author: GRAVES, J. GRAVES, J.

text:
    CITY OF SEDALIA ex rel. TAYLOR, Appellant, v. DAVID H. SMITH.
    Division One,
    July 13, 1907.
    1. ORDINANCE: Doubtful Meaning: Construction. If an ordinance is susceptible of two constructions it must be given that construction which will uphold its validity.
    2. -: -: -1: Title. Where there is doubt as to the meaning of an ordinance, as, for instance, whether it is drawn in pursuance to a section of a statute which provides for the grading and paving of a street at the expense of the property-holder, or under another section which provides that the cost of the grading and paving shall be paid out of the city’s general revenue, resort may be had to the title t'o clear away the doubt.
    3. -: -: -: Extrinsic Evidence. Where the question is whether the council had in contemplation the grading of a street as contemplated by section 109 of the Act of 1893, or the grading as contemplated in clause five of section 108, and doubt exists as to which was had in contemplation, resort may be had to extrinsic facts and means of explanation, to find out the real meaning of the council. Such allowable extrinsic aids include public documents and papers, ordinances in pari materia, journals, the petition of the property-owners speaking only of “paving,” notice to the contractors speaking of “grading and paving,” the estimates of the engineer for “paving” or for “paving and grading” filed in the proceeding, the profile of the street and grading made by the engineer, and the reference of the ordinance itself to another ordinance which had established the grade of the street.

      4. TAXBILL: Paving and Grading Street: Cost of Grading. The grade of the street had already been established and the ordinance provided for its paving practically on the existing grade, except that it required six inches of earth to be removed to make room for the material to be put down. The facts are reviewed and it is held that the council had in contemplation the grading referred to in the fifth clause of section 108 of the .Act of 1893, and not that contemplated by section 109, which requires a publication in a newspaper of a description of the grading to be made, where the cost is to be paid by the property-owners, and not out of the city’s revenue, and, therefore, the taxbill is not void because that publication was not made and the work was not otherwise done under the provisions of section 109. [Disapproving City of Sedalia to use v. Abell, 103 Mo. App. 431.]
    5. -: Time. A contract which requires the public work to ' be completed within one hundred days, and fixes a penalty for each and every day the work is not completed within that time, fixes only a conditional time for finishing the work, and if it is not completed within the 100 days the taxbills are not void.
    6. -: Repairs. A provision that the contractor shall keep the paving in repair for five years does not render the taxbills void.
    Appeal from Pettis Circuit Court. — flow. George F. Longan, Judge.
    Reversed and remanded.

      Charles E. Yeater and Scarritt, Scarritt S Jones for appellant.

      John Cashman and Barnett db Barnett for respondent.
    (1) The taxbills sued on are void because the ordinance and all the other proceedings in this case provide that the street in question shall be brought to the established grade and paved, and because the city council did not declare by ordinance or otherwise that in their judgment or opinion the general revenue fund of the city was not in a condition to warrant an expenditure therefrom for bringing the street to the establisted grade. Both the resolution and the ordinance, as well as the bid for doing the work, provide for the bringing of the street to the established grade and paving the same, yet the cost of bringing to grade is included in the ordinance and is taxed against the abutting property-owners without any finding or declaration that the city revenue was not in a condition to warrant such an expenditure. Without such declaration and expression of opinion on the part of the council the taxbill is void. City of Sedalia v. Abell, 103 Mo. App. 431; Wheeler v. Poplar Bluff, 149 Mo. 36; Kolkmeyer & Co. v. City of Jefferson, 75 Mo. App. 678; Poplar Bluff v. Hoag, 62 Mo. App. 672; Carthage v. Bagley, 73 Mo. App. 123; Knopfli v. Roofing & Paving Co., 92 Mo. App. 291; Galbreath v. Newton, 30 Mo. App. 380. (2) When special powers are conferred, or where special method is prescribed for the exercise and execution of a power, this brings the exercise of such power within the provision of the maxim expressio unius, exclusio alterius, and by necessary implication forbids and renders nugatory the doing of the thing specified, except in the particular way pointed out. Kolkmeyer & Co. v. City of Jefferson, 75 Mo. App. 683; Heidelberg v. St. Francois Co., 100 Mo. 74; City to use v. Eddy, 123 Mo. 558; Globe Furn. Co. v. District 7, 51 Mo. App-. 551; City of Unionville v. Martin, 95 Mo. App. 28. In the ease last cited the court cites, it would appear, all the Missouri cases on this question.
   GRAVES, J.

This is an action upon a special tax-bill issued for improving a portion of Fourth street in the city of Sedalia, the improved portion being from the west line of Thomson avenue to the east line of Park avenue. It is one of a number of cases growing out of the refusal of the property-owners on said portion of Fourth street to pay the special taxbills issued to improve the street. The cases, therefore, are but slightly different in the essential facts, as well as in law, and three of them were argued here together. Another had previously gone to the Kansas City Court of Appeals. [City of Sedalia to use v. Abell, 103 Mo. App. 431.] In the Abell case the Court of Appeals at first simply reversed the judgment of the lower court, which was for the plaintiff. Afterwards, the opinion was so modified as to reverse the judgment and remand the cause for new trial. Much of the history of this case can therefore be gathered from the facts in the opinion of that case. After the adverse ruling of the Court of Appeals in that case, the plaintiff injected a constitutional question into this case, and! for that reason we are to determine the validity of a very small taxbill. The ingenuity of able counsel seems to know no bounds, and through such ingenuity, lawfully exercised, however, as in this case, we are the unwilling servants to settle many extremely small suits. But constitutional questions must be settled when properly raised, and can be settled in a little as well as a big case, if we are able to find the said constitutional question.

The city of Sedalia is a city of the third class and the law governing it at the time involved in this action were the acts of 1893, approved April 19, 1893 (Laws 1893, pp. 65, et seq.) The sections applicable to this case are 108, 109 and 110. Section 108, among other •things, provides:

“The cities coming under the provisions of this act, in their corporate capacities, are authorized and empowered to enact ordinances for the following purposes and upon the conditions in this section specified, in addition to the other powers granted by law: . . *

“Second. To open and improve streets, avenues, alleys and other highways, and to make sidewalks and build bridges, culverts and sewers within the city, and to exercise exclusive control over streets and alleys, and establish grades therefor.

“Third. The cost of bringing to grade all streets, avenues and alleys and other .highways, and for the building of bridges and culverts and public sewers and foot-walks across streets, avenues, alleys and other highways, may be paid out of the general revenue fund of the city, or an assessment shall be made therefor on all the taxable property within the limits of the city, not exceeding five mills on the dollar for these purposes ' in any one year. . . .

“Fifth. The cost of paving, macadamizing, guttering and curbing (where such curb is set out into the streets beyond the sidewalks) all streets, avenues, alleys and other highways, or any part thereof or any connection therewith, and repairing the same, and for doing all excavating and grading necessary for the same (after said streets, avenues, alleys and other highways, or parts thereof or connections therewith, have been first brought to grade, as hereinbefore provided), shall be levied as a special assessment upon all lots and pieces of ground upon either side of such street, avenue, alley or other highway, or part thereof or connection therewith, abutting thereon, along the distance improved, in proportion to the front foot.”

By clause ninth of said section, the special taxbills issued in payment of work done “shall, in any action thereon, be prima-facie evidence of the regularity of the proceedings for such special assessment, of the validity of the bill, of the doing of the work and of the furnishing of the materials charged for, and of the liability of the property to the charge stated in the bill.”

Section 109 is as follows:

“ The city council may, by ordinance, include in the special assessment the cost of bringing to the established grade any street, avenue, alley or other highway or square or area formed by the intersection or meeting of streets or other highways, or part thereof, proposed to be improved as herein provided, when in its judgment or opinion the general revenue fund of the city is not in condition to warrant an expenditure therefrom for bringing the same to the established grade: Provided, that the resolution declaring such work necessary to be done, and published in some newspaper published in the city, shall, in addition to the other work of improvement therein provided for, include and describe the work of bringing such street, avenue, alley or other highway, or square, or part thereof, to the established grade. In all such cases where such work is authorized by virtue of such a resolution, and is contracted for in pursuance thereof, the bringing to grade as above described shall be included in the same contract with the other work provided for therein and taxbills shall be issued in payment for all said work as may be provided for by ordinance.”

Section 110 simply provides the proceedings to be followed in having public work upon the street done, and it is unnecessary to set it out in full here.

The petition is a usual one upon a special taxbill. The answer admits the ownership of the lot against which judgment lien is sought, but avers that the tax-bill and all proceedings and contracts in relation to the public work out of which it grew are void. These will be noticed in course of the opinion. The answer also contained a general denial. The reply pleaded much new matter in which is the alleged constitutional question, by reason of which the case is here for determination. But such of these matters as are necessary will be noticed in the course of the opinion.

Plaintiffs introduced the taxbill and rested their case. This taxbill was for paving the above-named street and was in the sum of $166.57 and described the lot owned by defendant. Defendant thereupon introduced the resolution and ordinance passed by the city council, together with all the proceedings had with reference to this work, including the published notice and the contract. He also introduced evidence for the purpose of showing that the work was not done within time, this being one of the special defenses.

Plaintiff then offered evidence in support of the matters set up in the reply, some of which was admitted and much excluded. All these matters can be more properly noted in the course of the opinion and will be noticed in so far as necessary for a determination of the case. For the present the above sufficiently states the case.

I. Defendant contends that the proceedings in this case are under section 109 of the Act of 1893, supra, and are void and.ineffective, and the taxbill issued thereon is invalid, for the reason that the proceedings fail to show that, in the judgment of the council, the general revenue fund was in a condition not to warrant •an expenditure therefrom to bring the street to an established grade, and because no resolution was passed and published declaring said work was necessary to be done, and describing the work to bring the street to the established grade. If the work intended to be done was in fact the work contemplated by section 109, the record does show these failures.

