D. Harris for appellant.
    (1) The testimony of the prosecutrix ought always, in this class, of cases, to be closely scrutinized; for finding herself pregnant she has the most potent motives to assert that her condition was brought about by promise of marriage. State v. Eckler, 106 Mo. 593. (2) If the illicit intercourse was permitted, by the prosecuting witness, as a mere barter and trade for the promise of marriage, then it is not seduction under the provision of the statute. The evidence developed on the trial is not sufficient in this case to support the. verdict. The testimony of the prosecutrix shows that the illicit intercourse was permitted by her as a mere barter and trade for the promise of marriage. In order to constitute this offense there must be the exercise of certain influences upon the affections of the female by reason of the promise of marriage, and there must be to some extent the bringing into play of certain arts and blandishments directed to her, reasonably sufficient, aided by the promise of marriage, to have her yield to his desires. These things cannot occur where the prosecutrix stands off and at arms-length barters the illicit intercourse for the promise. State v. Mitchell, 229 Mo. 698, 676; State v. Reeves, 97 Mo- 677. (3) The burden rests upon the State to prove, as an essential element of the- crime charged, that the prosecutrix was •an unmarried woman. There is a total failure of proof on this subject. State v. Wheeler, 108 Mo. 664. (4) There is no sufficient evidence to corroborate the prosecutrix, as to the promise of marriage, to sustain a conviction. That such corroboration is essential is settled by the statute and by the decisions. R. S. 1909, sec. 5235; State v. McCaskey, 104 Mo. 644. The act and conduct of the defendant, as detailed by the prosecutrix, instead of tending to corroborate her on her claim that there was a promise of marriage is all the other way. If he had promised to marry her, way did she not confront him with that promise before her own people and his people at the time she found herself in an unfortunate condition? Why did she wait until after the child was born before undertaking to bring him to account on such alleged promise? Her own tardiness in making the charge against the defendant and on the very eve of his marriage to another young woman taints her whole contention as to the pretended promise of marriage with suspicion. State v. Reeves, 97 Mo. 677. (5) Instruction number three given on behalf of the State is erroneous. The vice of this instruction consists in a comment on the evidence; an assumption that certain facts were true that were, in fact, controverted; and in reference to acts of the prosecutrix, out of the presence and without the knowledge of the defendant, as being sufficient to corroborate her on the promise of marriage. (6) The rule that a promise of marriage or its repetition must be made at the time of the illicit relation was established in the case of Wilson' v. State, 58 Ga. 328, and in the case of Espy v. Jones, 1 Ala. 454. The Wilson case is quoted with approval by this court in State v. Thornton, 108 Mo. 1. c. 653, and it is submitted that this is the true rule of decision. State v. Eckler, 106 Mo. 592. Granting there was a previous promise of marriage made two or three months before the illicit intercourse, the solicitation and procurement of illicit intercourse could hardly reasonably be referred back to that promise of marriage, unless the promise of marriage was renewed or again made.

      Frank W. McAllister, Attorney General, and George V. Berry, Special Assistant Attorney-General, for respondent.
    (1) Instruction D asked by defendant was properly refused as an unwarranted comment on the evidence. State v. Lewis, 264 Mo. 432; State v. Sublette, 191 Mo. 173; State v. Mitchell, 229 Mo. 697; State v. Grugin, 147 Mo. 56; State v. Kimmell, 156 Mo. App. 468; State v. Chinn, 153 Mo. App. 613. (2) There was no évidence. of any barter or trade at the time of seduction. State v. Walker, 232 Mo. 264; State v. Reed, 237 Mo. 226; State v. Mitchell, 229 Mo. 698; State v. Phillips, 185 Mo. 188; State v. Eckler, 106 Mo. 587. (3) The State proved every essential element in the case. State v. Fisher, 162 Mo. 171; State v. Reed, 153 Mo. 453; State v. Marshall, 137 Mo. 466; State v. Thornton, 108 Mo. 554; State v. Waterman, 75 Kan. 257; State v. Iieather- . ton, 60 Iowa, 177; Lewis v. People, 37 Mich. 520. (4) There was ample evidence in corroboration of the prosecutrix as to the marital engagement. State v. Eisenhour, 132 Mo. 147; State v. Davis, 141 Mo. 525; State v. Wheeler, 108 Mo. 665; State v. Hill, 91 Mo. 425; State v. Fischer, 124 Mo. 463; State v. Dent, 170 Mo. 406. (5) Instruction Number 3 correctly declared the law and was fair to defendant. State v. Walker, 232 Mo. 264; State v. Fogg, 206 Mo. 709; Underhill on Criminal Evidence, sec. 388, p. 666; Rice on Crim. Evidence, p. 878; 35 Cyc. 1364.
   WALKER, P. J.

An information was filed in the circuit court of Jasper County, charging defendant with seduction under promise of marriage. Upon a trial, he was convicted and sentenced to two years imprisonment in the penitentiary. From this judgment he appeals.

Soon after defendant became acquainted with the prosecutrix, in December, 1914, he became very attentive to her and so continued until August, 1915, when he proposed marriage, and she accepted. Moved by his promise, she prepared table linen, sheets, pillow cases, and other articles necessary for household use. He continued his attentions until October, 1915, and one day when they were out riding in an automobile, he insistently solicited sexual intercourse with her, urging her that, being engaged, they were married in the sight of God, and that a marriage ceremony was merely a formality, and would make no difference in their relations. She demurred, saying that they were not married in the sight of man. He persisted in his solicitations, declaring if she cared for him, she would consent; that no one would ever know of it. Relying, as she says, upon his promise to marry her, like Donna Julia, “a little still she strove, and much repented, and whisperring that she’d ne’er consent, consented.” Again in November, 1915, moved by like blandishments, protestations, and promises on his part, she lent herself- to his embraces. As a consequence of this intercourse, she became pregnant and gave birth to a child in July, 1916.

Good news is received gladly, but reluctant credence is given to evil tidings. When, therefore the prosecutrix told the defendant of her condition, he refused to believe her. Finally convinced, he procured some medicine for her relief, and gave it to her. Its effect was futile. He then consulted a physician who refused to perform an abortion on the prosecutrix. Defendant then told the prosecutrix he would take her to some place where she could have attention. It was arranged that she was to write to her parents that she was coming’ home, being then at her grandmother’s in Jasper County, and her párents residing in Kansas. But, instead of going home, she was to go to Kansas City, where he would meet her. In compliance with this agreement, she went to Kansas City, where he met her at the railroad station, took her to a maternity hospital, and made arrangements for her stay there until after her confinement, paying the manager $100 to defray her expenses, and subsequently an additional $100 for a like purpose. He went away and did not return until several days later. Her parents, in the meantime, had learned of her condition and whereabouts, and by agreement defendant met them at the hospital. He reached there before they did. Upon his arrival, he informed the prosecutrix that her parents knew of her condition, and were coming to see her. He requested her to tell them that she did not want to marry the defendant until after the baby was born; that immediately after its birth, it could be put in a home and she could get it later, and that she must make a favorable report of his relations with and conduct towards her. When the parents arrived, they found the defendant there in conversation with the prosecutrix. In response to an inquiry made by the mother, defendant stated that he knew no one else than himself had engaged in sexual intercourse with the prosecutrix. Asked further by the mother if he would marry the prosecutrix, he replied: “I didn’t say I wouldn’t.”

Defendant testifying in his own behalf, denied all of the facts of an inculpatory nature in the foregoing statement. He admits that he arranged for the prosecutrix’s stay at the maternity hospital, and that he paid her expenses while there; but says he did this through fear of blackmail; that he had never shown the prosecutrix any attention as a lover, and had seldom ever been in her company; that he had never had sexual intercourse -with her; that' his acquaintance with her wds but casual; that she came to a drug store in the neighborhood, where he was employed, told him she was pregnant, and asked him to give her something to produce an abortion; that he refused to do so; that she persisted in her request, and finally said, if he did not provide a means for her relief, she would charge that he was the cause of her trouble; that, impelled by fear of her so doing, he went to a physician and solicited his aid in the matter; that the latter refused to become a party to the proposed crime; and as a last alternative, in an effort to remove from his horizon this impending cloud, he took her to Kansas City, placed her in a maternity hospital and advanced the money for the attention she was to receive while there.

The record is burdened with other testimony pro and con, much of it entirely irrelevant, to impeach this or that witness, or to show by facts and circumstances, often remote in their connection with the main issue, the relations existing between the principals in this miserable drama. We have set out enough of the testimony to define its general character. What we are concerned in is the proof as to the promise here alleged to have been made, as affecting the commission of the crime charged, and the other errors assigned, as we may be able to glean them from the argument submitted by counsel for defendant under the misleading title, as here employed, of Points and Authorities.

