author: BROWN, J. BOND, J.

text:
    THE STATE ex rel. CHRISTIAN COUNTY v. JOHN P. GORDON, State Auditor.
    In Banc,
    May 3, 1915.
    1. COUNTY INDEBTEDNESS: In Excess of Income. A county cannot, without the assent of two-thirds of the voters thereof, issue bonds whose aggregate amount exceeds the income and revenue of the county for the year in which the bonds are issued. And so much of the Act of 1913, Laws 1913, p. 122, as authorizes a larger indebtedness, is unconstitutional.
    2. -: -: Bonds Payable By Installments. There is a wide difference between a contract by a city to buy water in annual installments and to pay for it yearly as it is delivered and used, and an obligation imposed on the' county by the issuance of bonds which are to be sold when issued and the proceeds used for building a courthouse; for, negotiable bonds when sold will become at once binding obligations of the county to pay the legal holders thereof the aggregate amount of money mentioned in them, whether the courthouse is ever built o.r not; and, hence, if the aggregate amount of the bonds exceeds the income and revenue of the county for the year in which they are issued, they are invalid, unless authorized by two-thirds of the voters of the county voting at an election held for that purpose.

      EM, by BOND, X, dissenting, that the bonds proposed fo be issued are spread over a period of ten years, and as it is evident from them that the amount payable thereon does not exceed for any one year the income and revenue of the county for the year in which they are issued, they are not in contravention of the Constitution, but valid.
    3. -: Cash Basis. The only logical and fair construction of section 12 of article 10 of the Constitution, is that its unmistakable purpose was to force counties to transact their business upon a cash basis, and not to incur debts to be paid after the year in which they were created has expired.
    Mandamus.
    "Writ denied.

      Irwin (& Peters, 8. E. Bronson, Hayes $ Hayes, Barrett & Moore and Barbour & McDavid for relator.
    (1) A statute will not be declared unconstitutional unless its invalidity appears beyond a reasonable doubt. State v. Webber, 214 Mo. 272; State ex rel. v. Railroad, 215 Mo. 479; State v. Price, 229 Mo. 670; State ex rel. v. Gordon, 223 Mo. 547; State ex rel. v. Johnson, 234 Mo. 338. (2) The construction which the Legislature places upon the Constitution, while not conclusive upon the courts, is pursuasive as to its intent and meaning. State ex rel. v. Patterson, 229 Mo. 373. (3) The county court has the constitutional right to anticipate the revenue for any given year and to create an indebtedness to be paid from that of the anticipated revenue so long as it stays within the constitutional limit of fifty cents on the $100 of assessed valuation, and its right so to do cannot be questioned judicially. Decker v. Diemer, 229 Mo. 296.

      John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for respondent.
    (1) Sections 3, 4, '5, 6 and 7, pp. 122-124, Laws 1913, are unconstitutional, because they purport to authorize any county of this State to become indebted in any one year to amount in excess of the revenue provided for said county for said year, without the assent of two-thirds of the voters thereof, voting at an election held for the purpose of determining the question of said indebtedness. Constitution, sec. 12, art. 10; Trask v. Livingston County, 210 Mo. 582; Book v. Earl, 87 Mo. 246; State ex rel. v. Railway, 1691 Mo. 574; Anderson v. Ripley County, 181 Mo. 46; Decker v. Diemer, 229 Mo. 330; Holloway v. Howell County, 240 Mo. 613; Campbell v. State, 99 Pac. (Okla.) 779; Garvin County, v. Bridge Co., 124 Pac. 324; Gas Co. v. Brickswedel, 62 Cal. 641; Beard v. Hopkinsville, 95 Ky. 241; Brown v. Corey, 175 Pa. 528. (2) The bonds in question, having been issued in attempt to create an indebtedness in excess of the building fund provided for the year 1914, for relator county and being payable solely from said building fund, and the question of said indebtedness never having been submitted to a vote of the people of relator county, said bonds were illegally issued an! are therefore void. Anderson v. Ripley County, 181 Mo. 46; Trask v. Livingston County, 210 Mo. 582.
   BROWN, J.

Original proceeding by mandamus to compel the State Auditor to register and certify county bonds.

On June 23, 1914, the relator filed its petition in this court reciting that the county court of Christian county had created a building fund pursuant to section 3, p. 122, Laws 1913, and had transferred to said building fund certain unexpended balances in other funds then existing in the treasury of said county amounting to about $12,500. That the valuation of all the taxable property in said connty of Christian was less than six million dollars; that the necessities of said connty require the construction of a county courthouse, county poorhouse,- and the remodeling of the jail of said county; and that, for the purposes of making the aforesaid improvements, it is necessary to add to said building fund the further sum of $65,000, which amount it was estimated by said court could be raised by a levy of ten cents on the $100 valuation of the taxable property of said county during a period of twenty years. That, after creating said building fund and making said estimate, the county court ordered the issuance and sale of bonds in the sum of $65,000 for the purposes before recited, and requested the prosecuting attorney to cause its proceedings in that behalf to be reviewed by the circuit court, as provided by section 6, p. 123, Laws 1913. That, after the proceedings of the county court were duly reviewed and in all things ratified and confirmed by the circnit court, the relator issued and tendered to respondent the aforesaid bonds, and requested that he register them in compliance with section 1275, Revised Statutes 1909, and endorse thereon his certificate reciting the alleged fact that in the issuance of said bonds all conditions of the law had been complied with. That said request was refused, wherefore relator prayed that an alternative writ of mandamus issue requiring respondent to register and certify said bonds, or show canse for his failure so to do.

Upon the filing of relator’s petition respondent entered his appearance and, after agreeing that the relator’s petition might be considered as and for an alternative writ, thereupon filed his demurrer alleging that said petition stated no cause of action, for the reason that on the face thereof it appeared that the debt sought to be created by the issuance of said bonds was in excess of the revenue and income of the cotmty for the current year, and that sections 3, 4, 5, 6 and 7 of the Act of 1913 purporting to. authorize the creation of a debt in excess of the income and revenues of said county for the current year without the assent of two-thirds of the voters of said county voting at an election held for that purpose was invalid, because in violation of section 12, article 10, Constitution of Missouri. A few other facts are pleaded, but enough has been stated to make the issues clear.

We do not deem it expedient to encumber our opinion by incorporating herein the Act of 1913, the constitutionality of which is challenged by respondent. Every lawyer in the State has access to that enactment. It is, however, conceded that the Act of 1913 was fulhr complied with by the relator, and on the pleadings the sole issue before us is whether or not said Act of 19.13 violates the following provision of section 12 of article 10 of our State Constitution, to-wit:

“No county, city, town, township, school district or other political corporation or subdivision of the State shall be allowed to become indebted in any manner or for any purpose to an amount exceeding in any year the income and revenue provided for such year, without the assent of two-thirds of the voters thereof voting at an election to be held for that purpose. ”

I. Preliminary to the determination of the issue before us learned counsel for relator call our attention to the axiomatic rule that a statute will not be declared unconstitutional unless its invalidity appears beyond a reasonable doubt. In this insistence we unreservedly concur.

Relator and respondent agree that the voters of Christian county did not assent to the issuance of the bonds tendered for registration. That the assessed ' luation of all taxable property in Christian county for the year 1913 was only $5,041,670, and that the hi best rate of taxes which could be lawfully levied in that county for all purposes (without the assent of its voters) is fifty cents on each $100 valuation, which levy would yield an annual income of about $25,208.35, or less than one-half of the amount of bonds issued by relator. HowTever, it is conceded that only ten cents on the $100 valuation was levied for building purposes in the year 1914.