Plaintiff contends that the proceeding is one under section 108, and that the proceedings sufficiently comply with the law so as to validate the taxbill issued thereunder. In the Abell case, supra, the Kansas City Court of Appeals took the view contended for by defendant. To determine this question, the record of the proceedings will have to be closely scanned, and this we now proceed to do. The taxbill is for paving alone, and not for bringing the street to an established grade and paving the same. The taxbill is such as should have been issued under section 108', and not one as should have been issued under section 109. The first step was a resolution in these words:

“Be it resolved by tbe council of tbe city of Sedalia, Missouri, as follows, to-wit:

“That we deem and declare it necessary that Fourth street be brought to the established grade and paved from the west line of Thomson avenue to the east line of Park avenue, and that this resolution be published in the paper doing the city printing for two consecutive weeks by fourteen consecutive insertions.”

This resolution was duly published. The date of resolution was April 8, 1895, and first publication, April 12,1895.

At the meeting of the city council on April 8, the meeting at which this resolution was adopted, there appears upon the records of the meeting the following:

“Mr. H. W. Meuschke read a petition asking the council to pave Fourth street, from Thomson avenue to Park avenue.”

At the meeting of April 15, the minutes of April 8, with the matters above set out, were read and approved. Following this is Ordinance No. 50, authorizing the work, which was passed July 1st, 1895, and approved July 2, 1895. The title reads:

“An ordinance providing for the grading and paving of Fourth street from the west line of Thomson avenue to the east line of Park avenue.”

Section 1, in so far as is necessary for our consideration, is thus: “That all that part of Fourth street between the west line of Thomson avenue and the east line of Park avenue be brought to the established grade and paved according to the specifications herein contained, and for the purposes here-, of, the curb lines hereby established and the lines on which'the curbs shall be set shall,” — here follows the fixing and establishing of the curb line upon each side of the street. Then follow the specifications for the work in this language:

Specifications for Grading.

“The space between the curb lines shall be excavated or filled, as may be necessary, so as to be brought to a depth below the established grade, the thickness of the pavement hereinafter provided for at the center line of said street, and six inches further below the same at the curb' lines, so as to have a crown of six inches in said grading, where said paving is to be thirty feet wide, and where the same is forty feet wide, the said grading shall be to the depth of eight inches below grade at the curb, so as to give said work a crown of eight inches.

‘ ‘ Provided that on each side of the intersection of Ohio avenue the present elevation of the paving on said Ohio avenue shall be taken as the grade for said intersection, and the grade shall gradually slope from the same on a plane to line of Lamine and Osage avenues, respectively, and Ohio avenue being now paved, there shall nothing be done with the intersection of the same and said Fourth street under this ordinance.

“All the earth and materials taken shall be removed and either used for filling where the same may be necessary, or entirely taken away, and said street shall be thoroughly rolled before any paving material is put thereon, and the grading shall always be at least, one square in advance of the paving.

“The contractor shall use due care not to injure such curbing as may be set before the street is excavated, and he shall be held responsible for any damage done by him or his employees to said curbing during construction of the street.

“At the intersection of other streets not paved, the street to be paved hereunder shall be graded and paved to full width of the street, and the grading shall be to suit the paving hereinafter provided for, and also with sufficient depressions at the extensions of the curb lines to allow the flow of water across said street, the amount and dimensions of said depressions to be determined by the city engineer.

“Said paving of intersections shall be so as to provide for a roadway or paved street on the cross streets of thirty feet wide on all streets except Lamine and Osage avenues, and there- it shall provide for a roadway of forty feet wide.

“Concrete Base.

“Upon the surface thus formed will be laid a bed of hydraulic cement concrete six inches thick, made as follows:”

Here follows a minute detail of the work required for the base upon which the asphalt of wearing surface should be laid, as also a minute detail as to the asphalt itself.

Section 2 of the ordinance provides that the work shall be completed within 100 days after contract is let, and further provides for a forfeit of $20 per day for each day over the 100 days, to be deducted from the amount due the contractor, and such forfeit money thus deducted from the taxbills proportionately. The section also provides for an extension of time upon application. The bond is fixed by this section and the term “grade,” is thus defined therein:

‘ ‘ The term grade or established grade used herein shall be understood to mean the grade established by the revised ordinances of Sedalia, of 1894, and the same shall govern except as in this ordinance otherwise provided.”

Sections 3, 4 and 5 are as follows:

“Section 3. Otherwise than as herein provided the contract for said work shall be let and said work done in strict accordance with article 1 of chapter 27 of the revised ordinances of this city, of the year 1894, and nothing herein shall be construed as a repeal of any of the provisions of said article.

“Sec. 4. An ordinance entitled £An ordinance providing for the grading and paving of Fourth street from the west line of Thomson avenue to the east line of Park avenue’ approved June 17th, 1895, is hereby repealed. And the ordinance of the same title, approved June 19, 1895, is also hereby repealed.

“Sec. 5. This ordinance shall take effect’ and be in force from and after its passage.”

The notice to contractors is in this language:

“Notice to Paving Contractors.

“Notice is hereby given, that the city council of the city of Sedalia, Missouri, will receive and consider bids or.proposals for the grading and paving of Fourth-street, from the west line of Thomson avenue to the east line of Park avenue, as provided for by an ordinance of said city, entitled ‘An ordinance providing for the' grading and paving of Fourth street, from the west line of Thomson avenue to the east line of Park avenue;’ passed July 1, 1895, and approved July 2, 1895,

“All bids shall be based on the specifications, and conform to the provisions and requirements of said ordinance, and shall be filed in the office of the city clerk not later than five o’clock p. m. on the 15th day of July, 1895, and shall be sealed.

“The council reserves the right to reject any and all bids.”

Then follows the contract, which among other things, contains the following:

“Whereas, the said S. H. Taylor was and is the lowest and best bidder for the grading and paving of Fourth street, in said city of Sedalia, under and in pursuance of the ordinance passed by the council of said city and approved by the mayor thereof on the 2nd day of July, 1895, entitled, ‘An ordinance providing for the grading and paving of Fourth street from the west line of Thomson avenue to the east line of Park avenue,’ and the contract to do all the work provided for in said ordinance has been duly awarded to said S. EL Taylor by the council of said city; now the said S. H. Taylor, as principal, and the other above-named, his sureties, are hereby held and firmly bound unto said city of Sedalia in the penal sum of fifty thousand dollars, for the payment of which we bind ourselves, our heirs, executors and administrators and to be void on this condition, to-wit: That the said S. EL Taylor shall well and truly do all the grading and paving required and provided for in the above-named ordinance and furnish all material for the same, and in the doing thereof, will abide by that ordinance and all ordinances of said city pertaining to and regulating such work and the doing thereof, and the guarding and protecting from accidents and damages, etc., and will do said work under the supervision of the city engineer, as provided for in said ordinances, and within the time in said ordinance of July 2, 1895, mentioned, and in all things will perform said work according to said ordinances, then this obligation shall be void, otherwise to remain in full force.”

The bid of Taylor, upon which the foregoing contract was let, was in language, as follows:

“Sedalia, Mo., July 15, 1895'.

“To the Mayor and City Council, Sedalia, Mo.:

“I hereby propose to bring to the established grade and pave Fourth street from the west line of Thomson avenue, to the east line of Park avenue, according to the specifications applying to said work, for the sum of one dollar and sixty-five cents per square yard, and I propose to use the following materials in said paving: Trinidad Asphalt and Louisville or Milwaukee cement.”

The city engineer seems to have made two estimates as to the cost. In amount they are the same. One says “for paving” and the other says “for bringing to a grade and paving.” We set them out in full, as they may lend some light. They are:

“Sedalia, Mo., June 19, 1895.

“Estimate for paving of Fourth street from Thomson avenue to Park avenue:

Excavating and grading per square yard........$ .10

Concrete base per square yard..................50

Asphalt, per square yard...................... 1.00

Profit........................................49

Total cost, per square yard.................$2.00

“Richard Morey, City Engineer.

“Filed June 19,1895, City Clerk of Sedalia, Mo.”

“July 1, 1895.

“Estimate for bringing to grade and paving Fourth street from the west line of Thomson avenue, to the east line of Park avenue.

Grading and excavating, per square yard......$ .10

Concrete base, per square yard..................70

Asphalt, per square yard...................... 1.00

Profit per square yard.........................20

$2.00

“Richard Morey, City Engineer.

“Filed July 1, 1895', City Clerk of Sedalia, Mo.”

The ordinance establishing the grade on Fourth street was introduced, as was also' the profile of such grade. This profile was submitted to the city engineer, who testified as a witness, and as to the difference between the grade as established, and the natural surface of the street, the following from his testimony is of interest :

“I will ask you from an engineering standpoint, how near the grade marked there, and the surface of the street correspond? A. The grade marked shows to have been made to conform to the surface of the street ns nearly as any two such marks could.”

It should be borne in mind that the ordinance es-, tablishing the grade was passed long prior to the ordinance in question in this case. The profile as well as the oral testimony shows that the grade established was practically the surface of the street.

At a meeting of the council of date May 6th, the following appears of record:

“A remonstrance protesting against the paving of Fourth street was read.

“On motion of Berry duly seconded and carried, the remonstrance was referred to the city engineer for investigation. ’ ’

And in the record of a meeting held May 13th, the following:

“The city engineer reported that a majority of property-owners had not remonstrated against the paving of Fourth street from the west line of Thomson ■avenue to the east line of Park avenue.

“On motion of Dugan, duly seconded and carried, the property-owners were given until the nest regular meeting of the council to determine the kind of material with which they wanted the street paved.”