I. It is contended that the testimony of the prosecutrix as to the promise of marriage was not sufficiently corroborated, and as a consequence, that the crime charged was not made out- as required by Section 5235, Revised Statutes 1909. Contentions of like nature have been made in the all-toonurnerous eases arising under the statute (Sec. 4478) denouncing the offense here charged. As a consequence, almost every phase of objection to proof of this nature has been under consideration. The letter of the statute (Sec. 5235), defining the measure of corroboration, is, that it shall be to the same extent as that required of the principal witness in perjury. The reason underlying this statute is that in prosecutions for seduction, as in those for perjury, in the absence of corroboration, it would simply be the oath of the complaining witness against that of the accused, or an oath against an oath, resulting in a counterpoise of testimony, and leaving it doubtful as to where the truth lies. While it is not necessary, in a prosecution for perjury, that there shall be two witnesses to sustain- the charge as under the old rule, nor need the corroborative testimony be tantamount to another witness, it must be sufficient to counterbalance the testimony of the accused and thus remove the legal presumption of his innocence. [State v. Richardson, 248 Mo. 563, 153 S. W. 727; State v. Hunter, 181 Mo. 316, 80 S. W. 955; State v. Faulkner, 175 Mo. 546, 75 S. W. 116; State v. Heed, 57 Mo. 252.] Likewise, in prosecutions for seduction, as in the instant case. While the corroborative testimony, required only as to the promise, may consist of circumstances, they must come from other than the prosecutrix. [State v. Long, 257- Mo. 1. c. 208.] While it need not be such as standing alone would justify a conviction' in a case requiring only the testimony of one witness, it must be at least strongly corroborative of the testimony of the prosecutrix. [State v. Bruton, 253 Mo. 1. c. 370.] It is not necessary that such supporting proof shall be the testimony of a witness who heard the promise of marriage, but evidence of the conduct of the parties such as usually accompanies a promise of this character will suffice. [State v. Teeter, 239 Mo. 1. c. 487.] Admissions of the defendant, as to the promise, are sufficient. [State v. Long, 238 Mo. 383; State v. Sublett, 191 Mo. 1. c. 172:] Continued attentions by defendant to the prosecutrix covering a long period, consisting of frequent visits during which she kept no other company, will sufficiently support her testimony that her ruin was consummated under a promise of marriage. [State v. Eisenhour, 132 Mo. 140; State v. Brassfield, 81 Mo. 1. c. 159.] In short, evidence of material circumstances which usually' accompany a marriage engagement, proved by other witnesses, will satisfy the statute. As to what these particular circumstances may be, each case must, to a great extent, be its own guide. [State v. Davis, 141 Mo. 1. c. 525; State v. Wheeler, 108 Mo. 658; State v. Hill, 91 Mo. 423.] Proof of preparations made for the marriage by prosecutrix following a continuous courtship, may properly be introduced to corroborate the promise. [State v. Walker, 232 Mo. 1. c. 265; State v. Fogg, 206 Mo. 696.] It is not necessary that the promise be made immediately preceding the intercourse;' all that is necessary to show is that if made then or previously, defendant thereby accomplished the prosecutrix’s seduction. [State v. Brassfield, 81 Mo. 1. c. 160.] Guided by these illustrative precedents, are the facts at bar sufficient to bring this case within the requirements of the statute? For a period extending over several months, animated no doubt by that old maxim that “ ’tis man’s province to sue, but woman’s to consent,” he was unremitting in his attentions to the prosecutrix. During this time he twice promised to marry her. Resting with confidence in the sincerity of his purpose to comply with this promise, she accepted no other suitors; and in hopeful anticipation of her marriage with him she prepared, with her own hands, such articles of household use as the needle of the efficient and' industrious woman can fashion. These circumstances disclosed by other than her own testimony, attest the good faith of her reliance on his promise, give corroborative sup-port to her testimony, and cast no uncertain shadow upon the truth of defendant’s statements on the witness stand. We overrule this contention.

II. It is urged that proof is lacking to show that the prosecutrix was an unmarried female. We said in State v. Wheeler, 108 Mo. 1. c. 664, that it was just as essential that it appear by evidence that the prosecutrix was unmarried, as that she was of good repute, and that such status will not be presumed in the absence of any evidence whatever on that point. In State v. Reed, 153 Mo. 1. c. 453, reference is made to the rule as announced in this regard in the Wheeler case, the court observing in discussing the quantum, of evidence necessary to sustain a conviction, that it was not absolutely necessary that the fact, that the prosecutrix was at the time of her seduction an unmarried female, be shown by direct and positive testimony; but that it is sufficient if it be shown, like any other material matter necessary to a conviction, by facts and circumstances. In the Reed ease, there was no direct and positive testimony that the female was unmarried, but it was held that the record disclosed such facts and circumstances as to warrant the jury in so concluding. This holding was approved in State v. Pipkin, 221 Mo. 1. c. 460. Although this case was lacking in direct evidence of the unmarried condition of the prosecutrix, this court held that her testimony that she had never had intercourse with any one except the defendant was a strong circumstance tending to show her unmarried condition. As further circumstances tending to prove this condition; it was shown that her father’s name was Bailey, and that she was addressed throughout the trial as Miss Bailey, and in other terms, indicating that she was single. In State v. Sutton, 232 Mo. 1. c. 249, testimony similar in all its material features to that introduced in the Pipkin case, was held sufficient to prove the single status of the prosecutrix, within the meaning of the statute.

In the case at bar, the prosecutrix testified that she had never had sexual intercourse with any one except the defendant; that he told her if she got into trouble on account of her relations with him, they would marry at once. She bore her parents’ name, and was questioned during the trial as “Miss” or as “this girl,” or “that girl,” dependent upon the recognition by the examiner of those conventionalities which, while minor, are always characteristic of good .breeding. The place and manner of her living, as well as the character of her association with the defendant during all of their acquaintance, is strongly indicative, as are the other circumstances stated, of her unmarried condition. This contention hangs upon the single thread of the lack of an affirmative statement by some, witness that the prosecutrix was unmarried. The facts and circumstances tending to show this condition are as convincing in their nature and have as much probative force".as those adduced for a like purpose and held sufficient in the cases cited. There was not an intimation to the contrary during the trial. The Supreme Court of Iowa says, in a seduction case, in discussing the quantum of evidence necessary to sustain a conviction, that “a cause cannot be reversed on the ground that there was no direct evidence of a material matter, which was throughout the trial assumed to be true.” ‘ [Egan v. Murray, 80 Iowa, 180.] Putting aside the literal wording of this ruling and construing it to mean that a case “should not be reversed” under the conditions stated, it announces a wholesome doctrine. One, the observance of which, tends to the brushing aside of attentuated contentions and the decision of cases upon substantial facts. In the presence of the facts and circumstances here, sufficiently cogent in; our opinion, to satisfy the impartial mind that the prosecutrix, not only at the time of her seduction, but at that of the trial, was an unmarried woman, it is not necessary to invoke the rule thus announced. We hold the contention without merit.

III. The forceful facts in this case, showing the circumstances under which the defendant overcame the prosecutrix, leave nothing on which to base the contention that instead of being seduced within the meaning of the statute, she bartered away her virtue, The'Reeves case (97 Mo. 1. c. 676), relied on to sustain this contention, presented an altogether different state of facts from those at bar. There, the conditions were, as rather strongly put by the author of the opinion, in the face of the actual facts, “a blunt consent to intercourse in exchange for a promise of marriage.” This interpretation of the evidence, while ostensibly directed at .the force of the testimony, was, in fact, employed in the discussion of the sufficiency of an instruction, which omitted a prime essential to conviction, viz., that the jury find that the prosecutrix had been “seduced.” No such question is here involved, the instructions being immune from error in this regard. The other case to which our attention has been called as an authority to support the contention here made, is that of State v. Mitchell, 229 Mo. 1. c. 698. The judgment of conviction for seduction was in that case’ affirmed. The only manner in which the question of the sufficiency of the evidence as to seduction was even referred to was an incidental statement that illicit intercourse permitted by a prosecutrix, as a barter and trade for a promise of marriage, was not seduction, as defined by the statute (Sec. 4478); that arts and blandishments must be brought to the aid of the promise to influence the prosecutrix in yielding to the seducer’s desire. The testimony here discloses the bringing into play by defendant of such arts of the seducer as the cases say will constitute seduction. This is enough to bring the case within the purview of the law.

IY. The refusal of Instruction D., asked by defendant, is assigned as error. It is as follows: “The court histructs the jury that in passing upon the evidence and in determing its weight and credibility, it is your duty to scrutinize the testimony of the prosecutrix very closely. For the law assumes that a woman, finding herself pregnant, has the most potent motives to assert that her condition was brought about by a promise of marriage, for very obvious reasons: she must excuse the act to her family, to her friends and to society, and every consideration would impel her' to attribute it to deception and betrayal; and the jury should, therefore, pass .upon the weight and credibility of her testimony with these considerations in view.” This instruction is argumentative in form, and an improper comment on the testimony of the prosecutrix. It is elementary that an instruction is erroneous which singles out and comments upon any part of the testimony. In the Sublett Case, 191 Mo. 1. c. 173, we held that the defendant was not entitled to an instruction which told the jury that the testimony of the prosecutrix must be strongly corroborated by clear proof; and in the Grugin Case, 147 Mo. 1. c. 56, it was held sufficient ground for a reversal that an instruction singled out a particular fact for the consideration of the jury. Instruction ,D. was, therefore, properly refused.

Instruction numbered 3, given at the request of the State, in regard to the evidence necessary to corroborate the prosecutrix as to the promise of marriage, is assigned as error, on the grounds that it is a comment on the evidence, and an assumption of facts not proven, in that the testimony as to her preparations for marriage were' not known to defendant, and, consequently, the jury should not have been instructed that such acts might be taken into consideration, as tending to prove a promise. These preparations were established by other than the prosecutrix’s testimony. While it is not necessary that they should have been corrobrated, as is required of proof of the promise, they are supported by many attending circumstances which attest their truth. Among these may be mentioned the unsullied reputation, or as the books put it, the “good repute” of the prosecutrix; the long term of the parties’ social intimacy; his confidence; her fidelity never questioned until the trial; his effort, when he ascertained her condition, to relieve her from the odium of child birth while out of the protecting aegis of wedlock; his payment of her expenses at the maternity hospital; and his statements to her mother in the presence of her father, when asked if he would marry her, that he “had not said he would not.” This last fact he denies, but the jury believed their testimony. Present all of these facts, the trial court gave the instruction, authorizing the jury to consider the preparations she was shown to have made for housekeeping, as one of the corroborating circumstances, although it had not been shown that he knew of such preparations. No effort was made by defendant to show that the preparations were not made, nor was their good faith attempted to be questioned. Confronted with all of the supporting circumstances adverted to,, it cannot be reasonably concluded that they were intended for other than her contemplated marriage with defendant. The instruction was, therefore, not erroneous. Instructions identical in form so far as the. matter here under review is concerned, were approved in State v. Walker, 232 Mo. 1. c. 265, and State v. Fogg, 206 Mo. 696.

