author: WOODSON, J.

text:
    TEBOW v. DOUGHERTY et al., Appellants.
    Divison One,
    June 29, 1907.
    • 1. WILL: Intention. The testator’s intention should never be lost sight of in construing a will. And to throw light upon that intention, the court has the right to look at the conditions and circumstances surrounding him at the time he executed it, in .connection with the provisions of the will itself.
    2. -: -: Presumption. It is presumed in the construction of a will that the testator intended to dispose of all his property, and not to' carve out a particular estate and dispose of that, leaving the rest to descend to his heirs according to the Statute of Descents and Distribution.
    3. -: To a Son and His Heirs. A conveyance of land, by deed or will, at common law or under the statutes, to a person and his heirs creates and vests in such person a fee-simple title to the land — the most complete and perfect title known to law.
    4. -: -: During Natural Life: Base Fee. The testator had a wife and one child. By one clause he devised one-half his property to his wife and her heirs during her natural life and provided that if his son should survive her, at her death that half “undisposed of shall belong to him.” The next clause read: “I give, devise and bequeath unto my said son, Sylvester S. Dougherty, and unto his heirs, one-half of my property, real, personal and mixed, to have, hold, control, use and manage as he may see fit and proper during his natural life; and should my beloved wife survive him, at his death the property undisposed of shall belong to her.” The wife and' son made a deed to land, the son married and has children, and the wife died leaving no other child than the- son. Held, first, that the manifest intention of the testator was to dispose of his entire estate to his widow and son; second, the one-half of the estate which was devised to the widow, upon her death passed to and vested in the son, and their joint warranty deed conveyed that half to the grantee; tMrd, the will gave to each a base fee in one:half of the estate, and upon the death of either the base or determinable fee was to terminate and be transferred to and vested in the survivor in fee simple absolute; by the death of the widow his base fee in her half was enlarged into a fee simple absolute, and by her death the qualified or conditional fee which was devised to her in his half was defeated and thereby was transferred to and became vested in the son. Hence, their joint deed conveyed the entire estate in the land and the children of the son took no interest by virtue of the will in the half devised to him.
    Appeal from Nodaway Circuit Court. — Hon. J. W. Alexander, Judge.
    Affirmed.

      H. S. Kelley for appellants.

      George Robb Ellison for respondent.
   WOODSON, J.

This action was instituted by the respondent, in the circuit court of Nodaway county, against the appellants, seeking to quiet title and to ascertain and determine the rights and interest of the parties to the land in controversy, which necessitates the construction of the last will and testament of William W. Dougherty, deceased.

The pleadings were in proper form, and the cause was tried and submitted to the court upon the following agreed statement of facts:

First. That on the 30th day of May, 1876, William W. Dougherty, a citizen of Nodaway county, duly made and executed as his last will and testament the following:

“I, William W. Dougherty, of the town of Graham, in the county of Nodaway and State of Missouri, being of sound mind, do make and publish this my last will and testament.

“I give, devise and bequeath my estate and property, real, personal or mixed, as follows, that is to say: After the payment of all my just debts and funeral expenses, I give, devise and bequeath to my beloved wife, Lucetta I. Dougherty, and to her heirs, one-half of my property, real, personal or mixed, to have, hold, control, use and manage as she may see fit and proper during her natural life; and should my beloved son, Sylvester S. Dougherty, survive her, at her death the property, real and personal, undisposed of shall belong to him.

“I give, devise and bequeath unto my said son, Sylvester S. Dougherty, and unto his heirs, -one-half of my property, real, personal and mixed, to have, hold, control, use and manage as he may see fit and proper during his natural life; and should my beloved wife, Lucetta I. Dougherty, survive him, at his death the property, real and personal, undisposed of shall belong to her.

“I appoint my beloved wife, Lucetta I. Dougherty, and my son, Sylvester S. Dougherty, of Graham, Nod-away county, Missouri, executrix and executor of this my last will and testament.”

Second. That said William W. Dougherty departed this life, in said Nodaway county, while said will was in full force and effect as his last will and testament, on the 7th day of August, 18-76.

Third. That said will was duly proved and admitted to probate and established as the last will and testament of said deceased, in and by the judgment of the probate court of said county, on the 15th of August, 1876.

Fourth. That Lucetta I. Dougherty, the widow, and Sylvester S. Dougherty, the only child, of said testator, were duly appointed as executrix and executor of said will by said probate court and qualified as such and (fully administered said estate, and the same has now been fully settled and said executrix and executor finally discharged without disposing of any part of the lands belonging to the deceased in the administration of the estate.

Fifth. That at the time the will was made and at the time of the death of the testator, he was the owner in fee and in possession of the lands described in the petition in this canse, and in addition thereto a large body of land, consisting of 540 acres lying in a body in said county; that said lands were improved and occupied and used by said testator and his family.

Sixth. That said testator also owned and possessed personal property and effects .of such value as the appraisement and inventory on file in the probate ■court may show, which are hereby considered a part of the evidence in this cause. (Here insert said appraisement and inventory).

Seventh. That the testator owed, at the time of his death, as shown by the demands proven and allowed against the estate, the sum of $--and, in this connection, the records of the probate court on that subject are hereby considered in testimony.

Eighth. That at the time of the testator’s death he left surviving Lucetta I. Dougherty as his widow and the defendant, Sylvester S. Dougherty, as his only child and her only child, and the said Lucetta I. Dougherty, the widow, departed this life on the — day of —, 1890, leaving said Sylvester S. Dougherty, the defendant, as her only child and heir surviving her.

Ninth. That on the twentieth day of December, 1883, the said Lucetta I. Dougherty and the said Sylvester S. Dougherty executed to one Humphrey Lyle and Robert Lyle a deed, in the form of a general warranty deed, which, undertook and purported to convey to the said grantees the real estate described therein, which is the same as that set forth and described in the petition, which belonged to and was a part of the real estate of the said William W. Dougherty, deceased, at the time of his death, and which the said Lucetta 1. Dougherty and Sylvester S. Dougherty claimed to own as devisees under said will.

Tenth. That said Sylvester S. Dougherty was on the — day of--, 18 — , married to the defendant Annie M. Dougherty, and the defendants, William Dougherty, Arthur Dougherty, Clement Dougherty and May Dougherty, are the only children and heirs of said Sylvester and Annie M., and that said Sylvester is still living.

Eleventh. That said defendants Arthur, Clement and May Dougherty are infants, under the age of majority, and H. S. Kelley was appointed by the court guardian ad litem, who filed a joint answer for said infants and for said defendant William Dougherty.

Twelfth. It is further admitted that, by mesne conveyances in due form, the plaintiff obtained such title to the lands described in the petition as was conveyed to Humphrey Lyle and Robert Lyle by the aforesaid deed to them from Lucetta I. Dougherty and Sylvester S. Dougherty.

Thirteenth. It is further admitted that the defendant children of the said Sylvester and Annie M. Dougherty are now claiming to own and have an interest in the real estate described in the petition under and by virtue of the provisions of said will.

The cause was, by the court, taken under advisement until the November term, 1904, at which time it found for the plaintiff and rendered judgment accordingly. In due time defendants filed their motions for a new trial and in arrest of judgment, each of which was, by the court, overruled, to' which action of the court the defendants duly excepted and timely appealed, the cause to this court.

I. There is but one question presented by this record and that is one of law. The contention of the appellants is this, that the will gave to the widow and son each a life estate in the one-half of the property of the testator, and a contingent remainder in and to the other half, and when the contingency failed, the heirs of the life tenant took the remainder, in fee; while, upon the other hand, the respondent contends that the will disposed of the entire estate and gave to the widow and to the son each a base fee in an undivided one-half thereof, with a provision in the will that the estate so devised to each should terminate and be divested from the one who died first, and transferred to and invested in the survivor, and the widow having died first, the devise to her was by her death terminated, and, by the terms of the will, transferred and vested in the son in fee simple; and as the happening of the contingency, which might have terminated his estate, has become impossible by the death of the widow, he then took the land devised to her, at her death, discharged of the contingency, and became the owner of an absolute fee simple title thereto-, instead of a base fee, which he owned prior to her death; and that his warranty deed of December 20, 1883, conveyed to the Lyles a perfect title in fee to the half interest so devised in the first instance to her and then to him by a conditional limitation.

In the construction of a will the paramount, question with the court always is, what disposition did the testator intend to make of his property? That intention should be the court’s guiding star and should not be lost sight of for a moment while construing his will. In order to throw light upon his intention, we have the right to look at the conditions and circumstances surrounding the testator at the time he executed the mil in conjunction with the provisions of the will itself.

The testator, William W. Dougherty, died seized in fee of the land in controversy, and; left surviving him his widow, Lucetta I. Dougherty, and his only child and heir, Sylvester S. Dougherty, and to them he made the following devises:

“I give, devise and bequeath unto my beloved wife, Lucetta I. Dougherty, and to her heirs, one-half of my property, real, personal or mixed, to have, hold, control, use and manage as she may see fit and proper during her natural life, and should my beloved son, S. S. Dougherty, survive her, at her death the property, real and personal, undisposed of shall belong to him.”

“I give, devise and bequeath unto my said son, S. S. Dougherty, and to his heirs, one-half of my property, real and personal or mixed, to have, hold, control, use and manage as he may see fit and proper during his natural life, and should my beloved wife, Lucetta I. Dougherty, survive him, at his death the property, real and personal, undisposed of shall belong to her.”

In looking at this will, from corner to corner and from top to bottom, one is impressed from the outset that the testator intended by his will to dispose of his entire estate to his widow and son. They were the natural objects of his bounty, and, in so far as this record discloses, they were the sole persons who had any claim upon his generosity. In addition to this intention appearing upon, the face of the will, it is presumed in the construction of a will that the testator intended to dispose of his entire estate, and not to carve out a particular estate and dispose of that, leaving the remainder to descend to heirs at law, according to the Statute of Descent and Distribution. [RoBards v. Brown, 167 Mo. 447; Hurst v. Von De Veld, 158 Mo. 239; Yocum v. Siler, 160 Mo. 281; Watson v. Watson, 110 Mo. 170.]

The property described in the first paragraph of the will above set out is not involved in this litigation, because, by the express terms of the will, the one-half of the estate which was devised to the widow passed to and vested in the son, Sylvester, upon her death; and their warranty deed, executed on December 20th, .1883, to Humphrey and Robert Lyle, conveyed to them all of their present and subsequently acquired title thereto.