The petition of the property-owners speaks thus:

“Gentlemen — The undersigned property-owners •on the street herein named respectfully ask that you cause to be paved that part of Fourth street in said city from Thomson avenue to Park avenue, the work not to begin before April first, A. D. 1895’.”

The language of the document whereby the property-owners selected the material to be used, is thus:

“We, who are residents on Fourth street, in the •city of Sedalia, and who have petitioned the city comícil to pave said street, hereby desire to signify to the council that we want said paving on a 6-ineh concrete base and the character of paving as indicated opposite our respective names:” In all instances the italics are ours.

The defendant, Smith, signed neither of the two last-mentioned instruments.

We have set these things out fully as the side lights from which the terms of this ordinance and the meaning thereof may be reached, if it be such an instrument as may receive a construction by such means.

To our mind the real issue in this case is the meaning of this Ordinance No. 50 and by what rules we are to construe it. In other words, is it an ordinance under section 108 or rather clause five of sec. 108 of the Act of 1898, or is it an ordinance under section 109' of said act. The title is clearly under section 108. The first part of section 1, which we have quoted, by use of the words, “be brought to the established grade and paved,” if we take these words alone, would tend to indicate a legislative purpose under section 109. But on the other hand we find the above words followed by the words “according to specifications herein contained” so that the whole clause reads, “be brought to the established grade and paved according to the specifications herein contained.” Now when we read the specifications for grading contained in the same section, it is not so dear. This provides for the reduction of the street to a plane, the thickness of the pavement below the established grade, which is contemplated by the fifth clause of section 108, supra, wherein is said “and for doing, all excavating and grading necessary for the same.’7

If this section one, of Ordinance No. 50, and the ordinance as a whole, by these ambiguous terms and clauses, leave doubt as to the meaning, then we are at liberty to go beyond the body of the act itself for light when we come to construe it. There is doubt as to the meaning of this ordinance. There is doubt as to whether the intention of the lawmakers was to enact an ordinance under section 108, or rather under clause five thereof, or under section 109 of the Act of 1893. As an aid to construction, and a very strong aid, too, is the title of the ordinance. In Dart v. Bagley, 110 Mo. l. c. 51, we said:

“There are many canons of construction, but they all rest upon the common principle that if possible the intention of the Legislature must be ascertained. These rules are only valuable when they subserve this purpose. One of these rules of construction, long established in England, was that ‘the title cannot be resorted to in construing the enactment.’ [Hunter v. Nockolds, 1 McN. & Gord. 651.] ■ But in this State and others, where the Constitution gives a peculiar significance and assigns particular importance to the title by requiring that a statute shall contain but one subject ‘which shall be clearly,expressed in its title,’ this common law canon is clearly at variance with our methods of interpretation. On the contrary, we hold that the title is necessarily a part of the statute and aids in, and is a necessary guide to-, its right construction. [Eaidlich on Interpretation of Statutes, secs. 58, 59, and cases cited.]

“So it was said in Conn. Mut. Life Ins. Co. v. Albert, 39 Mo. 181: ‘But the better rule, as we think, is to presume that the true intent and meaning is to be found in the title, unless it is plainly contradicted by the express terms of the body of the act.’ ”

Sutherland on Statutory Construction (2 Ed'.), vol. 2, sec. 339, states the rule thus:

“The same declaration, that the title is no part of the act, has been frequently made by judges in this country. But in modem practice the title is adopted by the Legislature, more thoroughly read than the act itself, and in many States is the subject of constitutional regulation. It is not an enacting part, but is in some sort a part of the act, though only a formal part. By the common law it could not control the plain words of a statute; it was resorted to only in cases of doubt for such aid as it could afford in removing ambiguities. Acts may be identified by the title. An act may have effect as to persons and subjects broader than the title where the words are plain, and-where there is no constitutional barrier. But if the meaning is doubtful, the title, if expressive, may have the effect to resolve the doubts by extension of the purview, or by restraining it, or to correct an obvious error; for in ascertaining the intention nothing is to* be rejected from which aid can be derived.; therefore, the title of an act may claim a degree of notice, and is entitled to its share -of consideration. Where the text of the statute is plain and unambiguous, the title cannot have the effect to modify it.”

See, also, Black on Interpretation of Laws, section 76, page 171, where it is said: “The earlier English doctrine on this point never gained any considerable recognition in this country. On the contrary, with us, it has been almost universally held that if the provisions contained in the body of the statute are expressed in ambiguous or doubtful language, or so as to be fairly susceptible of more than one interpretation, then it is permissible and proper to consider the title of the act, as a clue or guide to the intention and meaning of the Legislature, and in this manner and to this extent it may be allowed to aid in the construction of the law.”

This Dart case, supra, was a statute, it is true, but the construction of an ordinance is for the court and the rules of construction of statutes usually apply 'to the construction of ordinances. [McQuillin on Municipal Ordinances, sec. 289, and cases cited.]

And if the ordinance is susceptible of two constructions it must be given that construction which will uphold the validity of the ordinance. The doctrine is thus announced by the Supreme Court of Kansas, Swift v. Topeka, 43 Kan. 671, 23 Pac. 1075: “But if a statute or a city ordinance is susceptible of two different constructions, that one must prevail that will preserve the validity of the ordinance, in preference to a construction that will render it invalid; and this must be done although the construction adopted may not be the most obvious or natural one, or the literal one. [Newland v. Marsh, 19 Ill. 376; Homestead Co. v. Webster Co., 21 Iowa 221; Roosevelt v. Godard, 52 Barb. 533; Colwell v. Water-Power Co., 19 N. J. Eq. 245; Bigelow v. Railroad, 27 Wis. 478; Dow v. Norris, 4 N. H. 17; Cooley, Const. Lim., 184; Inkster v. Carver, 16 Mich. 484.]”

Again all doubts must be resolved in favor of the validity of the ordinance. [Stafford v. Railroad, 110 Wis. 331.] The burden rests with the party alleging the invalidity of the ordinance to demonstrate it, there being in all cases the presumption that the ordinance is valid. [Railroad v. Carlinville, 103 Ill. App. 251.]

One other rule in the construction of laws and ordinances is that they must be construed in connection with existing laws and ordinances. In this case, we had section 160 of the Revised Ordinances of 1894, fixing the established grade of Fourth street. This section is specifically referred1 to in-Ordinance No. 50. The profile of the grade established under section 160 was in evidence, as well as the ordinance itself. This profile, as interpreted by the engineer, shows in effect that the established grade and the natural surface of the street were practically the same. With this in view is it reasonable to suppose that the city council, in passing Ordinance No. 50, contemplated grading as mentioned in section 109 of the Act of 1893? We think not. Here was a previous ordinance fixing this established grade. Here is an established grade practically conforming to the contour of the surface. The council is presumed to know the conditions and the existence of the previous ordinance, and in this case that they had this knowledge is apparent, because they referred to the previous ordinance of 1894, in reference to established grade. This ordinance of 1894, under these circumstances,' being mentioned in the ordinance itself, must be considered as intrinsic aid for the construction of the ordinance in question.

But aside from that, we have, and may call upon, what are called extrinsic aids in determining a doubtful meaning. The rule is thus stated by Black in his Interpretation of Laws, pp. 196-7:

. “But if the words of the law are not intelligible, if there arises a substantial doubt as to their meaning or application, or if there is ambiguity on the face of the statute, then the endeavor must be made to ascertain the true meaning and intent of the Legislature. And to this end, first of all, the intrinsic aids for the interpretation of the statute are to be resorted to. It should be read and construed as a whole; its various parts should be compared; each doubtful word or phrase is to be read in the light of the context; the interpretation clause, if there is any, should be examined to see if it defines or explains the ambiguous part; and light may be sought from the title of the act, the preamble, and even the headings of the chapters and sections.

“But if these intrinsic aids are exhausted without success, if there still remains a substantial doubt or ambiguity, then recourse may be had to extraneous facts, considerations, and means of explanation, always with the same object, to. find out the real meaning of the Legislature.”

These allowable extrinsic aids are numerous and varied, including public documents and papers, statutes in pari materia, contemporary history, contemporary construction and usage, executive and legislative construction, journals of the legislative body, opinions of legislators, motives of the legislative body and perhaps others. Now reviewing some of these aids, the petition of the property-owners for this ordinance only speaks of paving; the notice is one to “paving contractors” and speaks of “grading and paving” Fourth street, but it must be remembered that certain grading must be done before paving, even where the street is at the established grade; the ordinance establishing the grade, with the profile of the established grade, shows that the street was on the established grade, or practically so; the two estimates filed by the engineer, public documents in the proceeding, one for “paving” and the other for “bringing to grade and paving” Fourth street, are the same in amount; the contract denominates the work to be done as “grading and paving” Fourth street; then above all is the fact that no substantial work was required to bring the street to the established grade — it was on such grade to all intents and purposes.

Under all these circumstances does the ordinance challenged mean the grading contemplated by section 109, or does it mean the grading contemplated in clause five of section 108, of the Act of 1895. We are inclined to think the council had in view the latter; that they aimed to proceed throughout under the provisions of section 108, and thé provisions of clause five aforesaid. They could not have meant the grading necessary to bring a street to the established grade, when nature had done that, but must have meant the necessary grading required for the proper laying of the pavement. This is our construction of this ordinance and it .is a reasonable construction thereof. The only serious question in the matter is whether we should have gone outside of the ordinance1, which of course we could not, unless the meaning of the ordinance'is doubtful. We think, as hereinabove indicated, that when you compare the first few lines of section 1, of Ordinance No. 50, with the remaining portions thereof, there is doubt as to the character of grading contemplated, and upon that theory we have proceeded. Where there is doubt, Smith, P. J., in Bank v. Haywood, 62 Mo. App. l. c. 555, has most admirably stated the rule in this language: “The rule is, that in order to ascertain the purpose or intention of a statute, if not clearly expressed, it should be read in view of all the Surrounding facts and circumstances under which it was enacted. This rule is to be invoked alike in the construction of statutes and contracts. [Citing cases.] In Potter’s Dwarris on Statutes and Constitutions, page 48, it is said that common sense and good faith are the leading and principal characteristics of all interpretation. Reading the said ordinance in the light of the facts and circumstances surrounding its passage, and to which we have heretofore adverted, we cannot conclude that it was the intention or purpose of the framers to require that part of said street covered by said railroad tracks to be improved.”

