author: RAGLAND, C.

text:
    SALLIE LARSON PETERSON et al. v. ERIC LARSON et al., Appellants.
    Division One,
    December 2, 1920.
    1. QUIETING TITLE: Removing Cloud: Not Pleaded: Judgment Nevertheless. „ A petition which merely alleges that plaintiffs, are the owners in fee simple and claim that title to the land in question and, by intendment, that defendants claim some interest adverse to that of plaintiffs, and ashing the court to ascertain and determine the title, states an- action at law, and will not authorize a removal of a cloud upon the title, for that would be to award equitable relief. Nor will an allegation in the petition that defendants have placed on record a deed indicating they claim some title and a prayer that said deed be set aside* authorize the setting aside of said deed, where the petition contains no allegation of facts that would authorize its cancellation; for the statute, in spite of its broad language, does not provide a complete scheme of procedure within itself, but the procedure must conform in all respects to the provisions of the Code. But so far as this case is concerned, the objection that the judgment does not conform to the pleadings is technical and formal rather than of substance, since the court found and adjudged that the deed conveyed nothing, that as a conveyance it was a mere simulation, and hence it is of no practical consequence whether it be cancelled or not.
    2. TAX SALE: Wife’s Land: Redemption by Husband: Purchase and Deed from Certificate Holder. A husband who with his wife occupies her property as a home and assumes to pay the taxes is bound to act in good faith and with due regard for her interests, and a payment by him of delinquent taxes, with penalties and interest, and the receiving of a deed naming him as- grantee, from the certificate holder, who had bought the property at a tax sale under a law which permitted it to be redeemed within two years, amounted only to a redemption of the property, and not to a purchase by him, and in equity whatever title he acquired inured to her; and if she had in the meantime died, leaving minor children by him, dependent upon him, and after the wife’s death he continued in charge' of the property, the same fiduciary relation continued, and he could not acquire an interest in the property hostilé to the children, but the payment of the delinquent taxes . and penalties to the certificate-holder and the deed from him to himself constituted a redemption of the property from the tax sale, and not a purchase by him.
    3. -: Life Tenant: Trustee for Remaindermen. It is the duty of the life tenant to preserve the estate for the remaindermen; and while it' may not be incumbent upon a father as a life tenant to redeem property belonging to his wife from a tax sale had before the beginning of his life estate, yet if he does redeem it, it is for the benefit of the entire estate—the remainder as well as his iife estate—and if in doing so he receives a deed to himself alone, it inures to the benefit of her children by reason of his trust relation to them.
    Appeal from Jackson Circuit Court.—Hon. T. J. Seehorn, Judge.
    Affirmed.

      L. A. Laughlin for appellants.
    (1) Tlae finding of the court is not responsive to the pleading’s and the judgment -upon the record is erroneous. Boeckler v. Railroad, 10 Mo. App. 448; Koehler v. Rowland, 275 Mo. 581; Lee v. Conran, 213 Mo. 404; Hauser v. Murray, 256 Mo. 58; Minor v. Burton, 228 Mo. 558; Brandt v. Bente, 177 S. W. 377. (2) The court erred in refusing to grant a new trial on the ground of the mistake in his testimony made'by Eric Larson. Sec. 2022, R. S. 1909; Ridg;e v. Johnson, 129 Mo. App. 546; Rickroad v. Martin, 43 Mo. App. 597; Beveridge v. Chetlain, 1 111. App. 231; Rolling Mill Co. v. State, 54 Ga: 635; Warren v. Hope, 6 Mé. 479; Cooper v. Vaughan, 107 Ark. 498; Trummier v. Darden, 61' S. C. 220; Dudgeon v. Hacklev, 182 S. W. 1004; Uhl v. Small, 54 Kan. 651.

      Inghram D. Hook and Harding, Deatherage, Murphy & Stinson for respondents.
    (1) The second count, asking the court to set aside the quit-claim deed, which relief could only be granted by a court of equity was clearly determinative of its character as., a pleading addressed to the equity side of the court under the statute. It was not necessary for the pleader to go further than to set out the fact that the deed was on record by which the defendants claim a title adverse to plaintiffs and then folloAV the language of Section 2535. The allegation of other traversable facts necessary in ordinary actions was .not required, Hauser v. Murray, 256 Mo. 85; 2 Story’s Equity Jurisprudence (14 Ed.), sec. 931; Bispham’s Equity (9 Ed.), sec. 31; Murphy v. Barron, 205 S. W. 49; Hudson v. Wright, 204 Mo. 423; Huff v. Land Company, 157 Mo. 65; Spore v-. Land Company, 186 Mo. 656; Toler v. Edwards, 249 Mo. 161. (2) The court did not err in refusing to grant a new trial. Paper Co. v. Luney, 68 Mo. App. 7; Byrd v. Vanderburgh, 168 Mo. App. 112; Parker v. Brit-ton, 133 Mo. App., 273. (3) Even if the facts recited in the affidavit in support of the motion for new trial were given absolute verity,- they could not possibly have changed the result. Larson was absolutely precluded from acquiring a title adverse to the plaintiffs, both by virtue of the fiduciary relationship in which he stood towards his minor children and also because he was a life tenant. Fountain v. Starbuck, 209 S. W. 900; Construction Co. v. Whitnell, 190 Mo. App. 42; Hauser v. Murray, 256 Mo. 86; Armor v. Frey, 253 Mo. 474; Moran v. Stewart, 246 Mo. 462.
   RAGLAND, C.

Statutory action to quiet title. The pleadings and judgment, so far as pertinent to the questions involved oxi this appeal, are as follows:

“Plaintiffs for their second cause of action against defendants state that they are the owners in fee simple and claim that title to the following real estate in Jackson County, to-wit: Lot 21, Block 1, New South More-land, an addition in and to Kansas City, Missouri.
“Plaintiffs state that- the defendants have placed on record a deed dated November 9, 1905, and recorded June 4, 1914, indicating that they claim some title, estate or interest in and to said property adverse to the estate and title of the plaintiffs.
“Wherefore plaintiffs pray that the court try, ascertain-and determine the estate, rights, title and interest of the plaintiffs find defendants herein, and by its judgment and decree set aside said deed, and define and adjudge the estate, rights, title and interest of plaintiffs and defendants in and to said property according to the statute in such cases made and provided, and for their costs in this behalf expended.”

The answer reads: “Defendants for answer to plaintiffs’ second cause of action deny each and every allegation in said petition contained. Wherefore, defendants ask judgment that they go hence without day.”

The judgment is as follows: “On the second count of plaintiff’s petition the court finds the facts to be as follows:

“That Anna Larson in her lifetime was the owner in fee simple of-Lot Twenty-one of Block One of New Southmoreland, an addition in and to Kansas City, Jackson County, Missouri, together with the improvements thereon and appurtenances thereto belonging; that said Anna Larson died intestate on or about the 28th day of January, 1903, survived by her husband, the defendant Eric Larson, and four children, to-wit, the plaintiffs, Sallie Larson Peterson, Anna Larson and Lillie Larson and Agda; Larson; that said Agda Larson died intestate on or about February 3, 1903, while an infant .and unmarried ; that plaintiff Sallie Larson Peterson is now twenty-four years of age; the plaintiff Anna Larson is now twenty years of age, and the plaintiff Lillie Larson is now eighteen years of age; that the defendant Eric Larson is the father of the plaintiffs.
That at the time of the death of said Anna Larson, the property hereinabove mentioned had been sold in November, 1901, by the city of Kansas City for failure in the payment of the annual general city tax on said property for the year 1901, a tax certificate having been issued to T. A. Matthews in the month of November, 1903; that under the provisions of the then existing charter of Kansas City, Missouri, the owner of property sold for failure to pay annual city taxes had a period of two years from such sale in which to redeem said property from said sale; that at all times herein mentioned, the said Eric Larson had been acting in a fiduciary capacity in the care of said property, and in the payment of taxes thereon.
“That after the death of said Anna Larson and before the expiration of the period of redemption above mentioned, the defendant Eric Larson, during the late summer or early fall of 1903, and while acting’ in his fiduciary capacity as aforesaid, paid to Caleb Winfrey, assignee of said tax certificate, the sum of $31.75 on behalf of himself as life tenant and on behalf of his children as remaindermen in full of all taxes, charges and costs against said property for which said property ■had been sold by the city in 1901, and that thereby said property was redeemed and restored to the owners thereof; that thereafter and to-wit,, on November 27, 1903, a tax deed was executed and delivered by the city of Kansas City to Caleb Winfrey, by the terms^ of which said property was conveyed by the city of Kansas City; that said deed was filed for record in'the office of the recorder of deeds of Jackson County, Missouri, on December 8, 1903, and recorded in Book B 802 at page 557 thereof; that afterwards on November 5, 1905, a deed of quit-claim was executed, acknowledged and delivered by Caleb Winfrey and wife to the defendant Eric Larson, whereby said Winfrey and wife remised, released and quit-claimed said property to the defendant Eric •Larson; that afterwards, to wit, on June 4, 1914, said instrument was filed for record in the office of the recorder, of deeds of Jackson County, Missouri, and recorded in Book B 1561 at page 132 thereof.
“That on or about August 26, 1911, defendant Eric Larson intermarried with the defendant Margaret Billow Larson, and they have ever since remained husband and wife.
“The court further finds the fact to be that ever since the death of said Anna Larson, defendant Erie Larson, as tenant for life, has remained in possession of the property hereinabove described, has paid the taxes thereon and has enjoyed the use and occupation of said premises as such life tenant.
“Wherefore, it is considered, adjudged and decreed by the court as follows:
“That said tax deed, dated November 27, 1903, and filed for record on said December 8, 1903, in Book B 802, page 557, and said quit-claim deed, dated November 5, 1905, and filed for record June 4, 1914, in Book B 1561, page 132, in the office of the Recorder of Deeds of Jackson County, Missouri, be and the same hereby are declared to be clouds ori the title of plaintiffs to said property and that they be and they hereby are cancelled and held for naught and the cloud thereof removed.
“It is therefore further decreed by the court that the title to said property is in the plaintiffs and in the defendant Eric Larson, as follows:
“A life estate by virtue of his right of courtesy as the surviving husband of s,aid Anna Larson is in the defendant Eric Larson; that the title in fee simple absolute to an undivided one-sixteenth of said property is in the defendant Eric Larson, by virtue of the Statutes of Descents and Distributions of this State, as the heir and father of the said Adga Larson, deceased, subject to said life estate in himself.
‘ ‘ That the rest, residue and remainder in said property, subject to the life es’tate in the" above named defendant Eric Larson, is in the plaintiffs in fee simple as follows: In the plaintiff Sallie Larson Peterson, an undivided five-sixteenths; in the plaintiff Anna Larson, an undivided five-sixteenths; and in the plaintiff Lillie Larson, an undivided five-sixteenths, as heirs of their mother, Anna Larson, deceased.”