The clause of the will involved in this case is not free from ambiguity. It says: “I give, devise and bequeath. unto my said son, Sylvester S. Dougherty, and to his heirs, one-half of my property, to have, hold, control, use and manage as he may see fit and proper during his natural life. ” If it were not for the last four words in the clause of the will, just quoted, which are “during his natural life,” the meaning of the testator would be clear, and the will would then read: “I give, devise and bequeath unto my son, Sylvester S. Dougherty, and unto his heirs,” etc.

A conveyance of land, by will or deed, at common law or under our statutes, to a person and his heirs creates and vests in him a fee simple title to the land, the most complete and perfect title known to the law. [1 Washburn on Real Property (6 Ed.), secs. 85, 86; Tiedeman on Real Property, sec. 37; Yocum v. Siler, 160 Mo. 281.]

Such a conveyance gives to the grantee the absolute and exclusive title, and does not create a tenancy in common between him and his heirs. [Yocum v. Siler, 160 Mo. 281.]

But, unfortunately, the words “during his natural life,” are found, in the will, and it must be considered with them as a part thereof. The first clause of that paragraph clearly indicates the intention of the testator to dispose of one-half of the land to his son in fee and not for life. This intention is manifested by the use of the words “unto my son, Sylvester S. Dougherty, and unto his heirs. ’ ’ The testator could not have selected more suitable or more appropriate words to express that intention than the words so used by him in this will; but in the latter part of the same clause we find the limitation mentioned, couched in the words “during his natural life.”

The will should be so construed' that this apparent conflict between the clauses - should be reconciled and harmonized, if possible.

In the case of Yocum v. Siler, supra, the fifth clause of the will was in the following words: “To my well beloved son, William F. Yocum, my natural son, I bequeath absolutely the northwest quarter . . . with the express understanding and restriction, namely, that if my said son dies without legal issue, descendants of his, legitimate issue of his,” then to, etc.' This court in an able and well-considered opinion held, that said clause of that will gave William F. Yocum a fee in the land; and in speaking for the court, Gantt, J., said: ‘ ‘ The Statute of Wills of 1845, then in force, and still the law of this State, required ‘ all courts and others concerned in the execution of last wills to have due regard to the directions of the will, and the true intent and meaning of the testator in all matters brought before them.’ [R. S. 1845, sec. 51, p. 1086.] The same statute was still in force when this will was executed. [R. S. 1879, sec. 4008.] This is also a general canon for the construction of wills irrespective of the statute. By the words ‘bequeath absolutely’ he unquestionably intended to devise to his said son his whole estate in said lands. These words are ample for that purpose in a will, and it is unnecessary to cite precedents to establish that it has been often so held. It is also settled by many well-considered cases that when the words of the will in the first instance clearly indicate a disposition in the testator to give the entire interest, use and benefit of the estate absolutely to the donee, it will not be cut down to any less estate by subsequent or ambiguous words, inferential in their intent. [Small v. Field, 102 Mo. 104; Clark v. Leupp, 88 N. Y. 228; Lambe v. Eames, L. R. 10 Eq. Cas. 266.] The words ‘heirs and assigns’ or ‘heirs and assigns forever’ were not necessary to create a fee simple when this will was executed, nor when probated.”

In the case at bar the intention of the testator is much more pronounced in favor of giving his son a fee in the land than it was in the Yocum-Siler case, supra, because here the testaor used the word “heirs,” which is the ideal word to create a fee; while in the Yocum case the words employed were “bequeath absolutely,” which at common law were insufficient to convey a fee, and are now sufficient only by virtue of statutes; but the words “heirs and assigns” have always been held sufficient to convey a fee, both at common law and under the statute. And in the case at bar, the subsequent words, “during his natural life,” found in the latter part of the clause of the will which gives the fee to the son, and which appellants claim cuts that fee down to a life estate, are no stronger nor more expressive of the testator’s intention of limiting the estate for the son’s life than were the words used in the Yocum will. In that case, the words of limitation are, “with the express understanding and restriction, namely, that if my said son dies without issue, descendants of his, legitimate issue of his, said lands shall pass to,” etc.

While the rule announced in the Yocum ease is applicable to the facts of this case, yet we are not required to go to the same length in this case as we did in that in order to carry out the intention of the testator, because his intention here is not expressed in just the one clause of the will but is manifested in other portions and is strongly reflected from the entire face of the instrument. As before stated, the whole will upon its face shows clearly the testator thought he was disposing of his entire estate and was giving it to his widow and son, his only heirs; and it is manifest therefrom that he intended and desired each of them to possess and' enjoy their respective portion of the estate during their natural lives, and that upon the death of either the survivor was not only to retain the portion of the estate devised to him or her, but the portion given to the other at his or her death was to terminate, by the happening of that contingency, and be transferred to and become invested in the survivor. By construing to•gether these two paragraphs of the will which give the widow one-half of the estate and to the son the other half, it is clearly seen that the testator gave to each of them a base, qualified or determinable fee, the first of .which is in these words: I give ... to my beloved wife . . . and her heirs, one-half . . . during her natural life, and should my beloved son . . . survive her, at her death . . . the property . . . undisposed of shall go to him, ’ ’ and the second is as follows: “I give . . . unto my said son . . . and unto his heirs one-half . . . during his natural life, and should my beloved wife . . . survive him, at his death the property . . . undisposed of shall belong to her. ” In other words, he gave by the first paragraph to his widow and her heirs one-half of his property in fee, to be divested from her and invested in the son, if she should die first, and in the meantime she was to have the possession and use of her portion, until the death of the one or the other; and by the second paragraph he gave to his son and his heirs one-half of the property, in fee, to be divested from him and invested into her, if he should die first, and until the death of one or the other he was also to possess and enjoy the portion given to him. ■ As before stated, this gave each a base fee. in one-half of the estate, and upon the death of either the base or determinable fee was to terminate and be transferred to and vested in the survivor in fee simple absolute.

Mr. Tiedeman defines a base fee in the following words: “"Whenever a fee is so qualified as to be made to determine, or liable to be determined, at the happening of some contingent event or act, the fee is said to be base, qualified or determinable. There are four classes of such fees, viz: fee upon condition, fee upon limitation, a conditional limitation and.' a fee conditional at common law.” [Tiedeman, Real Property, p. 28, secs. 44, 271.]

Mr. Washburn, in his able work on Real Property, says: “Among the instances put by way of illustrating a determinable fee is a limitation to one and his heirs, peers of the realm or lords of the manor of Dale, or so long as a certain tree stands, or until the marriage of a certain person, or till a man shall go to or return from Rome, or till certain debts are paid, or so long as A or his heirs shall pay B a certain sum per annum, or so long as St. Paul’s shall stand, or until a prescribed act shall be done, or until a minor shall attain the age of twenty-one years, and the like. So, a grant to a canal corporation ‘so long as used for a canal’ was held to be a qualified fee. ’ ’ [1 Washburn on Real Property (6 Ed.), p. 80, sec. 167.]

And, as said by this court in the Yocum-Siler case, supra, “If so, it must be that the estate devised to the son is a conditional fee; that is, an estate of a freehold nature which will enlarge to a fee upon the happening of a condition precedent or subsequent, or upon the failure of such condition will remain an estate of a freehold nature during the life of the first taker, but will be less than a fee, ’ ’ and the same case continues by quoting with approval from 1 Blackstone (Chitty’s) marg. p. 154, where he says: “An estate on condition expressed in the grant itself is where an estate is granted, either in fee simple or otherwise, with an express qualification annexed, whereby the estate granted shall either commence, be enlarged, or be defeated, upon the performance or breach of such qualification or condition. These conditions are, therefore, either precedent or subsequent.” [Yocum v. Siler, 160 Mo. 1. c. 313; Halbert v. Halbert, 21 Mo. 282; Moore v. Wingate, 53 Mo. 410; 2 Rice on Real Property, secs. 278, 288.]

We are, therefore, of the opinion that the will in question gave to the widow and son each a freehold estate for the life of the one who might first die in and to the lands in controversy, with cross-determinable fees, in remainder; the one to be “enlarged” into and become an estate in fee simple, in the one who should survive, who was the son in this case.

By the death of the widow, the contingency which might have “determined” his qualified or base fee was made impossible, and his base fee. was by her death enlarged into a fee simple absolute; and, by her death, the qualified or conditional fee which was devised to her was “defeated,” and thereby transferred to and became invested in her son.

This clearly carries out the intention of the testator. He intended that both, the widow and son, should enjoy his bounty during their joint lives, and upon the death of either the survivor was to take the remainder in fee. On the death of the widow, the son took the fee to the entire estate, and his warranty deed of December 20th, 1883, made to the Lyles, conveyed to them and their grantees all of his after-acquired title to said lands. This being true, the children of Sylvester S. Dougherty took no interest or estate in or to the lands in controversy by virtue of their grandfather’s will, and they have no such interest now.