To sustain their insistence that the law under which the bonds tendered for registration is valid, relator cites Lamar Water & E. L. Co. v. Lamar, 128 Mo. 188, l. c. 222-3, wherein it was held by a divided court that a city may legally make a contract for water' extending over a period of years, and that an annual tax levy to pay for water thus contracted for was not a debt within the purview of that part of the Constitution now under consideration. A very similar case was Saleno v. City of Neosho, 127 Mo. 627, wherein the rule was announced that a contract to purchase water for a city to be delivered and paid for during a term of years, does not become a debt of the city until such water is actually delivered; therefore, the obligation to purchase such water did not become a debt created in the year when the contract was made. The rule announced in the cases last cited has been quoted with approval in subsequent opinions as follows: Water Co. v. City of Neosho, 136 Mo. 498, and Water & Light Co. v. City of Lamar, 140 Mo. 145. However, relator’s difficulty rests in the fact that these cases were based upon facts quite different from those in the case at bar.

Although an obligation to purchase water at a price stipulated in a contract is not- a debt until the water thus purchased is delivered, what shall we say about these negotiable bonds which when sold will become absolute obligations to pay to the bearers thereof amounts of money aggregating. $65,000‘, regardless of whether the relator gets the courthouse, etc., which it intends to build with the proceeds of these bonds?

After mature deliberation we are forced to hold that the contract to buy water in annual installments and pay for it in tbe same way is quite dissimilar to the obligation created by the issuance of these bonds; therefore, what is said in the Lamar case (128 Mo. 188) and in the Neosho case (127 Mo. 627) affords very little, if any, light in reaching a correct conclusion in the case at bar.

The case of Trask v. Livingston County, 210 Mo. 582, is cited by both parties, and while the language used by Judge Gantt in that opinion seems to be in full accord with the doctrine announced in Book v. Earl, 87 Mo. 246, and Anderson v. Ripley County, 181 Mo. 46, there is much obscurity as to the facts recited, or intended to be recited, in the Trask case, as well as in the judgment which that opinion affirms. Therefore, it does not furnish much support to the contentions of either party.

The case of Decker v. Diemer, 229 Mo. 296, relates to the right of county courts to transfer moneys collected for one fund to another fund, and does not cast light upon the right of a county to create debts payable in future years.

Respondent to sustain his contention cites and relies upon Book v. Earl, 87 Mo. 246, wherein, by a unanimous opinion, it was ruled that a county court could not incur a debt in excess of its income and revenue for any current year to pay for remodelling or building additional rooms to its county courthouse, without first obtaining the assent of two-thirds of the votes cast at an election held for that purpose. Also the case of Anderson v. Ripley County, 181 Mo. 46, which followed the doctrine of Book v. Earl, 87 Mo. 246, and held that, although the voters of a county had given their assent to the construction of a $20,000 county courthouse, a contract for extra work on such courthouse, the cost of which was in excess of the amount voted, and also in excess of the income of such county for the current year, was invalid and could not be enforced.

The cases of Book v. Earl, 87 Mo. 246, and Anderson v. Ripley County, 181 Mo. 46, both related to lack of power under our Constitution to create debts in excess of current revenue for the construction of courthouses, or parts of courthouses, and, therefore, they are almost precisely in point here and entitled to great weight in leading us to a correct conclusion in the present case. In Book v. Earl, 87 Mo. l. c. 252, it was said that the unmistakable purpose of section 12 of article 10 of our Constitution is to force counties to transact their business on a cash basis, and not incur debts to be paid after the year in which such debts were created. The doctrine of that case has been cited with approval many times. [Black v. McGonigle, 103' Mo. l. c. 202; Barnard & Co. v. Knox County, 105 Mo. l. c. 386; State ex rel. v. Columbia, 111 Mo. l. c. 378; Andrew County ex rel. v. Schell, 135 Mo. l. c. 38; State ex rel. v. Payne, 151 Mo. l. c. 669; K. C., Ft. S. & M. Ry. Co. v. Thornton, 152 Mo. l. c. 573; State ex rel. v. Johnson, 162 Mo. l. c. 639; State ex rel. v. Wabash Ry. Co., 169 Mo. l. c. 574; Union Trust Co. v. Pagenstecher, 221 Mo. l. c. 130; State ex rel. v. Woodside, 254 Mo. l. c. 593.] This seems to be the only fair and logical construction of our organic law. The fact that the Constitution itself speaks in such plain terms renders an evasion of its words or intent impossible, however much we may wish to see relator and other municipalities similarly situated permitted to borrow money to make public improvements.

The law under which the instant bonds were issued being in conflict with a plain constitutional provision, neither the proceedings of the county court nor of the circuit court of Christian county were of sufficient potency to breathe vitality or validity into those obligations. Our first duty under our oaths is to support and enforce the organic law, and while we will resolve every reasonable donbt in favor of the validity of statutes, in all eases where both the words and intent of the Constitution are clear we are bound to follow it.

The $65,000 bonds sought to be registered purport to create a debt more than twice as large as the total income and revenue of Christian county for the year in which such bonds were issued; therefore, the respondent did not err in refusing to register and certify them, and our writ of mandamus must be denied. It is so ordered. .

All concur, Blair, J., in the result, except Bond, J., who dissents in a separate opinion filed, and Walker, J., not sitting.

BOND, J.

(dissenting). — I have examined a copy of the bonds proposed for registration and also the record of the proceedings in the circuit court of Christian county, from which it is evident that the issue of bonds is spread over a period of ten years and that the amounts payable thereon for each year does not exceed the indebtedness which the county may incur under the Constitution for each year of the entire series; [Lamar Water & E. L. Co. v. City of Lamar, 128 Mo. l. c. 222.]

Such a contract when made for ■ necessaries, as county jails, poorhouses and court houses, and providing for payment of the obligations thus created, from year to year, so that no payment on any intervening year shall exceed the constitutional limit of indebtedness for that year, does not violate the Constitution of this State, nor others wh re the organic law is similar. [1 Dill, on Mun. Cor. (4 Ed.), sec. 136a.]

I therefore dissent to the majority opinion in this case.


source: Caselaw Access Project

author: PARIS, P. J.

license: Public Domain

text:
    THE STATE v. WILLIAM E. FOWLER, Appellant.
    Division Two,
    May 25, 1915.
    1. ADMINISTRATION: Failure to File Receipt of Distribution: Conversion. Proof of a failure by the administrator to file with the probate court a receipt showing a payment by him to the distributee of the money required by the order of the court approving his final settlement to be paid to her, does not alone constitute prima-facie evidence of a criminal conversion of such money by him under the terms of section 4556, Revised Statutes 1909.
    2. -: -: -: Things Required By the Statute. In the prosecution under section 4556, Revised Statutes 1909, of an administrator for failure to pay over to a distributee the money found by an order of the probate court to be due her, it must be shown (1) that he converted the said sum of money to his own use, or (2) that he invested it in some hind of property, or (3) that he made way with it, or (4) that he secreted it and hid it away where it could not be found. If the only evidence to show anyone of these four things is an order of the probate court directing him to pay a certain sum to a named distributee and a failure on his part to comply with the order of the court to report the payment to the court with a voucher therefor “as speedily as possible,” a conviction cannot stand; for it may yet be true that the money was actually paid to the distributee. The evidence should have gone further and shown a failure to pay, or at least a demand for payment, or something else that showed an actual conversion or some of the other things denounced by the statute.
    3,. -: -: -: Presumption of Innocence: Prima-facie Case. The presumption of innocence with which the law clothes a defendant shields and protects him until it is overcome by proof which as a matter of law makes a prima-facie case of guilt. And a prima-facie case of guilt is not made so long as every fact educed by the proof may be true and the defendant yet be innocent.
    Appeal from Clay Circuit Court. — Hon. David H. Harris, Judge.
    Reversed and defendant discharged.