Motions for new trial and in arrest of judgment were filed and overruled in due course. Defendants appeal.

Appellants seek'a reversal of the judgment on two grounds:. First, that it is not responsive to the issues made by the pleadings; second, that on account of a mistake made by defendants’ principal witness in giving his testimony they were entitled^ to a new trial.

I. After adjudging that the tax deed and the quitclaim deed therein referred to are clouds on plaintiffs’ title, the judgment proceeds as follows: “and that they be and they hereby are cancelled and held for naught and the cloud thereof removed.” By the clalise just quoted it awards affirmative equitable relief. A reading of the petition discloses that it contains none of the necessary averments of a bill for the removal of a clond on title; it merely alleges that the plaintiffs are the owners in fee simple and claim that title to the land in question and, by intendment, that the defendants claim some interest an action at law (Koehler v. Rowland, 275 Mo. 573, 581), adverse to that of plaintiffs. In other words, it state and no where purports to set forth any grounds for equitable relief. It is unnecessary to cite authorities to show that the relief granted must be within the issues made by the pleadings.

The petition contained a prayer'that the deeds be set aside and this, respondents assert, was sufficient under the statute to authorize the granting of this equitable relief. Section 2535, Revised Statutes 1909, contains, among others, this provision: “upon the trial of such cause, if the same be asked for in the pleadings of either party, the court may hear and determine any and all rights, claims, interests, . . . and may award full and complete relief whether legal or equitable, ’ ’ But the statute does not provide a special or complete scheme of procedure within itself. On the contrary the procedure under it must conform in all respects to the provisions of the. code. [Sec. 2536, Revised Statutes 1909; Huff v. Land Co., 157 Mo. 65, 70, 71.] Under those provisions, broadly considered, a given relief is not “asked for in the pleadings” where no attempt is made to allege therein such facts as would authorize it.

So far as this case is concerned, however, the objection that the judgment does not conform to the pleadings is technical and formal rather than one of substance,- Under the petition the court was fully authorized to define and.adjudge by its judgment the title, .estate and interest of the parties severally in and to the real property in controversy. In doing so it was necessary for it to determine what interest, if any, was conveyed to the defendant Eric Larson by means of the deeds in question. ■ It found,, and so adjudged, that they in fact conveyed nothing, that as conveyances they were mere simulations. In the face of this adjudication it is of no practical consequence whether they be 'formally cancelled or not. If the unauthorized portion were stricken out, a valid and effectual judgment would remain.

II. The defendant Eric Larson testified that during the life of his first wife, Anna Larson, he attended to the -payment of all taxes on her property which they occupied as a home; that through some oversight he neglected to pay the general city taxes for the year 1901, amounting to $2.18, and in November of that year the property was sold by Kansas City and a certificate of purchase issued to one Matthews; that knowledge of the tax sale did not come to him until 1903, when he sent his time-keeper to pay the current taxes; and that after some negotiations with the holder of the certificate of purchase he paid to him in the late summer or early fall of 1903 the sum of $31.75 and some time later received from him the quit-claim deed. He further testified that is so paying the sum of $31.75 he merely intended to pay the taxes on the property; that he expected the title to stand just as it had before; and that so far as he was concerned it did so stand. On this testimony the trial court found that by the payment of $31.75, the defendant Eric Larson had redeemed .the property from the tax sale under the provisions of the them existing charter of Kansas City and that the tax deed subsequently executed by Kansas City conveyed no title.

One of the grounds of the motion for a new trial was that the defendant Eric Larson made a mistake in testifying that a knowledge of the sale of the property for taxes came to him in 1903, the fact being that he first learned of it in 1905, nearly two years after the lapse of the time provided by the charier for redemption. Prom this fact appellants argue that the transaction Larson had with Winfrey, the assignee of the certificate of purchase, constituted a purchase of. the property by Larson and not a redemption of it from the tax sale. But this conclusion does not -follow. During the lifetime of his wife Larson assumed the burden of paying all the taxes on her property. He had an interest in it in that he occupied it -jointly with her as a home. She evidently gave no thought or attention to the payment of taxes as they accrued, but relied implicitly on his discharging the duty he had voluntarily undertaken. By reason of this .special confidence so reposed in him, Larson was bound to act in good faith and with due regard to his wife’s interests, and, had she been alive in 1905 when he paid Winfrey the amount of the delinquent tax with penalties and interest and received in return a deed purporting to convey to him the premises, the transaction would in equity and good conscience be held to have been merely a r edemption of the property from the tax sale. [17 R. C. L. p. 637, sec. 27.] But she died in the early part of 1903 with the tax sale outstanding. She left as her successors in title her-minor children. They were also Eric Larson’s children; he was their natural guardian and they had no other. They-, were entirely helpless and dependent upon him. He liad had the care and management of the property prior to their mother’s death; after her death he continued In charge of it. Under these circumstances the relation that Larson sustained to his minor children, with respect to the property, was as much a fiduciary one as that that had previously existed between him and his wife during her lifetime. He could not, therefore, while the relation existed, acquire an interest in the property hostile to that of'his children. And he did not attempt to do so. On the contrary, according to his own testimony, he paid Winfrey $31.75 in discharge of the tax lien without any intention 'of acquiring the title himself.

With reference to his children, Eric Larson occupied another position of trust. As life tenant it was his duty to preserve the estate for them as remaindermen. While it may not have been incumbent upon him as life tenant to redeem the property from a tax sale had before the commencement of his estate, yet, if he did redeem, it is clear that it would-be for the benefit of the entire estate—the remainder as well as that of the life tenant. In this case (if the payment was not made until 1905) the time for redemption had lapsed, but it is evident that the holder of the tax title waived the question, of time and reconveyed the title upon the payment by the life tenant of the tax, penalties and interest. Under such circumstances the transaction, regardless of the form it took, should be treated as a redemption, and not a purchase, of the property by the life tenant. [Fountain v. Starbuck, 209 S. W. 900, 901; Peak v. Peak, 228 Mo. 536.]

It follows that had Eric Larson testified that he first learned of the tax sale in 1905 instead of 1903 the finding and judgment of the trial court so far as the ultimate interests of the parties is concerned would still be right.

In accordance with the views expressed in a previous paragraph the judgment is modified by striking out at the close of the first paragraph thereof the words, “and that they be and they hereby are cancelled and held for naught and the cloud thereof removed.” As so modified it is affirmed.

Brown and Small, CC., concur.

PER CURIAM:—The foregoing opinion of Rag-land, c., is adopted as the opinion of the court.