It follows from what has been said that the judgment of the circuit court was for the right party and must be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    INGWERSON v. CHICAGO & ALTON RAILWAY COMPANY, Appellant.
    Division Two,
    July 1, 1907.
    1. PLEADING: Amendment. When an amended petition is filed it operates as a withdrawal or abandonment of the original petition.
    2. -: --: New Cause: Negligence: Breach of Contract. In his original petition against a railroad for damages for delay in shipping cattle, plaintiff alleged defendant owed him the duty to carry the cattle “within a reasonable time” and negligently failed to do so. This charge was omitted from the amended petition and in lieu thereof a special contract was alleged for a special or- fast train which, according to the alleged contract, was to leave the place of shipment before seven o’clock one morning and arrive in Chicago before seven o’clock of the next morning, and a breach of that contract, and consequent damages. At the trial plaintiff’s counsel stated they stood solely upon that oral contract. It was not proved and the court so instructed the jury, but refused to instruct them to find for defendant, but did instruct them that it was defendant’s duty to carry the cattle “within a reasonable time and without unnecessary delay,” and that if it failed to do so their verdict should be for plaintiff. Held, error. The amended petition stated a new and different cause of action, plaintiff had abandoned his original petition, and to permit him to recover on the theory mentioned in the instruction given would be to permit him to sue upon one cause of action and recover upon another. Whether the action is in form ex contractu or ex delicto, if the cause of action as set forth in the petition originated in a contract, the contract must be proved as laid.
    3. -: -: ————: -: -: Answer: Waiver. Where the cause was tried upon the original petition, which in legal contemplation was abandoned by the filing of an amended petition, the filing of an answer to the amended petition was no waiver by defendant of its right to insist that plaintiff totally failed to prove the cause of action stated. It Is not a question of variance, but of a total failure of proof.
    Appeal from Pike Circuit Court. — How. David H. Hby, Judge.
    Reversed and remanded,

      W. O. Gray and Scarritt, Scarritt & Jones for appellant.
    (1) The demurrer to plaintiff’s evidence should have been sustained. Where an amended petition is filed the original is abandoned. Hawkins v. Massie, 62 Mo. 552; Ross v. Cleveland, 162 Mo. 317; JBobb v. Bobb, 89 Mo. 411; Hubbard v. Quisenberry, 32 Mo. App. 472; Roberts v. Ins. Co., 26 Mo. App. 92; United States v. Gentry, 119 Fed. 70. It is well established that plaintiff cannot sue upon one cause of action and recover upon another. Huston v. Tyler, 140 Mo. 264; Clements v. Yeates, 69 Mo. 623; Ray v. Bowles, 83 Mo. 170; Crawford v. Spencer, 36 Mo. App. 78; Mann v. Birchard, 40 Vt. 326. This is not a case'of variance as described in section 656, Revised Statutes 1899, but a total failure of proof, as described in section 798, Revised Statutes 1899. Whipple v. B. & L. Assn., 55 Mo. App.-558. (2) In the second place, we submit that defendant’s peremptory instruction at the end of all the evidence should have been given for the reason that it- appears from the evidence, without question or contradiction, that the delay in the carriage of this shipment was brought about- solely by an unusually severe snow and windstorm and cold wave which interrupted the company’s telegraph wires and otherwise unavoidably impeded the progress of this and all other-trains on defendant’s line and also on other lines in the section of the country in question.

      Dempsey $ McGinnis and Tapley & Fitzgerald for respondent.
    (1) Appellant in pleading over waived defects in respondent’s petition, if any. . State ex rel. v. Bank, 160 Mo. 640; Grymes v. Mill & Lumber Co., Ill Mo. App. 362. (2) If respondent’s amended petition was defective it was aided by appellant’s answer wherein it is alleged that there was no unusual, unnecessary or unreasonable delay, etc. Allen v. Chouteau, 102 Mo. 309; Price v. P. & F. H. Protective Co., 77 Mo. App. 241; Hughs v. Carson, 90 Mo. 399; Beckman v. Ins. Co., 49 Mo. App. 604; Henry v. Sneed, 991 Mo. 407; Rickets v. Hart, 150 Mo. 64; Fisher v. Central Lead Co., 156 Mo. 485. Moreover, respondent’s instruction 3 complained of was proper under issues made by appellant. Leonard v. Railroad, 54 Mo. App. 293, wherein the provision in appellant’s alleged contracts fixing twelve hours over schedule time is construed. (3) Actions upon verbal contract or ex delicto against carriers with answer alleging special written contract sanctioned in this State. Hance v. Railroad, 56 Mo. App. 476; Browning v. Railroad, 90 Mo. App. 329; Paddock v. Railroad, 60 Mo. App. 328; Yaughan V. Railroad, 62 Mo. App. 461; Ward v. Railroad, 158 Mo. 226; Kellerman v. Railroad, 136 Mo. 177; Phoenix Powder Mfg. Co. v. Railroad, 196 Mo-. 663; Wilson and Aull v. Railroad, 66 Mo. App>. 388; Stoop v. Railroad, 117 Mo. App. 204; Ficklin, v. Railroad, 117 Mo. App. 211. (4) Respondent could recover on verbal contract. Fountain v. Railroad, 114 Mo. App. 676; Gramm v. Railroad, 72 Mo. App. 34; Harrison v. Railroad, 74 Mo. 364. (5) Respondent sued for and recovered damages on account of appellant’s failure to deliver cattle in time for market. There was not a failure of proof. R. S. 1899, sec. 798. If a variance, appellant’s remedy was under section 655 of said statutes. Smith v. Fordyce, 190 Mo. 19; Bamson v. Lakeman, 189' Mo. 599. (6) The storms and cold wave were not extraordinary but such as appellant had to provide against. Pinkerton v. Railroad, 117 Mo. App. 288; Cowling v. American Express Co., 102 Mo. App. 375; Davis v. Railroad, 89 Mo. 350.
   BURGESS, J.

This is an action by plaintiff against defendant, a common carrier, for damages in the sum of $840.58, alleged to have been occasioned by delay in the shipment of eighty-four cattle from Bowling Green, Missouri, to Chicago, Illinois, on January 26,1904. The suit was begun in the circuit court of Pike county, Missouri, May 11,1904.

In the original petition it was alleged that said cattle were delivered to defendant company on January 26, 1904, and defendant^ thereupon assumed, and it thereby became defendant’s duty as a common carrier, to transfer said cattle to Chicago within a reasonable time; but that defendant “so carelessly and negligently conducted itself in the premises as that it failed and neglected to complete said carriage in a reasonable time,” to plaintiff’s damage, etc.

Thereafter, during the June, 1904, term of said circuit court, plaintiff abandoned the charge of its original petition and filed in this cause an amended petition wherein it is alleged “that on the twenty-sixth day of January, A. D. 1904, the defendant entered into a contract with the plaintiff under and by virtue of which, in consideration of certain freight charges to be paid, the defendant promised and agreed to carry from the city of Bowling Green, in Pike county, Missouri, by special or fast train, eighty-four cattle, making five car loads, belonging to the plaintiff, to the city of Chicago, in the State of Illinois, and deliver the same in good condition at the Union Stock Yards in the said city of Chicago, on or before seven o’clock of the morning of the twenty-seventh day of January, 1904. . . . But the defendant failed and neglected' to begin said carriage at said hour, . . . and in violation of the terms of its said contract the defendant failed and neglected to carry to and deliver said cattle at their said destination on or before said' hour of seven in the morning of said twenty-seventh day of January, 1904,” to plaintiff’s damage, etc.

Thereupon defendant filed its motion to strike out said amended petition, “for the reason that the same is a departure from and states a wholly new and different cause of action from the original petition herein,” which motion was overruled by the court, ■ and issue was joined on said amended petition, and. the cause was tried upon, the issue so made upon the amended petition.

At the beginning of the introduction of testimony in the case counsel for plaintiff stated to the court that they stood solely upon the parol contract alleged in the amended petition, to-wit, a contract fo.r a special and fast train to be started from Bowling Green not later than seven o’clock on January 26 and to reach Chicago not later than seven o’clock on the morning of January 27. At the end of all the evidence the trial court, at the request of the defendant, instructed the jury that plaintiff had wholly failed to prove the verbal contract alleged in the amended petition' and defendant thereupon requested the court to peremptorily instruct the jury that they should find for defendant upon the pleadings and the proof, which instruction the court refused to give. Thereupon the' court, at the request of plaintiff,- instructed the jury that it was defendant’s duty to carry said cattle “within a reasonable time and without unnecessary delay” and that if defendant failed to do so they should find for the plaintiff, although no such charge or issue was made' in plaintiff’s amended petition. The sole issue made by the amended petition, namely a breach of a special contract, was wholly ignored.

At the trial it developed from the testimony that substantially all the delay to the train in question occurred before it reached Bowling Green, and the undisputed proof is that the sole cause of such delay was an unusually severe snowstorm and cold wave which swept over that part of the country the night of January 25, and broke down or grounded the telegraph wires, disabled engines and generally impeded the progress of all trains on this and all other lines of railroad. The evidence shows that from Bowling Green to Chicago the train carrying the plaintiff’s cattle made almost schedule time, although considerably handicapped by trouble with the telegraph wires and other difficulties arising from the extreme cold.

In its answer defendant set up a written contract of shipment made with plaintiff for the transportation of these cattle wherein was contained several complete defenses to this suit. By instructions requested defendant again insisted upon said provisions of the shipping contracts which were set up in the answer and introduced in the evidence, but its instructions were overruled and said contracts were ignored by the trial court. Again, in its motion for a new trial, defendant called to the attention of the learned trial court its shipping contracts and its defenses thereunder, and thereby called in question the Federal statute known as the Interstate Commerce Act, and defendant also asserted that by ignoring and nullifying its said contracts of shipment the trial court denied defendant the right to contract, and therefore the equal protection of the law, and also thereby arbitrarily deprived defendant of its property rights in such contracts in violation of both the Federal and State Constitutions.

Under the instructions of the court the jury rendered a verdict against defendant for three hundred and twenty-five dollars, upon which verdict judgment was entered against defendant, and after unsuccessfully moving for a new trial, defendant has appealed to this court from that judgment.

Both constitutional and Federal questions are properly raised in this case, so that this appeal was properly allowed to this court.

In the original petition filed herein plaintiff alleged that, defendant owed him the duty to carry the cattle in question from Bowling Green, Missouri, to Chicago, “within a reasonable time,” and that said common carrier “so carelessly and negligently conducted itself in the premises as that it failed and neglected to complete said carriage in a reasonble time.” This charge was omitted from the amended petition upon which the ease was tried, and in lieu therof a special contract was alleged for a special or fast train which, according to the alleged contract, was to leave Bowling Green before seven o’clock on the morning of January 26, and was to arrive in Chicago before seven o’clock on the morning of January 27; and plaintiff charged that “in the violation of the terms of its said contract defendant failed and neglected to carry to and deliver said cattle at their said destination on or before said hour of seven o’clock in the morning of said twentyrseventh day of January, 1904, to his damage in the sum of eight hundred and forty and fifty-eight one-hundredths dollars.”

It thus appears that the cause of action alleged in the original petition was for the violation, of an alleged verbal contract by which defendant was to deliver said cattle in Chicago within a reasonable time, but that it so carelessly and negligently conducted itself in the premises as that it failed and neglected to complete said carnage in a reasonable time, while the amended petition is predicated upon an alleged special contract for a “special or fast train” which was to leave Bowling Green before seven o’clock on the morning of January 26, and was to arrive in Chicago before seven o’clock on the morning of January 27.