      James M. Sandusky, Ralph Hughes, Graven S Moore and Isaac B. Kimbrell for appellant.
    (1) The court erred in refusing instruction 13 requested by defendant upon circumstantial evidence. State v. Moxley, 102 Mo. 388. An instruction that defendant’s guilt need not be proved by direct testimony, but by circumstances, is dangerous, unless such an instruction as above from the Moxley case be given. State v. Sasseen, 75 Mo. App. 203. (2) The court erred in refusing instruction number 12 requested by defendant in the nature of demurrer to the evidence.' State v. Mispagel, 207 Mo. 580; 2 Bishop’s New Orim. Law, p. 217, sec. 376, sub-div. 2; Rex v. Smith, Russell & Ryan (Eng.) 267; People v. Hurst, 62 Mich. 276; State v. Deutsch, 77 N. J. L. 293; State v. Hunnicut, 31 Ark. 562; State v. Fleener, 58 Ark. 103; People v. Carter, 122 Mich. 668; State v. Ensley, 117 Ind. 196; Captain v. Lee, 18 Neb. 110; Nelson v. State, 86 Neb. 861; Henderson v. State, 129 Ala. 101; Robinson v. State, 109 Ga. 561; Hampton v. State, 99 Miss. 186.

      John T. Barker, Attorney-General, and Shrader P. Howell for the State.
    (1) The defendant urges as a ground-for reversal the fact that the court refused to give an instruction as to the weight to be attached to circumstantial evidence. The rule is firmly established that where there is direct or positive evidence tending to establish any of the essential elements of the crime -charged, an instruction on the weight to be attached to circumstantial evidence is properly refused. In this connection it should also be noted that the jury was fully instructed on the question of reasonable doubt and presumption of innocence. State v. Donelly, 130 Mo. 619; State v. Salmon, 216 Mo. 529; State v. Neizinger, 220 Mo. 18; State v. Hubbard, 223 Mo. 80. (2) Where there is any substantial evidence offered on tire trial to support the verdict returned, this court will not interfere. The State had submitted evidence tending to establish: First, that upon his own application, the defendant was by proper order of court appointed administrator of the estate of Delaven E. Finn on June 27, 1910. Second, that he gave bond, qualified, collected the assets of such estate and in all respects assumed the duties of his office. Third, that on September 9, 1912, the final settlement showed that he had in his possession the sum of $1678.05, which amount he was ordered to pay to the sole heir and beneficiary of said estate and report the fact of such payment to the probate court and file the proper voucher therein. Fourth, that as evidenced by the undisputed records of the probate court, the defendant refused to comply with such lawful order but converted such moneys to his own use. Fifth, that he continued in his unlawful conversion of the money in question up to and including the day of the trial, which was more than nineteen months subsequent to the date of the order made by the probate court. In all of the cases decided by this court under section 4556 and kindred statutes the rule has been announced that the essence of the crime of embezzlement is the act of conversion. And under this particular section of the statute, when conversion, which is generally defined to be “any unauthorized act of dominion or ownership exercised by one person over the personal property belonging to another,” is shown, then the crime is complete. In the case at bar it is clearly and definitely shown by the records of the probate court, and further supported by the oral testimony of the judge of that court, that the defendant at the date of the final settlement had in his possession, as administrator, the sum of $1678.05, and that for more than nineteen months he continued in his refusal to pay this money to the beneficiary, as ordered by the probate court. It is true, as contended by the defendant, that the mere refusal or neglect of a trustee to account for funds received by him is insufficient when standing alone to constitute the crime of embezzlement, yet the decisions uniformly state that such circumstance constitutes “material evidence tending to prove an unlawful conversion which is the essence of the offense.” Taking into consideration the facts affirmatively shown, and the attending circumstances and actions of the defendant, there is substantial evidence on which to base the verdict of guilty returned in this case. 15 Cyc. 528; 2 Bishop’s New Crim. Law, see. 372; 4 Elliott on Evidence, sec. 2964; State v. Noland, 111 Mo. 486; State v. Schilb, 159 Mo. 140'; State v. Woodward, 171 Mo. 597; State v. Laughlin, 180 Mo. 361; State v. Lentz, 184 Mo. 239; State v. Knowles, 185 Mo. 166; State v. Skinner, 210 Mo. 384; State v. Mispagel, 207 Mo. 580; State v. Martin, 230 Mo. 701; Hanna v. Insurance Company, 241 Mo. 400; State v. More-aux, 254 Mo. 408; 38 Cyc. 2005. Moreover, it is the province of the jury to judge of the credibility of the witnesses and the weight and sufficiency of the evidence. The case was submitted to the jury under fair instructions, and having considered the evidence they found the defendant guilty of the crime charged. When there is any substantial evidence submitted on the trial bn which to base the finding of the trial jury, this court will not interfere. State v. Sassaman, 214 Mo. 695; State v. Sharp, 233 Mo. 269; State v. Concelia, 250 Mo. 411. .
   PARIS, P. J.

Defendant, convicted in the circuit court of Clay county for a violation of the provisions of section 4556, Revised Statutes 1909, and having had assessed against him as punishment therefor imprisonment in the state penitentiary for the term of three years, has, after the usual motions, appealed.

The facts are few and simple. Defendant was by the probate court of Clay county duly appointed the administrator of the estate of one Delaven E. Finn, deceased, and in all things duly qualified as such and proceeded to administer said estate and settle it up. There came into his hands as such administrator assets of said estate amounting to some six- thousand dollars, which he handled in such wise pursuant to the orders of the probate court as that there was found to be due said, estate on the 9th day of September, 1912, at the close of the administration on final settlement filed on that day, the sum of $1,678.05. It was further found that one Myrtle M. Kennedy was the only heir and sole distributee of this estate, and that she was as such entitled upon final settlement to the whole of said above-named- sum. This state of facts being shown, the probate court on the date last aforesaid made the following order:

“Now, .on this 9th day of September, 1912, comes William E. Fowler, administrator of the estate of Delaven B. Finn, deceased, by his attorney, and also comes Myrtle M. Kennedy, sole heir and distributee of the estate of said Delavan E. Finn, deceased, in proper person and by her attorney; and said administrator now here files his final settlement in said estate, on examination whereof the court finds that there remains in the hands of said administrator for distribution in said estate the sum of $1678.05.

“And the court- further finds that said administrator duly published notice of his intention to make final settlement in said estate at this term of court, and filed the proof of said publication herein.

“And the court further finds that said final settlement has been by order of this court regularly continued until this date.

“And the court further finds said Myrtle M. Kennedy to be the sole heir and distributee of the estate of said Delavan E. Firm, deceased.

“And the court having fully examined said final settlement and the vouchers accompanying same, finds it to be correct.

“It is therefore considered, ordered and adjudged by the court that said final settlement be and the same is hereby approved and ordered to be recorded, and that the balance found due for distribution herein, to-■wit, the said sum of $1678.05, be by said William E. Fowler, administrator, paid to said Myrtle M. Kennedy, sole heir and distributee, as aforesaid. And it is further ordered by the court that said administrator report the payment of said amount, with voucher therefor, to this court as speedily as is possible. ’ ’

The above order was offered upon the trial. There was likewise offered the testimony of Judge Lewis G. Hopkins, judge of the probate court of said county, who among other things, identified the records which were duly offered and the effect of which we have stated above. Pertinent to the facts in the case Judge Hopkins was asked and answered the following questions, to-wit:

“Q. I’ll ask you to state whether or not any report of distribution was ever filed in the estate of Delavan E. Finn by William E. Fowler, the administrator, in pursuance to the order of your court that he distribute the balance found to be due to the beneficiary of that estate? A. No.