All of judges concur, except Woodson, J., not sitting.


source: Caselaw Access Project

author: SMALL, C.

license: Public Domain

text:
    ELMS REALTY COMPANY, Appellant, v. JULIA WOOD, Executrix of Estate of WILLIS WOOD.
    Division One,
    December 2, 1920.
    1. FUTURE RENT: Lease for Years.- Future rent, not accrued or due under a lease for years, cannot be allowed by the probate court in favor of the lessor as a claim against the estate of the lessee, because the rent called for by such lease contract is contingent and may never become due.
    2. UNDUE DEMANDS: Future Rent: Present Value: Statute. Section 210, Revised Statutes 1909, providing that “when the demand or setoff is not due at the time of the trial, the court may adjust the same, and a judgment may be rendered thereon for the amount,” exclusive of interest on said demand “beyond the date of said judgment,” contemplates a demand which, while not due, will surely become due and whose present amount or value can be determined, and not- a contingent or possible demand which may never become due and whose present value there is no known or legal basis for adjusting or determining; it does not apply to future rent, not accrued or due under a lease for years, and will not authorize a judgment for future rent not due. The statute was not intended to cover contingent claims which may never become due, but. in speaking of “demands which are not due at the time of the trial,” it has reference to cases of absolute, liability, which, although not due when presented, are running to a certain maturity.
    3. --: -: -: -: Change in Statute. The omission from Section 210 in 1889 of certain clauses previously contained therein and the adding of the proviso thereto, emphasize the purpose of the Legislature to include in said section only undue demands which can be adjusted to a definite and certain amount and for which a present judgment may be rendered, and make of no controlling effect certain decisions based on the words of said statute which were eliminated by the amendment of 1889.
    4. -: -: Sale of Leasehold. By a lease for fourteen years decedent bound himself to pay a yearly rental of $30,000, payable in advance in monthly installments of $2500 each. The lease provided that it could not be assigned except to a named company, that such assignment would not relieve the lessee from liability for rent, and that it should be binding upon the lessee’s assigns, heirs, executors and administrators, unless the leasehold were destroyed by fire or rendered untenantable. At the time of the lessee’s death the lease had twelve years to run, and thereafter, under an order of the probate court, his executrix sold the lease to said named company, and all rent had been paid monthly, as it matured, either by the lessee himself in his lifetime, or by his executrix prior to the assignment, or by the assignee thereafter, up to the time the probate court entered judgment for the lessor against the executrix “for future rents.” Held, that the executrix, by entering into 'possession of the leasehold estate and selling it for a large consideration, as an asset of the estate, did not be come presently liable for all future rents, but those things neither added to nor detracted from her liability for unaccrued rents; but as the lessee himself could not, were he living, have been sued for such future rents until they became due and remained unpaid, neither can she, unless there is some statute which authorizes a judgment against her, and there is none.
    5. -: -: -: Remedy of Lessor. It is not decided that the lessor has no remedy for the recovery of future rent, not acdtued and due under a lease for years, if the installments are not paid as they severally become due and payable. It is not decided that the obligation of the lessee to pay rent ceased with his death, or that rents which may become due and remain unpaid before the final settlement of the lessee’s executrix may not be proved up against his estate, or if there is such default after final settlement that the lessor could not have an administrator cle bonis non appointed and his claim for such defaulted rent allowed, or that he could not proceed to collect such rent in default from persons who received the assets of the estate as distributees, to the extent of the assets they receive. But it is ruled that the lessor cannot have judgment against the lessee’s executrix for undue future rents.
    Appeal from Jackson Circuit Court.—Hon. T. J. Seehorn, Judge.
    Affirmed.

      Wm. G. Boatright, I. J. Ringolsky, M. L. Friedman and Ringolsky & Friedman for appellant.
    (1) In this State future rent is a valid claim for allowance against the estate of deceased when payment is deferred until the debt is mature. Sec. 210, R. S. 1909; Traylor v. Cabanne, 8 Mo. App. 131; Cassatt v. Yogel, 12 Mo. App. 323, 94 Mo. 646; Schmeiding v. Doellner, 13 Mo. App. 228; Kavanaugh v. Shaughnessy, 41 Mo. App. 657; Paving & Const. Co. v. Prather’s Adm., 58 Mo. App. 487; Stevens v. Stevens, 172 Mo. 28. (2) When a lease has been appropriated by the éstate of a decedent, the estate thereby becomes bound -for all rents. Kelly’s Probate Guide, sec. 188; 2 Schouler on Wills, Executors and Administrators (5 Ed.), 1376; Taylor, Landlord & Tenant (9 Ed.), sec. 620; Jones on Landlord & Tenant, sec. 477, p. 511; 18 Cyc. 312.

      Wash Adams for respondent.
    (1) The .statute, R. S. 1909, "sec. 210, authorizing probate courts to allow claims not due, requires the court (a) to “adjust” the claim and (b) “render judgment for the amount” exclusive of interest beyond the date of the judgment. (2) The statute authorizes the allowance only of claims not due when presented but which constitute absolute debts that run to certain maturity, and not contingent claims. Garesche v. Lewis, 93 Mo. 197; Tenny’s Admr. v. Lasley’s Admr., 80 Mo. 664; Taylor v. Priest, 21 Mo. App. 685; Wilbur v. Wilbur, 201 S. W. 387; Stevens v. Stevens, 172 Mo. 28. (3) Rent to accrue in the future is not a claim running to certain maturity, but is contingent and may never accrue. It is not even an existing demand, but is a possible demand depending upon contingencies. Dean v. Caldwell, 127 Mass. 242; Collier on Bankruptcy, 878-9; Roth v. Appel, 181 Fed. 667; 2 Woerner’s Amer. Law Amr. (2 Ed.) sec. 393; Watson v. Merrill, Í36 Fed. 359, 69 C. C. A.-. 185.
   SMALL, C.

Appeal from the Circuit Court of Jackson County. This suit presents the question whether future rent not accrued nor due under a lease for years, may be adjusted and allowed in favor of the lessor by the probate court as a claim against the estate of the lessee.

The facts are undisputed. The plaintiff corporation in 1911 owned a hotel at Excelsior Springs and leased it to Willis Wood by an instrument of writing for the term- of fourteen years from August 1, 1912 to July 31, 1926, for a yearly rental of $30,000, payable in advance in monthly installments of $2,500 each. Among other things, the lease provided that it was not subject to assignment and could not be sub-let without the written consent of the lessor, except to the Elm Tree Inn Company, a Missouri corporation, but such assignment to said company should not relieve the lessee from liability for rent, but he should continue to be liable for all rent and the faithful performance of all the agreements contained in the lease. It was also provided in the lease that, if the hotel was destroyed by -fire or rendered untenantable, under certain circumstances, the lease was to be at an end, or rent cease until rebuilt or rendered tenantable. The lease also provided that it should be binding upon the parties, their successors, assigns, heirs, executors and administrators.-

Said Willis Wood entered the leased premises under the lease, operated the hotel, and paid rent until his death, August 27, 1914. Shortly thereafter, his widow, Julia Wood, was duly appointed executrix of his will, took possession of and operated said hotel, and paid the rent under an order of the Probate Court of Jackson County, where- the administration was pending, until February, 1915, when, under an order of the probate court of said county, she, as such executrix, sold and assigned said lease, together with certain hotel furnishings, to John Emmke, who owned practically all of the stock of' the Elm Tree Inn Company, and to which assignment the plaintiff consented. It was provided in said order authorizing such assignment, that the assignment should not in any manner lessen or affect the liability of said estate on the lease made by the Elm Tree Inn Company to said Willis Wood. Under the terms of said assignment, said Emmke assumed all the ohligations of the lessee, and agreed to pay the rent reserved by the lease from the time he took possession. Emmke took possession under said assignment, and thenceforth paid all the rent due thereafter up to the time of the trial in the circuit court.

The claim was filed in the Probate Court of Jack.son County on October 27,1914, and stated, in substance, that all of the rent due under the lease had been paid by Willis Wood up to the time of his death, and after-wards by defendant, executrix; but that $352,500 “was due because” said Willis Wood by the terms of said lease agreed for himself, his heirs, executors, administrators and assigns, to pay the rent for the full term of said lease, from August 1, 1912, until July 31, 1926, at the rate of $30,000 per annum, payable in advance on the first of each month in equal installments. Also, that the leased property was then occupied by the estate of said Willis Wood.

On the trial in the Probate Court on September 25th, 1917, plaintiff’s claim was allowed for $265,000, “for future rent” due for the full term of said lease from October 1st, 1917, the rent up to said date having been paid. The language of the judgment of allowance is: “The court further finds that all rents up to October 1, 1917, have been paid in full; that there is now due to claimant payable in installments as per terms and conditions of said lease the sum of $265,000 . . . It is therefore ordered and adjudged that the claim of the Elms Bealtv Company of Excelsior Springs, Missouri, for $265,000 future rents in installments, as same mature, be and" hereby is allowed, said rents being payable in installments. of $2500 per month according to the terms and conditions of lease dated July 24, 1911, made and entered into by claimant and Willis Wood, deceased, which lease is of record in the Becorder of Deeds ’ office in Clay County, at Liberty, Missouri. And the executrix is hereby directed to pay said claim only in installments as said rents mature and according to the terms and conditions of said lease to the extent of the assets and only upon condition said rents, or any part of same are not paid as the same mature by the Elm Tree Inn Company Corporation and John Emmke of Excelsior Springs, Missouri, as they agreed to do under order made herein authorizing sale and assignment of said lease.”

Prom the order allowing- such claim, the defendant, executrix, appealed to the circuit court. The above facts were submitted to that court in due course, with the further proof that all of the rents were paid up- to the time of the trial in the circuit court, which court rendered judgment for the defendant.

Plaintiff duly appealed to this court.

I. The question before us requires the construction of the following section of our statutes relating to the allowance of demands by the probate court against estates of decedents, to-wit: Section 210, Revised Statutes 1909, which reads: “When the demand or set-off is not due at the time of trial, the court may adjust the same, and a judgment may be rendered thereon for the amount, according to the finding of the jury or judgment of the court; Provided, that said finding or judgment shall not include interest on such demand or set-off beyond the date of said judgment.”

Is future rent, not accrued nor due under a lease for years, such a demand as was contemplated by this section? We do not think so. The demand here contemplated is one which, while not due, will surely become due and the present amount or value of which can be determined, and hot a contingent or simply possible demand which may never become due, and which there is no known or legal basis for adjusting or determining as equivalent to a certain amount due. The purpose of the statute was to convert demands not due into their present value and render judgment therefor so that such demands could be paid by the administrator and the administration closed.