From an examination of the evidence, it is quite plain that plaintiff failed to prove the contract alleged in his amended petition, and that this was the view of the trial court is evidenced by the fact that it so instructed the jury at the request of the defendant. The court also instructed the jury that “all testimony with reference to oral negotiations or arrangements between plaintiff and defendant’s station agent, leading np to and prior to tbe signing tbe written contract of shipment introduced in evidence, is withdrawn from your consideration,” but the court refused the request of defendant to instruct the jury, upon such failure of proof, that their verdict must be for defendant, but submitted the case to the jury on the theory of plaintiff’s original petition.

If there is any proposition of law that is well settled in this State, it is that when an amended petition is filed it operates as a withdrawal or abandonment of the original petition. [Hawkins v. Massie, 62 Mo. 552; Bobb v. Bobb, 89 Mo. 411; Ross v. Mineral Land Co., 162 Mo. 317; Roberts v. State Insurance Co., 26 Mo. App. 92.] In Hubbard v. Quisenberry, 32 Mo. App. 1. c. 472, it is said: “As long as the amended statement is recognized by the court it stands in lieu of the original statement, and no issue growing out of the latter, or based upon it, could be properly submitted to the jury.”

Nor could plaintiff sue upon one cause of action and recover upon another. [Clements v. Yeates, 69 Mo. 623, and cases cited; Huston v. Tyler, 140 Mo. 252; Crawford v. Spencer, 36 Mo. App. 78.]

In Ray v. Bowles, 83 Mo. 1. c. 170, it is said: “A recovery, if at all, must be on the contract set forth in the petition. So when the petition is based on a parol contract, á written agreement undertaking to vary or modify the verbal, will not be admitted in evidence. In other words, parties must stand or fall upon their pleading, and will not be permitted at the trial by evidence to blend the two ‘and graft the verbal on the written contract.’ [Henning v. United States Ins. Co., 47 Mo. 425 ; Stix v. Matthews, 75 Mo. 96; Weil v. Posten, 77 Mo. 284; Clements v. Yeates, 69 Mo. 623.]” So in Mann v. Birchard, 40 Vt. 1. c. 339, it is said: “The declaration in each count sets up a special contract for unusual despatch, alleging in one count that the defendants promised to transport the freight ‘by express and through freight trains;’ in another, ‘by the first through and expressed -freight trains;’ and in the third, ‘by the earliest and quickest freight trains.’ The plaintiffs’ evidence, so far from tending to prove such a contract, proves that it was understood that the freight was not to be so carried. There is, then, a manifest variance between the declaration and the proof. The declaration seems to be in’ assumpsit, and the first count somewhat singularly reads, ‘in a plea of assumpsit,’ but even if the declaration is in case, ex delicto, the variance would be equally fatal.”

These general principles are thus stated in 3 Ency. PI. and Pr., 849 : “In actions of tort against a carrier, the duty on which the liability is alleged to be founded, or the contract out of which the tort arises, should be correctly stated. A variance between the duty or contract as stated and the proof adduced in support thereof may be fatal'to a recovery; for whether the action is in form ex contractu or ex delicto, if the cause of action as set forth originates in a contract, the contract must be proved as laid.”

But plaintiff insists that defendant, by pleading over, waived the defects in respondent’s petition, if any. That the rule is that even when an amendment changes the cause of action sued upon, and is a clear departure therefrom, if the party pleads over and goes to trial thereon, he waives his right to object, may be conceded. It is so held in Grymes v. Mill & Lumber Co., 111 Mo. App. 358, and State ex rel. v. Bank, 160 Mo. 640, and many other decisions of the appellate courts of this State. But the rule thus announced has no application to the case at bar, because it was tried upon the original petition, which was in legal contemplation abandoned or withdrawn by the filing of the amended petition, and the answer was to the latter petition. In, fact, plaintiff in his brief predicates his right to recover upon a violation of the original contract, and insists upon his right to recover on a verbal contract, notwithstanding the fact that the cause of action before the court was bottomed upon a written contract, and claims that as he sued for and recovered damages on account of appellant’s failure to deliver the cattle in time for market, there was hot a failure of proof (sec. 798, R. S. 1899); and that, if there was a variance, appellant’s remedy was under section 655 of said statutes. But, as we have said, there was not a variance, but an entire failure of proof.

In discussing this subject in Whipple v. Peter Cooper B. & L. Association, 55 Mo. App. 1. c. 558, Rombauer, P. J., speaking for the court, said: ‘ ‘Where the petition states one contract, and the. answer another and wholly different contract, denying the contract stated in the petition, we are aware of no rule which would entitle the plaintiff to a recovery upon a bare showing that the defendant had not complied with the contract stated in the answer. The case last put presents a case of failure of proof and not of variance, and is governed by section, 2238 [now sec. 798]. of the Revised Statutes, and not by the provisions of section 2097 [now see. 656].”

From what has been said, it necessarily follows that the court should have sustained one of the demurrers” to the evidence interposed.by'defendant at the close of plaintiff’s evidence and at the close of all the evidence. For these intimations, the judgment should be reversed and the cause remanded. It is so ordered.

All concur.


author: GANTT, J.

text:
    CITY OF INDEPENDENCE to use of PARKER-WASHINGTON COMPANY and PARKER-WASHINGTON COMPANY, Appellants, v. KNOEPKER and NAGEL.
    Division Two,
    July 1, 1907.
    1. APPELLATE JURISDICTION: Constitutional Question. A reference in the instruction to a constitutional provision which In no manner relates to any issue in the cause, does not give the Supreme Court jurisdiction over the appeal.
    2. -: -: Time to Complete Work. Where the instrue-• tion asked told the jury that under a certain section of the Constitution the city had authority by ordinance to grant additional time in which to complete the public work, and that section simply provides for four classes of cities and general charters for- each class, the issue of whether or not the city had authority to extend the time to complete the public work ' was not thereby made a constitutional question, and the instruction did not give the Supreme Court jurisdiction of the appeal.
    3. ——: -: In Motion for New Trial. Where one ground for a motion for a new trial was that the giving of a peremptory instruction to find for defendants deprived plaintiff of its property without due process of law under the State and Federal constitutions, and that point is then made for the first time, and none of the questions presented to the trial court for determination .required a construction of the Constitution, the Supreme Court is not thereby given jurisdiction of the appeal.
    4. -: -: Construction Must be Involved. In order to give the Supreme Court jurisdiction of the appeal on the ground that a constitutional question is involved, a construction of the Constitution must in some way be involved in the decision which determines the rights of the parties.
    Appeal from Jackson Circuit Court. —E<on. J. V. G. Karnes, Special Judge.
    Transferred to Kansas City Court of Appears.

      Ball & Ryland for appellants.
    The jurisdiction of the case on appeal is in this court. In re Opening Essex Avenue, 44 Mo. App. 288, 121 Mo. 98; Neill v. Gates, 152 Mo. 585; Hernán Construction Co. v. Loevy, 179 Mo. 455; State ex rel. v. Smith, 177 Mo. 69; Joplin Mining Co. v. Joplin, 48 Mo. App. 601.

      James M. Callahan and Flournoy & Flournoy for respondents.
    To give this court jurisdiction in this case two things are necessary: First, a constitutional question must be involved in the proper determination of the case, and, second, that particular question must be properly raised upon the record. No constitutional question that was involved in the determination of the case was raised by appellant, hence this court has no jurisdiction. Hulett v. Railroad, 145' Mo. 35; Brown v. Railroad, 175 Mo. 185; Ash v. Independence, 169 Mo. 77; Excelsior Springs to use v. Ettenson, 188 Mo. 129.
   GANTT, J.

This is an action to enforce a special taxbill against the defendants’ adjoining property for $114.83. The answer alleged that the taxbill was void and of no effect, because the resolution passed by the council preliminary to the doing of the work did not sufficiently describe the kind of paving to be made and did not give the property-owner definite notice of the kind and quality of the pavement as required by the charter of the city, a city of the third class; and, second, that the ordinance by virtue of which the paving was done was ineffectual to create a lien, for the reason that it did not conform to the requirements of the resolutions. Third, that the street was not completed within the time required by the ordinance. Fourth, that the work was not done in accordance with the contract and when completed was so inferior as to be practically worthless. Fifth, that the cost of the work was not proportioned in accordance with the requirements of the charter. The reply.was a general denial. There was a verdict and judgment for the defendants and the plaintiff appealed.

It appears that the contract was entered into and approved by the council on the 31st day of August, 1898. Among other provisions of the ordinance was the following: “The work herein provided for shall be commenced within thirty days from the date of letting the contract and be completed within ninety days from the time the contract takes effect.” It appears that on September 29', 1898, the construction company was notified not to touch the old pavement until they had sufficient amount of material in sight to complete the contract, unless they were otherwise ordered in writing. And that afterwards on October 10,1898, they were notified to proceed with the work without delay. It seems the work was not completed within the ninety days. On the twenty-ninth of November, 1898, the city passed another ordinance whereby the time for the-completion of the contract was extended for ten full working days and providing that for each or every day for said period that the work might be prevented or interfered with by inclement weather, an additional day was given to construct the pavement. At the conclusion of all of the evidence the court gave a peremptory instruction to the jury to find for the defendants.

Among other instructions prayed by the plaintiff was one numbered five as follows: “The court instructs the jury that the city of Independence, at the time of letting the paving contract read in-evidence, and the doing of the work, had under the provisions of section 7 of article 9 of the Constitution of Missouri and charter of the city, the power and authority to grant by ordinance reasonable additional time if necessary, to complete- the work,” etc.

The jury having returned the verdict for the defendants, the plaintiff filed its motion for. a new trial, and among other grounds assigned the following: “10, because the peremptory instruction of the court to find the issues in favor of the defendants deprived the plaintiff of the right of property without due process of law, and deprived the plaintiff of the equal protection of the law within the meaning of the provisions of the Constitution of the State of Missouri and of the Constitution of the United States.”

I. Preliminary to any investigation of the various points raised upon the other instructions in the case and the rights of the parties under the ordinance, the jurisdiction of this court is challenged on the ground that no constitutional question was raised by the appellant in the circuit court. It is apparent- that the. amount involved does not give this court jurisdiction and unless jurisdiction can be predicated upon the refusal of the instruction number five and upon the 10th assignment for new trial, this court has no jurisdiction. Was a constitutional question raised by instruction number five?' By reference to that instruction it will be seen that it refers to section 7 of article 9 of the Constitution of this State, but that section has reference solely to the organization and classification of cities under the Constitution of 1875, and provides : ‘ The General Assembly shall provide, by general laws, for the organization and classification of cities and towns. The number of such classes shall not exceed four; and the powers of each class shall be defined by general laws, so that all such municipal corporations of the same class shall possess the same powers and be subject to the same restrictions. The General Assembly shall also make provisions, by general law, whereby any city, town or village, .existing by virtue of any special or local law, may elect to become subject to, and be governed by, the general laws relating to such corporations.” This section has not the remotest bearing upon any question or issue raised by the pleadings or the evidence in this case, certainly not upon the power of a city to extend the time for the completion of the work under a contract for a public improvement such as the paving of a street. This is the only provision of the Constitution of this State that was referred to in the pleadings or in any instruction requested or refused by the court. We think it is too clear for argument that the reference to the constitutional provision which in no manner relates to any issue in the cause, cannot be made the basis for giving this court jurisdiction.

II. Did the tenth assignment in the motion for a new trial by plaintiff raise a constitutional question so as to give this court jurisdiction? That ground, it will be seen, was simply that a peremptory instruction to find the issues in favor of the defendant deprived the plaintiff of its property without due process of law within the meaning of the Constitution of Missouri and the Federal Constitution. In Hulett v. Railroad, 145 Mo. 35, this instruction was asked: “To hold the defendant liable in this case would violate its rights granted by the Constitution of the State of Missouri and of the United States, and would deprive the defendant of its property and rights without due process of law.” After quoting Mr. Webster’s definition of the meaning of the phrase, “The law of the land,” and pointing out that “due process of law” and “the law of the land” are interchangeable terms, .this court said: “In the case at bar the defendant was brought before the court; had full opportunity for a defense, and thereby the constitutional provision respecting ‘due process of law’ was fully complied with. . . . As to the generalities contained in the instruction mentioned relating to the Constitution of this State and of the United States, it suffices to say that neither the court below nor this court has any call to search through the respective organic laws of the State or the Union in order to find out in what particular either of them may have been supposed to be violated. The trial court, therefore, did right in refusing the instruction aforesaid, conceding for a moment that an instruction in relation to a constitutional question is, in any case, suitable to give to a jury.” That case was approved in Excelsior Springs to use v. Ettenson, 188 Mo. l. c. 132. In Ash v. City of Independence, 169 Mo. 77, it was said that to bring into question the constitutionality of a statute the specific provision of the Constitution thought to be infringed must be pointed out. The same rule was declared in St. Joseph v. Life Ins. Co., 183 Mo. 1. In the case at. bar, the plaintiff brought its action and the defendants were duly served and brought into court and a trial and an opportunity to be heard were granted to the plaintiff, and the questions for determination were whether the ordinances relied upon by the plaintiff were sufficient under the general law governing cities of the third class as found in the Laws of 1893, at page 65, and following; and whether the specifications for the work were definite enough in order to give notice to property-holders or to sustain an ordinance; and whether .the formula which accompanied the bid of the successful bidder had the effect of supplementing the ordinance, and whether the contract was performed within the provisions of the contract. None of these questions required any construction of the Constitution and were all questions which the Court of Appeals had jurisdiction to determine. After a careful examination of the record, we are of the opinion that the tenth assignment in the motion' for á new trial under the ruling in Hulett v. Railroad, 145 Mo. 35, and the cases affirming that decision, was not sufficient to give this court jurisdiction of this appeal, and accordingly it is ordered that this record he transferred to the Kansas City Court of Appeals for determination.

Fox, P. J., and Burgess, J., concur.


author: FOX, P. J.

text:
    SCHARFF et al. v. McGAUGH, Appellant.
    Division Two,
    July 1, 1907.
    1. CONSTABLE’S RETURN: Nulla Bona. A constable’s return, “Executed the within writ in the county of Stoddard, State of Missouri, on the second day of May, 1903, no property found to levy this execution,” is sufficient return of nulla hop,a.

    2. -: Counting Time. To ascertain the date an execution made returnable in ninety days is returnable, exclude the day of its issue and beginning with the next day , count ninety days, and the ninetieth day is the date it is due.
    3. -: Nulla Bona: Transcript: Execution in Vacation. Where the judgment was rendered in the justice’s court on January 31, and execution returnable in ninety days was issued on February 1, and a transcript of the judgment was filed in the circuit clerk’s office on February 2, and the constable made a rmlla liona return on May 2, and thereafter a certified copy of that execution and return were filed in the circuit clerk’s office, an execution thereafter issued by' the circuit clerk in vacation was valid, and it was not necessary to' its validity that it be issued in pursuance to an application to the court in term time. The clerk has the same authority to issue executions upon such transcript judgments that he has to issue executions on judgments rendered in the circuit court.
    4. -: -: -: Words “Sued Out.” The words, "no execution shall be sued out of the court where the transcript is filed,” found in the statute refering to the issuance of executions on the filing with the circuit court of transcripts of judgments rendered by justices of the peace, do not mean that the court must determine the plaintiff’s right to the execution before it can issue, nor do they mean that the clerk cannot in vacation issue execution on such transcript judgment. '

      5. Exclusion of Evidence: Ruling Reserved. Where appellant offered depositions in evidence and respondent interposed objections touching their competency and the court heard the depositions and reserved its rulings on the objections, and the record discloses no affirmative ruling excluding them, the presumption, if any is to be indulged, is that the court admitted the depositions.
    6. DEPOSITIONS: Lost Return: Shown by Docket. Whether or not depositions showing the return on the justice’s execution, which had been lost, were or were not competent, will not be determined where the same facts referred to and embraced in them were shown by the original and certified copy of the justice’s docket.
    7. EJECTMENT: Estoppel: Attachment: Dismissal. Where plaintiff brought suit by attachment in the magistrate’s court, charging that defendant had fraudulently disposed of his land for the purpose of delaying his creditors, and at the trial dismissed the attachment upon condition that defendant confess judgment for the debt, and that was done, the question of the fraudulent disposition of his property was not thereby litigated, and plaintiff is not estopped from assailing the deed then charged to have been fraudulently made.
    8. -: Innocent Purchaser: Not Party. Whether or not a certain person, shown to be the owner of the land by conveyances emanating from the wife of the judgment debtor, who had conveyed to her, as charged, for the purpose of defeating plaintiff and other creditors, was an innocent purchaser, is not ■ for consideration, if such person is not a party to the ejectment suit and made no application to be made a party.
    9. -: -: Outstanding Dower. An outstanding dower in the widow of the judgment debtor who fraudulently conveyed the property to his wife, who conveyed it to a person not made a party to the suit, cannot be litigated in an ejectment brought against one who was in actual possession at the time the suit was brought.
    10. FRAUDULENT CONVEYANCE: Voluntary Deed to Wife. A voluntary deed to a wife, for instance, one which recites a consideration of one dollar, although executed without any fraudulent intent, is void as to existing creditors, especially when about the time the voluntary deed in controversy was made, . the debtor deprived himself of all the land he owned in the county by conveying it to his stepfather. And under such circumstances it is for the trial court to determine whether or not the voluntary deed to the wife was made in satisfaction of a debt which the grantor owed her mother.

      Appeal from Madison Circuit Court. — Hon. Robert A. Anthony, Judge.
    Affirmed.

      George Houck, H. S. Shaw and W. E. Edmonds for appellant.
    (1) If the defendant is a resident of the county the clerk has no authority to issue an execution, on a transcript judgment from a justice of the peace, but the same must be sued out of the court in which the transcript is filed. R. S. 1899', sec. 4019; Rollins v. Mc-Intire, 87 Mo. 509; Freeman’s Void Judicial Sales, sec. 23. (a) On a motion for an execution in the circuit court, the latter court would require the plaintiff in the execution to give notice to the defendant in the execution, and the judgment of the court on the motion would be an adjudication of the constable’s return on the justice’s execution. 11 Am. and Eng. Ency. Law (2 Ed.), 614, 615; 8 Ency. PI. and Pr., 379; Paxon v. Talmage, 87 Mo. 13. (b) This court has never decided that an execution on a transcript judgment could be sued out of the clerk’s office. United States v. Cannon, 116 U. S. 55. (2) The court committed error in ruling but the depositions of Mrs. Ashworth and Mrs. Summers because they had no interest in the event of the suit. Jenkins v. Emmons, 94 S. "W. 812; R. S. 1899, sec. 4652; 3 Blackstone’s Com. (4 Ed.), star p. 370; 1 Greenleaf, Ev., sec. 390; Storm v. Smith, 81 S. W. 1219; Fort v. Donnell, 40 Mo. App. 63; Banks v. Hunt, 25 Mo. App. 170; Cleveland v. Coulson, 78 S. W. 1105; Clark v. Thias, 173 Mo. 645; Leech v. McFadden, 110 Mo. 589; Meris v. Thremin, 90 Mo. 442. It was competent to show by parol testimony what the consideration of the deed was from G. L. Edwards to M. A. Edwards. Edwards v. Latimer, 82 S. W. 113. (3) The constable’s execution was returned in less than ninety days after it was issued, and, for that reason, no execution could be sued out of the circuit court. Peed v. Lowe, 163 Mo. 519. (4) By compromising their suit before the justice of the peace and by dismissing their charge of fraud against Edwards, plaintiffs are es-topped from assailing the deed from Gr. L. Edwards to M. A. Edwards, as a fraudulent deed. Morrison v. Tumbaugh, .79 S. W. 1002; Thompson v. Cohen, 127 Mo. 215; Clough v. Holden, 115 Mo. 358 ; 6 Am. and Eng. Ency. Law (2 Ed.), 418-714. (5) The defendant is an innocent purchaser for value, and without notice that M. A. Edwards was the wife of G. L. Edwards, and without notice of the pendency of the equity suit wherein L. and A. Scharff were plaintiffs and G. L. Edwards et al., were defendants. Jacobs v. Smith, 89 Mo. 684; Carr v. Cates, 96 Mo. 271; 21 Am. and Eng. Ency. Law (2 Ed.), 312, 621, 622; Pife v. Jordan, 55 Am. St. 138; Hammond v. Paxon, 58 Mich. 393; Wortham v. Boyd, 66 Tex. 401; MacMin v. Allenbery, 100 Mo. 337; Johnson v. Co., 148 U. S. 360; Bedford v. Co., 110 IT. S. 174; Pierce v. Stevde, 11 Mo. App. 364; Bonny v. Taylor, 9 Mo. 63; 24 Am. and Eng. Ency. Law (2 Ed.), 119, 150; Lindell v. Lin-dell, 133 Mo. 386; 23 Am. and Eng. Ency. Law (2 Ed.), 478, 524; Thompson v. Woolridge, 102 Mo. 505; Young v. Schofield, 132 Mo. 660. The record of the deed from G. L. Edwards to M. A. Edwards was not constructive notice of the relationship between grantor and grantee. 21 Am. and Eng. Ency. Law (2 Ed.), 312; Crawford v. Slye, 4 Cranch 457; LaMotte v. Archer, 4 E. D. Smith 46; Williams v. Butterfield, 77 S. W. 729. (6) The dower of Mrs. Ashworth in the land of G. L. Edwards, her former husband, was never subject to the claim of his creditors, and therefore Mrs. Ashworth could not commit a fraud against those creditors with respect to that interest; hence, if the deed from Gr. L. Edwards to M. A. Edwards was fraudulent as against the creditors of Gr. L. Edwards, the dower interest of the grantee still remained. Bealy v. Blake, 153 Mo. 672; Long v. Co., 107 Mo. 304; Davis v. Green, 102 Mo. 181; R. S. 1899, sec. 2946; Needles v. Ford, 167 Mo. 495. An ejectment will not lie against the widow by the heir or his alienee to recover possession of the land of which the- husband died seized until the dower is assigned. Robertson v. Miller, 1 B. Mon. (Ky.) 92; 7 Ency. PL and Pr., 284, note 1; Curley v. Kinley, 66 Pa. St. 270. Where a dower right exists in several different parcels of land, and each parcel is held by a different owner, then the dower should be assigned in each part separtely. Thomas v. Hesse, 34 Mo. 13; Cozier v. Hinchy, 143 Mo. 2091.