The instructions, upon the whole, fully and fairly presented the law in this case under the evidence.

The defendant was awarded a fair trial and the judgment should be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: ROY, C.

license: Public Domain

text:
    SARAH P. CONE, Appellant, v. ELIZABETH DONOVAN et al., Administrators of Estate of JOHN DONOVAN.
    Division Two,
    July 30, 1918.
    1. WILL: Attestation: Knowledge of Witnesses. There can be no valid attestation of a will unless the attesting witnesses know at the time that the instrument is being made and attested as a will.
    2. -: -: Presumption of Knowledge: Genuine Signature. If the instrument purports on its face to be a will and the signatures of the witnesses are conceded to be genuine and those witnesses, though still living, have forgotten the facts as to such attestation, the law may well presume, in the absence of contrary evidence, that all things connected with its execution and attestation were rightly done, and that" the witnesses were informed that the instrument was a will; but such presumption cannot be indulged where the instrument does not púrport to be a will; it will not be indulged if the instrument is in the form of a letter, and the maker concealed from his stenographer the name of the alleged legatee and after the balance was written by her he wrote in the beneficiary’s name, and after it was signed by him and the two witnesses he placed it in a sealed envelope and wrote on it: “In the event of my death I want this letter to be delivered unopened” to a designated friend, and then placed it in a vault among his papers, where it remained until after his death, twelve years later.
    3. -: -: -: Overcome by Evidence. Even if the law, in the absence of contrary evidence, will- presume that witnesses, whose signatures are conceded to be genuine, were informed by the maker that the instrument, which purports on its face to be a will, was his will, such presumption may be overcome by evidence; and where there is strong evidence to overcome it, the finding of the trial court against the paper will not be disturbed on appeal.
    Appeal from Buchanan Circuit Court. — Hon. Charles H. Mayer, Judge.
    Affirmed.

      Fred A. Bangs and O. W. Watkins for appellant.
    (1) Was the document attested by two competent witnesses who subscribed their names thereto in the presence of the testator? It is not necessary that a will should have any prescribed attestation clause. Ela v. Edwards, 16 Gray (Mass.), 91, 92. In the early English case of Hands v. James, 2 Comyns, 530, the court held that the- presumption arose, upon proof of the signatures of the testator and attesting witnesses, that the will had been duly executed, although the details of the execution were not recited in the attestation clause. To the same effect is Croft v. Paulet, 2 Strange, 1109, and the case of John Johnson, 2 Curt. 311. These cases have been cited and approved by the courts of this country and by all leading text-book writers without an exception, and the courts of the United States have extended the doctrine to cases where the witnesses have forgotten the details required by the statute, whether the facts are shown in the attesting clause or not. 1 Greenleaf on Evidence, 38a; 1 Jones on Evidence, sec. 44; 2 Wigmore on Evidence, see. 1512; 14 Ency. ■ Evidence, sec. 407F; 40 Cyc. 1273-1274; Beach Law on Wills, sec. 39. The later English courts and the courts of the United States have extended this doctrine to apply to a case where the witness has forgotten the facts. Clarke v. Dunnavant, 10 Leigh, 13; Tyler’s Estate, 121 Cal. 405; Craig v. Craig, 156 Mo. 362. (2) It cannot he argued that an attestation clause is necessary to the validity of a will, as the rule has always been without any exception, that a will is valid without any attestation clause whatever. 1 Jarman on Wills (4 Ed.), sec. 74; The proof of execution of the will in question is purely a matter of evidence. Tyler’s Estate, 121 Cal. 405; Burgoyne v. Showier, 1 Rob. Eccl. 10; In re. Leach, 12 Jur. 381. In the case of Kirk v. Carr, 54 Pa. 285, the court says: “Want of memory will no more destroy the attestation than insanity, absence or death.” Clarke v. Dunnavant, 10 Leigh, 13; Deupree v. Deupree, 45 Ga. 415; Ela v. Edwards, 16 Gray (82 Mass.) 91; Elliott v. Elliott, 92 Mass. 357; Fatheree v. Lawrence, 33 Miss'. 622; Lawrence v. Norton, 45 Barber 452; McKee v. White, 50 Pa. St. 360; Barnes v. Barnes, 66 Me. 286; More v. More, 211 111. 268; Woodruff v. Hundley, 127 Ala. 640; Tevis v. Richter, 10 Cal. 466; Pennell’s Lessee v. Wegant, 2 Piar. (Del.) 51; Mead v. Trustees of Presbyterian Church, 229 111. 526. In the case of Young v. Banner, 27 Graft. (Va.) 96, the court held, 1. c. 108: “Surely every reasonable presumption ought to be made in favor of the proper execution of the will,” and on page 106, the court says: “Such presumptions are absolutely essential to the protection of property and the security of titles. Were it otherwise the most important and solemn instrumejits would often fail to take effect by the death, or from the mere failure of attesting witnesses, real or assumed, to recall each and every formality presented for the execution of testamentary papers.” Chisholm v. Ben, 7 B. Mon. (Ky.) 408; Gould v. Theological Seminary, 189 111. 287; Butler v. Benson, 1 Barber, 526; Jackson v. Christman, 4 Wend. 277; Carpenter v. Demoon, 29 Ohio St. 379; Ex Parte Brock, 37 S. C. 348; Webb v. Dye, .18 W. Ya. 376.

      John E. Dolman for respondents.
    (1) Mr. Donovan was a man of intelligence, entrusted with the management of large business affairs, and it is only reasonable to presume that had he intended this letter to be a codicil to his will he-would have said so in no uncertain language. He would not have surrounded the execution of it with so much secrecy; he would have informed the witnesses of his intention and would not have directed that the letter be delivered unopened to G. F. Swift, in the event of his death. He would have called it a codicil and not a request, and he would not have called upon Swift to perform this request instead of the executors who undoubtedly he had named in the will to which he.referred. That he did not • intend this letter to operate as a codicil to his will is clearly shown by his intention not to publish it as such, but to have the letter delivered unopened to Swift, in whom he undoubtedly sought to impose a secret trust to carry out or not as he should think best. That he did not intend it to be a codicil is shown not only by the language of the letter himself, but by the fact that when he destroyed his will he did not also destroy the codicil, or at least if he had intended it to be a will he would, upon the death of Mr. Swift, nearly eight years before his own death, have directed it to som.e other friend' or made some change therein to indicate that he still desired it to operate as a will. (2) A will and a codicil thereto are one instrument, and the testator’s intention must be ascertained from the four comers thereof. Middleton v. Dudding, 183 S. W. ¿443. Griffith v. Witten, 252 Mo. 627; Wells v. Fuchs, 226 Mo. 106. (3) “It is not the mere physical act of signing that the witnesses attest; it' is that the instrument signed with the name of the testator is his will.” Walton v. Kendrieh, 122 Mo. 525. “The witnesses must know that it is the will of the testator and witness it as such.” Odenwalder v. Schorr, 8 Mo. App. 467; Withinton v. Withinton, 7 Mo. 589; Cravens v. Faulconer, 28 Mo. 19; Harris v. Hayes, 53 Mo. 90; Norton v. Paxton, 110 Mo. 456; Grim v. Titman, 113 Mo. 57; Ott v. Leonhardt, 102 Mo. App. 43. It is essential that the proper communication he made from the testator to the witnesses so that they may he able to depose to the act having been understandlingly done and that the paper is his will. Mittenberger v. Mittenberger, 78 Mo. 27; Bensberg v. Wash. University, 251 Mr. 657. It is essential that it be made to appear unequivocally that the testamentary character of the instrument was communicated to the witnesses by the testator by some word, sign, act or conduct. 40 Cyc. 118, 119; In Matter of Turell, 47 N. Y. App. Div. 560, 62 N. Y. Supp, 1053,166 N. Y. 330; Robbins v. Robbins, 50 N. J. Eq. 742. Even though the deceased intended the letter in question to be a codicil to his will, the destruction of the will is an implied revocation of the codicil. Woerner Law of Admin., p. 86; Matter of Weston, 115 N. Y. Supp. 1149; 40 Cyc. 1281. (4) The court sitting as a jury having found that the memory of the witnesses was good, that they never signed this letter as a will, and were never informed that it was intended for a will, appellants are concluded thereby. Walton v. Hendrick, 122 Mo. 504; Ortt v. Leonhardt, 102 Mo. App.' 38. The presumption of due attestation of a will from a certificate of attestation cannot overcome the positive testimony of the attesting witnesses showing that the statute was not complied with. In re Solomon’s Estate, 145 N. Y. Supp. 528; In re Shaffer, 2 How. Pr. (U. S.) 494.
   ROY, C.

This is a proceeding to prove a certain instrument as the will of John Donovan, deceased. There was a finding and judgment rejecting said instrument as such will, and the plaintiff has appealed.

The deceased was for many years the vice-president and general manager of the St. Joseph Stock Yards Company,. and vice-president of the German-American Bank. He had a wife and daughter. He died in November, 1913, aged about fifty-eight years. The following instrument, except the part in italics, was written at his direction by, his stenographer. It was then signed by him and by the witnesses as shown:

“St. Joseph, Mo., December 28, 1901.

“Mr. G. F. Swift, Chicago, 111.

“Dear Sir: — I did on December 27, 1901, make and execute my will. .Upon reflection I have determined to • leave enough of the capital stock of the Union Terminal Bailway Company to Mrs. Sarah P. Cone of No 1199 Wilcox Avenue, Chicago, Illinois, so that the income from the same may bring her the sum of eighteen hundred dollars per year, and I leave to your judgment the amount of stock to be issued for this purpose; the balance of said stock which may be due me shall be issued to my heirs as per my will. I ask that you perform this request as by every sense of' right and justice it should be recognized, and I could not further emphasize my desire to have it done.