The judgment rendered by the probate court in this case shows the impossibility of adjusting or rendering judgment in any ampunt for future rent not due. Said judgment first finds that there is “now due” to claimant payable installments, according to the lease, $265,000. This is erroneous, because such future rent was not “now due” and may never become due. The judgment then proceeds to order that the claim of plaintiff for future rents “in installments” as same “mature” (which may never be) “be allowed,” but said executrix is directed to pay said installments only as said rents mature and according to the terms and conditions of the lease and only upon condition that said rents are not paid as same mature by the Elm Tree Inn Company, and John Emmie,- the assignee of the lease. Such a “judgment”' was not provided for by said Section 210 of our statutes. The “judgment” rendered by the probate court shows no “adjustment” of any kind and is not a judgment “thereon for the amount” as required by said statute. The liability of the executrix thereunder remains as contingent, conditional and undetermined as under' the original lease. The only effect of said judgment is to impound the estate without bond in the hands of the executrix and prevent any settlement of the estate until after the expiration of the lease. If this were the law, the estate of the lessee under a ninety-nine-year lease, for example, practically never could be settled, whereas the whole spirit and intent of our statutes relating to the settlement of estates is to expedite' such settlements. The present statute contemplates such settlement within one year from the granting of letters of administration. We hold, therefore, that tire allowance of. the claim for future rent not due, made in this case by the probate court, was not authorized by said statute.

II. But, it is said, by appellant’s learned counsel, that the law in this State has been established to the contrary. We are not of that opinion. It is true, that the St. Louis Court of Appeals in Traylor v. Cabanne, 8 Mo. App. 131, held, that a claim for such future unaccrued and undue rent could be allowed by the probate court. But in Kavanaugh v. Shaughnessy, 41 Mo. App. 657, the same court, in an opinion by Rombauer, J., elaborately considered the ruling in Traylor Case, and showed that it was not well, considered, was erroneous on principle, and unsupported by authority, but reluctantly followed it on the ground of stare decisis. Subsequently, this court, in the case of Stevens v. Stevens, 172 Mo. 28, refused to follow the Traylor Case, and held it misinterpreted the said statute, and that contingent claims, such as future rent not due, were not possible of adjustment and not allowable against a lessee’s estate. Judge Marshall rendered the opinion of this court, and said, pages 33-37:

“Of course the claim against the estate of a deceased person must be presented within the time limited by statute, or it will be barred. Hence, if the claim is not due, the probate court must adjust it, as the statute now is (R. S. 1899, sec. 204) or as the statute of 1879 was, the court was required to adjust it, or, at the option of the parties, rebate it at the rate of six per cent per annum, or if the parties refused to accept the rebate, the court allowed the claim but stayed the execution until the debt became due.
“Woerner’s American Law of Administration (2 Ed.), volume 2, section 393, speaking of allowing claims that have not matured against an estate, says: 'In accordance with the policy of speedy settlements of the estates of deceased persons, aimed at in most of the statutory provisions of the American States, most of them enable debts payable, according to the contract entered into by the deceased, at a future time, to be presented to the administrator and adjusted before their maturity.’ The author points out that in thirty-three states, statutory provisions to this end have been adopted, and refers to Section 203, Revised Statutes of Missouri of 1889 (being Sec. 204, R. S. 1899) as the statute in this State on the subject.
“The author further says: ' To be proved and allowed as subsisting claims, they must constitute absolute debts running to certain maturity, such as promissory notes, and the like. In Missouri unacorued rent under a covenant to pay rent is held to be a demand entitled to bo proved against the lessee’s estate as an unmatured claim; but elsewhere this is denied, unaccrued rent being held to be neither debitum nor solvendum —never payable if the lessee should be evicted before the day on which it is payable. Reason and the trend of authorities seem clearly to support this view.’ [Ibid, sec. 393.]
“The case of Traylor v. Cabanne, 8 Mo. App. 131, is cited as the- Missouri case holding that unaccrued rent could be proved against an estate. That case does so hold, but there was no extended discussion or examination of the question indulged in. The statute was simply referred to as covering the case. The question arose again in Kavanaugh. v. Shaughnessy, 41 Mo. App. 657, and the St. Louis Court of Appeals (which court had also decided the case of Traylor v. Cabanne) after referring to Sections 205 and 206, Revised Statutes 1879, said:
“ ‘The defendant claims that the word demand in those sections does not and can not include rent not due and unearned,’ as rent is in no sense a debt before the day on which it is covenanted to be paid. As Gray, C. J., aptly says in Deane v. Caldwell, 127 Mass. 242, “It is neither debitum nor solvendum; for, if the lessee is evicted before that day, it never becomes payable. . . . It is not an existing demand, the cause of action on which depends upon a contingency, but the Very, existence of the demands depends upon a contingency.” If the case were one of first impression, we would not hesitate to say that this objection is well taken. It seems to us that the statute, when speaking of demands, has reference to cases of absolute liability, which, although not due when presented, are running to a certain maturity, and not to cases where the existence of the future liability is contingent and uncertain. But this court at an early day in Traylor v. Cabanne, 8 Mo. App. 131, 135, took a different view of the law, and it is fairly presumable that courts exercising probate jurisdiction in this State have since that time followed that ruling, and it should not be disturbed, unless such ruling not only is logically incorrect, but also leads to unjust- results. ’
“In Garesche v. Lewis, 15 Mo. App. 565, a demand for unpaid stock subscription in an insolvent corporation was presented for allowance. It was objected that the claim was barred because it was not presented within two years. The trial court entered judgment for the defendant, and this judgment was affirmed by the St. Louis Court of Appeals. That court, speaking of allowing claims not due, said:
.“The mere fact that a demand is not due is not necessarily a sufficient excuse for its non-presentation against the estate, because the statute provides (R. S. 1879, secs. 205, 206) that when the demand is not due, the court may adjust the same, and render judgment for the amount, or, at the option of the parties, by rebating therefrom at the rate of six per cent, until due; if the parties do not agree to the rebate, then no execution shall issue upon the the judgment until the demand becomes due. It has been repeatedly decided that the special statute of limitation begins to run from the time the substantial right of recovery accrues. [Burton v. Rutherford, 49 Mo. 258; Greenabaum v. Elliott, 60 Mo. 32; Chambers v. Smith’s Admr., 23 Mo. 174; Miller v. Woodward, 8 Mo. 169; Finney v. State, 9 Mo. 227.] And that it does'not begin to run in the case of a dormant warranty, until a right to a substantial recovery accrues. [Chambers v. Smith’s Admr., 23 Mo. 174; Miller v. Woodward, 8 Mo. 169.] But while such inchoate and merely continuent demands need not be exhibited until there is a substantial right of recovery, the statute seems to contemplate that all claims capable of being exhibited whether due or not, if running to certain maturity, shall be barred if not exhibited within the period limited by tbe administration law for their exhibition to the administrator.’
“This conrt adopted the opinion of the Court of Appeals, and affirmed its judgment. [Garesche v. Lewis, 93 Mo. 197.]
“Woerner’s Law of Administration (2 Ed.), volume 2, section 394, speaking of contingent claims, says: ‘Claims not absolute or certain, but depending upon some event after the debtor’s death, which may or may not happen, are not enforcible against executors or administrators after they have fully administered, without notice that such claim has become absolute.’ And in the note to this section, the learned author quotes from Poland, C. J., in Sargent v. Kimball, 37 Vt. 320, as follows: ‘A contingent claim is where the liability depends upon some future event, which may or may not happen, and therefore makes it now wholly uncertain whether there will ever be a. liability. ’
“Thus the distinction fully appears between contingent demands and demands ‘running to certain maturity.’ Stock subscriptions were held to belong to the latter class in Garesche v. Lewis, and unpaid rents under a covenant in a lease were held to belong to the same class in Traylor v. Cabanne, but afterwards this decision was utterly discredited in Kavanaugh v. Shaughnessy, and the judgment allowed to stand in that case partly on the principle of stare decisis, but partly, and it must have been principally, on the ground that: ‘ The judgment in this case is that the recovery shall not be enforcible, until the rent ■ becomes actually due, and the rent can not become actually due, until it is earned,’ the Court of Appeals, pointedly saying: ‘It seems to us that the statute, when speaking of demands, has reference to cases of absolute liability, which although not due when presented, are running to a certain meturity, and not to cases where the furture liability is contingent and uncertain.’
“It is manifest that because tbe statute bars claims not exhibited against an estate within the period limited, and because of the policy of speedily administering upon estates, there was a reason and necessity for the statutory provision allowing the probate court to adjust demands that are not yet due, but which will surely become due in regular course of time, but the statute was not intended to cover contingent claims which might never become debts.”

We approve the above pronouncements of this court and, therefore, disapprove said decisions of said appellate court.

Learned counsel for respondent also cite the following cases: Cassatt v. Vogel, 12 Mo. App. 323; Schmieding v. Doellner, 13 Mo. App. 228; Paving Co. v. Prather’s Admr., 58 Mo. App. 487. Those eases all related to claims that were not due, but were sure to become due, or the present value or amount of which could be determined by well defined rules. They are, therefore, not applicable to this case. The Cassatt case was decided on the following provision 'which was then part of said Section 210, but which was repealed by the omission thereof from the Revision of 1889 and subsequent revisions, to-wit: “or, at the option of the parties, by rebating therefrom at the rate of six per cent per annum from the time of trial,” and upon Section 206, Revised Statutes 1879, likewise so repealed, which provided: “In case the parties do not agree to rebate the demand or set off, as provided for in the preceding section, no' execution shall issue upon any such judgment until the demand or setoff upon which the judgment was rendered shall become due and payable.” The repeal of these provisions and adding Section 210 by the Revision of 1889, of the proviso, above set forth, now contained therein, emphasizes the purpose of the Legislature to include in said-section only demands which can be “adjusted,” as and for a sum certain in amount, and for which a present judgment can be rendered.

III. But, it is strenuously insisted that, because defendant, executrix, entered and took possession of the leasehold estate and disposed of it under an order of the probate court, as an asset, to Emrnke for a large consideration, she became presently liable to judgment for all future rents . under the lease, as such exeeutrix, as was rendered by the probate court herein. The authority cited do not sustain the contention. It was defendant’s duty, as such executrix, to take possession of the leasehold, if it was a valuable asset, and to dispose of it for the best interest of the estate. We cannot see how this added to or detracted from her liability as executrix for unaecrued rent on the lease—for rent before it becomes due and remains unpaid. The authorities and cases cited by appellant’s learned counsel, as we read them, only go to the extent of holding the executrix or estate liable to a present judgment in such cases for rent for the time the executrix occupied the premises, or for rent which was due and unpaid under certain other circumstances. In none of them, did the question here presented arise. The contention of appellant in this case is, that the executrix is liable to a present judgment for rent which has not accrued and become due and unpaid, and may never accrue and become due and be unpaid. The lessee, himself, were he living, could not. have been sued for such rent, until it did accrue and become due and remained unpaid. In order to have or maintain a cause of action against defendant, executrix, which could have had no existence against the decedent, had he been living, the plaintiff must point out some statute which authorizes it. Section 210, Revised Statutes 1909, above quoted, is the only statute pointed out, and, we hold, that said section is insufficient to sustain this proceeding.

We do not hold that the obligation of the decedent to pay rent under the lease ceased with his death, nor that rents, which may come due and remain unpaid before the final settlement of the executrix may not be proved up against the estate, nor do we even decide that if there is such default in payment of the resnt after such final settlement and discharge of the executrix, the plaintiff would he remediless, and could not have an administrator de bonis non appointed and its claim for such defaulted rent allowed, or could not proceed to collect such rent in default from persons who received the assets of the estate as distributees to the extent of the assets they may receive, or otherwise. On these questions, we express no opinion. We only rule, in this case, that' the claim for future rent allowed by the probate court was properly disallowed by the circuit court. We affirm the judgment of the circuit court.

Brown and Ragland, CC., concur.

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

All of the judges concur.


text:
    In re CITY OF UNIONDALE; CATHERINE COYNE et al., Appellants.
    Division One,
    December 2, 1920.
    1. INCORPORATION OF CITY: Right of Appeal. Petitioners for the incorporation of a city have a right to an appeal from a judgment of the county court denying incorporation; but citizens and taxpayers who do not sign such petition have no right to an appeal from a judgment incorporating the city, for under the statute they have no right to file a remonstrance and are not adversary parties.
    2. •———•: Petition and Remonstrance. Under'the statute (Sec. 8529, R. S. 1909), a petition for the incorporation of a city is not required to be on file with the county court for any length of time, no notice is required, no provision is made for taxable inhabitants who do not sign the petition to appear and contest it, it may be'considered immediately upon presentation, and if the court is j satisfied that it is signed by a majority of the inhabitants of the described territory it may make its order of incorporation without any further ado. The proceeding is not an action, there are no adversary parties, but the statute that creates the right provides tbe remedy, prescribes the procedure, and determines who may be parties.
    3. -: --: Eight to Hearing. The giving or withholding of a right to a hearing by taxpayers who -are opposed to incorporating given territory into a city is a matter that rests wholly within the discretion of the Legislature, which has the power to incorporate territory into a city with or without the consent of its inhabitants, provided it is done by a general law, and to create agencies through which the legislative power is to be exercised, and that it has done by enacting Section 8529, Revised Statutes 1909; ftnd it is hot essential to the validity of such a proceeding that all taxpayers who may be affected thereby have their day m court, although the county court in passing upon the petition is performing a judicial function and its pronouncement thereon is a judgment.
    Appeal from St. Louis Circuit Court.—Hon. John W. McElhinney, Judge.
    Affirmed.

      Randolph Laughlin for appellants.
    (1) By Section 36, Article VI, Constitution of Missouri, the. county court is clothed with (a) judicial power, and (b) administrative discretion. In so far as the exercise of judicial power is concerned, the circuit court has appellate jurisdiction from the judgments and orders of the county court' “in all cases not expressly prohibited by law.” R. S. 1909, secs. 3956, 4091. In so far as the exercise of administrative discretion is concerned, the circuit court has no appellate jurisdiction. St. Louis v. St. Louis, 92 Mo. 165; Scott County v. Leftwich, 145 Mo. 26. It follows, therefore, that it was the duty of the circuit court to examine the record and to determine whether any part of the proceedings complained of in the county court involved the exercise of judicial power. If such power was exercised, then, and tó that extent, the case was before the circuit court for review, and the plea in abatement should have been overruled.R. S. 1909, sec. 3956 (Fourth). (2) The following questions were raised and presented in the county court by petition of remonstrance filed by appellants and others to the granting of the order of incorporation, viz: (a) That the petition for incorporation is not presented by “a majority of the inhabitants.” (b) That the petition for incorporation is not, and does not purport to be, a petition of the inhabitants of “any city or town of the State not incorporated, ’ ’ but is, and purports to be, only a petition of certain inhabitants of “the territory hereinafter described,” which territory is nowhere alleged to be or to constitute an unincorporated city or town, (c) That the territory described in said petition is not in point of fact an unincorporated city or town at all, but, on the contrary consists of three totally distinct and different classes of territory, to wit: first, the little residence settlement of Home Heights, housing a population of 142 families and no more; second, a large tract of agricultural territory outside the limits of Home Heights, used solely for agricultural purposes, and in nowise connected with or in any manner appertaining to the town, village or city sought to be incorporated; third, an integral portion of the unincorporated Town of Overland — a town petitioning for incorporation by petition pending in the same court as the petition for the incorporation of Uniondale. (d) That the petition for incorporation is defective, in that it does not pray for the preservation and regulation of any commons pertaining to such city or town, (e) That the petition is defective, in that the prayer thereof is not for the incorporation of territory,but is for the incorporation of “your petitioners.” (f) That the names purporting to be signed to the petition were not in fact signed thereto, but were in fact signed to pieces of paper which were no part of said petition when signed; that said signatures were in fact procured to blank pieces of paper, on the representation, made in some cases, that they were to be used in opposition to the proposed incorporation, and, in other cases, that they were to be used to a petition for better school facilities, (g) That an order granting incorporation would be so unreasonable as to justify the courts in declaring it void upon that ground alone, in this, to wit: first, it would have the effect of compelling eighty-one families, now having access to Ritenour School, in Overland, to pay for the building of another school in Home Heights, to which they can have no access because of its remote distance and lack of transportation facilities; second, it will have the effect of depriving eighty-one families from having access to Ritenour School, for the building and maintenance of which their taxes have long 'since been paid; third, it will defeat the incorporation of Overland; fourth, it will permit a small residence community to appropriate to its own use large sections of agricultural territory with which it is ip nowise connected, and also to reach over. and appropriate large sections of an unincorporated city or town, without, including the i*eal business part and center of the urban community; and fifth, it will produce a multiplicity of litigation, which will stagnate the district, strangle development and delay improvements. These questions, were all judicial questions, calling for the exercise of judicial power. They were all tendered to this” court by petition for prohibition seeking to restrain the county court from exercising jurisdiction over this same petition,- and in its opinion this court distinctly ruled as follows, viz: (a) That the situation presented by the petition and remonstrance filed in the county court involved “the hearing of a case.” (b) That the hearing of such case was “within the jurisdiction of the county court to determine ... in the first instance.” (c) “We cannot, in proceedings for prohibition, assume that the county court will err in its judicial determination of these questions, nor can we assume, in this proceeding, that their judgment will be procured by fraud, nor that they will improperly proceed in the conduct of the case. They have a right to proceed, even a right to commit error, in those proceedings. Their determination, when made, is a judicial act, a judgment.” State ex rel. Coyne v. Buerman, 186 Mo. App. 702.

      George B. Logan for respondent.
    (1) Secs. 3956 and 4091, R. S. 1909, when read together, as they must he, do not confer jurisdiction on the circuit court to hear this case. The former section only generally confers jurisdiction of appeals from the county court. The latter section defines how the jurisdiction shall be exercised, namely, by trial de novo. It follows that where there can be no trial de novo, there is no jurisdiction. In other words, the circuit court has jurisdiction only over those cases which in their nature are appealable. Barnett v. Pemiscot Co., Ill Mó. App. 698; Sheridan v. Fleming, 93 Mo. 325. (2) The circuit-court has no authority to enter a decree incorporating a fourth class city, and could have entered no judgment to that effect, consequently could not have tried this case de novo. Sole authority for such a decree vests in the county court. Article V, R. S. 1909. (3) The jurisdiction of the county court in matters of incorporation is precisely analogous to those cases of dramshop licenses. Both call for determinations of facts—“judgments,” as the appellants specify—but it has been repeatedly held that there is no appeal to the circuit court from such orders or decrees, State ex rel. v. County Court, 47 Mo. App. 649; Bean v. County Court, 33 Mo. App. 644. (4) It has been specifically held that there is no jurisdiction in the circuit court to hear an appeal from a county court from a decree incorporating a city. This ease remains the law. Hall v. DeArmond, 46 Mo. App. 596. (5) There is an ample remedy by* quo warranto in precisely these cases, and our courts have frequently said that this was the remedy to pursue. State ex rel. v. Birch, 186 Mo. 205; State ex rel. v. Bellflower, 129 Mo. App. 138.
   RAGLAND, C.

On August 17, 1914, a petition was filed in the County Court of St. Louis County for an order incorporating certain territory in said county as a city of the fourth class, under the name of “Union-dale.” The petition was formally presented for consideration August 28, 1914, but the court ordered that the cause be set down for hearing September 14, 1914; that at such time any person desiring' to present objections to the granting of the relief prayed for be heard; and that a copy of the order be published in the St. Louis County papers. The publication was made. Thereafter certain “citizens and taxpayers of Overland Park” (a residence district within the territory sought to be incorporated) filed a “remonstrance.” After a number of continuances, a hearing was had on the petition and “remonstrance,” with the result that the court granted the prayer of the petitioners and made an order in due form incorporating Uniondale as a city of the fourth class. From this order the county court allowed “remonstrators ’ ’ an appeal to the Circuit Court of St. Louis County. A transcript of the proceedings in the county court was duly filed in the circuit court, and thereafter the City of Uniondale, appearing specially, moved the circuit court to dismiss the cause upon the ground that the court was without jurisdiction to proceed therein for the reason that no appeal will lie from such an order or judgment of the county court. This' motion was sustained, and from this order of'the circuit court the “remonstrators” were granted an appeal to the St. Louis Court of Appeals. That court held that the only question presented for determination on the .appeal to it was “whether or not, under our law, an appeal lies from an order or judgment of a county court incorporating, a city.” It came to the conclusion that such an appeal does lie and ordered the judgment reversed and the cause remanded. However, deeming its decision to be in conflict with that of the Kansas City Court of Appeals in Hall v. DeArmond, 46 Mo. App. 596, and with that of the Springfield Court of Appeals in In re Town of Arcadia, 201 S. W. 359, it certified the cause here.

I. The question involved here, it seems to us, is not whether an appeal lies from an order of a county court incorporating a city of the fourth class, considered abstractly, but whether the so called ‘ ‘ remonstrators ’ ’ in this case had the right to appeal. The order of the County Court of St. Louis County has the force and effect of a judgment. [State ex inf. v. Fleming, 147 Mo. 1, 10.] It finally disposes of the matter and is, therefore, a final judgment. Had the petitioners been aggrieved by this judgment, there is no doubt but that under Section 3956, Revised Statutes 1909, they would have been entitled to an appeal to the circuit court, and thereupon that court would have become possessed of the cause and authorized to hear and determine it as though it had originated therein. [Sec. 4091, R. S. 1909; State v. Wiethaupt, 238 Mo. 155; State v. McElhinney, 246 Mo. 44.] Whether “remonstrators” had the right to appeal rests upon other considerations. The relevant portion of the statute relating to the incorporation of cities of the fourth class (Sec; 8529, R. S. 1909) is as follows:

“Any city or town of the State not incorporated may become a city of the class to which its population would entitle it under this article, and be incorporated under the law for the government of cities of that class, in the following manner: Whenever a majority of the inhabitants of any such city or town shall present a petition to the county court of the county in which such city or town is situated, setting forth the metes and bounds of their city or town and commons, and praying that they may be incorporated, and a police established fop their local government, and for the preservation and.regulation of any commons appertaining to such city or town, and if the court shall be satisfied that- a majority of the taxable inhabitants of such town have signed such petition, the court shall declare such city or town incorporated.”

The procedure prescribed is brief and simple. “Whenever a majority of the inhabitants shall present a petition to the county court, . . . praying that they may be incorporated, ... if the court shall be satisfied that a majority of the taxable inhabitants' . have signed such petition,-the court shall declare such city or town incorporated.” No notice of any kind is required. It is not necessary that the petition shall have been on file for any length of time, or even that it shall have been filed at all, before being-taken up for consideration by the court. Upon its presentation the court may immediately proceed to determine whether it is signed by a majority of the taxable inhabitants, and, if -it is satisfied that such is the case, may make its order of incorporation without further ado. Not only, therefore, is notice not required, but the statute dbes not contain the slightest implication that the taxable inhabitants of the territory sought to be incorporated, who do not sign the petition, may appear and contest it. It must be borne in mind that this proceeding is not an “action” within the meaning of the code wherein any person maybe a defendant who has or claims an interest in the controversy adverse to the plaintiff. It is a special statutory proceeding. The statute that created the right provides the remedy and prescribes the procedure. It is complete within itself and it alone, therefore, determines who may be parties. [1. C. J. 988, n. 72.] Taking it as the criterion it must be held that the proceeding is in no sense adversary. The action of the citizens and taxpayers of Overland Park, in filing a remonstrance in order to become parties, was entirely futile. Their relation to the proceeding might be considered.that of amici curiae, but nothing more. It follows that they were not entitled to appeal.

II. It is said that taxpayers who are opposed to incorporating a given territory into a city should be accorded the right to be heard in a proceeding instituted for that purpose because, if sustained, it subjects them to the burdens of municipal taxation. In answer to this contention it is sufficient to say that the giving or withholding of such right is a matter that rests wholly within the discretion of the Legislature. It is not essential to the validity of the proceeding that all taxpayers who may be affected thereby have their day in court. The Legislature has the power to incorporate territory into a city with or without the consent, of its inhabitants (St. Louis v. Allen, 13 Mo. 400; Taylor v. Carondelet, 32 Mo. 105, 110), provided it does it by general law. [Cons. Art. IX, Sec. 7.] And while the county court in passing upon the petition is performing a judicial function and its pronouncement thereon is a judgment, yet all the agencies invoked by the statute—the majority of the taxable inhabitants, their petition and the county court— taken collectively, is but the instrumentality through which, in the manner prescribed, the Legislative power is exercised in creating cities of the fourth class.

The judgment of the circuit-court is affirmed.

Brown and Small, CC., concur.

PER CURIAM:—The foregoing opinion of Rag-land, C., is adopted as the opinion of the court.

All of the judges concur.


author: BROWN, C.

text:
    JAMES M. BOWER et al., Appellants, v. MARTHA GRAHAM et al.
    Division One,
    December 2, 1920.
    1. LEGITIMATE CHILDREN: Born in Lawful Wedlock: Conception. A cbild born five months after its mother’s marriage with its father is born in lawful wedlock, and is entitled to inherit its father’s lands; and the presumption raised by its birth in lawful wedlock is not destroyed by the fact that the mother was the wife of another when it was conceived.
    2. -: Adulterine Issue: Statute. An adulterine child born in lawful wedlock is made legitimate by the statute (Sec. 341, R. S. 1909). The obvious intent of the statute was to preserve to the letter the advantage of the legal presumption arising from the birth of a child at a time when its parents were living in lawful wedlock.
    3. -: -: Recognition: Presumption. The recognition by the husband gives controlling force to the presumption that a child born to the wife in the house of her husband is his child; and when his collateral kindred claim property under him as his heirs, they are bound by the situation which he created, and are bound by his acknowledgment of the paternity of the child; and if he acknowledged and recognized the child as his own at all times after its birth, no presumption of' illegitimacy arises from the fact that the child was born five months after he and its mother were married and that at the time of its conception she was the lawful wife of another.
    4. -: Divorce by Agreement: Remarriage and Birth of Child. Defendant Martha was the wife of Jackson, and in August left him, and in September he instituted suit for divorce from her, but abandoned the suit, sought and obtained reconciliation with her, and she returned to him in October. He took to drink, and on March 1st she left him again, and in May he sued her for a divorce, and at the same time Bower sued his wife (Orena) for a divorce, and decrees being entered for plaintiffs in both easeá in May, Bower and Martha were married on May 28th and a child was born to her on October 24th. Prior to March 1st Bower visited Martha as. of ten as twice a week and when there would share her bed. The suit by Bower against Orena was a friendly one, and the facts show that both proceedings were the result of agreements between the four. Held, that the law would imply no conjugal relation between Jackson and Martha after March 1st by reason of the divorce suit pending between them, and the statement in his petition that before it was filed her conduct had been such as to make it impossible for him to live with her would imply a previous cessation of such relations, and these and the other facts fail, to overcome the presumption of legitimacy arising from the fact that the child was born in lawful wedlock.
    Appeal from Texas Circuit Court.—Hon. L. B. Woodside, Judge.
    Affirmed.

      Hiett & Scott for appellants.
    (1) A child begotten before the commencement of a suit for divorce is presumed to be the legitimate child of the then husband. To rebut this presumption the most satisfactory and convincing proof that the husband is not the father of the child must be given. Cross v. Cross," 23 Am. Dec. 778; R. S. 1909, sees. 342, 2370; Nelson v. Jones, 245 Mo. 579; Egbert v. Greenwalt, 38 Am. Rep. 263; 3 Ency. of Law, par. 2, p. 72; 3 R. C. L., par. 6,.p. 726; Kennedy v. State,. 173 S. W. 842; Johnson v. Johnson, 30 Mo. 72; Gates v. Seibert, 157 Mo. 272; Martin v. Martin, 250 Mo. 545; Powell v. State, 95 N. E. 660; 7 Corpus Juris, par. 7, p. 942; Drennan v. Doug-. las, 40 Am. Rep. 597. (2) The presumption of law is that a child is presumed to be legitimate child of its mother’s husband at the time it was begotten and this presumption being raised its mother would be an incompetent witness to prove that such child was not begotten by such husband. In re Miles Estate, 70 Pac. 91; Mink v. State, 19 N. W.'445, 50 Am. Rep. 386; 3 R. C. L. par. 12, p. 732; Kennedy v. State, 173 S. W. 842; Liles v. State, 174 S. W. 1196; fcwell v. Ewell, 79 S. E. 509; People v. Case, 137 N. W. 55; Wallace v. Wallace, 114 N. W. 258; Foote v. State, 144 S. W. 275; Cross v. Cross, 23 Am. Dec. 778; Mink- v. State, 19 N. W. 445; Rhyne v. Hoffman, 59 N. C. 335; Powell v. State, 95 N. E. 660. Any evidence of the wife’s adultery at or about the time of conception is not enough to rebut the presumption. Cross v. Cross, 23 Am. Dec. 778; 7 Corpus Juris, par. 15, p. 946; Drennan v. Douglas, 40 Am. Rep. ■595; Powell v. State, 95 N. E. 660; 7 Corpus Juris, p. 946, note 86, and p. 945, note 75; Greenfeaf on Evidence (1.5 Ed.), see. 28, p. 44; Egbert v. Greenwalt, 38 Am. Rep. 260. (3) Whilst the birth of children can be ascribed to a legitimate source, the law will not suppose criminality. 3 R. C. L. par. 6, p. 726; Egbert v. Greenwalt, 38 Am. Rep. 260; Nelson v. Jones, 245 Mo. 579; ■Maier v. Brock, 222 Mo. 74; Johnson v. Railroad, 203 Mo. 381. (4) The defendant relies upon the presumption tliat a child born in lawful wedlock is the legitimate child of its mother’s husband at the time of its birth. The plaintiff relies upon the presumption that if a child is begotten in lawful wedlock it is the legitimate child of its mother’s husband at the time it was begotten. Both of these presumptions are not conclusive but both are rebuttable. Drake v. Hospital, 266 Mo. 10; 7 Corpus Juris, par. 6, p. 942, note 36; 3 Ency. Law, p. 876. (5) A presumption may be rebutted by a contrary and stronger presumption. Wadingham v. Wadingham, 21 Mo. App. 609; Tarvall v. Railroad, 113 Mo. 570. (6) Evidence of the resemblance of a child to its alleged father is not admissible. 7 Corpus Juris, par. 125, p. 993; 3 Ency. Law (2 Ed.), par. 9, p. 885; 2 Ency. Evidence, par. 8, p. 253; Hannawalt v. State, 54 Am. Rep. 558; McCallaman v. State, 48 S. E. 609.

      Lamar & Lamar for respondents.
    (1) The mere fact that during the time when a child was conceived the mother was the wife of a man, from whom she obtained a divorce a short time before the child was bom is not sufficient to overcome the presumption that the child is the legitimate off-spring of the man whom she married immediately after the divorce and who was Her husband at the time of the birth of the child, the child being bom a few months after the marriage with the second husband. 3 R. C. L. p. 730, sec. 10; Zachman v. Zachman, 201 111. 380. (2) This is an action at law. The court sitting as a jury passed upon the issues and found against the appellants as to the paternity of the child. This finding is entitled to all the presumptions which attach to a verdict of a jury and this court will not disturb such finding, if it is supported by any substantial evidence. In re Langford’s Estate, 172 Mo. 18; Roloson v. Riggs, 274 Mo. 528;'Wal-ker v. Roberts, 204 S. W. 18; Boas v. Branch, 208 S. W. 86; Bingham v. Edwards, 210 S. W. 885; Hayes v. McLaughlin, 217 S. W. 264. (3) Appellants complain of the admission of the testimony of Martha Bower to the effect that her then husband, Will Jackson, had no marital relations with her after Christmas 1908. There are several answers to this contention, (a) This evidence was not objected to. The evidence that plaintiff objected to was her evidence as to her adulterous relations with Bower, which is an entirely different question. She is competent to- testify to such relations, but if not, such adulterous relations are amply proven by her sister. Later on in her evidence, when she was asked concerning the access and non-access of her husband William I). Jackson, after Christmas, 1908, no objection was made by plaintiff to this evidence. That plaintiff cannot convict the trial court of error in admitting evidence to which he did not object needs no citation of authorities, (b) Even if plaintiff had objected to the testimony of the mother of the child as to the non-access of her then husband, the weight of authority is to the effect that such evidence is admissable. 3 Wigmore on Evidence, secs. 2063, 2064, and notes; Buiiel v. Hester, 203 Mo. 429; In re Gird’s Estate, 108 Pac. (Cal.) 502; Tout v, Woodin, 137 N. W. 1003; Evans v. State, 75 N. E. (Ind.) 651; In re McNamara’s Estate, 183 Pac. (Cal.) 554. (c) Whether Mary Bower be adjudged the child of Timothy Bower, or of William Jackson, she is under the law in either event a legitimate child and the testimony of her mother as to her. parentage cannot render her illegitimate. Schouler on Domestic Relations (3 Ed.), p. 305, sec. 225. (4) It is a settled rule of law in this and other states that where a case is tried by the court sitting as a jury, and no declarations of law asked or given-and both competent and incompetent testimony has been admitted, if there is in the record substantial competent evidence to support the finding of the trial court an appellate court will indulge the presumption that the trial court based its finding on the evidence which was competent and disregarded the incompetent. It will not reverse because such incompetent evidence was admitted. Lewis v. Frankie, 158 Mo. App. 262; Bank v. Wodz, 197 Mo. App. 696; Diggs v. Henson, 181 Mo. App. 34; Lanmier v. Gehner, 110 Mo. 126; McCullough v. Ins. Co., 13.3 Mo. 636; King v. Slater, 133 S. W. 173; Champion v. McCarthy, 81 N. E. 808; Patterson v. People, 130 Pac. 628; Ford v. Lou-Kum-Shu, 146 Pac. (Cal.) 199. (5) On the question of paternity, the evidence of resemblance of the child and the putative parent is admissible. 7 Corpus Juris, p. 944, sec. 14. (6) If a child is born in wedlock it is legitimate and this is true, although there be antenuptial conception. Zachmann v. Zachmann, 66 N. E. 256; State v. Romaine, 11 1ST. W. 721; Wallace v. Wallace, 114 N. W. 527; McRae v. State, 61 So. 977. (7) If a child is born in lawful wedlock it is a legitimate child. 7 C. J. p. 938, sec. 3 ; p. 940, sec. 6; 1 Words and Phrases (2 Ed.), p. 409; 2 Kent’s Commentaries, p. 208; 1 Blackstone’s Commentaries, p. 466; Schouler’s Domestic Relations (3 Ed.), sec. 225; Gates v. Seibert, 157'Mo. 272; Martin v. Martin, 259 Mo. 545; State v. Romaine, 11 N. W. 721. (8). Under the law if a inan marries the mother of an illegitimate child and thereafter recognizes the child as his own it becomes his legitimate child. Drake v. Hospital Assn., 266 Mo. 7; Ives v. McNicoll, 53 N. E. (Ohio) 60; Briedenstein v. Bertram, 198 Mo. 347; Nelson v. Jones, 245 Mo. 595; Miller v. Pennington, 75 N. E. 919. (9) The question of paternity is a question of fact, and if there is any evidence to justify, it should be submitted to a jury, or the court, sitting as a jury. 3 Wigmore on Evidence, secs. 2063, 2064; 2 Kent’s Commentaries (14 Ed.), pp. 211, 212, and note a; Schouler’s Domestic Relations (3 Ed.), sec. 225, p. 307; 1 Greenleaf on Evidence (14 Ed.), p. 44, sec. 28; State v. Shaw, 94 Atl. 436; In re Walker’s Estate, 181 Pac. (Cal.) 792; 7 C. J. p. 945, sec. 15. (a) Appellants take the position that there is a conclusive presumption of law that a child concived in wedlock is the off-spring of the then husband and wife, unless the non-access of the then husband be conclusively shown. It will be found by an examination of the authorities that this rule, if it ever was the rule, has been modified, and while there is a presumption that the then husband is the father it is a rebuttal presumption, and may be rebutted by any competent evidence, and facts and circumstances may be given in evidence to rebut such presumption. Walker Case, 181 Pac. 796.
   BROWN, C.

This suit was begun in the Circuit Court of Texas County on February 14, 1916. Its general object is to try the title to about one hundred and sixteen acres of land in said county, fully described in the petition, and of which one Timothy S. Bower died seized in 1910. At the time of his death he resided in Wichita County, Texas, where his personal estate was administered. He left a widow, Martha, who has since intermarried with one Graham, and is sued by that name. She has ever since been living on the land with her child, the defendant Mary Bower. The identity of the child’s father is the sole subject of controversy in this case. If she is, in contemplation of law, for the purpose of inheritance, the daughter of Bower, she and her mother take the land. If not, his collateral heirs take it subject to her mother’s interest as widow.

Bower’s father and mother predeceased him. He left no other child, but, at the time of his death, had four brothers and four sisters. Two of these brothers, James M. Bower and William H. Bower, are the plaintiffs. Of the other six, one has refuse to join in the suit, one or two have died since the death of Timothy, and others cannot be located. They and their representatives in interest are all joined as defendants under the proper allegations.

The substantive facts upon which the issue stands, and which will be developed in detail as we proceed, áre as follows:

One William D. Jackson and the defendant Martha Graham were married in October, 1896. Five children were born to them, four of whom survived, the youngest being about two years old at the beginning of 1909. The family lived at Hazleton in Texas County, where Mr. Jackson had a store. They lived together as husband and wife until about the middle of August, 1908, when trouble arose between them, and Mrs. Jackson left him, taking her four children with her to the house of her sister in St. Francois County, where she remained until October of the same year. In September, after her departure from Texas County, Mr. Jackson instituted a suit for divorce against her in that county, alleging as grounds therefor desertion and indignities, but did not charge unchastity, nor in any way mention his children. This suit was not followed. On the contrary, he went to his wife in St. Francois County in October, was apparently reconciled with her, and brought her and her sister, with the children, bade to his home in Texas County. Bower also was in St. Francois County at the same time, and both the sisters testified that when they went back home with Jackson there was an understanding with Bower that on their return divorces would be procured and that they could then be married to each other.

When Martha and her sister Caroline and the four little children arrived at the Jackson home in Hazleton, the family of seven, including Aunt Caroline, seems to have resumed a normal condition and might,, perhaps,' have continued to function like other well ordered families but for the fact that there was a still just over the Phelps County line, the lure of which had a strong attraction for the husband and father. Whether the return of his wife and children created a need for the cheerful product does not appear from the record, but it does show that he took to drink, and when Christmas time came he was in bed with “jim-jams,” and, according to the testimony of his sister-in-law and a neighbor, fell into the drink habit, so that he was under its influence the most of the time. The newly reconciled wife refused to maintain conjugal relations with him, and did not, in fact, share his bed from that time until, she left and returned to St. Francois County on or about March 1, 1909. During that time, according to the testimony of both Martha and her sister, who spoke from her own observation, Mr. Bower visited her as often as twice a week, and when he was there would share her bed.

The final separation of the Jacksons took place about March 1, 1909. About that time Mr. Jackson filed in the Texas County Circuit Court his petition for divorce against Martha, which contained no charge of adultery, nor prayer for any relief on account of the children. At or about the same time Bower filed his petition for divorce against his wife, Orena; Both were heard at the May term, and decrees were granted as asked. The Bower decree was entered upon an agreement by which a farm with stock and other personal property, and one thousand dollars in secured notes, were adjudged to the wife.

Bower and Martha were married May 28, 1909. The child whose patefiuity is in dispute was born October 24, 1909. He was proud of the child. There is evidence tending to show that, although a girl, it resembled him.

I. It is well enough to have in mind at the very beginning that we are called upon to adjudicate the rights of the child Mary Bower and not to give virtuous expression to our own disapproval of the iniquities of the parents. The time is come which was, nearly three thousand years ago, predicted by a great expounder of the moral law, when ‘ ‘ every one shall die for his own iniquity: every man that eateth the sour grape, his teeth shall be set on edge.” [Jeremiah, ch. 31, v. 30.]

It is admitted in this record that notwithstanding all the disgusting details in evidence, the child was bom in lawful wedlock, five months after the marriage of her mother with Bower.

In Gates v. Seibert. 157 Mo. 254, 272, this court said: “A legitimate child under our law is one born in lawful wedlock or of a widow within ten months after the death of her husband, or bom before the marriage of its parents who afterward marry, and receives the recognition of its father; and one such child is just as legitimate before the law as the other.” We approved this definition in Breidenstein v. Bertram, 198 Mo. 328, and in Martin v. Martin, 250 Mo. 539, l. c. 545. In this case there is no question that this child was born in lawful wedlock,, and therefore comes within the first definition, and is entitled to the presumption resulting’ from its birth, unless it is destroyed by the fact that the' mother had been the wife of another when it was conceived, which the appellants say overcomes completely the presumption raised by its birth in wedlock. This is the propostion before us. It was before the Supreme Court of Illinois in Zachmann v. Zachmann, 201 Ill. 380, in which it was held that the fact that, at the time of the conception of the child, the mother was the wife of another did not overcome the presumption arising from birth in wedlock. The case is interesting, and in many respects directly in point.

Before taking it up we will notice the provisions of Section 341, Revised Statutes 1909, relating to the status of children born before the marriage with each other of the parents. We lately had occasion to carefully consider this statute in the case of Busby v. Self, 284 Mo. 206, in which we said that in its enactment the Legislature spoke as the mouthpiece of the public policy of the State, and in'this respect it is pertinent to the construction of the laws relating to the same subject as administered in this jurisdiction. We held, as .we were bound to hold, that the words of this section meant what they said, and applied to adulterine issue. The mind of the Legislature is evident in the terms of this act. It did not embrace children born in lawful wedlock, because, under the law as it then existed, these were already legitimate. Their birth was as open and visible as was the marriage relation in which it occurred. Their conception involved an .issue uncertain at if s' best and revolting in its details, and over which courts have no ambition to preside unless necessary to the ends of justice. This healthy sentiment was evidently in contemplation of the Legislature when it inserted as a condition of its statutory legitimation, recognition of the child by the husband. It-was aware of the presumption of legitimacy which attended every child born in lawful wedlock, and therefore carefully inserted the word “afterward.” From this statute we cannot infer the absurd intent to give the natural child whose parents should postpone their marriage until after its birth an advantage over one whose parents had been more prompt in the performance of that duty. Its obvious intent was to preserve to the latter the advantage of the legal presumption arising from its birth in wedlock. In using the word “recognize” in the same connection, it deferred to the superior advantage of the natural parents of a child to judge of their own relation to it.

It is illogical to say that one who may- adopt a stranger as his child and heir, should not be permitted, as against himself, to determine who is his natural child and heir. In Busby v. Self, supra, at.page 215, we said on the subject: “So far as the guilty father is concerned, the marriage and recognition is equivalent to the adoption provided for b}^ statute in other cases. . . . It will be .noted that when the parties are married the act of the husband alone creates this relation, and his estate alone is involved in this proceeding.” It is this principle which gives its controlling force to the presumption that a child born to the wife in the house of her husband is his child. This may not be true under all circumstances and for all purposes, but these appellants are claiming under Bower a.s 1ns heirs, and are bound by' the situation which he has created. His acknowledgment of paternity binds them, and that he heartily acknowledged it at all times after its birth is not only conclusively proven but is undisputed. From the vantage point of his own-house he has announced that he is the father of this child and no one has disputed him otherwise than with a presumption. That presumption having been destroyed, so far as available to the appellants, by the deliberate act of the one by whose right they claim, would seem to leave them no ground on which to stand in this appeal. We do not, however, think it improper to consider this record from the standpoint that the presumption arising from the birth of the child in lawful wedlock may be disputed by showing the fact to be otherwise.

II. The undisputed facts in the record leave no doubt in our mind of the paternity of this child. Its mother has testified that it is the child of the husband in whose house it was born. The competency of her evidence to prove her own adultery is challenged. There being an irreconcilable conflict of authority on this question we will put her evidence aside and, without an expression of our own opinion, only refer to the direct and positive testimony of her sister for the purpose of showing that evidence was invited by the respondents as to the conjugal relations of Martha with Mr. Jackson, her then husband, during the time covered by the inquiry. That Mr. Jackson was living and in the neighborhood at the time of the trial appears inferentially in the record.

Martha went with her four children to her sister in St. Francois County on August 15, 1908. Jackson instituted suit for divorce against her on September 19th. Sometime in October, both Bower and Jackson went to St. Francois County to see her. The result was that before the end of that month she took her children home to Texas County and tried Jackson again with unsatisfactory results. About March 1, 1909, both Jackson and Bower prepared and almost immediately filed suits for divorce against their respective wives. Judgment of divorce was rendered in esich at the May term of the Texas Circuit Court. The suit of Bower was a friendly one, Mrs. Bower appearing by attorney, and taking land, livestock and money in exchange for her-unfaithful husband, who married his paramour immediately. Rejecting the uncontradicted testimony to that effect these admitted facts show that all these things were done by agreement between these four persons, Jackson and wife and Bower and wife, the last named being represented by one of the attorneys now before us in this suit ; that after March 1, 190-9, the law would imply no conjugal relation between Jackson and his wife by reason of the divorce suit pending between them, and that the statement ih his petition that before it was filed her conduct had been such as to make it impossible for him to live with her would imply, as between Jackson and his wife, a previous hiatus in such relations.

"We think-that the evidence fails to overcome the presumption arising from the fact that the child Mary was born in lawful wedlock between her mother and Bower. This necessarily disposes of the whole case, and the judgment of the Texas County Circuit Court is therefore affirmed.

Ragland and Small, CC., concur.

PER CURIAM:—The foregoing opinion of Brown, C., is adopted as the opioion of the court.

All of the judges concur.