From all of this it results that the trial court should have held that this whole proceeding was one under section 108, or rather clause 51 of section 108, of the Act of 1893. This the trial court did not do, but, evidently impelled by the ruling of the Kansas City Court of Appeals, in the Abell case, held the contrary. In this there was error. And in this,- the Abell opinion, supra, is error.

II. The views which we have taken of this ordinance, and the construction we have given it in our paragraph one of this opinion, practically disposes, of this case, with exception of the contention of defendant that the work was not completed within time and therefore the taxhills are void, and the further contention that the ordinance has a provision for keeping the pavement in good repair for five years and for that reason is void. The provision in said ordinance as to time is in this language:

“The work under this ordinance shall he done and fully completed within 100 days after the contract is let, and each and every day that the said work is not completed within that time, the contractor shall forfeit the sum of twenty dollars, the same to he deducted from the amount that would otherwise he due him for all of said work, and the said deduction shall he apportioned to and along the whole of said street so improved under this ordinance, and taxhills for so much less shall he issued in payment therefor; provided that for good cause shown, the council may extend the time of completing said work if the contractor is not in any fault in the matter; and the application for extension is made as soon as the necessity therefor appears, and before the work is done. No extension shall he made or excuse received after the work is completed.”

There is no definitely fixed time by the provision above quoted. This ordinance itself contemplates that more than 100 days might he required, for it provides for a forfeiture for each day required over that number. The contract is not different in this regard from the ordinance. We have recently reviewed the authorities upon this question in the recent case of Curtice v. Schmidt, 202 Mo. 703. Upon the authority of that case and the recent cases therein cited, this contention must he ruled against the defendant.

But in addition to this, the ordinance provides that the time, for good reason, might he extended. The contractor made application for extension, assigning as a reason that the curbingfwas not in, and the work could not proceed until it was in place. The council on this showing did extend the time, by passing a resolution to the effect that the time to begin should be as of the date when the curbing was in place. This was equivalent to extending the time for such time as was required to get the curbing in position. However, all this is immaterial in this case, for the reason that neither the ordinances nor' the contract fixes, in positive terms, any definite time. It only fixes a conditional time, the distinction. being clearly drawn by Brace, P. J., in Heman v. Gilliam, 171 Mo. 258, and other cases cited in the Curtice case, supra.

(2) Nor is the provision that the contractor shall keep the pavement in repair one which vitiates either the contract or ordinance.

m. We had. about overlooked the constitutional question. It would be perhaps as well, had it been overlooked. There is nothing in it. The contention is that section 109, of the Act of 1893, section 5809, Revised Statutes 1899, is violative of section 1, article 14, amendments to the Constitution of the United States, and also section 3, article 10 of the Missouri Constitution. We do not think so. A reading of these constitutional provisions will suffice.

TV. To our mind, this record shows that no work was contemplated by the ordinance, save and except such as must, under all circumstances, be paid for by special assessment. In other words no work was contemplated, which could be paid out of the general revenue fund of the city. The work has been done. The property has received the benefits thereof. In the language of Elliott, C. J., in case of Jackson v. Smith, 22 N. E. 432: “The assessment is made upon the theory that the benefit to the property is equivalent to the expense. The owner, therefore, receives a thing of value, and he ought in equity,and good conscience, to pay for it, notwithstanding the fact that the local officers may not have obeyed the statute in every regard. It is just to protect his title when he offers to pay for the things of value rendered him in the form of the benefit resulting from the improvement; but it is not just to relieve him from paying the assessment because the local officers have made mistakes.”

Without discussing other questions suggested in the briefs, it therefore follows that this cause should be reversed and remanded to be proceeded with as herein indicated, and it is so ordered.

All concur.

ON MOTION FOR REHEARING.

GRAVES, J.

One of the things urged in the motion for rehearing is thus stated in paragraph five thereof: “The court wholly overlooked the fact that the respondent offered to show that not alone did1 the proceedings provide for the bringing of the street to grade, but that the physical fact existed that deep cuts were made, and high fills built, upon which to place this pavement; and in no event should the court render an opinion that would preclude the respondent from offering such proof at a re-trial of this cause.”

The opinion of the court reverses and remands the cause. It was not the purpose of the court to preclude the introduction of the evidence above mentioned upon a re-trial. It may be that some of the language used would bear out the contention of counsel, and if so, this can be considered as a modification thereof. Upon the evidence in this record, we were of the opinion that in the passage of Ordinance No. 501, the council had in view and meant the grading contemplated in the fifth clause of section 108, Acts of 1890, in the opinion mentioned. What we hold is that the ordinance itself is of such doubtful meaning that we could resort to both intrinsic and extrinsic aid in construing it. Among the extrinsic aids we mentioned the evidence of the' city engineer as to the condition of the established grade as shown by the profile. On the other hand had it been in the record that the street was irregular in its surface, this fact would have been considered in construing the ordinance.

Upon a retrial it may appear that this street was of such a character that the council could not have meant any other grading except that contemplated by section 109, Act of 1893, and if so the trial court should have the benefit of that evidence in construing this ordinance. We are of opinion that such evidence would have been heard by the trial court under the original opinion and the order reversing and remanding the cause, but as there seems to be doubt, we add this to-the original opinion to remove such doubt. With this, the motion for rehearing will be overruled.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    CITY OF SEDALIA ex rel. TAYLOR, Appellant, v. DUGAN.
    Division One,
    July 13, 1907.
    TAXBILL: Estoppel. For the reasons stated in Sedalia ex rel. v. Smith, ante, page 346, the special taxbill involved in this caséis held to be valid, whether or not defendant is, by having signed a petition asking that the street be paved, estopped to dispute its validity, and therefore the question of estoppel is not determined.
    Appeal from Pettis Circuit Court. — No». George F*. Long an, Judge.
    Reversed and remanded.
   GRAVES, J.

Three cases were argued and submitted together, i. e., City of Sedalia ex rel. Taylor v. David H. Smith, City of Sedalia ex rel. Taylor v. M. Dogherty, and City of Sedalia ex rel. Taylor v. Anna A. Dugan, the present case.

There is but one difference between this case and the Smith case, in which we have written a full opinion. In this case the defendant, Dugan, signe.d the following petition to the city council:

“Gentlemen: The undersigned property-owners on the street herein named respectfully ask that you cause to be paved that part of Fourth street in said city from Thomson avenue to Park avenue, the woi*k not to begin before April first, A. D. 1895.”

By this act plaintiff claims that defendant is es-topped from denying the validity of the taxbill. Defendant claims that while she did sign said petition, it was one praying for an ordinance to pave the street and not for one to reduce the street to the established grade and then pave it; that the ordinance passed in obedience to the petition was for both classes of work, and therefore she is not estopped. In the view we have taken of the ordinance involved in all these cases, a discussion of this point is unnecessary, and we therefore decline to further discuss it.

The case is reversed and remanded to be proceeded with as indicated by an opinion in the Smith case, ante, page 346.

All concur.


text:
    CITY OF SEDALIA ex rel. TAYLOR, Appellant, v. DOGHERTY.
    Division One,
    July 13, 1907.
    TAXBILL: Estoppel. For the reasons stated in Sedalia ex rel. v. Smith, ante, page 346, the special taxhill in this case Is held to he valid, whether or not defendant, by having signed a petition asking for the paving of the street, is estopped to dispute its validity, and therefore the question of estoppel is not determined.
    Appeal from Pettis Circuit Court. — Hon. Geo. F. Longcm, Judge.
    Reversed and remanded.
   GRAVES, J.

This is one of the three cases argued and submitted together. The case of City of Sedalia ex rel. Taylor v. David H. Smith, ante, page 346, in which we have gone over both the facts and the law, controls the disposition of this case. There is but one difference either in fact or law between the Smith case and this case. In this case, the defendant, Dogherty, signed the' following petition:

“We who are residents on Fourth street, in the city of Sedalia, and who have petitioned the city council to pave said street, hereby desire to signify to the council that we want said paving on a six inch concrete base and the character of paving as indicated opposite our respective names:”

Defendant Smith, in his case, had signed nothing. It is urged in the present case that Dogherty is estopped by reason of this act and cannot now question the taxhill. This presents a very nice question, but in the view we have taken of the Smith case, a consideration thereof would be useless. Following the Smith case, this case will be reversed and remanded to be proceeded with as indicated in onr opinion in the Smith ease.

All concnr.


author: WOODSON, J.

text:
    GROSS, Administrator, v. WATTS, et al., Appellants.
    Division One,
    July 13, 1907.
    1. PRACTICE: Admitting Evidence After Case Closed: Formal Matters. After the close of the evidence it was agreed and noted of record that the cause was submitted to the court and would be argued at the next term. At the next term the court permitted plaintiff to introduce in evidence a certified copy of his appointment as administrator. Held, that the order continuing the case to the next term preserved the jurisdiction of the court over the entire case, and the evidence offered being only of a formal matter and in no wise injuring' defendants, there was no abuse of the court’s discretion in permitting the introduction of the evidence out of its order.
    2. ADMINISTRATOR: Appointment. Where the answer is a general denial, it is not necesary for plaintiff to prove his appointment as administrator. It can be questioned only by a special plea in abatement.
    3. ACKNOWLEDGMENT: Residence.. That portion of the statute which directs the “place of residence” of the grantor in a deed to be stated in the certificate of acknowledgment is directory and not mandatory, and the acknowledgment is not insufficient because the grantor’s residence is not stated.
    4. -: Free Act and Deed. A certificate of acknowledgment is not defective because it does not recite that the deed was executed as the grantor’s “free act and deed.” The statute requires it to state the “act of acknowledgment,” and where the certificate recites that the grantor “duly acknowledged the execution of the same” it substantially complies with the statute.
    5. MORTGAGE: Notice: Alteration of Deed. The record title was in Johnson and he conveyed to Watts by deed which was never recorded. Barber erased the name of Watts and wrote in his own and withheld it from record, and while the title was in this condition the mortgage from Watts to McQuacker, which plaintiff seeks to have foreclosed, was executed and placed of record, and Barber conveyed to defendants. Held, that the record of the mortgage imparted no notice to defendants, but as they all had actual notice of the existence of the mortgage, it was properly admitted in evidence. There is no need of constructive notice where there is actual notice.
    6. FORGED DEED: Knowledge. Where the agent of the mortgagee changed and mutilated the deed from the owner of the land to the mortgagor, by erasing the grantee’s name and inserting his own, and then sold the land to defendants, who knew of the alteration, they are bound by his rascality, whether the deed was recorded or not, or whether or not it was outside of the chain of title.
    7. -: Notice. No one acquires any interest in land through a forged deed, whether he has notice of the forgery or not.
    8. LIMITATIONS: Kansas: Cause Not Extinguished: Law of Forum. The law of Kansas declaring a civil ‘‘action upon any agreement, contract or provision in writing” is to be brought within five years, only bars the remedy, and does not go further and extinguish the cause of action, and that being the case a suit to foreclose a mortgage on Missouri land, given to secure the payment of a note and mortgage executed and made payable in Kansas, is not barred in five years, for it is only in cases where the cause of action is extinguished that the laws of the forum apply.
    Appeal from Macon Circuit Court. — Hon. Nat. M. Shelton, Judge.
    Affirmed.

      H. F. Millón for appellants.
    (1) Where a deed is delivered with the name of the grantee blank and parol authority to the person to whom it is delivered to insert the name of any grantee he may see fit, and he inserts a name therein, the title passes. Thummel v. Holden, 149 Mo. 677. Changing the amount of consideration in a deed is not a material alteration. Jones on Real Property, sec. 1344. The taking of a mortgage for a preexisting deed does not constitute the mortgagee a purchaser for value in good faith. Jones on Real Property, sec. 13901. (2)-The record of the mortgage is not notice. First, because it was not properly acknowledged and therefore not entitled to record; and, second, because not within the chain of title. (3) The court erred in admitting the mortgage sued on in evidence without proof of its •execution. The mortgage was not legally acknowledged. Simms v. McLared, 94 S. W. 792. (4) When a note is barred by the law of another State, it is barred by the law of this State. R. S. 1899, sec. 4280. When the debt is barred the mortgage securing the same is. barred. R. S. 1899*, secs. 4276, and 4277; St. L. Type Co. v. Jackson, 128 Mo. 189. (5) The finding of the court that the deed from Johnson was originally made to Watts and Watts’ name erased therefrom and Barber’s inserted, is not supported by the evidence. There is absolutely no evidence to support this finding. Adams v. Yates, 143 Mo. 475. (6) The defendants Best and Bradigums and Simmons are innocent purchasers. Garland v. Wells, 18 N. W. 132; Field v. Stag, 52 Mo. 534; McClain v. McClain, 3 N. W. 60.

      Dysart & Mitchell for respondent.
    (1) Evidence may be introduced after a case is •closed, and the case will not be reversed unless it appears that the trial court abused its discretion and injury resulted to the complaining party. Fhllerton v. Fordyce, 144 Mo. 526; Joplin Water Works v. Joplin, 177 Mo. 531. The proof of the appointment of the administrator was a formal matter and' did not and could not in any way have injured the defendants. Indeed, there was no need of proof of the appointment ■of the administrator. The general denial is addressed to the merits of the case and proof need not be made ■of the appointment of the administrator unless the denial thereof is a special denial. There was no special denial in the answers. Baxter v. Trust Co., 95 S. W. 856; Levels v. Railroad, 196 Mo. 614; Rodgers v. Marsh, 73 Mo. 64; 1 Chitty on Pleadings, 446; Kinkaid v. Storz, 52 Mo. App. 564; Taylor v. Pullen, 152 Mo. 434. (2) The record of the mortgage in question was notice. It was properly indexed. The index is no part of the record anyway. Bishop v. Schneider, 46 Mo. 472. The mortgage was properly acknowledged. It fills every' requirement of section 913, Revised Statutes 1899, sec. 2408, Revised Statutes 1889. “A substantial compliance with the law is all that is required. ’ ’ Alexander v. Merry, 9 Mo. 527; Warder v. Henry, 117 Mo. 539. If the section is complied with, the acknowledgment is good even if it does not follow the printed form. The form is only cumulative. Huse v. Ames, 104 Mo. 91. The form used in this deed comes nearer complying with the requirements of the section as to acknowledgments, than the printed form in our stat■ute. The acknowledgment is word for word like the acknowledgment to the warranty deed in question and defendants rely on this. This mortgage was recorded immediately after its execution and if it had had no acknowledgment at all, would have been notice at the time of the transactions herein complained of. Sec. 3118, R. S. 1899; sec. 4864, R. S. 1889'; sec. 2305, R. S. 1879; Laws 1887, p. 183. The execution of the mortgage was procured at request by the defendant, E. A. Barber, for the purpose of securing this very debt in question. (3) The acknowledgment of the mortgage in due form' has but little force in this case, anyway. It was of record and requested to be made by one of the defendants, E. A. Barber, for the purpose of securing this debt. And where actual notice exists all necessity for constructive notice vanishes away. Harrington v. Fortner, 58 Mo. 473; Wilson v. Krmmel, 109 Mo. 264. Notice of the deed or claim is as good as legal registry. Jackson v. Burgott, 10 Johns. 457; sec. 925, R. S. 1899; sec. 2420, R. S. 1889; Abbe v. Justus, 60 Mo. App. 300;. Meier v. Blume, 80 Mo. 179; Major v. Buckley, 51 Mo. 227; Taaffe v. Kelley, 110 Mo. 137. (4) The charge in this case is that the defendant’s claim is based on a forged instrument. The principle of law that unrecorded deeds and deeds outside of the chain of title furnished no constructive notice, does not apply to forged instruments. Pry v. Pry, 109 HI. 476 ; 2 Jones, Law of Beal Prop: and Convey., sec. 1353. (5) ' These defendants all had notice of the scratched, mutilated and altered deed, under which E. A. Barber claimed title. The marginal notation of the record called attention to it and the deed by requirement of statute remained in the office of the recorder of deeds for a year. Hedrick v. Bailroad, 120 Mo. 539; Sensenderfer v. Kemp, 83 Mo. 581; Speck v. Biggin, 40 Mo. 405. The defendants, Best, Bradigums and Simmons were no innocent purchasers. They all had direct notice of this claim. This, in addition to the fact that the scratched deed and the circumstances surrounding this transaction, all placed them on inquiry. Hedrick v. Bailroad, 120 Mo. 540: Halsa v. Halsa, 8 Mo. 303.
   WOODSON, J.

This case originated in the circuit court of Macon county, and was instituted by plaintiff, administrator, against the defendants, having for its purpose — the first count — the foreclosure of a mortgage, executed and recorded, from William J. Watts and wife to Janet McQuacker, deceased, conveying the land described in the petition, and located in. the county of Macon, State of Missouri, to secure their promissory note for the sum of $500, due in five years from date, and five coupons attached thereto for thirty-five dollars each, which represent the annual interest on said note. The note and coupons after maturity bear interest at the rate of ten per cent per annum, and are payable at the First National Bank of Humboldt, Kansas. The plaintiff was duly appointed administrator of the estate of Janet McQuacker by the probate court of Macon county, and he duly qualified and he is now, and was at the time of the institution of this suit, acting as such. The other defendants are made parties to the suit because they claim some interests in the land, by mesne conveyances, through the defendant Watts, which will be more fully stated in the statement regarding the second count of the petition. The note and all the coupons were past due, and ■unpaid, at the time of the institution of this suit, except two or three of the coupons which had been paid prior to that date.

The prayer of the first count was for judgment for the amount of the note and the unpaid coupons, against the makers, a foreclosure of the mortgage and sale of the real estate to satisfy the judgment, and for execution against the makers for the excess, if any, over and above the proceeds of the sale of the land under the foreclosure proceedings.

The second count of the petition had for its object the reformation of a warranty deed', from W. W. Johnson and wife to defendant Wm. J. Watts purporting to convey the land in question, dated August 14, 1889. The facts regarding the transactions involved in the second count are best stated in the language of the petition itself, and they are as follows:

“That said mortgage [the one mentioned in the first count] was procured and negotiated by said defendant, E. A. Barber, to secure said loan to said Janet McQuacker; that the title of the said William J. Watts to tbe premises and lands described in said mortgage was a warranty deed duly executed and delivered to said William J. Watts, for a good and valuable consideration, by W. W. Johnson and his wife, Nellie C. Johnson, dated August 14, 1889', and duly acknowledged on said 14th day of August, 1889, before a notary public, in Allen county, and State of Kansas; that said warranty deed to said William J. Watts was by said William J. Watts placed and left; with money sufficient for the record thereof, in the hands of said E. A. Barber, to be sent to the recorder of deeds for Macon county, Missouri, for record; that said E. A. Barber promised and agreed to send said warranty deed conveying said lands from said Johnson and wife to said William J. Watts, executed as aforesaid, to the recorder of deeds of Macon county, Missouri, for record in’ said office or recorder of deeds, together with the money deposited with him to pay for said recording; that by the fraud and deceit of said defendant, E. A. Barber, said warranty deed and conveyance was never sent by bim to the recorder of deeds of said county of Macon and was by fraud and deceit of the said defendant, E. A. Barber, never placed of record upon the records in the office of recorder of deeds of said county of Macon; that the said defendant E. A. Barber, intending to cheat and defraud the said Janet McQuacker, without right, without authority and corruptly and fraudulently altered, erased and changed the grantee’s name in the said warranty deed, conveying said' premises from said W. W. Johnson and wife, Nellie 0. Johnson, to said William J. Watts, by fraudulently erasing the name of the grantee, to-wit, William J. Watts, and writing in place thereof as grantee in said deed his own name, to-wit, E. A. Barber, which thereby became and was a forged instrument through which no subsequent party as grantee could acquire-title; that the said E. A. Barber, further intending to cheat and defraud the said Janet McQuacker and the heirs of the estate of said Janet McQuacker, did, on the 8th day of April, 1901, fraudulently and wrongfully procure and have said warranty deed altered and changed as aforesaid, filed and entered of record in the office of the recorder of deeds of Macon county, Missouri, and the same is recorded in book 126, page 582, in the said office of recorder of deeds for said county of Macon, changed and altered as aforesaid; that said defendant, El A. Barber, further intending to cheat and defraud the said Janet McQuacker, and the heirs of the estate of Janet McQuacker, did, on the 9th day of April, 1901, pretend to sell and convey the said land and premises to defendants, J. W. Bradigum, George F. Bradigum and Albert Best for $1800 by warranty deed, which was duly acknowledged on the 9th day' of April, 1901, before a notary public of Greene county, Missouri, and the same was duly filed for record and recorded on the 20th day of April, 1901, in the office of recorder of deeds for said county of Macon, in book 133 at page 118, the said defendant, E. A. Barber, warranting the said premises to be free and clear of all encumbrances, and that he had good title thereto, well knowing then and there that he had no title to said premises and that plaintiff’s said mortgage was a valid and subsisting lien on said premises; that the said defendants, J. W. Bradigum, George F. Bradigum and Albert Best, well knowing and by ordinary diligence being able to well know the altered and changed condition of the deed filed and recorded as aforesaid in hook 126 at page 582, in the office of recorder of deeds for Macon county, Missouri, as also that plaintiff’s said mortgage was a valid and subsisting lien on said' premises, did pretend to purchase said premises from said defendant, E. A. Barber, and that said E. A. Barber never had any title to said premises, that afterward said defendants, J. W. Bradigum, George F. Bradigum and Albert Best, well knowing the facts as aforesaid, as to the title to said premises, did, on the 16th day of April, 1901, by their certain deed of trust, pretend to grant, bargain, sell, convey and confirm unto the defendant William R. Baird, as trustee for the defendant, Norah Wyatt, the said land and premises to secure to said Norah Wyatt the payment of a note of $1,000' in said deed described, which deed of trust was recorded on the 20th day of April, 1901, in the office of recorder of deeds of said county of Macon, Missouri, in book 129 at page 211, the said defendants, William T. Baird and Norah Wyatt, knowing well or by reasonable diligence being able to know well at the time of receiving said deed of trust all the facts above set out as to the state of title to said premises, and that said E. A. Barber never had any title to said premises, and that the said warranty deed of W. W. Johnson and wife as the same appears of record, in book 126 at page 582, changed, as aforesaid, as to the grantee therein, is a cloud upon plaintiff’s title and endangers the collection of plaintiff’s debt in proceeding to sell said land for the payment of said debt.

“Wherefore, plaintiff prays the court to reform and correct the record of the said warranty deed made by said W. W. Johnson and Nellie 0. Johnson, Ms wife, recorded in said book 126 at page-582 in the office of recorder of deeds of said Macon county, and restore the name of William J. Watts as grantee in said deed ■ as the same was when it was executed before the said E. A. Barber changed and mutilated the same, and for a decree and finding that the claim and right of all the defendants are subject to the right and lien of the plaintiff, and for costs therein expended, and for all other general and proper relief.”

Defendants Best, Bradigums and Simmons filed their separate- answer, and it is as follows:

“The defendants, Albert Best, J. W. Bradigum, Geo. F. Bradigum- and Charles Simmons for separate amended answer herein to the first and second counts of plaintiff’s petition deny each and every allegation therein except such as are hereinafter specifically admitted.

“They admit that they claim an interest in the lands described in plaintiff’s petition and that the interest claimed by them is the full title in fee simple absolute to all of said lands; and they deny that either before or at the time of their purchase thereof they had any knowledge or information whatever that either Janet McQuacker or Wm. J. Watts had or claimed any interest in the lands described in plaintiff’s petition.

“That they purchased said lands from E. A. Barber and upon an abstract showing a perfect title in him' and relying thereon; and upon the fact that the said E.‘ A. Barber had been in the actual, open, notorious and continuous adverse possession of said land claiming title thereto against the world for more than ten years, that on the 9th day of April, 1901, the said Barber conveyed said lands by warranty deed to defendants, Albert Best, J. W. Bradigum and George P. Bradigum, and on the. 7th day of September, 1901, the said J. W. Bradigum and John P. Bradigum conveyed their interests therein to defendant Best; and on the 10th day of September, 1901, defendant Best conveyed to defendant Simmons the following part of said lands, to-wit: All that part of the west half of the northwest quarter of section nine, township sixty, range sixteen, lying west of the Chariton river in Macon county, Missouri. That all of said conveyances were made upon full value paid by the grantee to the grantor and without any knowledge or information of any fraud practiced or attempted to be practiced by E'. A. Barber, if any, or others, and without any knowledge or information of any claim or right of Janet McQuacker or William J. Watts, either legal or equitable.

“Defendant further states that by paragraph 4095 in article 3, chapter 80, volume 2, of the General Statutes of Kansas, 1889, it is provided as follows:

(4095). Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:

“ ‘First. Within five years: An action upon any agreement, contract or promise in writing.’

“That upon the face of the note filed with the plaintiff’s petition as the cause of action and as a part of said note it is provided as follows: ‘The interest upon this note until its maturity is shown by coupons bearing even date herewith, and if default be made in the payment of any interest coupon at maturity then the principal note shall immediately become due and payable and be collected by suit at law at any time after such default.’ That by virtue of the terms of said note and coupons they became due December 1st, 1896, and so defendants say that plaintiff’s cause of action, if any, did not accrue within five years next before the bringing' of this suit.

“Defendant further answering the second count of plaintiff’s petition says, that plaintiff’s cause of action, if any, did not accrue within ten years next before the commencement of this suit. ”

Defendant, Barber, answered as follows-:

“The defendant, E. A. Barber, for his separate answer herein denies each and every allegation in plaintiff’s amended petition in both counts thereof.

“Defendant further answering admits the sale and conveyance by him of the lands in dispute to defendants Albert Best, J. W. Bradigum and Geo. F. Bradigum; defendant specially denies that either Wm. J. Watts or Kate Watts ever had any title, right or interest legal or equitable in the lands in dispute.

“He denies that the deed dated 14th-day of August, 1889, and recorded in book 126 at page 582 in the recorder’s office of Macon county, Missouri, was made to Wm. J. Watts or Kate Watts; denies that their names or either of them were ever written in said deed as grantees therein.

“He denies that he ever erased the name of Wm. J. Watts or Kate Watts or either or both of them from said deed; but asserts tbe fact to be that no other name than his own was ever written in said deed as grantee therein.

“He emphatically denies all charges of fraud and further says that he and his grantees have been in the open, notorious and continuous adverse possession of the land in dispute for more than ten years before the commencement of this suit, claiming title thereto adverse to all tbe world.

“He further states that by paragraph No. 4095 in article 3, in chapter 80, volume 2 of the General Statutes of the State of Kansas, 1889, it is provided as follows :

“ ‘ (4095). Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:

‘ ‘ ‘ First. "Within five years: An action upon any agreement, contract or promise in writing. ’

“That upon the face of the note presented and filed with plaintiff’s petition, and as a part thereof it is provided as follows: ‘ The interest upon this note until its maturity is shown by coupons bearing even date herewith and if default be made in the payment of any interest coupon at maturity, then this principal note shall become immediately due and payable and be collected by suit at law at any time after such default. ’ That by the provisions of said note and said coupons they became due and a cause of action accrued thereon December 1st, 1896, and plaintiff’s action was not begun within five years thereafter; and so defendant says the said pretended cause of action and the pretended mortgage described in plaintiff’s petition are barred by said statute of limitation.

“Defendant further answering the second count of plaintiff’s petition says that the pretended cause of action stated in the second count of plaintiff’s petition did not accrue within ten years next before the commencement of this suit.”

The reply of plaintiff is as follows:

“Now at this day comes the plaintiff and for reply to the answers of the defendants filed in this case, denies each and every allegation of the new matter therein contained.

“And further answering plaintiff says that at the time the cause of action accrued against the defendants and each and every one of them, each and every one of the defendants was out of the said State of Kansas, and that the defendant, William J. Watts, was out of the State of Kansas and has not been in the State of Kansas since the said cause of action accrued until the filing of this cause of action in this court, and that ever since the cause of action accrued the said William J. Watts has absconded and absented himself from his usual place of residence and has concealed himself so that process of law in the State of Kansas and also in the State of Missouri could not be served upon him personally, and his whereabouts has been concealed and kept from his own relatives and family, since the-day of November, 1896, or thereabouts, and also during said time his whereabouts has been unknown to the holders and owners of the note and mortgage herein sued upon. And having fully replied, the plaintiff prays for judgment as asked in the petition.”

At the trial plaintiff introduced evidence tending to prove the following facts: That the mortgage sued on was duly executed and recorded. To the introduction of the mortgage in evidence the defendants objected, because not properly acknowledged, and was therefore improperly recorded, and imparted no notice to defendants. The certificate of acknowledgment is in the following words:

“State of Missouri, County of Barton, ss.

“Be it remembered that on tbis 17th day of December, A. D. 1894, before me, a notary public, in and for said county, came Wm. J. Watts and Kate Watts (husband and wife) to me personally known to' be the same persons who executed the foregoing instrument and duly acknowledged the execution of the same.” Then follows the ordinary attesting clause of the notary.

The court overruled the objection, and the defendants duly excepted.

That the deed from W. W. Johnson and wife was executed in 1889, but was withheld from record for about eleven years; that the note, coupons and mortgage from Wm. J. Watts and wife were made in 1892— the note was made to Janet McQuacker, and by mistake the mortgage was executed to Mary McQuacker-, and a corrected mortgage was made to Janet McQuacker, securing the note, and was dated December 27th, 1894. The grantee in the first mortgage, Mary McQuacker, gave a quit-claim deed to Wm. J. Watts and wife, about the time the second mortgage wias executed to Janet McQuacker. This loan was made at the request of defendant E. A. Barber; he negotiated the loan, and, when the mortgage was recorded, it was mailed to him at Humboldt, Kansas.

In reply to a letter written by counsel for plaintiff to E. A. Barber he answered as follows:'

“Springfield, Mo., Feb. 15, 1898.

“Dysart & Mitchell, *

“Macon, Mo.

“Gentlemen:

“Tour favor of recent date inquiring about Wm. J. Watts and Kate Watts, his wife, received and noted.

“When the note and mortgage was given these parties lived at Golden City, Barton county, Mo. In the fall of 1896, just before the election, Wm. J. Watts mysteriously disappeared and has not been heard from since.

“I suppose that all that you can get or do will be to bring suit and get a decree foreclosing the mortgage and ordering the sale of the land and then sell it and bid ■ it in for your clients. I believe I am in a position to help you out and give you as good or better a title to the land than you can get by suit, and so I make you this proposition, viz.: I will get you a good title to the land subject to the back taxes, provided I may have the timber on the land and a reasonable time, say one, two or three years to remove it from the land. I presume the land with the timber taken oft ready for the plow is worth more than it is as it now stands. Or again, L will get you a good title to the land subject to the back taxes, provided your clients will enter into an agreement to reeonvey to me free and clear of encumbrance at any time within three years that I may be able to raise and pay even $500: In either way you will accomplish, I take it, all you can accomplish by a suit and with less expense to your clients.

‘1 Let me hear from you on this.

“Very truly,

“E. A. Barker.”

"Which letter was read in evidence.

The quit-claim deed given by Mary McQuacker to correct the mortgage given to her by mistake was also mailed to Barber, and was found attached to his deposition filed in this case.

That the coupons had been regularly paid as they fell due until the one maturing December 1st, 1896 ; that the note and remaining coupons were due and unpaid at the time of the trial.

Wm. J. Watts and wife resided at Golden City, Missouri, and he mysteriously disappeared from his home shortly prior to the election in 1896 and has not been heard from since. He was a brother-in-law of said E. A. Barber.

That the deed from W. W. Johnson and wife, dated August 14th, 1889, was made to William J. Watts, and not to defendant, E. A. Barber; that it was filed for record April 8, 1901, and was acknowledged before George 0. Barber, a notary, and a brother and partner in business with E. A. Barber; that the deed shows on its face that the name of the grantee had been erased, and the name of E. A. Barber inserted in lieu thereof, in his own handwriting, which was in 1901, just prior to the sale of the land to defendants.

The deed also shows upon its face that the cofisideration and one and a half line of the habendum clause had been erased; that defendant Best saw the erasures were made before the name of E. A. Barber was inserted into the deed, which was a few days prior to the time he and the Bradigums purchased the land. The only evidence tending to show when these alterations were made is the testimony of E. A. Barber, and he states they were made in 1901.

The Best and the Bradigums purchased the land together, and they discussed the defects in the title and especially the erased portions; that defendant Barber wanted them to accept the erased deed and have their names written in it as grantees in the place of the name of the grantee which had been scratched out or erased, which they refused to do.

The two mortgages were dated and recorded in 1902 and 1904 — the last one, the one upon which this suit is based, was recorded December 29th, 1904.

Defendant Best testified that he saw the deed at La Plata, where it had been sent by B. A. Barber for inspection, and that he and the Bradigums refused to receive it and that at that time the amount of the consideration expressed in the deed was $1800, and that the name of the grantee had been scratched out.

That the attorneys for plaintiff have made all reas: enable efforts to find and locate W. W. Johnson and [Wm. J. Watts but failed to do so.

Defendant Barber procured' Ms brother-in-law, Wm. J. Watts, and his wife to execute the mortgage to Janet McQuacker, who was a resident of Scotland, and¡ secured the $500 from her for said Watts on said mortgage, which recites that Watts owned the land in fee; that he procured the quit-claim deed from Mary Mc-Quacker, to whom the first mortgage had been made, to Wm. J. Watts and wife, and had it recorded, and in 1894 he had the mortgage in question executed and recorded, and all of these deeds were mailed to him at Humbolt, Kansas; all of which was prior to 1896, when his name was inserted in the scratched deed from W. W. Johnson and wife to Wm. J. Watts — that is, Watts’ name was erased and Ms written in.

That the Bradigums had knowledge of the existence of the mortgage against the land before they and Best purchased it, and that plaintiff’s attorneys were trying to collect it at that time, and that they relied upon the statements of E. A. Barber, as to the condition of the title.

Best testified that he knew of the existence of this mortgage before he had paid for the land, and he got that information from the Bradigums.

The defendants ’ evidence tended to prove: That on August 14, 1889, W. W. Johnson was the owner of the lands in question, and that on that day he executed and delivered to E. A. Barber a deed for said lands in proper form, duly acknowledged, with the name of the grantee and the consideration left blank; that the amount of the consideration agreed upon was paid by Barber to Johnson, and that Johnson at the same time executed and delivered to Barber written authority to insert the amount of the consideration and the name of the grantee in the blank spaces left in said deed, and in 1896 he inserted $800' as the consideration and his own name as the grantee in said deed; that the consideration paid by Barber for said deed was the assumption of a mortgage debt of $400 against said land owed by Johnson to one Leitzbock and cancellation of a debt Johnson owed said Barber; that in 1901, when he had an opportunity of selling the land to Best and the Bradigums, he erased his name and the consideration clause in the deed and sent it to the Bank of Kirksville, and tried to close the deal with them by requesting them to take the deed and insert their names and the consideration in the deed. They refused to take the deed in that form, fearing Barber’s wife would be entitled to dower, as they testified, in the land; that the deed was then returned to Barber, who, thereupon, re-inserted in the deed his own name as .grantee and the amount of the consideration as $1,000, and then sent it to the recorder’s office, at Macon, for record; that at the same time he sent to the Bank of Kirksville a deed from himself to the defendants Bradigums and Best, dated April 9th, 1903, and by that deed1 conveyed the land to them, and that on the 20th of the same month he paid the Leitzbo'ck mortgage.

At the time the defendants Bradigums and Best bought the land, Barber furnished them an abstract of title made by an abstractor at Macon, which showed a good title in1 Barber, but did not show the mortgage sued on; and the abstractor testified that the reason why it did not appear in the abstract was because it did not appear in the chain of title; that the deed from W. W. Johnson to E-. A. Barber was not recorded until about the time he sold the land to Best and the Bradigums.

The mortgage provided that if the interest was not paid when due the principal note should become immediately due and payable.

Defendants introduced in evidence the Statutes of Limitation of Kansas, which are pleaded in the answer.

At the close of the evidence it was agreed and noted of record that the cause was submitted to the court and would be argued tbe next term of tbe court. At tbe next term of tbe court, tbe court, over tbe objection of tbe defendants, permitted plaintiff to introduce in evidence a certified copy of tbe order of bis appointment as administrator of tbe estate of Janet McQuacker, deceased, to wbicb action of tbe court defendants duly excepted.

Tbe court found tbe issues for tbe plaintiff and rendered judgment in bis favor,, on eacb count as prayed for in tbe petition. Tbe defendants filed tbeir motion for a new trial, wbicb was, by tbe court, overruled, to wbicb action of tbe court defendants duly excepted, and bave appealed tbe cause to this court.

I. Tbe first assignment of error made by appellants is, tbe action of tbe court in receiving in evidence a certified copy of tbe order of tbe probate court of Macon county, appointing respondent administrator of tbe estate of Janet McQuacker, after tbe close of tbe case. Tbe evidence in tbe cause was beard at one term of tbe court and taken under advisement until tbe next term, at wbicb time tbe certificate was offered and received in evidence. Tbe order continuing tbe cause to tbe next term preserved tbe jurisdiction of tbe court over tbe entire case, and it possessed tbe same jurisdiction to act in tbe cause that it possessed at tbe previous term. There was no leakage or loss of power or jurisdiction of tbe court during tbe interim, nor during tbe passage of tbe cause from tbe one term to tbe other.

This court has repeatedly held that evidence may be introduced after a case is closed and tbe judgment will not be reversed on that account unless it appears to tbe satisfaction of this court that tbe trial court abused its discretion in that regard, and that injury resulted as a consequence thereof to tbe complaining party. [Fullerton v. Fordyce, 144 Mo. 526; Waterworks Co. v. Joplin, 177 Mo. 531.]

Tbe proof of tbe appointment of Gross administrator of the McQuacker estate wag a formal matter and did not in any manner injure the defendants.

Independent of the rule just stated, we may add that under a general denial .it was not necessary for plaintiff to prove his appointment as administrator. A general denial puts in issue only the merits of the case. If defendants desired to question the appointment of plaintiff, they should have done so by a special plea in the nature of a plea in abatement. This is the conclusion reached by Vault ant, J., in a very able and carefully considered case, in which he reviews all the authorities upon that subject. [Baxter v. Railroad, 198 Mo. 1.]

It must, therefore, be held that there was no error in the action and ruling of the trial court in admitting in evidence the certified copy of the order appointing plaintiff the administrator of the estate of Janet Mc-Quacker, deceased.

II. The next contention of the appellants is, that the court erred in admitting in evidence the mortgage sought to be foreclosed.

There is no question raised as to the genuineness of the signatures to the mortgage or that it was not actually recorded and properly indexed; but they do question the sufficiency of the acknowledgment, and contend that it was on that account improperly recorded, and that it imparted notice to no one.

Section 913, Revised Statutes 1899', provides that, “The certificate of acknowledgment shall state (1) the act of acknowledgment, (2) that the person making the same was personally known to the officer granting the certificate', to be the person whose name is subscribed to the instrument as a party thereto; and (3). or was proved to be such by at least two witnesses, whose names and places of residence shall be inserted in the certificate.” The section provides further that the certificate of the officer taking the acknowledgment may be in the following fe'rm:

‘ ‘ On this-day of ——, 18 — , before me personally appeared A B (or A B and O D) to me known to be the person (or persons) described in and who executed the foregoing instrument, and acknowledged that he (or they) executed the same as his (or their) free'act $nd deed.”

If we look at the certificate of acknowledgment attached to this mortgage, we find that it states (1) that Va J. Watts and Kate Watts (husband and wife) acknowledged the execution of the deed; (2) that they were personally known to him to be the same persons who executed the foregoing instrument; and (3) that while their names are stated in the certificate, their places of residence are not stated, without the caption-of the certificate may be considered and taken to be their residence; but it will be seen by looking at the form of the certificate, prescribed by the statute, that it does not require the residence of the makers to be stated or given.

By construing the entire section together, we are clearly of the opinion that the first portion, of the section is only directory, and not mandatory. In the form of certificate prescribed by the section, we find that it concludes with these words, “and acknowledged that he (or they) executed the same as his (or their) free act and deed.” The certificate of acknowledgment to the mortgage, in question, does not state that the grantors executed it as their “free act and deed.” The statute does not require this form to be used by the officer taking the acknowledgment, but provides that it may be used. The first clause of the section provides, “The certificate of acknowledgment shall state the act of acknowledgment,” but does not require it to state that they executed the same as their “free act and deed.” The certificate of acknowledgment to this mortgage complies with the first clause of that section, and a substantial compliance is all the law requires. [Alexander v. Merry, 9 Mo. 527; Warder v. Henry, 117 Mo. 539; Wilson v. Quigley, 107 Mo. 98; Hughes v. McDivitt, 102 Mo. 77; Huse v. Ames, 104 Mo. 91.]

Appellants also insist that the mortgage should not have been admitted in evidence as imparting notice to them, because it did not form a link in the chain of title to the land described therein. This presents a more serious question than the one first disposed of. The record title was in W. W. Johnson, and he conveyed his title to Wm. J. Watts, but this deed of conveyance was never placed upon record. E. A. Barber erased the name of Watts therefrom and withheld it from record. While the title was in this condition the. mortgage from Wm. J. Watts and wife to Janet McQuaeker was executed and placed on record. Under the condition of the title, an investigation of the Johnson title would not reveal the Watts-McQuacker mortgage, because the record of that title did not disclose the deed of conveyance from Johnson to Watts, or in any other manner connect Watts with that title.

The law of this State is well settled that a purchaser is bound with constructive notice of all recorded instruments and the recitals therein lying within his chain of title; but a deed or instrument lying outside of the purchaser’s chain of title imports no notice to him. [Tydings v. Pitcher, 82 Mo. 379; Crockett v. Maguire, 10 Mo. 34; Digman v. McCollum, 47 Mo. 372; Burke v. Beveridge, 15 Minn. 205; Patterson v. Booth, 103 Mo. 414; McDonald v. Quick, 139 Mo. 498; Railroad v. View, 156 Mo. 616.]

According to the rule announced in the foregoing cases, the action of the trial court in admitting the mortgage in evidence for the purpose of imparting notice to defendants of its existence was erroneous. But we are unable to see how that error did or could have injured appellants’ rights in any manner whatever, because all the defendants had actual notice of the existence of that mortgage before they purchased and paid for the land. One Bradley told the Bradigums about it, and Best testified that he had made the contract for the purchase of the land before he heard of the mortgage, but that he had not paid for the land when he received that notice, and Barber had actual knowledge of the mortgage, because he, himself, negotiated the loan and had the mortgage recorded.

In deciding a similar question Sherwood, J., used this language: “And (2) the further fact, that it was established beyond question that the defendants were purchasers with full and actual notice of plaintiff’s claim. Such notice countervails the effect of registry and dispenses with it.”. [Hoge v. Hubb, 94 Mo. l. c. 498 ; Bartlett v. Glasscock, 4 Mo. 62; Vaughn v. Tracy, 22 Mo. 415; Sensenderfer v. Kemp, 83 Mo. 581; Vaughn v. Tracy, 25 Mo. 318; Speck v. Riggin, 40 Mo. 405; Foster v. Breshears, 55 Mo. 22; Harrington v. Fortner, 58 Mo. 473-4; Wilson v. Kimmel, 109 Mo. 260; Jackson v. Burgott, 10 Johns. 457.]

HI. The defendants claim title to the land in controversy through and under the erased, mutilated and forged deed from Johnson to E. A. Barber. Under the facts as disclosed by the record in this case, it goes without saying that Barber fraudulently changed that deed, by erasing the name of the grantee, William J. Watts, and by inserting his own in lieu thereof, for the purpose of defrauding Janet McQuacker out of the $500 he had loaned for her. All the defendants saw the deed and inspected it or talked to those who had seen and inspected it regarding its condition, and refused to permit their names to be inserted into that deed as grantees in the place where the name of the grantee had been erased, but required E. A. Barber to insert his own name as the grantee and then took a deed from him to the same land. All of them had actual notice of the mutilated condition of the deed and sufficient notice to have pnt a reasonably prudent person upon inquiry. If this information acquired by defendants had been properly followed up, it would have uncovered the rascality and forgery of Barber. They have no one to blame but themselves for their carelessness and credulity in this matter.

But so far as this branch of the case is concerned, that principle of law which holds that unrecorded deeds and instruments which are outside of the chain of title do not impart constructive notice to purchasers has no application to forged instruments. “It would be a dangerous doctrine indeed to hold that one by forging a deed from his neighbor to himself and putting it upon record could then, by conveying to a third party having no notice of the forgery, confer upon the latter a good title merely because the record showed the title in the forger. If such were the law, no man’s title would be safe. The principles of justice and public policy alike forbid the adoption of such a rule.” [Pry v. Pry, 109 Ill. 466, l. c. 476, and cases cited; 2 Jones, Law of Real Property and Conveyancing, sec. 1353.] '

According to this rule none of the grantees claiming through E. A. Barber acquired any right, title or interest in or to said land, and it is wholly immaterial whether they had notice of the forgery or not.

IV. The last insistence of the appellants which is worthy of consideration is that the note sued on was barred by the statutes of limitation before this suit was instituted. Their contention is this, that the note and mortgage were executed and made payable in the State of Kansas, and that fact constituted the note a Kansas contract and subjected it to her laws of limitation, which was at that time five years. The note having been barred before the institution, of this suit, the mortgage securing it must also be barred, so they contend.

The statute of Kansas which appellants plead is as follows:

(4095). Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards.

“First: Within five years: An action upon any agreement, contract or promise in writing.”

This statute was before the Kansas City Court of Appeals for consideration in the case of Morgan v. Railroad, 51 Mo. App. 523. It was there held that said statute only barred the remedy and did not go further and extinguish the cause of action.

We are of the opinion that the conclusion reached by that court is clearly the true meaning of that statute. That being true, then the debt evidenced by the note and mortgage in question was still a valid and subsisting claim at the time this suit was instituted. Except in those cases where the cause of action is extinguished by the statutes of limitation, the laws of the forum apply. [Carson v. Hunter, 46 Mo. 467; Lyman v. Campbell, 34 Mo. App. 213; Williams v. Railroad, 123 Mo. 573; King v. Lane, 7 Mo. 241; Stirling v. Winter’s Ex., 80 Mo. 141.]

In the case at bar the note and first mortgage were dated and executed on December 1,1892, and the second mortgage, correcting the first, was executed December 27,1894, and this suit was filed sometime prior to Sep>tember 6, 1902, the latter being the day on which the amended petition herein was filed, which was less than ten years after the execution of the note and the first mortgage and within eight years from the execution of the second.

La this State actions upon promissory notes and other written instruments for the payment of money, whether sealed or unsealed, are not barred by the statutes -of limitation before the expiration of ten years from and after their execution, and suit may be brought and maintained upon any such instruments at any time within that ten years. [R. S. 1809', sees. 4271, 4272.]

According to the provisions of these statutes, the cause of action was not barred at the time the suit was brought;

It is not out of place to here add that the undisputed evidence in this case shows that Win. J. Watts and his wife were residents of Golden City, Barton county, Missouri, at the time of the execution of the note and mortgages in question, and there is not a scintilla of evidence tending to show that either of them ever resided in the State of Kansas. The record also shows that Janet McQuacker was-at all times mentioned in the record a resident of Scotland, Great Britain. Under that state of facts the statutes of limitation of Kansas have no place in this case and are wholly inapplicable thereto. [Williams v. Railroad, 123 Mo. 573.]

There are some other minor points presented and discussed by counsel for both appellants and respondent, but their consideration would not lead to a conclusion different from the one herein announced.

The judgment of the circuit court was for the right party, and it is therefore affirmed.

All concur.