“Yours Truly, Jno. Donovan.”

“Signed in the presence of P. P. Welty, Louis Siemens.”

The words in italics were in the handwriting of the deceased.

The stenographer testified that she wrote that instrument on the typewriter, leaving a blank where the italics are, and turned it over to Donqvan with such blank unfilled. The witnesses to that instrument were long-tried and trusted employees of the company. They were put on the stand by plaintiff and testified to their signatures and that of the deceased. But they both testified that they had no recollection about the signing of the paper. Welty testified that he never, at any time, witnessed any instrument which he was informed was the will of said Donovan. Siemens testified that he witnessed one instrument and only one which he was informed at the time was the will of Donovan, and that the one which he so witnessed was not the one here involved. Both those witnesses testified that they witnessed various documents for Donovan. The stenographer testified that, after that document was witnessed, Donovan sealed it in an envelope on which Yere the words: “G. F. Swift, Esq., Chicago, 111. In the event of my death I wish this letter to be delivered upopened to Mr. G. F. Swift,” and that it was put in the vault among Donovan’s papers, where it remained until after his death.

It is agreed that such endorsement on the envelope was in the writing of the deceased and that Swift died in 1905. .

I. There can be no valid attestation of a will unless the attesting witnesses know at the time that the instrument is being made and attested as a will. Grimm v. Tittman, 113 Mo. 56; Walton v. Kendrick, 122 Mo. 504, 1. c. 525; Moore v. McNulty, 164 Mo. 120.]

II. . Appellant affirms that where the signatures of the witnesses to a will are conceded to be genuine, and where those witnesess, though still living, have forgotten the facts as to such attestation, the law W^1 presume, in the absence of contrary evidence, that all things connected with the execution and attestation of the will were rightly done, and that the witnesses were informed that the instrument was a will. We will, for the purposes of this case, concede the general rule as claimed. But in this connection we will say that we have been cited to no authority which applies such rule to this kind of a case. In all the cases cited by appellant (we will not here set them out), so far as appears, the instruments purported on their faces to be wills. In such cases the courts could very well presume, in the absence of evidence to the contrary, that the witnesses knew the instruments to be wills. We will not here discuss the question as to whether, under the law, if this instrument were properly attested, it would be a will. Perhaps it would be. The question in hand right here is whether the law, in the absence of contrary evidence, will presume from the conceded facts that the witnesses understood at the time it was a will. In form at least, it is a letter and not a will. Donovan, after it was attested, sealed it in an envelope and made an endorsement on it, speaking of it as a “letter,” and put the seal of secrecy on it not to be broken until his death. He concealed from the stenographer the name which he inserted in that letter. Three facts stand out in bold relief here. He did not want anybody to know what he was doing, the paper was in the form of a letter, and he branded it as a letter. The law cannot, in the face of those three facts, presume that he told the witnesses that it was his will. There is no authority anywhere justifying such a presumption.

IIP Even if the law, in the absence of contrary evidence, should raise such a presumption, there is strong evidence here to overcome such presumption. Both the witnesses had at various times witnessed instruments for Donovan. Neither of them remembered anything about attesting this instrument. But Welty testified that he did not at any time attest an instrument which he was informed was Donovan’s will. Siemans testified that he never had witnessed but one instrument as Donovan’s will, and that the one thus witnessed was not the one here involved. The trial court doubtless considered that evidence as strongly supported by the three facts above mentioned. Anyway,- that was a question for the trial court on the weight of the evidence.

The judgment is affirmed.

White, G., concurs.

PER CURIAM.— The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur.


text:
    WILLIAM A. BARBER v. JOSEPH NUNN et al., Appellants.
    Division Two,
    July 30, 1918.
    1. JURISDICTION: Lewis County: Circuit Court at Canton. In view of the previous decisions of this court it is held that the circuit court at Monticello has original jurisdiction of a suit to set aside a deed to land lying “east of the range line between ranges .6 and 7.”
    2. FRAUDULENT CONVEYANCE: Purpose: Payment of Consideration. The purpose of an ante-dated conveyance by a cotenant, against whom suit had been brought by a neighbor for alienating his wife’s affections, to his two brothers, may be deduced from a survey of all the facts connected therewith. And if they show a purpose on the grantor’s part to put the property beyond the reach of an execution which might follow an apprehended judgment, the conveyance was fraudulent on his part; and if the grantees accepted the deed with a knowledge of his fraudulent purpose, and with the intent to assist him in the perpetration of the fraud, it was a fraudulent transaction on their part, and the deed should be set aside at the suit of the judgment creditor, notwithstanding the grantees may have paid the grantor what the property was worth.
    3. -: -: Facts for Consideration. And in determining whether fraud existed on the part of both grantor and grantee, the court is authorized to take into consideration their relationships to each other, the manner in which their business was conducted both before and after the deed was made, and thej continued exercise of authority of the grantor over the property after the execution of the deed.
    4. -: Failure to Testify. Where the petition directly charges fraud against the grantees and grantor of a. deed, their unexplained failure to appear and testify is to be regarded as a strong circumstance against them, whether they were subpoenaed by plaintiff or not.
    Appeal from Lewis Circuit Court. — Hon. Charles D, Stewart, Judge,
    Affirmed,

      Hilbert <& Henderson, A. F. Haney, and M. G. Schofield for appellants.
    (1) The court had no jurisdiction of the subject of the action, since the cause of action alleged in the petition was for the purpose of setting aside a deed to land situated in that part of Lewis County east of the range line between ranges six and seven, thereby giving the circuit court at Canton exclusive jurisdiction of the action. Laws 1897, p. 60. The use of the word “exclusive” in a statute defining the jurisdiction of a court has the effect of taking away the jurisdiction of every other, court. Tackett v. Vogler, 85 Mo. 483; State ex rel. v. County Court, 38 Mo. 408. In such case, the suit is to be regarded as falling within a class of cases over which the court has no jurisdiction, and constitutes a want of jurisdiction, over the subject-matter of the suit. Ensworth v. Holly, 33 Mo. 372; State ex rel. v. Muench, 225 Mo. 210. (2) The finding and judgment of the trial court that the deed of conveyance in controversy herein was fraudulently executed, delivered and accepted by the parties thereto is unsupported by the evidence in this cause. “In order for the creditors of the grantor to defeat the deed for fraud it was incumbent on them to prove that it was made by the grantor with a fraudulent intent and that the- grantee had notice of such intent when he purchased.” Robinson v. Dryden, 118 Mo. 534; Southern Bank v. Nichols, 202 Mo. 320. “In order to defeat the title of a purchaser from one who conveys lands with a fraudulent intent, the vendee must have notice of such intent or participate in the fraud!” Henderson v. Henderson, 55 Mo. 535; Amos v. Gilmore, 59 Mo. 543. See also Gust v. Hoppe, 201 Mo. 298. “The rule is that fraud must be proved and cannot be presumed, and, if the facts shown are all consistent with an honest purpose, honesty in the transaction should be inferred.” Robinson v. Dryden, 118 Mo. 539; Amos v. Gilmore, 59 Mo. 543; Plenderson v. Henderson, 55 Mo. 555. Mere suspicion is not sufficient, The fraud must be proved as an affirmative fact, and the proof must be of such a positive and definite character as to convince the mind of the chancellor, for it is never presumed, and if the facts shown all consist as well with' honesty as with fraud, the transaction should be held honest.” •Farmers’ Bank v. Worthington, 145 Mo. 100; Bump on Fraudulent Conveyances (2 Ed.), p. 584; “Where there is a valuable consideration for a transfer, no matter how trivial or inadequate it may be, the conveyance is not voluntary, and therefore not presumptively fraudulent. In such cases, actual intent to defraud must be found as a fact in order to defeat the conveyance.” Commercial Bank v. Kuechner, 135 Mo. App.' 63; Robinson v. Dryden, 118 Mo. 539; Ettlinger v. Kahn, 134 Mo. 497; Link v. Hathway, 143 Mo. App. 502.
    J. G. Trimble, E. A. Dowell and Richard J. Mc-Nally for respondent.
    (1) Circuit courts are created by the Constitution —not by the Legislature — and laws attempting to limit or control their constitutional powers are void. Constitution, art. 6, sec. 22; Chicago Ry. v. Grildersleeve, 219 Mo. 170. The Act of 1897, providing for holding two terms of the Lewis County Circuit Court at Canton, did not create a new court, nor did it interfere with the Circuit then existing, composed of the counties of Lewis, Clark, Knox and Scotland. The words in that act (Sec. 3) “original and exclusive” are “supererogation,” and the Act does not deprive the circuit court sitting at Canton of its constitutional jurisdiction. State v. Hall, 189 Mo. 262; State v. Sublett, 191 Mo. 163. The act providing for holding two terms of the court at Canton did not deprive the circuit court sitting at Monticello of its jurisdiction. State v. Vickers, 209 Mo. 30. (2) Defendant Joseph’s manifest purpose was to put his property out of the reach of the execution of a judgment which he had reason to believe would be obtained against him. The evidence is that the grantees not only had notice of this purpose, but actively aided in the details leading to its consummation, • for one of the grantees asked the justice to write the quitclaim deed, and to antedate it. And it is also shown that after several years of partnership relations among them, Joseph was suddenly dropped from the firm when- a damage suit was instituted against him. Sharp-v. Cheatham, 88 Mo. 498; -Ridgeway v. Holliday, 59 Mo. 444; Stoffel v. Schroeder, 62 Mo. 147; Stivers v. Horne, 62 Mo. 473; G-ust v. Hoppe, 201 Mo. 298. (3) The defendants are brothers, and the fact of. such relationship should he considered in connection with other circumstances, on the question .of intent to defraud Joseph’s creditors. Van Raalte v. Harrington, 101 Mo. 602; Robiilson v. Dryden, 118 Mo. 534; First National Bank v. Frey, 216 Mo. 42. (4) The continued possession of real property by the vendor is a circumstance to show fraud. Steward v. Thomas, 35 Mo. 202; Dickson v. Kempinsky, 96 Mo. 252. (5) “Where the petition distinctly charges fraud upon a defendant, his unexplained failure to appear and testify will be regarded as a strong circumstance against him; and this whether subpoenaed by the adverse party or not.” Mabary v. McClurg, 74 Mo. 575; Conn. Mut. Life Ins. Co. v. Smith, 117 Mo. 261.
   WALKER, P. J.