‘ ‘ Q. And was any receipt from the beneficiary to the administrator, William E. Fowler, ever filed or produced in your court? A. No. sir.”

This was all of the pertient evidence offered in the case outside of formal matters showing the appointment of defendant as administrator; his qualifying as such; his filing certain term settlements; his filing the said final settlement, from which the facts and such balance as stated appeared, and the further fact that these matters and things transpired in Clay county. After showing these formal matters and after offering the above quoted order of the probate court and the above testimony of Judge Hopkins showing the failure and neglect of defendant to file the report of distribution and the voucher mentioned in said order, the State rested. The defendant offered no evidence whatever on his part, but requested among other instructions a peremptory instruction to the jury that they should acquit him on account of the insufficiency of the evidence offered by the State. This instruction the court refused to give.

If other facts shall become necessary for an understanding of the things discussed in the subjoined opinion, they will be found set out therein.

OPINION.

We are met at the outset by the strenuous insistence of defendant that the evidence adduced by the State is not sufficient to make out a case to go to the jury. Defendant offered no evidence; contenting him with that the State presented.

Approaching this contention in a moderately logical way we note that the applicable part of section 4556, Revised Statutes 1909, under which defendant was prosecuted and convicted, thus provides: “If any . . . administrator . . . shall convert to his own use,, in any manner whatever, or shall use by way of investment in any kind of property . . •. or shall make way. with, or secrete . . . any moneys that may have come to him ... by virtue of his . . . office . or by virtue of any trust reposed in him, . . . every such . . . administrator . . . shall upon conviction, be punished in the manner prescribed for stealing property of the kind or the value of the article so embezzled, converted, taken or secreted. ’ ’

It will be noted that so far as applicable to the concrete facts before us in the instant case defendant in order to be held guilty must by the--proof offered by the State be brought within one at least of the four ways by which this section can be violated. That is, it must be shown (a) that he converted this sum of $1678.05 (or at least $30 thereof) to his own use; or (b) that he invested it in some hind of property; or (c) that he made way with it, or (d) that he secreted it and hid it away where it could not be found. If the proof shows by any substantial evidence that defendant did all or either of the above acts this conviction must stand; conversely, it must fall if such proof fail. .

We have seen from the statement that the only effort made by the State to prove either a conversion, an investment, a making away with, or a secreting of this Sum of $1678.05', or of any part thereof, was by a showing that the probate court had ordered the defendant •to pay over said above sum to the distributee, said Myrale M. Kennedy, and to “report the payment of said amount with voucher therefor to this court as; speedily as possible” (italics ours); and further that defendant had not up to the date of the trial below reported such payment to the probate court of Clay county, or filed any voucher with said court — speedily, or otherwise. This was all. .There was no showing that defendant had not paid the money to said Myrtle M. Kennedy. For aught that appears he may have done so. The record is clear that defendant did not file any receipt or voucher with the probate court showing, or evidencing such payment. And in the ultimate analysis it is as plain as daylight that this failure to file such voucher is the sum total of his offending, so far as this record discloses it. Granting for argument’s sake, but without deciding (not being called on here so to do), that the probate court had plenary power to re: quire defendant to file a receipt from the distributee showing the payment of this money to her, was the failure-to do so .criminal.; or to be a little more exact, was the proof of the fact of such failure prima-facie evidence of a criminal conversion under the terms of section 4556, supra? We do not think so.

It will be noted that no specific time is set for filing such voucher. The order merely requires that it be filed “as speedily as possibleAt what moment following the making of this order on the 9th day of September, 1912, and prior to the finding of the indictment herein on the 17th day of June, 1913, did the failure to comply therewith cease to be an innocent act and become a crime?

We are clearly of opinion that some showing should have been made of the conversion to his own use of this money by defendant, if in fact'he converted it, or of his investing it, if he did so, or of his making away with it, or secreting it, if this was the fact. The defendant may have had the money in the bank to his credit as administrator all the time for aught that appears, or he may in fact have paid it promptly to the distributee as he had been ordered to do by the probate court. As to all things negativing the fact of payment, as well as to anything proving the all ged fact of a conversion, the record is wholly silent, save and except as to the fact that no voucher was filed with the probate court. As stated, it was not shown that payment had not been made promptly to the distributee; neither was any demand for payment, nor any refusal to pay shown, nor any other single fact or circumstance showing a conversion. In such case what was said in the case of S+nte v. Francis, 199 Mo. l. c. 694, becomes apposite:

“When a conviction for crime is sought upon circumstantial evidence it must always be scanned with great caution and can never justify a verdict of guilty . . . unless the circumstances in proof are of such a character and tendency as to produce upon a fair and unprejudiced mind a moral conviction of'the guilt of the accused beyond all reasonable doubt, and to be absolutely inconsistent with bis innocence. ’ ’

"Whenever in our view there is substantial evidence of every element which goes to make up any given crime, however the great weight of the evidence may fall, or on whichsoever side the preponderance may be, we grant to the triers of fact the privilege of passing upon its credibility. [State v. Concelia, 250 Mo. 411; State v. Maggard, 250 Mo. 335.] But that is not the ease here. Every fact shown by the State may be absolutely true, and yet the defendant may be innocent. The presumption of innocence with which the law protects the defendant, shields and saves him till it is overcome by proof which as a matter of law makes a prima-facie case of guilt. This is the rule of law for a court; and it continues to be the rule of law till some substantial evidence is adduced to overcome it.

We can no better express this view, and the law of this case as well, than by quoting what was said by Judge Pox in the case of State v. King, 174 Mo. l. c. 662, where it was said:

“Viewing all the testimony in this cause, it is apparent that it is not that clear and convincing proof of the guilt of the defendant as authorizes his conviction. Its tendency, at most, is only calculated to create a suspicion that he was implicated in the commission of the offense.

“Defendants should not be convicted upon mere suspicions of guilt or even strong probabilities of guilt; to warrant their conviction, the testimony, when all considered, should be clear and convincing, entirely satisfying the minds and conscience of the jury. ■

‘ ‘ This defendant may be guilty; if so, the testimony fails to show it satisfactorily, and if he is, it is better that he escape than to make a precedent that must be general in its application to the guilty and innocent alike.

“Entertaining the views as herein expressed, the judgment will be reversed and the defendant discharged. ’ ’

It results that for the refusal of the court to instruct the jury to acquit the defendant this case must be reversed and the defendant discharged, Let this be. done.