      Wilson Cramer for respondents.
    (1) No order of court is necessary for the issuing of an execution out of the circuit clerk’s office as contended by appellant. The clerk is authorized to issue upon a certified copy of the justice’s docket showing the issuance of an execution and a return nulla bona by the constable, or upon a certified copy of the execution and return. Ruby v. Railroad, 39 Mo. 480; Johnson v. Latta, 84 Mo. 139. (2) Aside from the question of fraud in its execution, the deed from G. L. Edwards to M. A. Edwards, his wife, which is relied upon by the defendant, conveys no title to the lots in suit. 1. Because the premises conveyed are described as lots 10, 11 and 12 in the village of Bernie, without giving the block number, which is an essential part of the description. 2. Because a conveyance from a husband to his wife does not pass the legal title; Turner v. Shaw, 96 Mo. 22; Crawford v. Whitmore, 120 Mo. 149; Stark v. Kirchgraber, 186 Mo. 642. (3) The. deed from G. L. Edwards to his wife, M. A. Edwards, is a voluntary conveyance and therefore fraudulent and void as against plaintiffs, who were existing creditors of G. L. Edwards at the time of its execution. In addition to the fact that this deed recites a consideration of one dollar, the evidence shows that Gr. L. Edwards, about the same time, conveyed his farm to his stepfather, George Newton, and by these transfers had divested himself of every foot of land he owned in the county. (4) Appellant asserts: “The plaintiffs are estopped from assailing the deed from G. L. Edwards to M. A. Edwards for fraud,” and contends that this result follows from the act of the plaintiffs in dismissing their attachment before the justice. But how could the attachment before the justice affect the real estate of G. L. Edwards ? Could the question of a fraudulent disposition of it have been litigated in -the justice’s court in any manner whatever? If not, how can the dismissal of the attachment suit operate as an estoppel?
   FOX, P. J.

This cause is here by appeal from a judgment of the circuit court of Madison county, Missouri, in favor of the plaintiffs. This is an action of ejectment, brought originally in the circuit court of Stoddard county, to recover lots 10, 11 and 12 in block 16 qf the town of Bemie. The venue of said cause was changed to the circuit court of Madison county. The petition is in the usual form and the answer of the defendant was simply a general denial. Both parties to this proceeding claim title to the land in controversy under G. L. Edwards as the common source of title. Plaintiffs claim by virtue of a sheriff’s deed under an execution against G. L. Edwards, and defendant through a direct conveyance made by G. L. Edwards to his wife,'M. A. Edwards, on December 26, 1892. ■

The testimony on the part of the plaintiffs shows that G. L. Edwards acquired title to the premises in dispute by deed from George Newton, dated November 5,1892, and recorded November 28, 1892. That a short time before this deed was executed, in the month of September,» 1892, G. L. Edwards became indebted to plaintiffs in the sum of $162.40, for which amount they subsequently obtained a judgment before a justice of the peace. The deed from Newton to G. L. Edwards was introduced in evidence by the plaintiffs, evidently for the purpose of showing that the debt of plaintiffs against Edwards accrued before he acquired title to the premises, and for the purpose of precluding any claim of homestead in the premises in controversy. On the 19th day of January, 1893, plaintiffs brought suit on their account against G. L. Edwards before J. R. Wilson, a justice of the peace of Liberty township, in Stoddard county, and recovered judgment on January 31, 1893, for $162.40, the full amount of their claim. An execution was issued February 1, 1893, directed to the constable of Liberty township, the township in which the defendant resided, returnable in ninety days. On the 2d day of May, 18-93, the execution was returned with the following return endorsed: “Executed the within writ in the county of Stoddard, State of Missouri, on the 2d day of May, 1893, no property found to levy this execution. A. H. Welborn, constable.”

On February 2, 1893, a transcript of the justice's judgment was filed in the circuit clerk’s office of Stoddard county. After the execution issued by the justice had been returned, the attorney for plaintiffs filed in the office of the circuit clerk a certified copy of the execution with the constable’s return, and caused an execution to be issued by the circuit clerk. Under this execution, which was dated August 19, 1893, the sheriff levied upon and sold the premises in controversy and plaintiffs became the purchasers, receiving the deed under which they claim. Shortly after acquiring title to the lots, and after he had become indebted to plaintiffs, Gr. L. Edwards, as stated, made the conveyance to his wife, M. A. Edwards, conveying “all of lots Nos. 10, 11 and 12 in the village of Bemie, county of Stoddard and State of Missouri,” and this deeds forms the basis of defendant’s claim. The deed from Gr. L. Edwards to his wife, M. A. Edwards, simply recites a consideration of one dollar. There was other evidence introduced by plaintiffs tending to show that Gr. L. Edwards, about the same time that he conveyed the property in dispute.to his wife, conveyed thé farm upon which he was living to his stepfather, George Newton, and by this transfer had divested himself of all the land that he owned in Stoddard county.

On the part of the defendant the deed from G. L. Edwards to M. A. Edwards, conveying all of lots Nos. 10, 11 and 12 in the village of Bernie, county of Stoddard and State of Missouri, was offered in evidence. To this deed plaintiffs interposed objections: “First, because it purported to convey lots 10, 11 and 12 in the village of Bernie, while the premises sued for are described as lots 10, 11 and 12 in block 16 of the town of Bemie; second, because being a direct conveyance from husband to wife, it conveyed no legal title and constituted no defense to the action of ejectment, the answer being simply a general denial.”

The court, upon these objections, simply announced that it would for the present admit the deed. In addition to the foregoing deed defendant offered the following conveyances in evidence:.

A quitclaim deed from M. A. Edwards to J. L. Fort and J. B. Buck, dated January 4, 1897.

A quitclaim deed from J. B. Buck to George Houck, dated August 5, 1899.

A warranty deed from J. L. Fort and George Houck to W. M. McGaugh dated August 15, 1899.

A deed of trus't from William McGaugh to 8. P. Jeffers as trustee for J. L. Fort and George Houck, dated August 19, 1899.

A trustee’s deed from S. P. Jeffers to George Houck, dated August 2, 1900.

A warranty deed from George Houck to W. E. Edmonds and M. O. Doom, dated October 25,1900'.

A quitclaim deed from M. C. Doom to W. E. Edmonds, dated June 25, 1902.

There was other testimony offered by the defend: ant tending to show that the suit by plaintiffs against G. L. Edwards, in which a recovery of judgment for $162.40 was had, was an attachment proceeding, and that one of the grounds alleged in the affidavit for the writ of attachment was that G. L. Edwards had fraudulently conveyed and assigned his property and effects so as to hinder and delay his creditors, and that when that suit came on for trial before the justice it was compromised by plaintiffs dismissing the attachment upon condition that G. L. Edwards would consent to the entry of judgment against him for $162.40. The depositions of Mrs. Summers and Mrs. M. A. Ashworth were offered in evidence, which tended to prove that G. L. Edwards was indebted to Mrs. Summers and that she bought the premises in suit from G. L. Edwards in satisfaction of that indebtedness and directed bim to make the deed to her daughter, M. A. Edwards. There was other testimony that in the year 1893 plaintiffs brought a suit in equity against G. L. Edwards and M. A: Edwards to set aside the deed from G. L. Edwards to M. A. Edwards, as a cloud upon their title. That suit was dismissed in the year 1900.

This cause was submitted to the court and the finding and judgment was for the plaintiff. A timely motion for new trial was filed and by the court overruled, and the defendant in due time and proper form prosecuted his appeal from the judgment rendered in this cause and the record is now before us for consideration.

Opinion.

Tbe record in tbis cause discloses tbe assignment of numerous errors as grounds for the reversal of tbis judgment. We will give to tbe complaints of appellant sucb atention and consideration as we deem their, importance requires.

I.

It is insisted by learned counsel for appellant that there was no sufficient return of nulla bona upon tbe execution issued by tbe justice of the peace wbicb would authorize tbe issuance of tbe execution from tbe circuit court. Tbe return endorsed upon tbe execution was as follows:

“Executed tbe within writ in tbe county of Stoddard, State of Missouri, on tbe 2d day of May, 1893, no property found to levy tbis execution. A. H. Welborn, constable.”

In Ables v. Webb, 186 Mo. 233, the question of tbe sufficiency of tbe constable’s return of nulla bona was in judgment before tbis court, The return in that case recited: “By returning tbis writ no other property found upon wbicb to levy tbis writ.” In discussing tbis proposition it was there said by tbis court: “These constable returns must not be weighed as with a goldsmith’s scales, or viewed under a too powerful judicial microscope, or construed with sour and overnice precision and narrowness. Tbe courts should bold up to them tbe candle of common sense and interpret them with blandness and liberality to support titles long acquiesced in. If sucb returns comply with tbe spirit of tbe statute and are substantially in form, they are well enough. [Franse v. Owens, 25 Mo. 329; Ruby v. Railroad, 39 Mo. 480; Littlefield v. Ramsey, 181 Mo. 613; State ex rel. v. Still, 11 Mo. App. 1. c. 285.] The return in this case: ‘and by returning this writ no other property found upon which to levy the writ,’ is.practically a return of nulla bona (the word ‘other’ referring to the garnishment and being without a significance under this record), and the return, judged of by its four corners, showing with reasonable certainty there was no property found whereof to levy the writ.”

It will be observed in that case that the case of Littlefield v. Ramsey, 181 Mo. 613, is cited approvingly, wherein it was held by this court, speaking through Burgess, J., that a nulla bona return reciting “no property subject to execution has been found” was sufficient. Measured by the rules announced in these recent and well-considered cases, we see no escape from the conclusion that the return in the case at bar was a substantial compliance with' the statute. .

n.

It is next insisted that the constable’s execution! was returned in less than ninety days after it was issued, and for that reason no execution could be sued out of the circuit court. The facts as disclosed by the record do not support this contention. The record discloses that the execution was issued on the 1st day of February, 1893, and directed to the constable of Liberty township, Stoddard county, Missouri, and made returnable in ninety days.' It only requires a simple calculation to demonstrate that this execution was returned at the proper time. Excluding the date of the issue, there were twenty-seven days in February, thirty, one in March, thirty in April and two in May, which makes ninety days.

III.

It appearing that a proper certificate of a nulla bona return by the constable upon this execution was filed in the office of the circuit clerk wherein the transcript of the justice’s judgment had been previously filed, we are brought to the consideration of the earnest insistence on the part of counsel for appellant that the execution issued in this case was without authority, for the reason that .no execution is authorized to be issued under the provisions of the statute by the clerk in vacation, and that it is essential to the validity of an execution upon a transcript judgment that the execution be sued out by some sort of an application to the court in term time. We are unable to give our assent to this insistence.

Section 4018, Revised Statutes 1899, provides for the filing of the transcript of judgments rendered by justices of the peace. Section 4019 provides that, “every such judgment, from the time of filing the transcript, shall have the same lien on the real estate of tlie defendant in the county as is given to judgments of circuit courts, and shall be under the control of the court where the transcript is filed; may be revived and carried into effct in the same manner and with like effect as judgments of circuit courts, and executions issued thereon may be directed to and executed in any county in this State; but no execution shall be sued out of the court where the transcript is filed, if1 the defendant is a resident of the county, until an execution shall have been issued by the justice, directed to the constable of the township in which the defendant resides, if there be one in such township, and, if not, to any constable in the county, and returned that the defendant had no goods or chattels whereof to levy the same.” We are of the opinion that under the provisions of this statute when the transcript of the judgment of the justice of the peace is filed in the office of the circuit clerk such judgment is carried into effect in the same manner and with like effect as judgments of the circuit courts, and the plaintiffs in this case had the right to make application to the clerk in vacation and the clerk was authorized to issue the execution in this cause. The statute expressly provides that the execution of such judgment shall he carried into effect in the same manner and with like effect as judgments of the circuit court, and executions issued thereon may he directed to and executed in any county in this State. The proviso in that section that no execution shall he sued out of the court where a transcript is filed when the defendant is a resident of the county until there has been a return of nulla bona upon the execution issued by the justice, is by no means a limitation upon the authority of the clerk to issue the execution upon such judgment. The only difference being that where the defendant is a resident of the county, then he is not authorized to issue the execution until there is evidence filed in the office of the clerk showing a return of nulla boma upon the execution issued by the justice. He has the same power and authority to issue executions upon transcript judgments which are duly filed in the circuit court as he has to issue executions upon judgments rendered by the circuit court itself. Learned counsel for appellant very earnestly and ably argue that the language employed in the statute as to suing out of the court where the transcript is filed, is to be treated as requiring some method of proceeding before the court in term time in order to secure an execution upon a transcript judgment, where the defendant is a resident of the county. We are unable to attach to the use of those terms the significance that is so earnestly urged by appellant. When the transcript of the judgment before the justice of the peace is filed in the office of the circuit clerk, it in effect is a judgment resting in the circuit court and we are unwilling to give the terms ‘ ‘ sued out of the circuit court ’ ’ that construction which would require any different method of procuring the issuance of an execution upon a judgment of that character to those where the judgment is originally rendered in the circuit court. The authority of the clerk in vacation to issue executions upon transcript judgments from the justice of the peace filed in the office of the circuit clerk has been universally recognized by both the bench and bar of this State. In discussing this question in the case of Ruby v. Railroad, this authority was fully recognized. This court said: “The statute requires that an execution shall be issued by the justice when the defendant resides in the county, and be duly returned by the constable that he can find no goods or chattels of the defendant whereof to make the amount, before resort can be had to process on the transcript. But no provision has been made defining what shall be evidence that the execution has been issued and the return made when the transcript is filed antecedent to these proceedings. Doubtless the most satisfactory evidence would be a regularly certified copy of the execution and the return thereon ; but we cannot say that the law absolutely requires this. When the justice certifies the facts, his certificate must be regarded as at least prima-facie evidence and will fully justify the clerk in issuing an execution on the transcript. It will not conclude the adverse party, and he may show, on motion to quash, any defect or irregularity in the justice’s process, or the return of the constable; but till some evidence is introduced tending to impugn the acts of the justice or constable, or to falsify the certificate, the execution should be deemed valid.”

In Jordan v. Surghnor, 107 Mo. 1. c. 524, Judge Macearlane, speaking for this court, thus treated this proposition. He said: “We do not think the objection raised to the sheriff’s deed can be sustained upon either ground urged against it. It was not necessary to introduce in evidence either the transcript or the judgment of the justice, before the deed from the. sheriff was properly admissible. A transcript, from the date of its filing in the office of the clerk, becomes equivalent to a judgment of the circuit court for many purposes, and executions issued thereon have the same force and effect as though issued upon a judgment rendered in said court. [R. S. 1879, sec. 2999.] A sheriff’s deed under execution is required to recite the names of the parties to the execution, the date when issued, the date of the judgment and other particulars as recited in the execution, and is made primafacie evidence of the truth of its recitals. This deed recited the date of the judgment of the justice, as also the date of filing the transcript. These recitals were themselves evidence of the rendition of the judgment and the filing of the transcript, and the burden was placed upon the defendants to overcome them. [R. S. 1879, sec. 2392; McCormick v. Fitzmorris, 39 Mo. 25; Carpenter v. King, 42 Mo. 221; Sachse v. Clingingsmith, 97 Mo. 408.]

.“II. The other objection to the deed was equally untenable. If a defendant in a judgment of a justice is not a resident of the county in which it is rendered, then the prior issuance of an execution by the justice is not a condition precedent to issuing one by the clerk of the court in which the transcript is filed.”

This contention must be ruled adversely to the appellant.

IY.

It is next insisted that the court erred in excluding the depositions of Mrs. Ashworth and Mrs- Summers. Upon this assigñment of error it is manifest that appellant has overlooked the disclosures of the record as to the action of the court upon the depositions of these two witnesses. There is an entire absence from this record of any ruling of the court excluding these depositions. The record shows that the trial of this cause was before the court and that the court heard both of these depositions; that the plaintiffs interposed objections on the ground of incompetency and the court reserved its ruling on plaintiffs’ objections, and the. record disclosing no affirmative ruling excluding them, if there is any presumption to be indulged it is that the court having heard the depositions. considered them in its final analysis of the case.

V.

Appellant insists that the court committed error in the admission of the depositions in evidence of W. R. Juden and W. C. Brown. These depositions were offered for the purpose of showing the return on the justice’s execution, which had been lost. We deem it unnecessary to discuss the admissibility of these depositions, for under the other disclosures of the record it is clear that the admission of them, even conceding that their testimony was inadmissible, was harmless, for the record discloses that the same facts referred to and embraced in the depositions of Juden and Brown were shown by the certified copy of the justice’s docket introduced by the plaintiffs, as well as by the original docket offered by the.defendant; therefore, we deem it unnecessary to burden this opinion with a discussion of a proposition which, in the end, could not affect the result of the trial.

VI.

It is next urged by appellant that plaintiffs are estopped from assailing the deed from G-. L. Edwards to M. A. Edwards, and asserting that it was a voluntary conveyance and therefore fraudulent as to existing creditors. This contention is predicated upon the fact of plaintiffs’ dismissing their attachment before the justice of the peace. It is sufficient to say upon this proposition that the question of a fraudulent disposition of the real estate by G. L. Edwards was not litigated in that proceeding and the mere dismissal of the writ of attachment in that suit, did not in any way change the attitude or relation of the parties in respect to such property, and in our opinion cannot operate as an estoppel upon the plaintiffs in this proceeding.

VII.

It is next insisted that W. E'. Edmonds, who, it is claimed, is the present owner of this land by conveyances emanating from Mrs. M. A. Edwards, is an innocent purchaser, therefore his purchase should be" protected. It is only necessary to say upon that proposition that W. E. Edmonds is not a party to this proceeding and at no time did he file any motion, while the case was pending against the only defendant William McGaugh, to be made a party, under the provisions of section 3057, Revised Statutes 1899. Again it may be said that if any force or effect is to be given the disclosures of the record in this cause, then the question of being an innocent purchaser can find no resting place in this proceeding. The record before us shows that there was a proceeding begun in the circuit court of Stoddard county at the March term, 1894, by these plaintiffs against G. L. Edwards et al., in which proceeding the good faith and the validity of the deed from G. L. Edwards to his wife, Mary A. Edwards, was challenged; that at said March term, 1894, defendant applied for a change of venue and H. H. Bedford, Eisq., was selected as special judge. The cause was tried by Judge Bedford on the 15th of October, 1895, and was taken under advisement. On the 20th day of September, 1900, without any decision, the case was dismissed. At that time Judge J. L. Fort was on the bench. He testifies in this proceeding that he did not dismiss the case, but that Judge Bedford may have taken the bench and done so. The plaintiffs in that proceeding had no means of terminating the special judge’s period of advisement; therefore before the dismissal of that suit they brought the present action of ejectment, filing their petition on the 31st day of August, 1900.

We are unable to see how any one dealing with this property after the March term, 1894, of the circuit court of Stoddard county, could be treated as an innocent purchaser without notice. It is further made manifest from the disclosures of the record that W. E. Edmonds, for whom learned counsel invoke the aid of the rule applicable to innocent purchasers, was one of the attorneys who appeared for the defendant in the court below and appears in this 'court as an attorney representing the defendant; however, we repeat that W. E. Edmonds is not now and was not at any time a party to this suit, nor does the record disclose that he had any connection with the defendant as landlord or otherwise, excepting as counsel. The record before us discloses that it was admitted by counsel for plaintiffs and defendant at the time of the filing of this suit, August 31, 1900, that William McGaugh was in possession of the property in suit. The record also discloses that the only defendant to this proceeding, William McGaugh, at one time claimed by mesne conveyances under Mrs. M. A- Edwards, and that whatever interest he had was sold on the second day of August, 1900, under a deed of trust executed by him to S. P. Jeffers as trustee for J. L. Fort and George Houck. It is further apparent from the record that before he yielded possession to the purchaser of the property at the trustee’s sale, the present action of ejectment was brought against him, and none of the subsequent claimants saw fit to recognize him as a tenant or to join him in this suit.

Section 3056, relating to actions of ejectment, provides that “the action shall he prosecuted in the real names of the parties thereto, and shall be brought ■against the person in possession of the premises claimed.” William McG-augh is the sole defendant in this proceeding and after the trustee’s sale he made no claim to this property through or by virtue of conveyances from any one else.

ym.

It is next insisted that even though the deed from G. L. Edwards to his wife, Mrs. M. A. Edwards, was a voluntary conveyance and thereby fraudulent as to creditors, yet upon the death of her husband she had a dower and that W. E. Edmonds, by reason of the conveyances, at least is the owner of such dower interest and therefore there can be no recovery in this action.

Upon this proposition it is sufficient to say that it must not he overlooked that W. E. Edmonds is not a party to this proceeding, nor has he proceeded under the provisions of the statute to be made a party, and the record discloses an admission by the parties to this proceeding that William McGaugh was in possession of the property in dispute at the time this suit was instituted. While it may be said that, if the widow of G. L. Edwards was in possession of the land in controversy with an unassigned dower interest existing in her favor, the action of ejectment would not lie against her until such dower interest was assigned, that is not this case. The party against whom this suit was instituted, William McGaugh, who undoubtedly was in possession of the property at the commencement of the suit, and was the proper person against whom to bring the action, has no- dower interest in the premises, for whatever interest he had was foi’eclosed under the trustee’s sale on the 2d day of August, 1900. It is not pretended that W. E. Edmonds did not know of the pendency of this suit against McGraugh, and there is an entire absence from the record of anything which discloses that he made any efforts to be made a party to this proceeding to the end that whatever rights he had might be litigated. If he is the owner of the dower interest of Mrs. Mary E. Edwards, widow of Gr. L. Edwards, such rights in a proper, proceeding may be litigated with- such party or parties as may claim to be the owners of such land in fee. The dower interest of Mrs. Edwards, claimed by Mr. Edmonds, cannot be invoked by the defendants in this proceeding as an outstanding title which will defeat this action of ejectment.

IX.

This brings us to the consideration of the final question in which the sufficiency of the testimony to support the finding and judgment of the court, as disclosed by the record, is challenged.

Upon this proposition it is only necessary to say that we have carefully read in detail all of the testimony developed at the trial of this cause, and after a most careful consideration of it we see no escape from the conclusion that the finding and judgment1 of the trial court is fully supported by the showing made upon the trial. That at the time of the execution of the deed to his wife, Gr. L. Edwards was indebted to the plaintiffs, and that the deed conveying the premises in dispute directly to the wife was a voluntary conveyance, as shown upon the face of the deed, are facts which are not controverted in this proceeding. In addition to this it is shown by the testimony that Gr. L. Edwards somewhere near the time of making this voluhtary conveyance to his wife of the land in dispute also conveyed his farm to his stepfather, Mr. Newton; by this conveyance he deprived himself of all the real property he owned in Stoddard county.

The rules of law applicable to the state of facts as shown in this case are well settled by this court as well as the courts of appeals, and even though this conveyance made to the wife of G-. L. Edwards may not have been executed with .any fraudulent intent, yet being a voluntary conveyance it is void as to existing creditors, even though there was no fraudulent intent. [Patten v. Casey, 57 Mo. 118; Payne v. Stanton, 59 Mo. 158; White v. McPheeters, 75 Mo. 286; Bohannon v. Combs, 79 Mo. 305; Boatmen’s Savings Bank v. Overall, 16 Mo. App. 510; Strauss v. Ayers, 34 Mo. App. 248; Farmers & Merchants Bank v. Price, 41 Mo. App. 291; Loehr v. Murphy, 45 Mo. App. 519.]

In Snyder v. Free, 114 Mo. 1. c. 369, the law upon this proposition was approvingly quoted from Bump on Fraudulent Conveyances (2 Ed.), pp. 276 and 277, wherein the rule is announced that “when a deed is shown to be voluntary as to existing creditors, that is, when it is not founded on a valuable consideration, then ‘the burden of proof rests upon the donee to establish the circumstances which will repel the presumption of a fraudulent intent. The conveyance stands condemned as fraudulent unless the facts which may give it validity are proved by him. If no evidence is given to show that the donor had ample means to meet his liabilities, then the transfer must be deemed void as against creditors.’ ’ [Bump on Fraudulent Conveyances (3 Ed.), pp. 267, 277.] ”

In Hoffman v. Nolte, 127 Mo. 1. c. 135, the statement of the law as herein indicated by Mr. Bump in his work on Fraudulent Conveyances and approved in Snyder v. Free, 114 Mo. 360, was again expressly approved by this court, and it was expressly ruled in that ease that a purely voluntary conveyance of property by a debtor to his wife, as to a prior existing creditor, is presumptively fraudulent in law, citing Patton v. Bragg, 113 Mo. 601; Jordan v. Buschmeyer, 97 Mo. 94.

We have then in this case the existing indebtedness of G-. L. Edwards, his voluntary conveyance of the land in dispute to his wife and in addition the conveyance to his stepfather, which deprived him of all the real estate that he owned in Stoddard county, and to rebut this presumption we have the testimony of the wife to whom the voluntary conveyance of the property was made, together with that of her mother, and their testimony is to the effect that the conveyance to the wife was made in satisfaction of a debt due Mrs. Summers, the mother of Mrs. M. A. Edwards. Doubtless the trial court in considering the testimony developed at the trial, kept in view the well-settled rules applicable to transactions between husband and wife. In Benne v. Schnecko, 100 Mo. 1. c. 257, this court, in discussing the proposition as to a transaction between husband and wife, thus stated the rule: “There is no doubt but what a husband may make a valid settlement upon his wife, for a valuable consideration. ‘Such settlements, however, are always watched with considerable jealousy, on account of the relative situation of the parties, and the convenient cover they afford to a debtor to protect his property and impose upon his creditors, and the payment of a valuable consideration must be made out By proof of the most unquestionable character.’ [Bump, Fraud. Conv. (3 Ed.), 306; Besson v. Eveland, 26 N. J. Eq. 468 ; Humes v. Scruggs, 94 U. S. 22.]”

In Holloway v. Holloway, 103 Mo. 1. c. 282, Judge Black, speaking for this court, stated the rule in this language: He said: “Transactions between husband and wife should be closely scrutinized when they come in conflict with the claims of creditors, for the marital relation affords a convenient cover to protect the property of the debtor from his creditors.”

Mr. Bump in Ms standard work upon Fraudulent Conveyances, in discussing the nature and character of the testimony which is essential to rebut the presumption of fraud attending a voluntary.conveyance, lays down the rule in this way: “To rebut the presumption of fraud the proof must be clear, full and satisfactory. If there is a reasonable doubt of the adequacy of the grantor’s means, then the voluntary^ conveyance must fall, for the effect of it is to delay and hinder his creditors. It is incumbent on the donee to show a case not only without taint, but free from suspicion. The condition of the donor must be shown to be such that a prudent man with an honest purpose and a due regard to the rights of his creditors could have made the gift. ” [Bump on Fraudulent Conveyances (3 Ed.),, p. 285.] “If the donor at the time is indebted to the extent of insolvency, the conveyance is void.' A gift by a person unable to pay his debts so directly and inevitable tends to delay and hinder creditors, and so plainly violates the moral duty of honesty, that the least regard to fair dealing and integrity renders it necessary to pronounce it void. Such a transaction is not to be looked on only as a means by which the intent to defraud may be inferred. The act is altogether incompatible and irreconcilable with a contrary intent. It is an act of fraud in itself. If the donor is insolvent, the only question is whether or not a conveyance is voluntary, and if it is voluntary it is void as against creditors.” [Bump on Fraud. Conv. (3 Ed.), pp. 280, 281.]

Applying the rules as herein indicated to all of the facts as developed in this case, including the testimony of the wife of Gr. L. Edwards, the debtor and her mother, taking into consideration their relationship, their interest in sustaining the conveyance to Mrs. Edwards, their natural inclination to maintain its validity, we are unwilling to say, in view of all the facts developed at the trial, that the finding and judgment of the trial court was not supported fey the evidence in the case. Measured by the uniform rules repeatedly announced in this court ever since its organization applicable to the subject of fraudulent conveyances, and-which are in harmony with the expression of opinion of the appellate courts in other jurisdictions, as well as the standard text-writers upon the subject,, we are unable to reach any other conclusion than that the facts, disclosed by the record in the trial of this cause fully support the finding and judgment of the trial court.

We have given expression to our views as herein indicated upon the leading and most important proposition disclosed by the record, which results in the conclusion that the judgment of the trial court should be affirmed, and it is so ordered.

All concur.