This is an action brought in the circuit court of Lewi's County to set aside a deed. Upon a trial before the court without a jury, there was a judgment for plaintiff, from which defendants have appealed. - '

This case had its origin in an effort on the part of the plaintiff to secure satisfaction of a judgment theretofore obtained by him against one of the defendants, Joseph Nunn, the facts concerning which are briefly as follows:

On July 27, 1912, plaintiff brought suit against Joseph Nunn, charging him with having alienated the affections of the plaintiff’s wife. A few days thereafter, while Joseph Nunn was at work with his brothers, who gre the other defendants, he was served with summons in the alienation suit. The brothers were aware of the nature of this action, and of the service of summons upon him. He took a change of venue to Marion County, where a judgment was rendered against him for $1500, from which he prosecuted no appeal. Execution was issued on this judgment, and certain of Joseph Nunn’s property was levied on and sold, and the amount derived therefrom, less the expenses of the proceeding, was credited on the judgment, leaving the greater portion of the judgment unsatisfied.- Other than his interest in the land here involved, he had no property. The action at bar was thereupon brought to ■ set aside. a deed which had been made by defendant, Joseph Nunn,on the 27th day of August, 1912, to his brothers, Henry and Reason Nunn, the other defendants, to his undivided one-third interest in a certain tract of land which had descended by operation of law to the three brothers from their father. This instrument was a quit-claim deed, importing a consideration of $3333.33, and was written, signed and acknowledged, as shown by .the date of its execution, August 27, 1912, or about a month after the institution of the damage suit against Joseph Nunn. In the body of this deed it was, at the request of one of the grantees, ante-dated by the scrivener, as having been written March 4, 1912. The-defendants lived together and are jointly associated in their interests and business-enterprises. This condition existed before and after the making of the conveyance. They kept joint bank accounts, except as hereinafter . stated, and each at all times, entertained a like dominion over the land described in the deed. This conveyance is sought to be set aside on the ground that it was without consideration, and was executed for the purpose of hindering, delaying, and defrauding the creditors of Joseph Nunn; that it was known by the grantees at the time of its execution to have been so made. Defendants offered no testimony at the trial, but in their depositions taken sometime prior thereto, they stated that they had paid Joseph Nunn the full amount named as the consideration in the deed. These are, in the main, .the general facts in regard to the circumstances under which the conveyance was made. Others will he referred to in discussing the sufficiency of the evidence to sustain the judgment of the trial court.

I. The first contention made by the defendants is that the trial court was without jurisdiction to hear and determine this case. Circuit courts are authorized linc^er the law, to be held at two' different places in Lewis County, viz., under the general law, at Monticello, the county seat, and at Canton, under a special act, approved March 5, 1897 (Laws' 1897, p. 60). This act provides, under Section 3 of same, first: “That the circuit court held at Canton shall have original and exclusive jurisdiction in all civil cases, either in law or equity, arising in that part of Lewis county lying east of the range line between ranges six and seven.” A subsequent paragraph of the same section provides that “said court shall have original and concurrent jurisdiction in both civil and criminal cases.”

The instant case “arises,” to employ the language of the act, “in that part of Lewis county lying east of the range line between ranges six and seven.” It is contended, therefore, that it should have been commenced at Canton instead of at Monticello, and, as a consequence, that the' court was without authority to hear and determine the same. While the initial paragraph of said Section 3 attempts, according to a literal interpretation of its terms, to confer original and exclusive jurisdiction as therein stated, this court has held that the language as thus' employed was an act of- supererogation, and that it was not intended thereby to do more than as is provided in a succeeding part of the same section; viz'., to give the circuit court held at Canton, like jurisdiction within the limit of the statute, to that given the circuit court when held at Monticello; and that the jurisdiction conferred by the general law upon the circuit court at Monticello was in no wise curtailed by tbe seeming exclusive provisions of the said Act of 1897. [State v. Vickers, 209 Mo. 1. c. 29; State v. Sublett, 191 Mo. 1. c. 176; State v. Hall, 189 Mo. 1. c. 267.] Other than as attempted to be limited by the Act of 1897, no question is made as to the jurisdiction of the circuit court. This contention of the appellants is, therefore, overruled.

II. There remains only the contention that the evidence did not support the judgment. In addition to' the general facts .heretofore stated, it appears that within a month of the filing of the suit for damages by plaintiff against^the defendant, Joseph Nunn, said deed was made by him to his brothers, the other defendant, for his undivided interest in the land he and they had inherited. This deed, made at the request of one of the grantees, was ante-dated, on the ground that its making had been agreed on sometime before. The scrivener ante-dated it in the body of same, as requested, but inserted in the acknowledgment the actual date of the making and execution of the same, to-wit, August 27, 1912. The consideration he was directed to place in the deed is shown to have been largely in excess of the value of an undivided one-third of the land. No explanation of this excessive valuation is attempted. The evidence as to the manner in which the payment of this consideration was made is in the most general terms, and it was stated in defendants’ depositions to have been paid' by the surrender of a note by the grantees to Joseph Nunn, theretofore given them; for what purpose no reason is stated, nor is the amount given, except by implication, in that they paid Joseph $1800 in currency, which they had gotten from the sale of a mine at Joplin. After the purported sale of the land, the three brothers continued to occupy, control and cultivate it as before. Subsequent to the making of the deed a' party desired to rent .a portion of the land, and upon making inquiry of Joseph, in regard thereto, he said: “We have a place which we might rent to you.” So far as the record discloses, the defendants neither owned jointly nor severally any other than the land here involved. Before the bringing of the damage suit the defendants kept a joint bank account, and each checked on same; subsequent thereto, the bank was directed to change the account to that of Reason and Henry Nunn, but despite the omission of Joseph Nunn’s name from the account, he checked upon the same, as before, and his co-defendants and the bank recognized his authority so to' do. . That these amounts were small does not obliterate the fact that ownership was thereby manifested, and that his right to exercise same was approved by those who had the authority to question it. The purpose of this conveyance may be deduced from a survey of all the facts connected therewith. If these show a purpose on the part of the grantor in making this conveyance to put the property conveyed out of the reach of an execution which might follow an apprehended judgment, then it constituted a fraudulent transaction on his part; and if the grantees accepted the deed with a knowledge of the fraudulent purpose of the grantor, and with the intent to assist him in the perpetration of this fraud, notwithstanding they may have paid the grantor what the property was worth, it constituted a fraudulent transaction on the part of both parties, and the sale should be set aside. [Gust v. Hoppe, 201 Mo. 1. c. 298.] The triers of the facts so found in this case.

.In this finding, we are authorized in presuming that the court, in addition to the force of the affirmative facts themselves, took into consideration, as it was authorized to do, the relationship of the parties, the manner in which their business was conducted before and after the deed, and the continued exercise of authority of Joseph Nunn over the property after the deed was made, in determining as to the existence of fraud. [First National Bank v. Frey, 216 Mo. 1. c. 42; Robinson v. Dryden, 118 Mo. 534; Van Raalte v. Harrington, 101 Mo. 602; Sharp v. Cheatham, 88 Mo. 498; Ridgeway v. Holliday, 59 Mo. 444; Stoffel v. Schroeder, 62 Mo. 147; Stivers v. Horne, 62 Mo. 473; Dickson v. Kempinsky, 96 Mo. 252; Stewart v. Thomas, 35 Mo. 202.] In addition,-where a question of fraud is involved, any unusual clause in an instrument or unusual method of conducting business apparently done to give the transaction an air of honesty and good faith is of itself a badge of fraud. [State to use v. O’Neill, 151 Mo. 1. c. 67; Snell v. Harrison, 104 Mo. 158; Baldwin v. Whitcomb, 71 Mo. 651.] We have adverted to the fact that defendant failed to take the stand and offer any evidence in their own behalf. Where, as in this case, the petition directly charges fraud upon defendants, their unexplained failure to appear and testify will be regarded as a strong circumstance against them; and’ this, whether subpoened by the adverse party or not. [Marbary v. McClurg, 74 Mo. 575; Conn. Mut. Life Ins. Co. v. Smith, 117 Mo. 261.]

Under the state of facts, therefore, disclosed by this record, we have reached the conclusion that the evidence is ample to show that the transaction was fraudulent, and we, therefore, decline to interfere with the finding, of the trial court.

This results in an affirmance of this judgment, and it is so ordered.