All concur.


author: WALKER, J.

text:
    GEORGIA B. ROGERS, Appellant, v. DAVID B. ROGERS et al.
    Division Two,
    May 25, 1915.
    1. TORT: Married Woman: Action Against Husband for Damages. A married •woman cannot maintain an action against her husband for a personal tort committed by him against her during coverture; for instance, she cannot maintain an' action against him for damages for false imprisonment in causing her to be committed to, and for several months detained in, an insane asylum. She could not maintain such an action, at common law, and the Married Woman’s Acts have not created any new right for her in that regard.
    2. -: -: Sec. 1735. Section 1735, Revised Statutes 1909, which first appeared in its present form as section 3468, Revised Statutes 1879, whether it be considered as a statute of procedure' only, since it first appeared as an amendment to the general civil code, or as creating new civil rights, cannot be held to grant to a married woman any greater power than its terms express, namely, that a married woman may, without joining her husband, maintain any action she could have main-tained if unmarried, or that she may, independent of her. husband, bring an action which, under a state of facts authorizing her to sue, he could have brought.
    3. -: -: Sec. 8304: Only Rights Enjoyed By Husband. The Married Woman’s Act of 1889 gave a married woman the right to sue and contract, etc., and definitely declared the purposes, and the extent to which, she shall be deemed a
      femme sole, but does not attempt to confer greater rights on her than are possessed by her husband; and as he cannot sue her for personal torts committed by her against him, she cannot, for an equal or more obvious reason, maintain an action for damages for a personal tort committed by him against her.
    4. -: Action Against Husband and Other Tortfeasors. Tortfeasors are jointly and severally liable for their torts, whether acting alone or jointly with others in committing-them; and while a married woman cannot maintain an action against her husband for a personal tort committed by him against her during coverture, she can maintain such an action against others who joined with him in committing the tort, and her petition cannot be dismissed as to them upon demurrer on the ground that it charges that they co-operated and acted in concert with him in committing the wrong.
    5. -:--: Failure to Dismiss as to Husband. The failure of the wife, who has brought suit for damages for a personal tort against her husband and other tortfeasors, to dismiss as to him, cannot be used as a shield to protect such other tortfeasors, nor to prevent the rendition of a judgment according to the merits for or against them; and on appeal by plaintiff from a judgment sustaining a demurrer to the petition, a failure to dismiss as to her husband will not prevent a reversal as to such other tortfeasors, but the ruling will be such as to effect a dismissal as to him, and a reversal and a remanding of the cause for trial as to the others.
    Appeal from Clinton Circuit Court. — Hon. A. D. Burnes, Judge.
    Affirmed as to David B. Eogers; reversed and REMANDED AS TO OTHER DEFENDANTS.

      William 8. Herndon and Erasmus G. Hall for appellant.
    (1) The petition states a cause of action against •defendants Frank H. Fulton and C. M. McConkey. Stanley v. Union Depot Co., 114 Mo. 606; and cases cited under next point. (2) The petition states a cause of action against the defendant Leroy A. Kelly, and theré is no misjoinder of defendants. Dulaney v. Buffum, 173 Mo. 1; Allred v. Bray, 41 Mo. 484; Murphy v. Wilson, 44 Mo. 313; Welsh v. Stewart, 31 Mo. 376; Meade v. Railroad, 68 Mo. App. 92; Walters v. Hamilton, 75 Mo. App. 237; McDonald v. Railroad, 165 Mo. App. 75; Allen v. Forsythe, 160 Mo. App. 262. (3) The petition states a cause of action against David B. Rogers, the same as against the other defendants, though he was the husband of plaintiff at the time. (4) Since the enactment of the “Married Women’s Acts,” Sec. 3468, R. S. 1889, now Sec. 1735, R. S. 1909, and Sec. 6864, R. S. 1889, now Sec. 8304, R, S. 1909, a married woman may sue and be sued as a feme sole in actions at law and in equity. Rice, Stix & Co. v. Sully, 176 Mo. 107; Grimes v. Reynolds, 184 Mo. 679; Beagles v. Beagles, 95 Mo. App. 338; Todd v. Terry, 26 Mo. App. 598; Winn v. Riley, 151 Mo. 61; Grimes v. Reynolds, 94'Mo. App. 576; Woodward v. Woodward, 148 Mo. 241; Smoot v. Judd, 161 Mo. 686; Bank v. Hageluken, 165 Mo. 443. (5) And she may sue her husband at law, for a tort committed by him. Beagles v. Beagles, 95' Mo. App. 338; Rice, Stix & Co. v. Sully, 176 Mo. 129; Clow v. Chapman, 125 Mo. 107; Grimes v. 'Reynolds, 184 Mo. 693; Bank v. Hageluken, 165 Mo. 443; Hudson v. Wright, 204 Mo. 413; Montgomery v. Montgomery, 142 Mo. App. 486; O’Day v. Meadows, U94 Mo. 614; Rossier v. Railroad, 115 Mo. App. 520; Brown v. Brown, 89 Atl. (Conn.) 889. (6) Plaintiff’s cause of action is a “personal tort,” and having grown out of a violation of her personal rights in her separate property. R. S. 1909, secs. 8309, 8304; Tyler v. Tyler, 78 Mo. App. 243; Woodward v. Woodward, 148 Mo. 241. (7) “The maxim of law, that wherever there is a right there is a remedy, is a mere truism; for, as Lord Holt said, it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal.” Cooley on Torts, p. 19. :

      John A. Goss and Frost & Frost for respondents.
    (1) The law enabling the wife to sue and be sued as a femme sole does not authorize her to successfully maintain an action for damages for personal injuries against her husband. 21 Cyc. Law & Proc., pp. 1517-1518; 15 Am. & Eng. Ency. Law, p. 857; Smith v. Gorman, 41 Me. 408; Small v. Small, 129 Pa. 372; Peters v. Peters, 108 Iowa, 540, 75 Am. St. 273; Libby v. Berry, 74 Me. 286, 43 Am. Rep. 589; Abbott v. Abbott, 67 Me. 304, 24 Am. Rep. 27; Brandíield v. Brandfield, 117 Mich. 80, 72 Am. St. 550; Abbe y. Abbe, 48 N. Y. Supp. 25; Strom v. Strom, 98 Mich. 427, 116 Am. St. 387; Thompson v. Thompson, 218 U. S. 611; Frankel v. Frankel, 173 Mass. 214, 73 Am. St. 266; Webb’s Pollock on Torts, p. 65; Cooley on Torts, p. 267; Main v. Main, 46 111. App. 106. (2) The court was right in sustaining the demurrer of defendants, Fulton and Mc-Conkey. (a) When torts are intentional, and independent of each other, though their combined influence may result in an injury, there is no joint liability. The pleader must therefore plead and prove conspiracy. Barton v. Barton, 119 Mo. App. 531; Nichols v. Nichols, 147 Mo. 389; Love v. Love, 98 Mo. App. 570. (b) These defendants being jointly charged with the husband, D. B. Rogers, with a commission of a personal tort upon the wife, and the husband not being liable therefor, there was a misjoinder of parties apparent upon the face of the petition. And when there is a misjoinder of parties apparent upon the face of the petition, it must be taken advantage of by demurrer. Fulwiler v. Gas L. & P. Co., 216 Mo. 591; McCauley v. Brady, 123 Mo. App. 558; Love v. Love, 98 Mo. App. 570. (c) This being a suit for an intentional tort there could be no joint liability without conspiracy, and these defendants are improperly charged with entering into a conspiracy with the husband of the plaintiff who is not liable, and hence the petition is not only faulty for improper joinder of parties, but it for that reason fails to state a cause of action against these defendants. Libby v. Berry, 74 Me. 286-, 43 Am. St. 589.
   WALKER, J.

This is an action for damages for false imprisonment in causing plaintiff to be committed to, and for several months coüfined in, an insane asylum. At the time of the commission of the alleged tort, and when this suit was brought, the plaintiff was the wife of the defendant David B. Rogers. Defendants demurred to the petition. The demurrer of the defendant David B. Rogers was based on the ground that plaintiff’s petition disclosed that she was the wife of said defendant at the. time of the commission by him ■of the tort alleged and hence stated no cause of action.

The separate demurrers of the other defendants alleged a misjoinder of parties defendant, and that the defendant David B. Rogers being the husband of plaintiff, the petition stated no cause of action against him or any other defendant charged to have been co-operating with him.

The demurrers, upon a hearing, were sustained, and plaintiff declining to plead further, but electing to stand upon her petition, judgment was rendered for defendants, from which plaintiff appeals.

1. This ease requires an answer to this question: Can a wife maintain a civil action against her hus and for a personal tort committed by him against her during coverture ?

Plaintiff’s contention is that she can, under the following statutes, found in Revised Statutes 1909:

“Sec. 1735. A married woman may, in her own .name, with or without joining her husband as a party, sue and be sued in any of the courts of this State having jurisdiction, with the same force and effect as if she was a femme sole, and any judgment in the cause shall have the same force and effect as if she were unmarried. ’ ’

• '“Sec. 8304. A married woman shall be deemed a femme sole so far as to enable her to carry on and transact business on her own account, to contract and be contracted with, to sue and be sued, and to enforce and have enforced against her property such judg-. ments as may be rendered for or against her, and may sue and be sued at law or in equity, with or without, her husband being joined as a party: Provided, a married woman may invoke all exemption and homestead, laws now in force for the protection of personal and real property owned by the head of a family, except, in cases where the husband has claimed such exemption and homestead rights for the protection of his own property. ’ ’

At the common law neither the husband nor the wife could sue each other, nor could she sue or be sued as a femme sole. These rules are necessary consequences of the doctrine of the identity of husband and wife. [21 Cyc. 1517.]

In many of the States the statutes have so modified this doctrine that a married woman may now sue and be sued as a femme sole, especially in regard to her statutory separate property. The right of independent action on the part of a married woman having its origin in each jurisdiction in a statute, reference thereto becomes necessary under the law where the remedy is sought, to determine the extent of the right conferred. [Ruhe v. Buck, 124 Mo. 178, 25 L. R. A. 178; Johnson v. Huber, 134 Ill. 511.]

Governed by the rule that the extent of the right conferred must be determined by the law where the. remedy is sought, an analysis of the Missouri statutes above quoted becomes of prime importance.

Section 1735, supra, is intended, as its terms expressly declare, to give a married woman the same right to sue and be sued as if she were a femme sole. This section first appears in its present form as section 3468, Revised Statutes 1879. It is an amendment to a statute which required a married woman, except in certain actions therein specified, to be joined with her husband. Appearing as the section uniformly does, in the general civil code, it may be regarded more as a statute of procedure than otherwise in so far as the purpose of the Legislature may be determined from the arrangement or setting of the act, which we admit, except in its initial enactment, is not always a safe guide to the interpretation of a statute; but, whether construed as a substantive declaration of rights or as a rule of procedure, being of purely statutory origin and in derogation of the common law, it cannot be held to grant any greater power than its terms express, viz., that a married woman may, without joining her husband, maintain any action she could have maintained if unmarried, or that she may, independent of her husband, bring any action which, under a state of facts authorizing her to sue, he could have brought.

Section 8304, supra, first enacted as section 6864, Revised Statutes 1889, in addition to conferring the same powers upon a married woman theretofore possessed by her under section 1735, supra, definitely declares the purposes for, and the extent to which, she shall be deemed a femme sole, and also provides that she may, equally with her husband, where he has not exercised the right, invoke the protection of the homestead and exemption laws.

These sections do not attempt to confer greater rights of action upon a married woman than are possessed by her husband, and it has been expressly held in another jurisdiction, under a statute similar in its material features to the law here, that a husband cannot maintain an action against his wife for injuries inflicted upon him by her deliberately wounding him, under a statute giving her the right to separate property and permitting her to contract with him; that this statute which authorized her to sue and be sued alone, does not in an action between him and her authorize Mm to sue her for a personal tort inflicted upon him by her. [Peters v. Peters, 156 Cal. 32, 23 L. R. A. (N. S.) 699.]

The history of the origin and development of the law in regard to the relation of husband and wife gives ample proof of the correctness of the above ruling. While the husband’s right to sue had its origin in the common law and this right is so general that its prevalence has been crystallized in the familiar maxim that wherever there is a right there is a remedy, it has never been held that he may sue his wife for a personal tort. Whether the absence of this authority is due to the doctrine of the unity created by the marriage relation or to an effort on the part of legislatures and courts to promote harmony or at least lessen the cause of controversy between husband and wife, the non-existence of the husband’s right in this regard uniformly prevails. If non-existent in the husband, there are stronger reasons, in the absence of an express statute, why it should be held not to be possessed by the wife. Her rights are purely statutory, and, comprehensive as is our Married Woman’s Act in effecting her emancipation from matrimonial bonds so far as her property rights and the right to contract with others and her husband is concerned, and to sue and be sued by him at law (Rice, Stix & Co. v. Sally, 176 Mo. l. c. 128, and cases) and to sue alone in tort for injuries sustained by her through the negligence of others (Elliott v. Kansas City, 210 Mo. 576), there is no authority express or implied in the act given her to sue him for a personal tort.

Courts of last resort, in other States, are practically unanimous in holding that statutes similar in all their essentials to the sections under review should not be given such a construction as to confer the right in question upon a married woman by implication.

The rule is succinctly stated by Judge Coolb,y as follows: “For a personal tort by the husband to her person or reputation, the wife can sustain no action, and she must rely upon the criminal laws for her protection, or seek relief in separation or in proceedings, for a divorce. But where, by statute, the wife is given full dominion and control of the property purchased or otherwise acquired by her, the marital relation would-not protect the husband against an action for any unlawful interference with the property. But even under these statutes the wife cannot maintain an action, against her husband for a personal injury.” [Cooley-on Torts (3 Ed.), p. 474 and notes.]

Later cases in support of the rule thus announced are compiled' as annotations to Strom v. Strom, 6 L. R. A. (N. S.) 191; Peters v. Peters, 23 L. R. A. (N. S.) 699; Thompson v. Thompson, 30 L. R. A. (N. S.) 1153, where they may be readily examined .without encumbering this, opinion with quotations therefrom.

Finding the strong, if not the almost unbroken, current of authority against the contention of plaintiff, we hold that an action for a personal tort committed by a husband against a wife during coverture cannot be maintained under our statutes. As to the wisdom or justice of such statutes, we can judicially have no concern, it being a matter wholly within the purview of the lawmaking power.

II. The correctness of the trial court’s ruling in sustaining the demurrers filed by the other defendants than the husband, David B. Rogers, demands our attention. The petition alleges that the defendants jointly conspired and co-operated together in the commission of the tort of which the plaintiff complains; and the effect of the demurrers of the defendants other than Rogers is that his joinder as a defendant operates to relieve them from liability.

The nature of this action has much to do with the solution of this question. Under the allegations of the petition the defendants are tortfeasors and as such jointly and severally liable, whether acting in concert or independently. [Hubbard v. Railroad, 173 Mo. 249; Stanley v. Railroad, 114 Mo. 606; Murphy v. Wilson, 44 Mo. 313.]- The non-liability of the husband, David B. Rogers, authorized a dismissal as to him at any stage of the proceedings without in any manner changing the cause of action or lessening the liability of the other defendants. Our courts thus announce the rule: “Where several wrongdoers are charged with the same tort, plaintiff may, at any stage of the proceedings, dismiss as to one or more of them without affecting the merits of the action as to the others.” [Berkson v. Railway, 144 Mo. 211; Allen v. Forsythe, 160 Mo. App. l. c. 269.] A misjoinder of defendants does not as a rule defeat an action ex delicto (Frink v. Potter, 17 Ill. l. c. 411; Swigert v. Graham, 46 Ky. l. c. 662; Keer v. Oliver, 61 N. J. L. 154), and plaintiff’s failure to dismiss as to Rogers should not be permitted to act as a shield to protect the other defendants and prevent the rendition of a judgment according to the merits, for or against them. [Kujek v. Goldman, 29 N. Y. Supp. l. c. 295.]

If a dismissal as to Rogers was proper below and did not effect a change in the cause of action or increase the liability of the other defendants, such a ruling is proper here as will effect a dismissal as to him and a reversal and remanding of the case as to the other defendants. [Nickerson v. Nickerson, 65 Tex. 281, 286; Keer v. Oliver, supra.]

It is therefore ordered that the judgment as to the defendant David B. Rogers he affirmed and this proceeding dismissed as to him, and that the judgment, as to the other defendants, he reversed and the cause remanded for further proceedings in the trial court.

All concur.


author: BROWN, J.

text:
    LACLEDE LAND & IMPROVEMENT COMPANY, Appellant, v. NORA EPRIGHT et al.
    Division Two,

      May 25, 1915.

    1. LIMITATION: Possession Under Color of Title: By Corporation. Actual occupancy and cultivation of a part of a tract of land under color of title and claim of the whole, by the agents and tenants of a corporation and in its behalf, is possession of the whole by such company.
    2. -: Thirty-Year Statute: Lawful Possession. The lawful possession mentioned in section 1884, Revised Statutes 1909, means an actual possession obtained in a lawful manner; the statute does not mean that the mere constructive possession which follows the legal title where there is no actual adverse possession can be considered the lawful possession contemplated by it.
    S. -: -: -: Legal or Equitable Title. The thirty-year Statute of Limitations (Sec. 1884, R. S. 1909) applies to both legal and equitable titles. A - patent legally issued conveys both the legal .and equitable title, and the fact that the two titles are thereby merged does not prevent the said statute from becoming applicable. [Overruling Charles v. Morrow, 99 Mo. 638.]
    4. -: -: Payment of Taxes: Burden. A party who claims land under the thirty-year Statute of Limitations (Sec. 1884, R. S. 1909) must show that the claimant out of possession has not paid any taxes on the lands in controversy during the thirty-year period next preceding his actual possession. The burden of showing non-payment of taxes by a claimant out of possession rests, upon the party who asserts that no taxes were paid, though the proof need not he by direct evidence. Evidence from which such non-payment may be legally inferred will be sufficient.

      5. -: -: Pleading. The thirty-year Statute of Limitations need not be specifically pleaded by the party relying upon its provisions as his basis for establishing title.
    6. NEW TRIAL: On Any Valid Ground. The order of the trial court granting defendants a new trial which did not designate the grounds upon which the motion therefor was sustained, will be affirmed on appeal, if the new trial was properly granted on any ground designated in the motion.
    Appeal from Reynolds Circuit Court. — Hon. E. Hi. Dearing, Judge.
    Affirmed and remanded.

      J. B. Daniel for appellant.
    (1) There was no error in the trial of this case. The judgment was for the right party, and the motion for a new trial should have been overruled. R. S. 1909, sec. 1884; Abeles v. Pillman, 261 Mo. 359; Collins v. Pease, 146 Mo. 135; Rollins v. Mclntire, 87 Mo. 496; Campbell v. Greer, 209 Mo. 199. (2) Where there is no conflict in the evidence and the judgment is for the right party under the law, it is- not within the discretion of the trial court to grant a new trial. Loftus v. Railway, 220 Mo. 470; Huston v. Railroad, 151 Mo. App. 335.

      B. I. January and IF. F. Gray for respondents.
    (1) Trial courts have inherent power to grant a new trial. Multon v. Croskey, 111 Mo. App. 18; State ex rel v. Adams, 84 Mo. 310; Simpson v. Blunt, 42 Mo.. 544; McCabe v. Lewis, 76 Mo. 301. (2) It is left to the sound discretion of the trial court to grant a new trial on the weight of the evidence. Rodan v. Transit Co., 207 Mo. 392; Farrell v. Transit Co., 103 Mo. App. 454; Loftus v. St. Ry. Co., 220 Mo. 479; McCarty v. Transit Co., 192 Mo. 396; Seger v. Silver, 193 Mo. 407. (3) The appellate court will not interfere with the trial court in granting a new trial upon the ground that the finding of the court was against the weight of the evidence unless upon the undisputed facts in the case no verdict or finding for the party ashing for a new trial could ever be allowed to stand. Mining Co. v. Webster, 193 Mo. 351; Fitzjohn v. Transit Co., 183 Mo. 74; Haven v. Railroad, 155 Mo. 216; Bohle v. Mercantile Co., 114 Mo. App. 439. (4) It devolves upon the one appealing from the order granting a new trial to show that the court erred in so doing. Hewitt- v. Steele, 118 Mo. 463; Miller v. Car Co., 130 Mo. 523; Baughman v. Fulton, 130 Mo. 559. (5) Possession to defeat recovery of real estate, must be continuous for the full period of ten years. Stone v. Perkins, 217 Mo. 601; Turner v. Hall, 60 Mo. 275. (6) It would be a new and dangerous doctrine to hold that a possession under color of title may be discontinued before the expiration of ten years, and that thereafter the constructive possession of the land would follow the color of title instead of the true title. Turner v. Hall, 60' Mo. 275; Stone v. Perkins, 217 Mo. 601. (7.) The thirty-year Statute of Limitation cannot be invoked under the facts in this case for the reason: First, Because the land in litigation was wild, uncultivated timber lands, and no one was ever lawfully in possession of any part thereof until appellant, under its-void deed, got one John Barton (a squatter) in 1895 to take a lease on a small piece of land in section 5; second, because the possession of unoccupied wild lands follows the legal title, and hence respondents were, in contemplation of law, in the possession of said premises from 1862, until 1895, when appellant took possession under the lease to Barton, and therefore were in possession within thirty years before this suit was begun. Stone v. Perkins, 217 Mo. 601; Turner v. Hall, 60 Mo. 275; Weir v. Lumber Co., 186 Mo. 397.
   BROWN, J.

Action to determine and quiet -title to real estate. The trial court entered a judgment for plaintiff, which, upon motion of defendants, was set aside and a new trial granted. From the order granting such new trial plaintiff appeals.

The contention of plaintiff is that the evidence conclusively shows that it has acquired the title to the land in controversy under what is commonly known as the thirty-year Statute of Limitation (Sec. 1884, R. S. 1909), and that the court erred in granting defendants a new trial.

The land in controversy is the south half of the southwest quarter of section 5, and the north half of the northwest quarter of section 8, township 32, range 1 west, in Reynolds county, Missouri, except six acres which will hereafter be noted.

The defendants are the collateral heirs of one Allen W. Barrackman, who purchased all the land in controversy from the United States in the year 1858, and who was killed during the Civil War (between 1861 and 1865).

Said south half of the southwest quarter of section 5 was sold for delinquent taxes in 1884 and purchased by one White, while the north half of the north - west quarter of said section 8 was sold for delinquent taxes in 1885 and purchased by one January. The last-mentioned tract was again sold for taxes in 1890 and purchased by one Jamison. Said White, January and Jamison placed their sheriffs’ tax deeds on record in Reynolds county soon after their respective purchases, and plaintiff has acquired by mesne conveyances from said White, January and Jamison whatever title, or color of title, those sheriffs’ deeds conveyed.

Plaintiff concedes that all of the above-mentioned tax sales were void, by reason of the fact that Barrackman, whose title they purported to convey, had died long before the suits were brought upon which the said, tax sales were based.

Plaintiff’s evidence of its “lawful possession” of the lands hereinbefore described, and of the other facts which it contends gave it title under the thirty-year Statute of Limitation, consisted of a lease granted by plaintiff to one John Barton on July 25, 1895, for a small parcel of the tract in section 5, and under which lease said Barton cultivated said small parcel of land for a period of three or four years; also a lease to S. J. Freeman for about five acres of the tract in section 8, dated March 16, 1899, under which lease said Freeman cultivated said five acres in section 8 from March 16,1899, to sometime in the year 1902.

The lands in dispute are hilly, except for small parcels of tillable land, and chiefly valuable for their timber. Plaintiff employed agents to prevent trespassers upon the timber growing on said lands.

One of the defendants testified that he had never been in the actual possession of the land in dispute, and was of the opinion that none of his codefendants had ever been in actual possession of said property. There was no evidence introduced tending to show that the defendant had not paid any taxes on the land in controversy within thirty years next before the plaintiff entered into possession of such land through the aforesaid tenants, unless it be held that the sheriffs’ tax deeds (before-mentioned) themselves tended to prove non-payment of all taxes. Appellant’s abstract does not show for what year’s taxes the lands in dispute were sold.

Such other facts as may be deemed necessary to make clear the conclusions we have reached will be noted in our opinion. ■

I. Defendants do not contend that the possession which plaintiff exercised over the lands in controversy through its tenants and agents under the aforesai(j leases was insufficient to extend its possession over all the lands in controversy during the period of time those tenants were upon the land. There does not seem, to be any good reason for such a contention if it had been made, because section 1882, Revised Statutes 1909, expressly provides that “the possession, under color of title, of a part of a tract or lot of land, in the name of the whole tract claimed, and exercising, during the time of such possession, the usual acts of ownership over the whole tract so claimed, shall be deemed a possession of the whole of such tract.”

I know of no reason why plaintiff could not, through its tenants or agents, take the same actual possession of a tract of land which it could have taken through its officers, if those officers were personally present upon the property. Defendants do not seem to dispute the claim that plaintiff performed such acts of ownership over the entire tract as are usually exercised by the owner of that quality of land.

II. However, defendants do contend that the constructive possession which followed their legal title to the land in dispute amounted to the “lawful possession” contemplated by section 1884, Revised Statutes 1909, and that, therefore, respondents were in “lawful possession” of said property within a period of time less than thirty years before plaintiff leased said lands as hereinbefore noted and the thirty-year statute does not bar them.

The contention of defendants that their constructive possession of the lands in dispute under their legal title gave them the “lawful possession” thereof, contemplated by section 1884, Revised Statutes 1909, is untenable. The lawful possession mentioned in said section 1884 clearly means an actual possession obtained in a lawful manner, because the same' statute requires a claimant who is out of possession to bring his action under certain conditions within one year to recover such land. This, in my judgment, refers to an action in ejectment, because in 1874 when the thirty-year statute was first enacted (Laws 1874, p. 118) there was no statute in Missouri which authorized suits to quiet title to unoccupied lands. Such last-named statute was first enacted in 1897.’ [Laws 1897, p. 74.] An action in.ejectment will not lie against a claimant to land who is not in possession thereof. [Secs. 2385 and 2389, R. S. 1909.]

To sustain their contention that they are not barred by the thirty-year Statute of Limitation defendants cite and rely upon the case of Charles v. Morrow, 99 Mo. 638, 646, wherein the rule was announced that the thirty-year Statute of Limitation does not apply to a “contest between two legal titles.” This contention of defendants is unsound.

The case of Charles v. Morrow, 99 Mo. 638 (by Division Two of this court), is in direct conflict with our prior unanimous ruling in Banc (Fairbanks v. Long, 91 Mo. 628) holding that said statute is applicable to both legal and equitable titles. It seems that Fairbanks v. Long, supra, was overlooked or ignored by the learned jurist who wrote the opinion in Charles v. Morrow, supra. The rule announced in Fairbanks v. Long- that the thirty-year Statute of Limitation applied to both legal and equitable titles was reannounced by Division One of this court in Collins v. Pease, 146 Mo. 135, 139. The same doctrine was again reannounced by Division Two of this court in Campbell v. Greer, 209 Mo. 199, 216. It might be possible that the so-called thirty-year Statute of Limitation would not apply to a case where the Government or State has through mistake or inadvertence issued a patent to a party who had no right thereto, but when a patent is legally issued it carries the equitable title, and the further fact that such patent also conveys the legal title, thus merging the two titles, does not prevent the thirty-year statute from becoming applicable.

•The case of Charles v. Morrow, 99.Mo. 638, being out of harmony with other prior and subsequent decisions of this court, and also unsound in its reasoning, should not longer be considered a precedent. In the aforesaid case of Fairbanks v. Long, 91 Mo. l. c. 633, is given an accurate definition of the thirty-year Statute of Limitation, which, more accurately speaking, is a thirty-one-year statute of limitation.

Upon the record the plaintiff has made out a primafacie case entitling it to a decree under the thirty-year Statute of Limitation, except that there is no proof that defendants or their uncle, through whom they claim, have not paid any taxes on the lands in controversy during the thirty-year period next preceding plaintiff’s actual possession through its tenants^ A letter introduced in evidence shows that the uncle of defendants tried to pay taxes on the lands in dispute by sending five dollars to his agent for that purpose,, and that said agent reported no taxes due on said lands on May 20, 1859.

What taxes, if any, Mr. Barrackman or his collateral heirs (the defendants) may have paid after 1859 is not shown. The rule seems to be that the burden of showing non-payment of taxes by claimant out of possession is upon the party who asserts that such taxes were not paid. [Rollins v. McIntire, 87 Mo. 196.] Such proof, of course, need not be by direct evidence, but evidence from which such non-payment of taxes may be legally inferred will be sufficient.

If the plaintiff has obtained title to the land in dispute it has acquired such title through the thirty-year Statute of Limitation, and the burden is usually upon the one asserting title by limitation to prove all the facts which confer title in that manner. [Slicer v. Owens, 211 Mo. 319, 323.] It is true that the plaintiff did not specifically plead the fact that it relied upon the thirty-year Statute of Limitation, nor do we think it was required so to plead. Under the law of this State a title to real estate acquired under a statute of limitation is a legal title, good either for the purposes of offense or defense. [Scannell v. American Soda Fountain Co., 161 Mo. 606, 618, and cases there cited.] Such statute need not be specifically pleaded. [Collins v. Pease, 146 Mo. 135, 139.]

What was said by this court in Stone v. Perkins, 217 Mo. l. c. 599, also relied upon by defendants, has no application here, because it was the ten-year statute which was under consideration in that case.

III. At the trial of this cause one Cleveland Barton filed answer asserting title to six acres of the land in dispute, and by agreement of plaintiff said six acres was awarded to said defendant. The cause will have to be retried for another reason, but upon final judgment if plaintiff prevails said six acres should be awarded to said Cleveland Barton. This part of the judgment does not affect the controversy between plaintiff and the other defendants who are collateral heirs of Allen Barrackman, deceased.

IV. It is a well-settled rule in this State that an order granting a new trial after verdict or judgment will not be reversed when the record shows a state of facts upon which said new trial may have been properly granted. The order granting the new trial in this case ¿id not designate the ground or grounds upon which the motion therefor was sustained. Therefore, if the new trial was properly granted on any ground designated in defendants’ motion the order granting such new trial should not be reversed. [Lorenzen v. Railroad, 249 Mo. 182, 187; Jiner v. Jiner, 182 Mo. App. 153.]

Being convinced that there is no evidence in the record regarding non-payment of taxes by defendants during the required period of time to vest title under the thirty-year Statute of Limitation, the order granting the new trial will be affirmed, and the cause remanded for further proceedings not inconsistent with the views herein expressed.

All concur.