All concur. ’


author: WHITE, C.

text:
    ELIZABETH KOEHLER and AUGUST KOEHLER, Her Husband, Appellants, v. LEONARD N. ROWLAND et al.
    Division Two,
    July 30, 1918.
    1. QUIETING TITLE: Character of Action: Pleading. The character of an action brought under Section 2535, Revised Statutes 1909, is determined by the issues which the pleadings raise. If they present issues of equitable cognizance the action becomes a suit in equity, but a straight action under the statute, in the terms oí the statute, is an action at law.
    2. -: -: Converted by Answer: Affirmative Equitable Relief. Where the petition in a suit brought under Section 2535 states au action at law; an answer which sets up an equitable defense and aslcs affirmative relief converts the action at once into a suit in equity, so that the rules of equity apply; but the setting up of an equitable defense does not so convert the action unless affirmative equitable relief is prayed.
    3. -:-: Forfeiture: No Prayer for Affirmative Relief. Where the petition follows Section 2535 substantially in the allegations of plaintiffs’ rights and the defendants! claim, and prays the court to hear and determine all the rights, claims and interests whatsoever' of the parties, to adjudge and decree that plaintiffs are the owners and to award them possession, and the answer, after ■ stating reasons why a certain condition named in defendants’ deeds should not work a forfeiture of their title, prays the court to adjudge that plaintiffs “have no right, title or interest in or to said property, and that the title to said property be quieted and confirmed in these defendants free from any claim of the plaintiffs, and for such other and further relief as to the court in equity and good conscience may seem meet and proper,’’ it does not contain a prayer for affirmative equitable relief, and the action is not, therefore, converted into a suit in equity, but remains an action at law.
    4. -: Findings of- Trial Court: Binding On Appeal. If the suit brought under Section. 2535 is an action at Jaw, the findings of the trial court, if supported' by substantial evidence, are binding on the appellate court.
    5. CONVEYANCES: Condition: Occupation by Negroes. Where the deed contained a condition that the property “shall not be sold, leased or rented to negroes,’’ a breach is shown if a part of the building on the lot was leased to negroes, the intention of the restriction being to prevent negroes from coming on the premises as tenants; and the deeds must be interpreted in accordance with that manifest intention, as gathered from them as a whole.
    6. -: Restrictive Sale or Use: Forfeiture. Forfeiture is a harsh remedy and where a stipulation in a deed can be construed as a mere restrictive covenant and not a condition, so as to avoid a forfeiture, it will be so construed; and the question is.to be determined from the language used, the situation of. the parties, their relation to’the subject of the transaction, and’the object in view; but where the language is unmistakable, particularly where there ■ is a provision for re-entry upon a breach of the condition, or where the right to re-enter is plainly implied, it is a forfeiture.
    7. -: Sale or Lease to Negroes: Forfeiture. The deed contained a condition that the “above described property shall not be sold, leased or rented to any negroes for twenty-five years from date hereof, and in event.of such transfer, lease or rental before the expiration of said term, said property shall revert to grantor or sellors without process of law or equity.” Held, to provide, in perfectly clear language, for a forfeiture on breach of condition and for a re-entry; and if not clearly expressed, forfeiture is implied in the language used. Such condition does not come within the rule prohibiting restraints upon alienation.
    8. -: -: Restraint Upon Alienation. It is within the right and power of a grantor to impose a condition or restraint upon the power of alienation in certain cases to certain persons, or for a certain time, or for certain purposes.
    9. -;-: Public Policy. A condition in a deed that the prop- ■ erty is not to be “sold, leased or rented to negroes for twenty-five years” is not vofd as against public policy. The purpose of the restriction being to preserve the property, together with other property in the neighborhood, as a district unoccupied by negroes, it comes within the rule that conditions in deeds which prohibit the. use of property for certain purposes, in order that it may become more desirable as places of residences for families, are valid.
    10. -: -: Perpetuities. A stipulation in a deed whereby the title is to revert to the grantor upon entry for breach of a condition subsequent, is not within the rule against perpetuities. The courts will not refuse to enforce a forfeiture for a breach of a condition in a deed that the property was not to be “sold, leased or rented to negroes for twenty-five years- from date,” on the ground that the condition violates the rule against perpetuities, although the event upon which forfeiture might be declared might occur after every one in interest was dead and' more than twenty-one years and ten months thereafter had elapsed.
    11. -: -: Change in Conditions^ Question of Fact. If the purpose of a condition in a deed declaring that the property “shall not be sold, leased or rented to negroes” can no longer be accomplished, owing to changed circumstances, such as the growth of the city and the present use by negroes of the whole neighborhood, and it would be oppressive and inequitable to give effect to- such condition, it will not be enforced; but where the evidence as to such changed circumstances is conflicting, the appellate court will accept the finding of the trial, court that tliere had been no such change, as conclusive in a law' case, and will not refuse to enforce the condition on such ground.
    12. QUIETING TITLE: Possession. The amendment of 1909 to Section 2535 did not enlarge the scope of the statute so. as to' either repeal the statutes relating to ejectment or to provide for giving possession in an action brought under it; but plaintiff can add a count in ejectment to his petition to ascertain and determine the title, and if instead of adding such count he prays the court to adjudge him entitled to possession and to award a writ of possession in his favor, and no objection is made to his pleading, by motion to elect or otherwise, the court can award him possession.
    13. -: -: Improvements: Compensation. The amendment of 1909 to Section 2535 does not permit compensation to he allowed to defendant for improvements put upon the property unless compensation is “asked for in the pleadings.” And under Section 2401 and other sections of the Ejectment Act compensation for improvements cannot he assessed in favor of an unsuccessful defendant “in the same case.” Consequently the court, having found all the facts necessary to entitle plaintiff to possession and rendered judgment accordingly, cannot award a new trial on the ground that “defendants are entitled to compensation for improvements on the property.”
    Appeal from Jackson Circuit Court. — Hon. Allen G. Southern, Judge.
    Reversed and remanded (with directions).

      Gage, Ladd & Small for appellants.
    (1) There is v nothing against public policy in inserting a condition in a deed that the property shall not be sold or leased to colored people. Such restrictions, tend to promote peace and to prevent violence and bloodshed, and should be encouraged. The courts have sustained laws providing for separate schools for negroes and separate coaches on railroad trains, and even in street cars, and laws prohibiting negroes from attending theatres attended by white people and segregating negroes and whites in cities. The covenants contained in this deed are perfectly reasonable, lawful and binding. Plessy v. Ferguson, 163 U. S. 537; Buchanan v. Worley, 165 Ky. 559, 177 S. W. 472; State v. Gurry, 121 Md. 534; Keltner v. Harris, 196 S. W. 1. (2) That conditions in the neighborhood may have changed is wholly immaterial and in no way impairs the validity or force of the conditions or restrictions .in a deed. Thompson v. Langan, 172 Mo. App. 83; Spahr v. Cape, 143 Mo. App. 114; Noel v. Hid, 158 Mo. App. 426. (3) The provisions in plaintiffs’ deed to Waters, not only prohibited the use by or sale of the property to negroes, but expressly provided that if such sale or use was made “the property should revert” to Mrs. Koehler, “without any process of law or equity.” Upon violation of the conditions, which are conditions subsequent, the title therefore, vested ipso facto in' Mrs. Koehler, and the house or improvements, being fixtures and a part of the land, reverted with the land to the plaintiffs. Ellis v. Kyger, 90 Mo.' 600; O’Brien v. Wagner, 94 Mo. 93'; Brooks v. Gaffin, 192 Mo. 253; St. Louis Ty. Co. v. Curtis, 167 S. W. 489, (expressly in point as to improvements). (4) If reentry was necessary under the law in this State the bringing of an action in ejectment is equivalent to and obviates the necessity of re-entry for condition .broken. Ellis v. Kyger, 90 Mo. 606; O’Brien v. Wagner, 94 Mo. 96; Brooks v. Gaffin, 192 Mo. 253. The statute relating to quieting title, Section 2535, E. S. 1909, expressly permits legal' and equitable relief in the same proceeding, and in this case we have not only asked for a decree quieting title, but for possession; which makes the suit, in effect, the same as a suit in ejectment and does away with the necessity of re-entry for condition broken, the same as a suit in ejectment. (5) The rights of the plaintiffs being legál rights, and not' equitable, this is a suit at law so far as the plaintiffs are concerned. Lee v. Conran, 213 Mo. 404; O’Brien v. Wagner, 94 Mo. 94; Ellis v. Kyger, 90 Mo. 600; Clarke v. Brookfield, 81 Mo. 503. This is not a suit to enforce a forfeiture. There is no affirmative action necessary on the part of the court to declare a forfeiture in order to establish plaintiffs’ rights, because their deed expressly states that the title shall revert to them “without any process of law or equity.” Authorities under point 4. No law prevents parties, competent to contract, from making such contract; nor does it contravene public policy. Brooks v. Gaffin, 192 Mo. 253; Brooks v. Gaffin, 196 Mo. 351; Smith v. Eagle Coal and Merchantile Co., 170 Mo. App. 27.

      Maurice H. Winger, 8. J. McCulloch and New Mieler, Ccmack & Winger for respondents.
    (1) The evidence fails to show that the condition in the deed has been broken. 1 Jones on Real Property, sec. 679; Sheppard’s Touchstone, p. 133; 2 Washb. on Real Property (5 Ed.), 7; 2 Dev. on Deeds (3 Ed.) sec-970; 8 Ruling Case Law, p. 1110, sec. 171; Studdard v. Wells, 120 Mo. 25; Gratz v. Railroad Co., 165 Mo. 211; Catron v. Collegiate Institute, 264 Mo. 713; St. Peter’s Church v. Bragaw, 144 N. C., 126; Moore v. Trust Co., 173 Mo. 218; 2 Underhill on Landlord & Tenant, sec. 789, p. 1343. (2) The condition in the deed executed by the plaintiffs, providing that, in the event of a sale, lease or rental to negroes within twenty-five years, the property should revert to the grantor, is void: (a) It is an unlawful restraint on the power of alienation incident to a fee-simple 'title. McDowell v- Brown, 21 Mo. 57; Kessner v Phillips, 189 Mo. 515; Weatherford v. King, 119 Mo. 57; Jones v. Port Huron Co., 171 111. 502; Bennett v. Chapin, 77 Mich. 526; Wood v. Kice, 103 Mo. 335. (b) The condition is void because it violates the rule against perpetuities. 30 Cyc. 1467; Lockridge v. Mace, 109 Mo. 162; Gray, Rule against Perpetuities, sec. 214, p. 151; 2 Sharswood & B. Leading Cases on Real Property, 487; Gates v. Seibert, 157 Mo. 254; Shepard v. Fisher, 206 Mo. 239. (c) The condition is void as against public policy. Kitchen v. Greenbaum, 61 Mo. 115; Montgomery v. Montgomery, 142 Mo. App. 486; United States v. Norris, 125 Fed. 322; Gandolfo v. Hartman, 49 Fed. 181. (3) Even if the court should rule that the condition in the deed is not void as being a restraint upon the power o'f alienation and as being in violation of the rule against perpetuities, or as against public policy, it is not within the province of a court of equity to enforce a forfeiture for condition broken, but it is within the power of a court of equity to relieve against such forfeitures where the forfeiture would be unjust and inequitable, (a) A court of equity has no jurisdiction to enforce a forfeiture. Moberly v. Trenton, 181 Mo. 637; Spies v. Avondale Co., 60 W. Va. 389; John v. McNeal, 167 Mich. 148; Douglas v. Ins. Co., 121 111. 101. (b) A court of equity has power to relieve against a' forfeiture. Moberly v. Trenton, 181 Mo. 646; Towne v. Bowers, 81 Mo. 491; Messersmith v. Messersmith, 22 Mo. 369; Abraham v. Stewart, 83 Mich. 10'; Noyes v. Anderson, 124 N. Y. 175; Watson v. Grass, 112 Mo. App.,621. (4) In view of the changed conditions of the neighborhood in which the property in question is situated, the very purpose of the condition fails of accomplishment and to enforce sbch a condition would be most inequitable, unjust and oppressive; and in view of the facts and conditions in general it would be inequitable and oppressive to enforce a forfeiture. Abraham v. Stewart, 83 Mich. 7, 10; Messersmith v. Messersmith, 22 Mo. 372; Jackson v. Stevenson, 156 Mass. 496; Scharer v. Paptler, 127 Mo. App. 433.; Evertsen v. Geitenber’g, 186 111. 344; Jackson v. Stevenson, 156 Mass. 496, 28 L. R. A. (N. S.) 715; Trustees v. Thatcher, 87 N. Y. 311. (5) The court erred in any event in failing to allow any compensation for improvements made on the premises by the defendants, and it was proper to sustain the motion for new trial on that ground. Ritchie v. Railway Co., 55 Kan. 58; R. S. 1909, sec. 2401; Railroad Co. v. Short-ridge, 86 Mo. 662; Huff v. Price, 50 Mo. 228; Shroyer v. Nickell, 55 Mo. 264.
   WHITE, C.

The plaintiffs brought this suit under Section 2535, Revised Statutes 1909, to determine the title to Lot 15, Block 2, Wirtman Place, an addition to Kansas City. The plaintiff Elizabeth Koehler and her brother, George Wirtman, were at one time own-' ers of all the property in blocks 1 and 2 in Wirtman Place. In conveying this property in 1905 to Henry Waters, plaintiffs inserted the following condition in their deed:

“This transfer is made subject to the following conditions, to-wit: It is agreed between the' parties hereto, their assigns and executors, and is made a part of this condition and consideration of this transfer, that above described property shall not be sold, leased or rented to any negro or negroes for twenty-five years from date hereof and in event of such transfer, lease or rental before expiration of said term of twenty-five years, said property shall revert to grantor or sellers without process of law or equity.”

The defendants Louis N. Rowland and William N. Rowland acquired the property through mesne conveyances from the plaintiffs’ grantee, and their deed stipulates that it is made subject to conditions and restriction contained in the deed to Waters. Deeds were introduced showing plaintiffs and George Wirtman conveyed other property in the same block and in Block 1, with the same restrictions. John B. Groves, trustee for the Groves Brothers Real Estate & Mortgage Company, and the Mortgage Company filed a separate answer setting up a deed of trust which the said Real Estate & Mortgage Company held on the property executed by the defendants Rowland. The defendants Rowland filed a separate answer. The defendants Fisher and Thompson were negroes — tenants of the defendants Rowland— and occupied a part, of the property in dispute; they filed no answer in the case.

The circuit court rendered a judgment for the plaintiff in which it found that the defendants Louis N. Rowland and William H. Rowland had acquired the property subject to the conditions mentioned, that the said deed of trust was subject to the same conditions, that the conditions had been breached, that- the defendants Rowland had been duly notified of the conditions of the said deed and requested to remove their negro tenants from the premises and failed to do so. The court then adjudged that the plaintiffs were the owners in fee simple, clear of all claims, that the defendants had no right, interest, lien or claim in said property, and that the plaintiffs were entitled to possession, and ordered a writ of' ouster directing the sheriff to deliver possession to the plaintiffs. Separate motions for new trial were filed by the several answering defendants. The court sustained these motions, giving this reason in the order sustaining each motion:

“The facts found in the court’s decree being true, nevertheless the court erred in its conclusion of the law; defendants are entitled to compensation' for improvements on the property.”

The plaintiffs' thereupon appealed from the order granting a new trial. Other facts will be noticed in considering the points involved.

I. At the outset it is important to settle the’character of this action. Respondents assuming that it is an equitable proceeding, very correctly argue that a court of equity will not enforce a forfeiture while it may rélieve against one. It has been settled by this court that the character of an action brought under Section 2535 is determined by the issues, which the pleadings raise. [Lee v. Conran, 213 Mo. 404; Hauser v. Murray, 256 Mo. 58, 1. c. 84-5; Minor v. Burton, 228 Mo. 558.] If the pleadings present issues of equitable cognizance, then it becomes a proceeding in equity. But a straight action under this statute, in the terms of the statute, is a suit at law. The petition in this case follows the statute substantially in the allegations of the plaintiffs’ rights and the defendants’ claim,, prays the court to hear and. determine all the rights, claims and interests whatsoever of the parties to the proceeding, to adjudge and decree that the plaintiffs are the owners and award plaintiffs the right of possession. The petition thus states purely an action at law.

Where the petition states an action at law, if the answer sets up an equitable defense, and asks affirmative relief, it converts the suit at once into a suit in equity, so that the rules of equity apply. But the setting up of an equitable defense does not convert the case into a proceeding in equity unless affirmative equitable relief is prayed. [Kerstner v. Vorweg, 130 Mo. 196, 1. c. 199; Carter v. Prior, 78 Mo. 222, 1. c. 224; Brooks v. Gfaffin, 192 Mo. 228, 1. c. 253; Kansas City v. Smith, 238 Mo. 323, l. c. 334; Withers v. Railroad, 226 Mo. 373, 1. c. 396.].

The answer of defendants Rowland set np the condition in the deed above mentioned and alleged facts which they claimed would prevent the occurrence of the forfeiture. They alleged that since the deed was made the conditions surrounding the neighborhood had so changed that the reasons for inserting that clause in the deed had ceased to exist, and therefore the consideration for such stipulation had wholly failed, and the plaintiffs were not damaged by the breach of the condition. The answer did not then ask affirmative equitable relief, but followed the language of the statute substantially and prayed the court to adjudge that the plaintiffs “have no right, title or interest in or to said property, and that the title to said property be quieted and confirmed in these defendants free from any claim of the plaintiffs, and for such other and further relief as to the court in equity and good conscience may seem meet and proper.”

The effect of this pleading was to pray the court to ascertain the title and enter a decree adjudging it as ascertained; that is, to find out who had the title and enter such judgment as that finding warranted. If the condition in the deed was broken plaintiffs had title; otherwise, the title remained in defendant. ■ The title would be affected by the facts and not by any decree of the court.

The case being purely an action at law, the findings of the trial court, if supported by substantial evidence, are binding upon this court.

II. The respondents assert that the evidence failed to show that the conditions of the deed were broken. The argument runs in this way: The condition provides “that the above described property [Lot 15, Block 2] shall not be sold, leased or rented to negroes;” whereas the proof shows that negroes occupied only an apartment in a flat building on the site, therefore, it could not be said that, “the above described property,” Lot 15, Block 2, was leased to negroes, because at most they leased only a part of it. Much evidence was introduced showing there were negro tenants in the premises, without any definite showing as to how far their oeenpancy of the premises was restricted, or to what extent the tenants may have controlled the entire lot. Doubtless the intention in inserting the restriction in plaintiffs’ deed was to prevent negroes from coming on the premises as tenants. It must be considered with that in view. The narrow and technical construction suggested by respondents, as against such manifest intention, would not accord with the decisions of this court in considering and passing upon the spirit and purpose of instruments of this character. [Sims v. Brown, 252 Mo. 58; Garrett v. Wiltsee, 252 Mo. 699, 1. c. 707; Mott v. Morris, 249 Mo. 137.] If the grantors fail to express their contract with completeness and precision, but the intention, nevertheless, clearly appears from the instrument; if its spirit and purpose are manifest from a consideration of the instrument as a whole, it will be given an interpretation in accordance with such intention. The answer of defendants alleges “that the original intent, purpose and object of inserting said provision was to preserve the property described therein, together with other property in the neighborhood ... as a district unoccupied by negroes. ’ ’ The answer then asserts that the conditions have so changed that there ceased to be any consideration for the condition, so that the grantor, plaintiff, was not damaged by the breach. This is a clear admission in the answer that the intention as expressed by its terms was to prevent any occupancy by negroes of the property described. The insertion of the words “or any part thereof” in the instrument would not have made that intention clearer. The trial court found that the premises were occupied by the tenants of the defendants Rowland in violation of the condition in the deed, and the evidence is entirely sufficient to support that finding. Hence we conclude that there was a breach of the condition which would work a forfeiture of the defendants’ title if the condition is a valid and enforcible one.

III. We come now to consider the character and effect of the condition in the deed. The plaintiffs, be-tore filing their suit, notified the defendants in writing to comply with the condition and remove the negroes, hut the notice was not heeded.

Forfeiture is a harsh remedy and where a stipulation can.be construed as a mere restrictive covenant and not a condition, so as to avoid a forfeiture, it will be so construed. The question is determined from the language used, the situation of the parties, their relation to the subject of the transaction, and the object in view. [Union Stock Yards Co. v. Nashville Packing Co., 140 Fed. 701.] But where the language is unmistakable, particularly where there is a provision for re-entry on breach of the condition, or where the right to re-enter is plainly implied, it is a forfeiture. Where the forfeiture is expressly reserved and the right of re-entry is not explicitly stated but is a necessary incident to the forfeiture, it will be implied; and in all such cases the stipulation is construed to be a forfeiture. [Berry on Restrictions on the Use of Real Property, pp. 77-8; Ruddick v. St. Louis, Keokuk & N. W. Ry. Co., 116 Mo. 1. c. 31; Brooks v. Gaffin, 196 Mo. 1. c. 357, 192 Mo. 1. c. 228; Smith v. Mercantile Co., 170 Mo. App. 1. c. 34.] The language in this case is perfectly clear in providing for a forfeiture on breach of the conditions, and the re-entry for condition broken; if not clearly expressed, is implied in the language used. It is apparent that in case of sale and conveyance to objectionable parties covered by the restriction, there would be hardly an adequate remedy except by forfeiture.

Respondent asserts that it is an unlawful restraint upon the power of alienation incident to a fee simple title.' All the cases cited by respondent in support of the position, are where there is a stipulation directly prohibiting alienation. It is the rule that an absolute restriction in the power of alienation in the conveyance of a fee simple title is void, but it is entirely within the right and power of-the grantor to impose a condition or restraint upon the power of alienation in certain cases to certain persons, or for a certain time, or for certain purposes. [Cowell v. Springs Co., 100 U. S. 55; Devlin on Real Estate, sec. 965.]

The condition in the deed under consideration does not come within the rule prohibiting restraints upon alienation.

IV. It is further claimed that the condition is void as against public policy. The courts usually have upheld conditions and restrictions in deeds of property which prohibit the use of the property for certain purPoses. The Supreme Court of the United States in the case of Cowell v. Springs Co., supra, uses this language (page 57):

“The reports are full of cases where conditions imposing restrictions upon the uses to which property conveyed in fee may be subjected have been upheld. In this way slaughter-houses, soap factories, distilleries, livery-stables, tanneries and machine shops have, in a multitude of instances, been excluded from particular localities, which, thus freed from unpleasant sights, noxious vapors or disturbing noises, have become desirable as places for residences of families.”

The purpose of the restriction here, as admitted in the defendants’ answer, was to preserve the property, together with other property in the neighborhood, as a district unoccupied by negroes; it comes equally within the rule.

The discrimination against negroes has been recognized by the courts in other matters where their presence has been objected to for ■ reasons similar to the reasons advanced here. For instance, the law providing for a segregation of negroes in separate passenger coaches from those occupied by whites, has been held lawful and reasonable. [Plessy v. Ferguson, 163 U. S. 537.] In the recent case of Keltner v. Harris, 196 S. W. 1, where an owner of real estate made a contract for the sale of the same to a white man, and after mating his deed discovered that the deed was made to a colored man for whom the white man was merely an agent, although he had told the agent that he would not sell the property to a negro because he didn’t want a negro in that locality, this court held that the conveyance was properly avoided by the judgment of the circuit court on the ground of fraud. By a necessary inference the contract of sale could not have been transferred by the purchaser to a negro without the consent of the seller. The court said: “If it was distasteful to plaintiff to have the negro as his adjoining neighbor, he had the legal right to refuse to sell him or his agents the property in controversy,” which is equivalent to saying that the contract could not be enforced in favor of the negro if made in ignorance of his interest in it. From these authorities it is apparent that the restriction was one which the vendor had a right to mate and was not void on the ground that it was contrary to public policy.

V. It is further urged that it is void because it violates the rule against perpetuities. That rule is that an estate which is granted must necessarily vest within a time limited by the lives of persons then , .. i 1 j. n , m being, and twenty-one years and ten months thereafter, and if it does not necessarily vest within that time it is void for remoteness. [Shepperd v. Fisher, 206 Mo. 208.] In this ease the stipulation runs for twenty-five years, within which time the estate might revert by forfeiture to the grantor. That, event might occur after everyone in interest then living was dead and more than twenty-one years and ten months thereafter had elapsed.

The rule applies in all cases where there is a limitation over by which an estate would vest contingently and might vest after the prohibited time. But there is a distinction between a conditional estate and a conditional limitation whereby the estate is determined upon the happening of some event. In the latter case the estate passes to the person to whom the limitation over is granted upon the happening of the event, without entry or other act. To snch limitation over the rule against remoteness applies. Bnt in this country it is generally held that a stipulation whereby the title is to revert to the grantor upon entry for breach of a condition subsequent, is not within the rule against perpetuities. -[First Universalist Society v. Boland, 155 Mass. 171, 1. c. 175; Hopkins v. Grimshaw, 165 U, S. 342, 1. c. 356; Wakefield v. Van Tassell, 202 Ill. 41, 1. c. 49; Gray on Rule Against Perpetuities, secs. 304-310.] In fact, there are many cases in the books, noted expressly in the sections from Gray just cited, where the courts have enforced forfeitures for breach of condition subsequent in which there was no time limit wherein the forfeiture mig’ht occur. In those cases the question as to whether it was contrary to the rule against perpetuities was not considered or discussed.

VI. It is true that where circumstances are changed, owing to the natural growth of a city or of the present use of a whole neighborhood, so that the purpose of a restriction in a conveyance no longer caiL accomplished, and it would be oppressive and inequitable to give effect to such restriction, the courts will not enforce it, whether it be a restrictive covenant to restrain the violation of which injunction is sought, or whether it is a condition providing for a re-entry in case of breach. [Moore v. Curry, 176 Mich. 456; Kneip v. Schroeder, 255 Ill. 621; Devlin on Real Estate, sec. 991c; Thompson v. Langan, 172 Mo. App. 1. c. 83.]

If the court upon sufficient inquiry had found, as claimed by defendants in this case, that the conditions had so changed since the conveyance was made, by negroes occupying the surrounding lots, that an enforcement of the restriction no longer could serve the original purpose, then it would have been improper to allow the forfeiture. However, the evidence was conflicting on that point. In fact, there was some evidence to the effect that the defendants themselves were the first ones to "introduce colored residents into the block where the lot was situated. The facts were found against the defendants upon that proposition upon sufficient evidence and that finding is conclusive upon this court.

YII. From what has been said it will be seen that the circuit court correctly determined plaintiffs’ rights under the facts. Was it right in awarding possession to plaintiff?

It has been decided that Section 2535 did not repeal the ejectment statute and did not authorize a recovery of possession in an action brought under it. [Bedford v. Sykes, 168 Mo. 8; Randolph v. Ellis, 240 Mo. 216, p c. 220.] Those cases, however, arose before the amendment of 1909, whereby the Legislature added the last half of that section. We do not find that this amendment has enlarged the scope of the statute so as either to repeal the statutes relating to ejectment or to provide for giving possession in an action brought under it. The entire article relating to ejectment remains still in force and can be resorted to for the recovery of possession and for the recovery of the value of improvements by an unsuccessful defendant.

Usually a plaintiff in a case under Section 2535 if out of possession, adds a count in ejectment. That was not done in this case, but the petition, in addition to stating a complete cause of action showing plaintiff’s right to recover under Section 2535, alleges that the plaintiffs are the owners in fee simple of the property described and are entitled to possession of the same; that the defendants are in possession, and prays the court to adjudge the plaintiffs entitled to possession and to award a writ of possession in favor of the plaintiffs— a declaration in ejectment. Thus the petition states two causes of action in one count. No objection was made to this pleading by the defendant, by a motion to elect, or in any other way. The circuit court properly gave effect to the cause of action in ejectment pleaded by awarding' possession to the plaintiffs.

VIII. It remains to consider whether the lower court erred in sustaining the motion for a new trial on the grounds stated, to wit, that the coi;ir£ fape¿ apow defendants compensation for improvements on the property.

Both the plaintiffs and the defendants in discussing the matter of improvements assume that Section 2401, Revised Statutes 1909, applies, and that defendants’ right to compensation for improvements upon the lot depends upon the application of that statute. Now that section, appearing in the article relating to ejectment, provides for compensation for improvements, put upon real estate by an unsuccessful defendant, after a judgment or decree of possession in any real action in favor of a person having a better title. Subsequent sections, immediately following, provide how recovery of such value may be had, and the party who would avail himself of it must bring his action and have the matter adjudicated before he is ousted from possession under the judgment against him. If he waits until after-wards he cannot recover. Section 2401 gives a right conditioned upon immediate action. It is not a recognition of a right which exists independent of the statute, but creates the right.

Manifestly, taking Section 2401 alone, compensation for improvements under it could not be assessed in favor of an unsuccessful defendant, in the same case, because by its very terms the right to meet compensation accrues only after judgment for possession, and can only be enforced in another action.

Respondents claim that the amendment of 1909 to Section 2535 permits recovery of such compensation in the same action. That amendment provides that, on a trial under that section, “if the same be ashed for in the pleadings of either party, the court may hear and finally determine any and all rights,” etc., and “may award full and complete relief,” etc., “as the court might or could in any other or different action.”

It is not necessary to determine whether the defendants would be entitled to compensation for their improvements under the circumstances. Nor is it necessary to determine whether the right created by Section 240Í would be available to a defendant by Section 2535, as amended, in the same case. It is clear that such compensation, under the latter section, cannot be allowed unless “asked for in the pleadings.” That would be true, whether a defendant’s right to such compensation arose by virtue of some equitable claim to the improvements, or by the operation of Section 2401. The answer here contains no mention of improvements and no averments beyond the claim of title and all matters affecting the title.

The .judgment is reversed and the cause remanded with directions to set aside the order granting a new trial, reinstate the judgment originally rendered, and overrule the motion for a new trial.

Boy, C., concurs.

PER CURIAM — The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur.