text:
    Brooks, Appellant, vs. Wimer et al., Respondents.
    1. Under the first section of the act concerning “fraudulent conveyances,” (E. C. 1845,) a deed of a stock of goods to a trustee, for the benefit of creditors, which, on its face, reserves to the grantor the right to continue to sell the goods in the usual course of his business until default made in the payment of the debts intended to be secured, is, as a matter of law, void against existing and subsequent creditors and purchasers.'

      •Appeal from St. Louis Court of Common Pleas.

    This was an action commenced August 27,1853, by Brooks, to recover in the form of damages the value of a stock of goods seized and sold by the defendant, Wimer, as sheriff of St. Louis county, under executions in favor of the other defendants against William W. Price, dated respectively June 16th, and July 14th, 1858. The plaintiff claimed the goods under a deed from William W. Price to him as trustee, for the benefit of certain creditors of Price, dated March 5th, acknowledged March 15th, and recorded March 30th, 1853. This deed was set out at large in the petition and made part of it.
    The deed, after reciting that Price had already obtained from certain enumerated creditors an extension of time upon their demands against him, for which, in pursuance of the extension, he had executed various notes, the earliest of which was payable six months from February 10th, 1853, and that he expected to obtain a like extension from other creditors, to-wit: Carter & Rees, Campbell, Chess & Co., and Marshall k Brother, proceeded as follows: “Now therefore, in consideration of the premises, and of the sum of one dollar to him in hand paid by Edward Brooks, of the city of St. Louis, receipt whereof is hereby acknowledged, and to carry out the agreements and purposes above specified, the said Price does hereby sell, transfer and convey to the said Brooks the entire stock of hardware, goods, wares and merchandise now on hand in the store occupied by said Price on Main street in said city, or wherever else the same maybe, and also all the hardware, goods and merchandise, which the said Price may purchase or acquire in the course of, or for the purpose of carrying on bis said hardware and commission business, during the time embraced within the period of said extension. To have and to hold the same to the said Brooks, his executors and administrators, in trust for the purposes herein stated, and with the following restrictions and conditions, viz : If the notes above mentioned, given by said Price in pursuance of the terms of said extension, and.the other sums agreed by him to be paid, as above stated, under the terms of the extension already agreed upon, be paid when they become due, as above mentioned; and in case the said Carter &Rees, Campbell, Chess & Co., and Marshall & Brother, or any of them, do assent, then also if the said sums that Will be payable to those who do so assent be also paid agreeably to the terms of the said extension, then this deed shall be void, and the property hereinbefore conveyed shall be released at the cost of said Price ; but if said notes or any one of them agreed to be paid under the terms of said extension already assented to, as above stated, or said sums or any one of them that will be payable if an extension be assented to by said Carter & Rees, Campbell, Chess & Co., Marshall & Brother, or either of them, shall not be paid when the same shall be due, as above stated, then this deed shall remain in full force; and the said Brooks may then take possession of said hardware, goods, wares and merchandise, and proceed to sell the same, as he may in his judgment deem best for the interest of all concerned, and receive the proceeds of such sale, out of which he shall pay first the costs and expenses of this trust, next, the full amount that shall remain unpaid of said notes and each of them above mentioned, and of said other sums'agreed or that may be agreed to be paid under the terms of the extension above mentioned, whether the time above named for the payment of said notes or other sums shall have arrived or not; and if there be not sufficient to pay all said notes and other sums remaining unpaid, then the same are to be paid pro rata. And if there be any balance, after paying all, the same shall be paid to the said Price, his executors, administrators or assigns. Aid it is

      further expressly provided that, until default shall be made by the said Price in the payment of some of said notes or sums above mentioned, the properly hereby conveyed or intended to be conveyed, or any part thereof \ shall not be taken possession of or interfered with by the said Brooks, but the said Price may, until such default, continue to sell and dispose of the same in the regular or usual course of said business.”

    A demurrer to the plaintiff’s petition was sustained by the Court of Common Pleas, and he appealed to this court; and the question presented was, whether he acquired any title by the deed which would enable him to sustain this action.

      Glover & Richardson (with Comfort & Manter,) for appellant.
    There is nothing on the face of the deed that determines, in point of law, the same to be fraudulent as to the creditors of Price. The possession of the goods remaining with the grantor did not render the deed invalid, because it was duly acknowledged and recorded. (Act concerning Fraudulent Conveyances, R. C. 1845, p. 527, §8.) The tenth section of that act only applies to absolute sales ; but if it embraced the case at bar, was not conclusive on plaintiff’s title. (15 Mo. Rep. 416.) The consideration of the deed was proved by its own recitals. (19- Mo. Rep. 17, overruling 5 Mo. Rep. 484.) This case has been erroneously likened to that in 6 Mo. Rep. 302 and 317. This deed requires no release. It prefers those who may grant an extension, but the advantage is given to the creditor. The right to prefer enabled the grantor to cut off absolutely those who had not agreed to the extension, but he did less. Here, the whole fund would not pay the preferred debts. (16 Mo. Rep. 594.) The power to sell in the course of business did not render the deed void. (11 Mo. Rep. 373.) All the debts of the grantor, after paying those preferred, are to be paid pro rata; and so it is only the surplus then left which is to go to the grantor. It is fraud in fact, intentional fraud, and not fraud such as the law implies or infers from facts, that avoids a deed under the act concerning “ assignments,” (R. C. 1845, p. 127.) There must not only be a fraudulent purpose in the mind of the grantor, but the grantees must also be convicted of the same fraudulent motive. .(19 Mo. Rep. 27.)

      Hart & JecJeo, for respondents.
    I. The deed gave Brooks no right to the possession of the goods until default made in the payment of some one of the notes, and as none of the notes had become due when this suit was commenced, he had no right of action. II. The deed was fraudulent on its very face, because, 1. It contains a provision which cuts off from its benefits all those who do not assent to an extension of time. 2. It provides that the grantor shall remain in possession until default. 8. It provides that the grantor shall continue to sell and dispose of the goods., and of course pocket the proceeds, there being no express provision that he should account for them. 4. It provides that the surplus, after paying those who agree to an extension, shall be paid to the grantor.
    Upon the whole subject, the following authorities were cited: (Burrill on Assignments, 401. 2 Tucker’s Comm. 482. 11 Wend. 187. 7 Paige, 272, 568. 6 Hill, 438. 4 Comstock, 580. Goodrich v. Downs, 6 Hill, 438. Simpson v. Mitchell, 8 Yerg. 417. Jordan v. Turner, 3 Blackford, 309.)
   Scott, Judge,

delivered the opinion of the court.

The deed in this case comes within the first section of the act concerning fraudulent conveyances. That section enacts that every deed of gift and conveyance of goods and chattels, in trust to the use of the person so making such deed of gift or conveyance, shall be void as against creditors, existing and subsequent, and purchasers. In the case of Robertson’s Ex’r v. Robards, (15 Mo. 459,) this court held that, if a conveyance on the face of it appears to be for the use of the person making it, as a matter of law the court will declare it void against creditors, just as it would declare a bond conditioned to murder a man or to do any other unlawful act. There is no fact here to be found by a jury. On the very face of the instrument by which a party intends to convey his goods for the benefit of his creditors, there is a reservation to himself of the right of disposing of them, without any accountability to any one for the proceeds of the sale. Thus, under this pretended assignment for the benefit of his creditors, the grantor disposes of all the assigned property for his own use. This, then, is a deed in trust to the use of the person making it, and under the authority of the first section of the act concerning fraudulent conveyances, the court, as a matter of law, upon its very face, was warranted in pronouncing it void.

The assignment in the case of Milburn v. Waugh & Corthran, (11 Mo. Rep. 369,) did not reserve to the grantor the right of disposing of the goods conveyed in trust.

We do not regard the views expressed in relation to this case as at all conflicting with the former doctrine of this court, that fraud is a question of fact for a jury, except in those cases in which, from the very face of the instrument, the conveyance is void under the statute. In cases where the terms of a conveyance are by possibility consistent with good faith, and it has upon it the elements of a legal instrument, the question of fraudulent intent and want of good faith in making it, must be submitted to the jury. In such case, he who assails the instrument on the ground of fraud will submit to the jury all the evidences of bad faith arising from the form of the conveyance or its stipulations in favor of the grantor which serve to create a presumption of fraud. But this evidence will be open to explanation, and may be shown to consist with good faith in the parties.

The other judges concurring, the judgment will be affirmed.


source: Caselaw Access Project

author: Ryland, Judge,

license: Public Domain

text:
    Page & Bacon, Plaintiffs in Error, vs. Gardner, Defendant in Error.
    1. Neither an original general assignee nor one substituted by the appointment of the court, under the statute, (R. C. 1845,) in possession of chattels claimed under the assignment, will be protected from suit by a party claiming the same chattels under a conveyance from the assignor previous to the assignment, on the ground of being an officer or quasi officer of court.

      2. A general conveyance of all debts that “may be due” to the grantor, at a specified subsequent date, without a schedule, passes to the grantee such a title as will enable him to recover from a subsequent general assignee of the grantor at least all accounts (or the money collected upon them) contracted, though not due at the date of the conveyance.

      Error to St. Louis Court of Common Pleas.

    This action was brought by Page & Bacon, to recover money in the hands of the defendant, Gardner, as general assignee under the statute, (R. C. 1845,) of George K. Budd, collected on accounts claimed by the plaintiffs, as purchasers under a deed of trust executed by Budd previous to the assignment, and to recover possession of uncollected accounts claimed by them in like manner.
    On the 27th of September, 1852, Budd, by deed recorded December 17, 1852, conveyed to Kellogg, in trust to secure a note for $5000, payable to plaintiffs on the first of January, 1853, “ all his right, title and interest in a newspaper called the St. Louis Intelligencer, together with the type, presses, paper and fixtures contained in the Intelligencer building, (describing them ;) also all assets which may be due the said In-telligencer newspaper, the good will of said paper, and the subscription list of the same at the date of the maturity of the note.” In case of the non-payment of the note at its maturity, the trustee was authorized to sell the property conveyed, upon twenty days’ notice, at public auction, to the highest bidder, and execute a bill of sale to the purchaser. No schedule of the debts owing to the Intelligencer establishment accompanied this deed. The note not being paid, the trustee sold the property pursuant to the terms of the deed of trust, and executed to the plaintiffs, who became the purchasers, a bill of sale dated October 4, 1858, conveying the property by the same description contained in the deed of trust.
    On the 19th of Februry, 1858, Budd executed to J. G. McClellan a deed of assignment for the benefit of his creditors, conveying “ all notes, bonds, bills, book accounts, dues, demands or evidences of debt whatsoever,” due or to become due on any contract made before January 1st, 1853,( growing out of the business of the St. Louis Intelligencer. This deed was accompanied by a schedule. McClellan took possession at once, and gave bond in compliance with the provisions of the statute regulating assignments, (R. C. 1845.) By order of the St. Louis Circuit Court, the defendant, Gardner, was subsequently substituted for McClellan, as assignee, and gave bond pursuant to the statute. When this suit was brought, the defendant was in possession of the book accounts of the Intel-ligencer establishment, and had collected $1500 on accounts due on the 1st of January, 1853. A portion of the accounts sued for accrued prior to September 27th, 1852, the date of the deed of trust, and a portion subsequent to that date. The plaintiffs made a demand upon the defendant for the money and accounts claimed by them, before suit was brought.
    The Court of Common Pleas found facts substantially as above stated, and that the defendant was in possession of the money and accounts sued for, “ under the order and appointment of the Circuit Court,” and had never been discharged by that court; and upon these facts, declared that the plaintiff's could not recover, whereupon they sued out this writ of error.

      Knox & Kellogg, for plaintiff's in error.
    1. By the bill of sale from Kellogg, the appellants acquired a perfect right and title to all the property, accounts and money in the hands of the respondent as assignee of George K. Budd. The cases which decide that a deed does not .pass after acquired property are not applicable. Here, the debts accruing subsequent to the date of the deed of trust to Kellogg arose Horn the natural and ordinary use of the property and materials conveyed by that deed, and not from subsequent purchases. Besides, the finding shows that some of the money in the hands of the respondent was collected on accounts due and owing at the date of the deed to Kellogg. 2. The decision of the court below was based upon the idea that the respondent was not personally liable, because acting under the appointment of the Circuit Court, and that the appellants could only-obtain their rights by an or-of tbe Circuit Court — an idea erroneously supposed to be sanctioned in tbe case of Gates v. Labeaume, (19 Mo. Rep. 17.)

      J. Jh Kasson, for defendant in error.
    1. Under the statute regulating assignments, (R. C. 1845,) the Circuit Court bas the entire control of both assignee and assets. The property is in the custody of the court, the assignee being in fact but the agent of the court. Any claim against the fund, or the assignee on account of the fund, must be made in the court having both in charge. These assets were ordered by the court to be put into defendant’s bands, he having been appointed for that purpose by the court. To allow him to be drawn into divers courts by conflicting claims, incurring expenses in each, as a defendant in bis own right, would operate as a great hardship upon him, and involve him in bis relation to bis own court and creditors provided for by bis deed. ( Curling v. Hyde, 10 Mo. Rep. 375. Brooks v. Cook, 8 Mass. 274.) No officer under the immediate control and direction of a court, and having funds by its order, can be reached except through bis own court. 2. As against a subsequent purchaser, nothing passed to plaintiffs’ trustee, or from him to plaintiff's at the sale, so far as choses in action were concerned, because the deed was so far null and inefficient for uncertainty. There was no schedule of names of debtors, dates or amounts of indebtedness. There was nothing to identify the accounts or notes so alleged to be transferred. They could not be legally transferred in that way. A legal transfer for a valuable consideration, (19 Mo. Rep. 26,) prior to the sale to plaintiff's, bad already been made; and plaintiffs have no lien which they can pursue in this action against Gardner. From such an indefinite deed as that to Page & Bacon’s trustee, no notice is presumable to Gardner, as touching these proceeds. 3. No debts which accrued after its execution could pass by virtue of the prior executed deed of trust. (4 Metcalf, 306. 13 Metcalf, 32.)
   Ryland, Judge,

delivered the opinion of the court.

1. It is contended by the counsel for the respondent, Gardner, in this case, and is, indeed, the chief ground of bis de-fence to the plaintiff’s action, that Gardner, the assignee, holding the property as an officer of the law, is not responsible in his individual capacity to an action for the effects in his hands as assignee; but that a proceeding must be instituted, in the court having authority over this assignment, against the fund itself.

The assignment by George K. Budd to Sanford B. Kellogg, trustee, to secure the payment of a debt to Page & Bacon, duly acknowledged and recorded, being taken and considered as valid, has the effect to pass the property and effects embraced in it to the said Kellogg, as such trustee, against the subsequent assignee.

Assuming this to be so, then the proceeding to recover the' property claimed may be against the party having the property and effects in Ms hands, and need not (perhaps could not) be against the fund. Here, the plaintiff’s petition is proceeding upon the assumption that the effects now sought to be recovered constituted no part of the trust fund in the hands of Gardner, the second trustee.

Courts of equity support assignments not only of choses in., action but of contingent interests and expectations, and also of things which have no present actual potential existence, but rest-on mere possibility only. (See Mitchell, Assignee of Ropes, v. Winslow et al., 2 Story’s Rep. 631.)

A. and B. being engaged in 1839 in the manufacture of cutlery, borrowed of 0. a sum of money, payable in four years,, with interest semi-annually, and on the same day gave him a deed of all the machinery in their manufactory, with all the tools and implements of every kind thereunto belonging and appertaining, together with all the tools and machinery for the use of the said manufactory, which they might at any time purchase for four years from that date, and also all the stock which they might manufacture or purchase during the said four years. On the 26th of August, 1843, A. and B. filed their petition to be declared bankrupts, and subsequently were so declared, and' an assignee was appointed. On July 16th, 1842, for breach of the conditions of the mortgage, the agent of C. took possession of the property, including the machinery, &c., which were in the possession of the manufac-tory when the mortgage was made, and also machinery, tools, and stock in trade, which had been made and purchased after the execution of the mortgage. On petition of the assignee in bankruptcy of A. and B. for an order of court authorizing him to take possession, it was held, upon this state of facts, 1st, that the mortgage and possession taken in July 16,1842, constituted such a lien in favor of the mortgagee to the property acquired subsequent to the time of executing the mortgage, as is protected under the provision in the second section of the bankrupt act; 2d, that such stipulations in a mortgage, in regard to property subsequently acquired, protect such property from ■■other creditors of the mortgagor. Judge Story, in his opinion, -■after stating the facts and general principles governing such 'transactions, says : “Here, the true question is not whether the assignment of the property to be acquired in futuro is good ■at law, but whether it is good in equity ; for if it be, then, independently of any fraud (which is not pretended) as the as-signee can take only what the bankrupt had a title to, subject to all equities, it follows, as a matter of course, that the petitioner, (the assignee,) has no claim on which he can found himself for relief under his petition. So that the question is, in reality, narrowed down to the mere consideration of this, whether the present mortgage, as to the future machinery, tools, and stock in trade to be put into the factory, (for there is no controversy as to those in esse at the time of the assignment,) is .valid or not against the mortgagor ?”

\ He says : “ Upon the best consideration which I am able to ■give the subject, I think it good and valid. Courts of equity •do not, like courts of law, confine themselves to the giving of .effect to assignments of rights and interests which are absolutely fixed and in esse. On the contrary, they support assignments-not only of choses in action., but of contingent interests and expectancies, and also of those which have no present actual or, potential existence, but rest in mere possibility only.”

In respect to the latter, it is true that the assignment can have no positive operation to transfer, in presentí, property in things not in esse ; but it operates by way of present contract, to take effect and attach to the things assigned, when and as soon as they come in esse ; and it may be enforced as such a contract in rem in equity. A different view has been taken by other courts, at law at least. (Moody v. Wright, 13 Metc. 27. Mogg v. Baker, 3 Mees. & Wels. 195. Gale v. Burrell, 7 Adol. & Ellis, N. S. 850.)

We now have no distinction between law and equity. Taking, therefore, the deed of trust made in this case by Budd to Kellogg as being valid, (for there is no pretence of fraud in it,) then the sale by the trustee, Kellogg, conveyed the property and effects sold to the purchasers, and they have the right to sue for it, not by pursuing the fund, but any one in whose hands their effects and property may be found.

The judgment below is reversed, and the cause remanded; the other judges concurring.


author: Scott, Judge,

text:
    Whitmore & others, Plaintiffs in Error, vs. The Steamboat Caroline, Defendant in Error.
    1. It is not prima, facie within the scope of the employment of a steamboat, or the authority of her officers, to carry specie for hire; and in order to hold the boat or her owners liable for the loss of money entrusted to the clerk by a passenger, a known and established usage for steamboats _to i for hire on account of the owners, must be shown. Steamboat St. Jlnthony, 16 Mo. Rep., affirmed.)
    2. The implied undertaking of a common carrier to carry^j sengers, does not include more money than a reasonable veling expenses. i?1

      Error to St. Louis Circuit Court.

    This was an action under the act concerning “ bdSí^and vessels,” (R. C. 1845,) to recover the value of a bag of gold belonging to the plaintiffs, lost while in custody of the clerk of the steamboat Caroline, to whom, as alleged in the petition, it had been delivered for transportation from St.' Louis to Pekin by an agent of the plaintiffs, who was a passenger on the boat.
    At the trial before a jury, Sears, the plaintiffs’ agent, testified that he received from the plaintiffs $1500 in gold to be invested for them in the purchase of wheat upon the Illinois river; that the gold was placed in a bag, and he went with it on board the steamboat Caroline, then lying at the port of St. Louis, bound for the Illinois river ; that he applied for passage for himself, and delivered the bag of gold to the clerk, to be carried to his port of destination, and that the clerk received it ; that he was informed the next morning that the safe of the boat had been robbed and the bag of gold taken. This witness further stated that he had known boats running from St. Louis up the Illinois river to take specie and be paid for it; that he had himself delivered money to clerks of boats to be carried and had paid for it, and had done this in one instance where he was a passenger on the same boat; but that he was not a river man, and only spoke from his personal knowledge. He also stated on cross-examination that when he went on board the defendant, he took passage to Bath or Havanna.
    Pomeroy, a commission merchant in St. Louis, testified that his firm used to send money up the Illinois river to their customers for grain, but more recently had generally remitted through express companies ; that they frequently had consignments of grain, with the request that the proceeds should be sent by the same boat, on her return, and in such cases, the boats did not charge any thing for carrying the money, but when the money was sent on transient boats, they would pay for it; that he only spoke of his own transactions, and did not know what the custom was.
    Gregory, who had been a shipping clerk and salesman on the St. Louis levee for about six years, testified that it was the custom of boats running from St. Louis in the Illinois river trade to carry specie, when entrusted to them, as much as any other bind of freight, sometimes gratuitously and sometimes for reward, and that money was usually delivered to the clerk of the boat. On cross-examination, he stated that it was customary for boats to carry money, whether the passenger was on board or not; that when the owner was on board as a passenger, no receipt was taken, and when no receipt was taken, the money was carried as a favor.
    Smith, a clerk of plaintiffs, testified that he knew it to be the custom of boats running in the St. Louis and Illinois river trade to carry specie for reward and without reward; that receipts were sometimes taken and sometimes not; that he had shipped specie various times, sometimes taking bills of lading and sometimes not, always delivering it to the clerk of the boat; and that in cases where fie had shipped specie, the owner did not accompany it.
    This was all the evidence introduced by the plaintiffs, and the Circuit Court instructed the jury that, under it, they could not recover in this action. They submitted to a nonsuit, and after an unsuccessful motion to' set it aside, sued out this writ of error. The cause was submitted on briefs.

      Glover & Richardson, for plaintiffs in error.
    1. When persons hold themselves out as common carriers, the legal presumption is that they are carriers for hire of all articles embraced within the general terms goods, wares and merchandise, including specie; and if any thing falling within the scope of these terms is excepted by them, the burthen is on them to establish the exception. (2 Kelly, 353. 2 Story’s 0. C. R. 34.) If specie is merchandise, and steamboats hold themselves out as carriers of merchandise, there is no more reason why a plaintiff should be required to prove specifically that the owner assented to the master’s carrying specie, than that he specially assented to the carrying flour, or tea or silks. The presumption is, that the owner pays some attention to acts of his agents, and is aware of the usual course of business, and he must take the burthen of showing the contrary if he asserts it. (1 Flor. Rep. 403. 2 Story’s C. C. R. 37. 18 Vermont, 140. 2 Harrington, 48.) This is reasonable; lor to bring home, to the owners express proof of authority given by them to the master to carry specie or any thing else must in general be impossible ; whereas, if the owner has limited the power of his agent, he can always show it. (12 Ala. Rep. 852. 23 Vermont, 186, 206.) That some persons, under peculiar circumstances, were not charged for carrying specie, or that passengers who had paid- fare were not charged is of no importance, if it was within the scope of the boat’s employment to carry it for hire. The facts are true of every other sort of freight. Thus, a passenger who accompanies a shipment of grain often pays no passage money. This case is unlike many others in this : There was no proof by the defendant as to what was the general employment of the boat — no showing that the master had been forbidden to carry specie — nothing to limit the responsibility of the boat. If it was shown to be the usage of trade for boats to carry money for all persons indifferently, as well as goods, then the responsibility peculiar to the common carrier extends to both. (Angelí on Carriers, p. 213, §209.)
    It being proved that it was the known custom of boats in the trade in which the Caroline was running, to carry specie for hire, and that it was as much the course of trade there to carry specie for hire as any thing else, ought to and did put the onus on the defendants to show that they had not authorized the Caroline to carry it; or if not, the plaintiff had at least the right to insist before the jury that the owners must have known the course of trade.
    There was no proof in this case that the master had any privilege to use the boat of the owners to carry any thing on his own personal account. The legal presumption then was, that whatever he did was for account of the boat.
    But the master was the general agent of the owners, as such had power to contract to carry any thing usually carried in the trade where he was running, and even had he been privately instructed not to take specie, the vessel would have been bound by bis contract, unless tbe instruction was brought home to the shipper.

      Knox & Kellogg, for defendant in error.
    1. As there was no evidence that the boat was to carry the money for hire, or that the owners sanctioned the carrying of money for hire, the instruction of the Circuit Court was correct. (Chouteau & Valle v. Steamboat St. Anthony, 16 Mo. Rep. 216.) 2. A steamboat, though a common carrier, is not liable for money which a passenger may have in his possession, except so much as is necessary or convenient for him. (Angelí on Carriers, sec. 115.) 3. There is no such contract set forth in the petition of the plaintiffs, nor was there any such contract proved, as would sustain an action against the boat under the act concerning “ boats and vessels.” 4. There is a material variance between the petition and the proof. The petition states a contract for passage from St. Louis to Pekin. The evidence is that plaintiffs’ agent took passage for Bath or Havanna. (Chitty on Plead. 333 and following.)
   Scott, Judge,

delivered the opinion of the court.

The instruction given at the instance of the defendant was proper. The evidence given established no usage for steamboats to carry money for hire. This case is similar to that of Chouteau & Valle v. Steamboat St. Anthony, (16 Mo. Rep. 216.) We see no reason for departing from the law as stated in that case. The evidence here shows what usually appears in actions of this sort, that persons are willing to have their money carried as a favor, and at the same time, to hold the boat liable for its loss. Freight or money must be proportioned to the risk assumed. No owner of a boat would permit her to carry money, without a reward compensating for the risk, if he was aware that he would be liable in the event of its loss. Persons use the captains or clerks of steamboats to carry money gra-~ tuitously, and hire is never heard of until the money is lost, and then some person is hunted up to prove that some times in the course of his life he carried money on a steamboat for hire, and this is showing a usage. If boats would invariably charge a compensating hire for carrying money, and this was universally known, the .business of carrying money by boats would soon be at an end. Persons cannot trust money with clerks to be carried as a favor, and afterwards, when the money is lost, be permitted to show that it was to be transported for hire. This thing of hire is scarcely ever heard of, but in case of loss, and then, to make the boat or owner liable, would be great injustice. There is no reciprocity in it. The boats, in this way, would be made public carriers for all the money entrusted to their officers for transportation, and their owners would receive no compensation for it. In no case in this court has any thing like a usage been established to carry money for hire by steamboats. If freight is charged for money as other merchandise, why are not bills of lading or receipts regularly made out as for other things ? The owners of merchandise cannot make a secret bargain with the agents of a boat that their merchandise shall be transported gratuitously, and yet hold the boat liable as a common carrier. So, there is nothing in the idea that the officers, by carrying money as a favor, gain patronage for their boats. If one may do this, all may do it. All boats being subject to the same law and all charging hire for the transportation of money, one could not obtain an advantage over another in this respect.

The implied undertaking of a common carrier to carry the baggage of a passenger has its limitations, and does not extend beyond ordinary baggage, or such baggage as a traveler usually carries with him for his personal convenience. It is never admitted to include merchandise. Nor does the implied undertaking include a large sum of money. It cannot cover more than a reasonable amount necessary to pay traveling expenses. (Angel on Carriers, 116.)

With the concurrence of the other judges, the judgment will be affirmed.


text:
    Chouteau & Valle, Defendants in Error, vs. Steamboat St. Anthony, Plaintiff in Error.
    1. Evidence of a custom by boats to carry bank bills for customers to conciliate their patronage, is insufficient to establish a custom of carrying bank bills for hire.
    2. The principle that a bailee, who gratuitously undertakes to do an act, is liable for negligence in doing it, is not applicable to steamboats.
    3. Same case, 16 Mo. Hep. 216, affirmed.

      Error to St. Louis Court of Common Pleas.

    This was a statutory action against a steamboat, brought in 1846, for an alleged breach of a contract to carry $572 in bank notes from St. Louis to Pell’s landing, on the Ohio river. The case now comes here after another trial since it was last reversed and remanded. (16 Mo. Rep. 216.) It was proved that the letter containing the money was delivered to the clerk of the boat, and that $420 of the amount was missing, when the letter reached its destination. The plaintiff then examined a number of river men, for the purpose of showing a custom of boats to carry bank notes for hire on account of the owners. Several witnesses testified that it was common for boats to carry packages of money for their customers, but that as a general thing, no charge was made, the object and expectation being to get the patronage of those whom they thus accommodated. Frequently however, charges were made, and this was generally the case when the money was carried for strangers. In either case, as some of the witnesses stated, the carriage was on account of the owners and at their risk. Some witnesses considered that boats had a right to charge in every case, whether there was a special contract in advance or not. There was also evidence of a declaration by the clerk of the bpat, before the letter was delivered at its destination, that " they intended to have five dollars” for carrying it. The following instructions were given :
    1. If the jury believe from the evidence, that the defendant undertook to carry the package of money in controversy from St. Louis to Pell’s landing, and failed to deliver $420 of said money or bank notes, then the jury should find for plaintiffs.
    .2. If the jury believe from the evidence, that it was the custom of boats in that trade to carry packages of money or bank notes for hire, and that the defendant received the package in question, to transport the same from St. Louis to Pell’s landing, then, prima facie, the defendant did undertake to carry the same for hire.
    3. If the package in question was received on account of the boat, to be transported on her account, and said package was received for transportation for hire, the defendant is liable for the loss, if any occurred.
    4. If the said package was not to be transported for hire, or it was not the custom of the boats in that trade to carry said packages for hire, or if said package was carried by the captain as a matter of courtesy, not to be paid for, or if the said package was to be carried by the captain on his own account, and not on account of the defendant, then the defendant is not liable.
    5. If the captain held himself out as agent of the boat, in undertaking to carry bank bills, as being within the usual scope of the services and employment of the boat, and the owners of the boat knew that the hire, in such cases, was on their account, then the boat is liable for the loss, if any occurred, unless it appears that this transaction was on the account of the officers or some of them, and not on account of the boat.
    6. If it was not the custom of boats to carry such packages for hire, then the plaintiffs cannot recover, unless it was understood or agreed that this package was to be carried for hire, and the owners of the boat knew that it was to be so carried for hire on account of the boat, or it was the custom of the defendant, with the knowledge of the owners, to carry such packages for hire on account of the boat.
    There was a verdict for the plaintiffs.

      Hudson & Thomas and B. Bales, for plaintiff in error.

      V. B. Lord, for defendants in error.
   Scott, Judge,

delivered the opinion of the court."

This is the third or fourth time this cause has been in this court, and it would he some consolation to know when there will he an end of it. We have examined the facts upon the record, and do not see that the case is now materially variant from that presented when it was here before. The evidence of the declaration of the clerk, that he would have five dollars for carrying the package, can have little or no weight in determining this controversy,-

1,. The question’involved is an important one, as it should be well understood, if boat owners are liable for every sealed package of bank .bills a clerk may receive to be carried on the boat. When this case was here before, the opinion was expressed that the evidence was insufficient to establish the custom of boats carrying bank bills for hire. In the case before us, there is no such evidence of such usage as would warrant an instruction upon it.' No witness testifies that those for whom bank bills were carried without reward, were under any obligation in return to bestow on it their patronage. So, theiact of carrying is gratuitous, as it was said to be done in expectation of return freights or of future favors, for which the party favored was under no obligations.

2. The first instruction was evidently erroneous. It seems it was conceived on the principle that, if a bailee gratuitously undertake to do an act, he will be liable for negligence in doing it, although he was not bound to do it. This principle, however correct, when applied to individuals, can have no application to steamboats. A steamboat is not a person who can undertake a gratuitous bailment.

The second, third and fourth instructions were erroneous. There was no case for the fifth, and the sixth, with the omission in its beginning of what relates to custom, was the only one applicable to the merits of the case.

3. "When this cause was formerly here, the law respecting the question involved in it was carefully looked into, and we see no reason for departing from the opinion then expressed. The opinion, it seems to us, is full, and covers the ground of this case. The other judges concurring, the judgment is reversed, and the cause remanded.


author: Leonard, Judge.

text:
    Cullum, Respondent, vs. Cundiff, Appellant.
    1. The supreme court will not revise the discretion exercised hy inferior courts in allowing amendments, unless it clearly appears that the discretion has been abused to the prejudice of the party.

      Appeal from Jefferson Circuit Court.

    Action to recover a balance due upon a note, after a sale of real estate under a deed of trust given to secure it. The defendant answered, setting up fraud in the sale, by which the plaintiff acquired the title to the property covered by the deed of trust for much less than its value. When the case was called for trial, the defendant moved for leave to file an amended answer and for a continuance. He read an affidavit in support of his motion, stating that he had recently discovered that he could prove that the note sued upon was without any consideration, and that he had not relied upon this defence in his answer previously filed, because he did not then suppose he could sustain it by proof. His motion was overruled, and after a judgment against him, he appealed.
    Oreen, for appellant.
    The amendment should have been allowed. (New Practice Act of 1849, art. 11, secs. 5 and 6.)

      JYbell & Beal, for respondent.
   Leonard, Judge.

Although we frequently revise the exercise of discretionary power on the part of the lower courts, we never reverse a judgment in such a case, unless we see very clearly that the discretion which the law has confided to the court has been abused to the prejudice of the party.

We cannot say so here. Although certainly the courts of original jurisdiction ought to be very liberal in allowing amendments in order to get at the very right o£ the case, care must be taken that parties do not delay the collection of demands due from them under the mere pretence of amendments. Here the party failed to disclose the defence he proposed to set up, and gave but a poor excuse for not having originally relied upon it in his answer. Under these circumstances, we cannot help him. The judgment is affirmed.


text:
    Garth, Appellant, vs. Robards, Respondent.
    1. A person who goes to California with the intention of returning, leaving his family and property in Missouri, although he may remain there engaged in business for several months, is not within the last clause of the seventh section of the second article of the statute of limitations. The operation of the statute is not suspended during his absence.

      Appeal from Hannibal Court of Common Pleas.

    This action was brought in April, 1853, to recover an unappropriated balance of money advanced by the plaintiff to the defendant in 1846, for the purchase of hemp on the plaintiff’s account. The defendant, in his answer, denied the justice of the demand, and relied upon the statute of limitations.
    At the trial before a jury, it appeared in evidence that in April, 1849, the defendant left Hannibal, his place of residence, for California, where he arrived in the winter of 1849-50. He remained there until October, 1850, and returned to Hannibal in January or February, 1851. During his stay in Cali-' fornia, he was engaged part of the time in mining, and part of the time in keeping a provision store. In addition to much other real property in Hannibal, he left behind him a dwelling house, in which his family, consisting of a wife and several children, lived during his absence. There was evidence of declarations made by him before leaving of an intention to return.
    The following instruction, numbered as the second, was given to the jury, among others :

      “ The court instructs the jury that, if they believe from the evidence that defendant, Robards, went to California in the spring of 1849, on a trading expedition, leaving his family in his own mansion house, their usual place of residence in this city, keeping house — his family consisting of wife and children— with a large amount of property, with the intention, when he left, to return as soon as he completed the object of his expedition, and did so return in the winter of 1850-51, his family continuing to keep house in said mansion house during the time of said absence, this did not destroy his residence here, and is not to be regarded in computing the said five years. But on the other hand, if they believe from the evidence that, after he reached California, he changed his intention and purpose, and intended to remain permanently and abide in California, then the time of his absence from Missouri shall not be taken into account, in considering the question whether it was five years from the time such cause of action accrued till suit was brought.”
    The plaintiff took a nonsuit and afterwards appealed.
    Mr. Broadhead, for appellant.
    The evidence brings the defendant within the saving of the second clause of the seventh section of the second article of the statute of limitations. The object of that clause clearly is to prevent the statute from running during the time when the plaintiff has not a complete and easy remedy by the ordinary process of law.* The ordinary process is a summons, which is served upon the defendant personally, or by leaving a copy at his “ usual place of abode.” In this case, it could'not have been resorted to ; for it will not be pretended that the defendant’s “ usual place of abode” was in Missouri, whilst he was mining or selling provisions in California. The plaintiff was not obliged to resort to the extraordinary process of attachment, (1 Mo. Rep. 484.) The expression “ depart from and reside out of the state” does not imply that the defendant should have established his domicil elsewhere. Domicil and residence are not synonomous terms. Two things must concur to constitute domicil; first, residence; and secondly, the intention of making it the home of the party. (2 Story’s Conflict of Laws, §44. 1 Vattel, 163. 2 Bouvier’s Law Die. 458.) The question of residence is one of fact and not of intention. (1 Wend. 43. 4 Wend. 602. 8 Wend. 134-40. 5 Pick. 231. 17 Id. 231. Isham v. Gibbons, 1 Bradford’s Surrogate Rep. 70-84, cited 2 Am. Lead. Cases, (new ed.) p. 707. 1 Selden, 428. 19 Wendell, 11.)
    There was no appearance for the respondent.
   Scott, Judge,

delivered the opinion of the court.

1. The only question presented here for our determination is that contained in the second instruction given by the court. That question is, whether the circumstances detailed in that instruction will prevent.a bar by the statute of limitations, and bring a defendant within the last clause of the seventh section of the second article of the act prescribing the times of commencing actions, which enacts that if, after such cause of action shall have accrued, such person depart from and reside out of this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action.

We can see no reason why the statute should not run against the plaintiff under the circumstances of this case. All the ordinary process of the law authorized for the enforcement of demands was at his service. His writ, under our law, could have been served so as to warrant a general judgment, binding all the goods and chattels, lands and tenements of his debtor, and there was ample property to satisfy his demand. Under such a state of facts, there could not possibly exist any reason for preventing a bar of the statute, and we would not be warranted in inferring that the legislature designed to interpose any obstacle to its running.

The judgment is affirmed, the other judges concurring.


author: Scott, Judge, Leonard, Judge.

text:
    McKee & others, Respondents, vs. Brooks & Meegan, Appellants.
    X. A privilege in a lease to the lessee oí doing such quarrying on the demised premises as was necessary to carry on his business as a boat builder, was held to confer a property in the rock so quarried. (Judge Leonard dissenting.)

      •Appeal from St. Louis Circuit Court.

    This was a bill in chancery, filed in 1848, to compel an account for the value of rock, quarried upon premises demised by the complainants to the defendants.
    The lease contained a clause to the effect that the lessees should have “ the full and perfect right to do all such quarrying, grading, levelling, and make such alterations upon the demised premises as may by them be deemed requisite and proper for carrying on and managing their business.” The cause was referred to a commissioner, who reported the following facts : That the defendants leased the premises described in the bill, fronting on the Mississippi river, for the purpose, as understood and agreed by both parties, of building and repairing boats, and that they took possession of the premises under the lease, and carried on said business thereon ; that the defendants quarried rock on the premises of the nett value of $410 over and above all expenses, which quarrying was requisite and proper to put the premises in good condition for their business ; hut that part of the premises where the quarrying was done had not been used for that purpose, because materials for boat building had been too dear to justify the defendants in carrying on the business.
    Upon these facts, the commissioner decided that the defendants were accountable to the complainants for the nett value of the rock quarried. Exceptions were filed to the commissioner’s report, but they were overruled, and the report confirmed. The defendants appealed. The cause was submitted on written arguments.

      T. B. Hudson, for appellants.
    1. Tbe authority to quarry stone, contained in the lease to the appellants, gave them the right to sell the stone when quarried. (Taylor’s Landlord and Tenant, 165, 170.) 2. The failure of the lessees to use the premises for a portion of the term for which they had been rented could not create a liability not contemplated by the terms of the demise. It could not be of the slightest importance to the lessors, whether the lessees used the premises or not, so long as they received the rent. Besides, the term had not expired, and the lessees were not bound to use the premises immediately, if at all.

      J. R. Shepley, for respondents.
    1. The privilege given to the defendants by the lease was a simple right to remove the rock, and conferred upon them no beneficial interest in the rock so removed. 2. Even if this were otherwise, yet the fact was found by the commissioner that the portion of the ground upon which the quarrying was done was never used for the purpose for wLich alone such quarrying was allowed.
   Scott, Judge,

delivered the opinion of the court.

In our opinion, the contract between the parties gave the rock'quarried to the lessees, and they were under no obligations to account for it to their landlords. The lessees, by the contract, had a full and perfect right to do all such quarrying, grading, levelling, and make such alterations upon the demised premises, as might by them be deemed requisite and proper for carrying on and managing their business. It was found as a fact, that the quarrying done was requisite and proper to put the leased premises in good condition for the business of the lessees. We are at a loss to conceive a ground on which a contrary determination can stand. Had the rock quarried been thrown into the river — had the' lessees permitted it to be taken out of their way by others as it was quarried, can it be perceived how they would have been liable for it to their landlords ? That they did not do either of these things, but made a profit of it, cannot charge them with a liability. If a lessee takes a, farm at a rent, with full liberty to clear an acre of timbered land, in addition to that already cleared, can he not cut dorvn the timber and burn it up, or may he not cut it into cord wood and sell it at a profit? Would he, in either of these events, be liable to his landlord for the timber removed ? The right to quarry in the one case, and the right to remove the timber in the other, without restriction or condition, would give to the lessee the liberty of disposing of the rock in the one case and of the wood in the other at his discretion, without any liability for an account to his landlord.

The fact that the lessees did not use the place cleared for their business, by reason of a change of circumstances which rendered it unprofitable, is their misfortune, and it would be hard to convert such misfortune into a source of increased responsibility, when otherwise it would not have existed. The quarrying was done in good faith under the terms of the agreement, •and the fact that the place cleared by the lessees was not used ■by them, does not affect the landlords in any way, as they continued liable for the rent, notwithstanding they did not carry on their business.

■Judge Kyland concurring,

the decree will be reversed, and ■the -bill dismissed.

Leonard, Judge.

I dissent from the opinion of the majority of the court in this case. In my judgment, the lessee acquired no property in the rock. His contract' was for the use, and not for an absolute interest in any part of the leased property. The use to which the lot was to be applied, (boat building,) and the permission contained in the lease to the lessees, to “do all such quarrying, grading, levelling, and make such alterations upon the lot as they might deem requisite for carrying on and managing the business of the lessees upon the premises,” did not change the character of the transaction, in reference to the stone necessarily taken up in putting the ground into a proper condition for the use intended. When the ■ lease is of a mine or a stone quarry as such, the case is different. There, the use given by the lease consists in the privilege of taking up and disposing of these parts of the leased property, and unless this were allowed, the lessee would acquire nothing by the contract. So, too, in the lease of forestland for cultivation, as a farm in a now country, where the wood is of no value and generally burned on the ground as worthless. There may be no difficulty in implying from the transaction permission to the lessee to dispose of the wood as he pleases. Here, however, the lease is of a lot in the vicinity of the city for a boat yard, and not of a stone quarry as such, and although the lessees may take up the stone, as far as may be necessary, to prepare the lot for this purpose, and have á right to use it during the term, and if it were worthless, might safely have thrown it into the river, yet it seems to me very difficult to imply fi’om this clause in the lease a grant of the absolute property in it, if it were of any real substantial value as property, as it seems to have been, from the large profit the lessees made out of it, over and above the expense of quarrying.

Entertaining these views upon this point, which is the only one made in the case, I think the deeree ought to be affirmed.


author: Scott, Judge.

text:
    Johnson & others, Plaintiffs in Error, vs. Clark County Court, Defendant in Error.
    1. A writ of error does not lie to the order of a county court removing a county seat. (Tetherow v. Grundy County Court, 9 Mo. Rep. 117, affirmed.)

      Error to Ciarle Circuit Court.

    This was a proceeding under the statute (S. 0. 1845, eh. 40,) for the removal of the county seat of Clark county from Alexandria to Waterloo. Commissioners were appointed, who selected Waterloo as the site, and an election was ordered, pursuant to the statute, to take the sense of the tax payers upon the subject. Upon the return of the poll-books to the county court, John W. Johnson and other citizens of the county appeared, and offered to prove by tlie assessor’s books and the assessor, that a majority of the inhabitants of the county who paid taxes on land, and of the householders, did not vote for the removal. The county court decided that they could not go outside of the poll books to hear any evidence, and it appearing that a majority of the votes cast were in favor of the site selected, an order was made that Waterloo should be the permanent seat of justice. Johnson and others excepted, and appealed to the Circuit Court, where, the orders of the county court being affirmed, they sued a writ of error, out of this court.

      W. JV“. Grover appeared for Johnson and others.
    No appearance on the other side.
   Scott, Judge.

This case is similar to that of Tetherow v. Grundy County Court, (9 Mo. Rep. 117,) and the writ of error will be dismissed. Writ dismissed.


text:
    John Keeton’s Heirs, Appellants, vs. Wm. Keeton’s Administrator, Respondent.
    1. Where an administrator, at a fraudulent sale made by him, becomes the purchaser of slaves belonging to the estate of his intestate, and afterwards, with the knowledge of the heirs, openly and notoriously asserts title in himself, a bill in equity cannot be maintained against him for relief, after the lapse of the period which is a bar by the statute of limitations.
    2. If a complainant relies upon a disability as exempting him from the operation of the statute of limitations, he should set it up in his bill.
    3. It is settled that a person out of this state, but within the United States, is not within the meaning of the words “ beyond seas” in the statute of limitations of 1825.
    4. Cumulative disabilities are not allowed. So, where a cause of action accrues in favor of an infant female, the statute begins to run from the time she becomes of age, although she previously marries. But where two disabilities exist when the causo of action accrues, the statute does not begin to run until they are both removed.
    5. One party, who is saved from the operation of the statute of limitations by a disability, can obtain no relief upon a bill in equity jointly with other parties who are barred.
    6. Where a bill in chancery, to which limitation was set up as a bar, contained no allegation of any exempting disability, but it appeared in evidence that that some of the complainants had been under a disability which prevented a bar, though the others had not, the supreme court reversed a decree dismissing the bill, in order to afford an opportunity to amend, so as to save the rights of those who were not barred.
    7. Facts stated, which, in the opinion of the court, showed fraud in a sale by an administrator of slaves belonging to the estate of his intestate.

      Appeal from St. Frangois Circuit Court.

    This was a bill in chancery, filed in March, 1848, by the heirs of John Keeton, to recover certain slaves, (with the value of their hire and services,) claimed by them to have been held by William Keeton, the defendant’s intestate, (who had administered upon the estate of their father,) as their trustee, and by the defendant to belong to his intestate’s estate.
    About the year 1824, John Keeton, who had previously resided in Franklin county, Tennessee, where he had become somewhat embarrassed, came to Jefferson county, Missouri, leaving behind him his farm, with other property, and his family, consisting of a wife and six children, and bringing with him about twenty slaves, in order, as it appeared, that he might prevent them from being sold under execution, and with the avails of their labor pay off his debts. The male slaves were employed by him, after he reached Missouri, in mining, and the females were hired out. Being successful in his mining operations, he returned to Tennessee in the spring of 1825, and according to one witness, again in the spring of 1826, each time taking with him money which he applied to the payment of his debts. There was evidence of a difficulty between him and his wife, which prevented them from living together, and of declarations by him of an intention to make Missouri his permanent home, and other evidence of declarations of his intention to return to his family in Tennessee, after he had made money sufficient to discharge his debts. On the 2d of September, 1826, soon after his second return from Tennessee, he died in Jefferson county, leaving there the slaves and some other personal property, but no real estate. On the 8th of the same month, letters of administration on bis estate were granted to M. Taney. In March, 1827, upon the application of William Keeton, who had previously obtained letters of administration in Tennessee, an order was made granting letters de bonis non to him, revoking the letters to Taney. The order recited that it was proved to the court that the applicant was of kin to the deceased and a creditor of his estate. In September, 1827, William Keeton made a settlement of his administration in this state, showing a balance of money in his hands of $288 67, and containing a list of the slaves in his possession, twenty-one in number. No other settlement was made by him until November, 1830, when he made his final settlement, showing no increase of assets since the former settlement, but disbursements to the amount of $231 65, leaving $57 62 to be distributed. The record showed no order of distribution, or other order in relation to this balance, nor any order in relation to the slaves. It appeared that in the fall of 1827, the administrator carried all the slaves belonging to the estate to Tennessee. In the settlement of his administration there, he was charged with their hire from January 1st, 1828, up to the time of their sale in 1830, as hereinafter stated. No hire for the year 1827 was charged either in the Missouri or Tennessee administration. The balance due the estate on the final settlement in Missouri was charged to the administrator in the Tennessee administration.
    In February, 1830, the court of Pleas and Quarter Sessions of Franklin county, Tennessee, made an order for the sale of the slaves. The order recited that there were unpaid debts against the estate to the amount of upwards of a thousand dollars, to pay which a sale of some of the slaves was necessary, and that the sale of the remainder was believed to be necessary, in order to make an equal distribution among the heirs, and that a sale was desired by all the heirs who were of age. Neither the time, terms, place nor manner of sale were prescribed. Under this order, the sale was made by the administrator at public auction, for cash, on the 5th of March, 1830, at the farm of John Keeton, the home of his widow and children, all of whom, as was testified, were present or represented at the sale. John Keeton had one son and two daughters by his first marriage, and three daughters by his second marriage. The five daughters and their husbands were the complainants in this suit. It appeared that Catharine, the eldest daughter, though of age at the time of the sale, was married to Robert Keeton, who was present and bid off two of the slaves. Sy-tha, the next daughter, was, as one witness testified, sqme eighteen or twenty years of age, but it did not appear whether she was then married. All the other daughters wore under age and then unmarried. Clarissa, the youngest, was born in November, 1822, and not married until 1837 or 1838. One witness, however, stated that she was seventeen years old when she married in 1838. It was in evidence that much dissatisfaction was expressed by the persons present, because the sale was for cash, instead of on the usual credit, and that many persons were prevented from bidding in consequence ; that the terms were not known until the day; and that the slaves would have brought better prices if they had been sold on the usual terms. It did not appear what, if any, notice of the sale was given, and a witness, who lived in the neighborhood, stated that he never heard of it until it had taken place. Every witness, who undertook to speak positively upon the subject, testified that all of the slaves were bid off by William Keeton, except the two bought by his brother, Robert. There was much evidence that, after the sale, William, with the knowledge of the heirs, claimed the slaves bid off by him as his own, and exercised ownership over them, and not long afterwards removed a portion of them to Missouri, where they remained in his possession until his death in 1845, when they came into the hands of his administrator, from whom, they and their increase are sought to be recovered in the present suit. One witness, however, testified to a declaration by William Keeton after the sale hat he had bid off the slaves for the benefit of the widow and heirs.

      It was claimed by the defendant that the slaves were bid off by William Keeton at the sale for Elizabeth Keeton, who was bis sister, and the widow of John Keeton ; and there was produced in evidence a bill of sale dated April 23, 1832, more than two years after the sale, from said William to Elizabeth for the slaves, eighteen in number, reciting that they had been purchased by her at the sale and then delivered. There was also produced a bill of sale of the same date from Eliza-bet^ back to William for ten of the same slaves, reciting that she was indebted to him, after deducting her own distributive share in the estate and those of her three daughters, for whom she was guardian, in the sum of $2,691, for advancements made by him for the estate, in payment of which he had agreed to take the negroes.
    At the November term, 1830, the court appointed commissioners to settle with the administrator, who, on the 10th of March, 1831, reported a balance in his hands of $5,002 05¿. He was charged with $6,689 99 as the amount for which the slaves sold. At the February term, 1832, commissioners were again appointed to settle, who in March, 1833, reported that the administrator, since the last settlement, had paid debts amounting to $923 28|- for which he was entitled to a credit.
    In the settlement of her accounts as guardian of Margaret, Martha and Clarissa, her three daughters, Elizabeth Keeton charged herself with $586 07|- received from the administrator of John Keeton, as the distributive share of each in the estate. There were also produced in evidence receipts from the husbands of Martha, Margaret and Clarissa, dated respectively February 12, 1836, November 17, 1838, and March 30, 1841, acknowledging the receipt in full of the distributive shares of their wives, and releasing the administrator and guardian. The first two of these receipts' did not specify the amount received, but the last stated it at $600. The receipts of the son of John Keeton and of the husbands of his two remaining daughters were also produced, dated April 9, 1831, March 5, 1831, and April 9, 1831, for $586 07-f as the respective distributive shares of each.
    Evidence was offered tending to show that these receipts were unfairly obtained, and that at least some of the shares had not been paid, or not in full, and that others were paid in negroes or in land. A number of witnesses testified that William Kee-ton had no property of consequence before he became the administrator of John Keeton, and did not pay his debts, and that afterwards be assumed the appearance of being a man of wealth.
    It was agreed that the laws of Tennessee in relation to the sale of slaves by administrators should be considered in evidence.
    After hearing the evidence, the Circuit Court dismissed the bill, and the complainants appealed. The case was orally argued by Mr. Erissell and Mr. Munford for appellants, and by Mr. Noell, for respondent.
    Mr. Frissell

    argued the following points : I. The evidence showed that John Keeton died a citizen of Missouri, and so the Missouri administration was the principal one, and the Tennessee the ancillary. II. The evidence showed fraud in the sale of the slaves, and fraud in the administration goner ally. The single fact that the administrator became the purchaser was sufficient to avoid the sale. (Michaud v. Girod, 4 Howard, 556-7. White’s Leading Cases in Equity, 127, 139.) III. As the sale was void, the administrator was not thereby divested of his character of trustee. IY. The statute of limitations cannot avail the defendant. 1. If a trustee has ever been allowed to hold trust property under this statute against the cestui que trust, it has been in the absence of fraud and after a long acquiescence by parties competent to sue. 2. The evidence shows that at least two of the complainants were under disabilities at the time of the sale, one of which still continues, and the other of which was not removed until within five years before the commencement of this suit. (Upon the statute of limitations, the following authorities were cited: Hill on Trustees, 263. Falls v. Torrance, 4 Hawks, 412. Bird v. Graham, 1 Iredell’s Eq. Rep. 196. Prevost v. Gratz, 6 Wheat. 481, 497-8. Boon v. C/nles, 10 Pet. 177. Be-couche y. Savetier, 3 Johns. Ch. Rep. 190.)
    Mr. Munford

    argued the following points : I. The purchase by the administrator at his own sale was a fraud in law which avoided the sale ; (same authorities cited by Mr. Fris-sell.) II. The evidence showed fraud in fact in the sale. III. The statute of limitations is no defence. 1, The trustee of a direct trust, who has been guilty of actual fraud, has never in any case been allowed to protect himself by the statute of limitations at law. {Michaud v. Girod, 4 Howard (U. S.) Rep. 556-7.) 2. The statute at law will not in any case run against the trustee of an express trust. An administrator is such a trustee, and his character as trustee is not divested by a purchase at his own sale, even though made in good faith. (4 Hawks’, 412. 3 Johns. Ch. Rep. 190.) His possession will not be regarded as adverse, even though he declares it so to be. Having obtained possession in the capacity of trustee, he is not allowed to divest himself of the trust. Numerous eases can be cited, where equity has given relief against administrators, after the lapse of time sufficient to have barred an action at law. ( Michaud v. Girod, 4 Howard (U. S.) Rep. 556-7. 3 Johns. Ch. Rep. 190 and cases cited. March v. Russell, 3 Mylne & Craig, in 14 Eng. Ch. Rep. 2 Merivale, 360. 2 Keen, 750, in 15 Eng. Ch. Rep.) IV. The single question in the case then is, have the heirs slept upon their rights so long, that a court of equity will, under the circumstances, refuse them the relief they ask ? and the evidence repels such a conclusion. 1. They were all minors at the time of the sale in 1830, except one, who was married and whose husband is still living. They were all females and all married before they became of age. 2. They filed their bill in 1839 in Tennessee, and the court admitted the fraud, but refused relief against the securities, because the property was in Missouri, out of the jurisdiction of that court. {Keeton v. Campbell, 2 Humpb. 224.) They then sought relief in Missouri, and again mistook their remedy, as the court decided. (18 Mo. Rep. 347, and same case, 15 Mo. Rep. 136.) 8. The administrator removed the property from Tennessee, where they resided, to Missouri, where he could better conceal his fraud. 4. There was evidence of a declaration by Wm. Keeton that he had bid off the slaves at the sale for the benefit of the widow and heirs, and that he professed to retain possession for them.
    Mr. JVbell, for respondent,
    argued the following points : I. The evidence established no fraud in fact or in law in the sale of the slaves by the administrator, and it was made under the order of a court of competent jurisdiction. II. If there was fraud, still the claim of the complainants is barred by limitation and lapse of time. 1. It may be admitted that express trusts, and such as are intentionally created by the act of the -parties, are exempt from the operation of the laws of limitation, so long as the relation of trustee and cestui que trust continues to exist. In cases however of constructive trusts, resulting from the fraudulent conduct of the party against whom the trust is attempted to be set up and enforced, the statute of limitations runs. (3 Murphy, 583.) 2. The cases cited by the appellants do not sustain their position. The case of Michaud v. Girod, (4 Howard,) was decided upon its own peculiar circumstances. The plaintiffs lived in Europe and the fraud was perpetrated in Louisiana, and although they had long slept upon their rights, they did so without full knowledge of the facts. Besides, there was concealment on .the part of the administrator. The other authorities cited by them were cases of direct trusts. 3. The disability of infancy, which some of the complainants were under at the time of the sale, expired more than five years before the filing of this bill. The fact of their subsequent marriage before becoming of age will not relieve them from the operation of the statute. Disabilities cannot be tacked. The fact that one of them was married, at the date of the sale,_to her present husband, one of the complainants, is immaterial. Her husband was fully competent to act for her in regard to ber personal property, and he was present at the sale. A recovery in this case would enure to his benefit. III. Even if the statute of limitations is no bar, yet a court of equity will not relieve, under all the circumstances of this case, after so long an acquiescence in the sale, and after the death of the administrator, who alone was able to explain the whole transaction. (2 Dev. Eq. Rep. 167, a case directly in point. 1 Id. 58. Ib. 191.)
   Scott, Judge,

delivered the opinion of the court.

1. It cannot have escaped the observation of those whose attention has been called to the subject, that the application of the statute of limitations, in courts of equity, to matters of trust, is made difficult from the contrariety ■ of opinion which prevails in relation to it. Whilst all admit that an express or direct trust is not subject to be barred by the statute, a difficulty is experienced in determining what trusts fall under the denomination of express or direct trusts, as well as in ascertaining the period of limitations to be applied after the character of the trust is determined.

All seem to admit that, when courts of laAV and equity have a concurrent jurisdiction over a subject, and an action in relation to it is barred at law, a defendant cannot be deprived of the protection of the statute, by converting him into a trustee and suing him in a court of equity. In such cases, the statute is equally available in both courts as a defence.

In the conflict of views, on the question as to what trusts are excluded from the operation of the statute of limitations, we may safely adopt the conclusion of Chancellor Kent, in the case of Kane v. Bloodgood, (7 Johns. Ch. Rep. 110,) who, after an able review of the cases on the subject, expresses the opinion that the trusts intended by the courts of equity not to be reached or affected by the statute of limitations, are those technical and continuing trusts which are not at all cognizable at law, but fall within the proper, peculiar and exclusive jurisdiction of courts of equity.

He says the trust must be a continuing one. There are cases, which maintain that a strict trustee must take care of the interest of his cestui que trust, and he is not permitted to do any thing adverse to it; that acts which, if done by a stranger, would be adverse, are not so in a trustee, from its being his duty to abstain from them ; that it is at the option of the cestui que trust, to treat such acts as adverse or not.

But Chancellor Kent, in the case to which reference has been made, maintains that, if the trustee deny the right of his cestui que trust and assume absolute ownership, the remedy of the latter is confined to the period allowed for the recovery of legal estates at law; that so long as the trust is a subsisting one, and admitted by the acts and declarations of the parties, the statute does not affect it; but when such transactions take place between trustee and cestui que trust as would, in case of tenants in common, amount to an ouster of one of them by the other, a court of equity would not consider length of time of no consequence. There is no good reason why the statute of limitations should not apply to such a case, as well as to cases of constructive trusts, to cases of detected fraud, and to all other cases in which the statute is assumed as a rule of decision. In the case of Boone v. Chiles, (10 Pet. 223,) the court says that an express voluntary trust cannot be enforced, after its known disavowal for such time and under such circumstances as would make an adverse possession a bar ; that time does not bar a direct trust, as between a trustee and cestui que trust, till it is disavowed. In the case of Robinson v. Hook, (4 Mason, 151,) Judge Story says : “When it is said that the statute of limitations does not apply to cases of trust, it is material to consider the sense in which that proposition is to be understood. In respect to trusts, which are strictly such and recognized and enforced in courts of equity only, such as express trusts created by the parties for particular purposes, the doctrine is in general true. So long as the relation of trustee and cestui que trust is admitted, in the case of express trusts, to exist between the parties, the very duties to be performed by the trustee prohibit him in general from setting up such bar. Acts, which, clone by a stranger, might be deemed adverse, when doné by a trustee, admit of a very different interpretation. But even in cases of express trusts, if an open, public, adverse claim is set up by the trustee against his cestui que trust, and the trust itself is denied as any longer subsisting, there is much reason to hold that the bar ought to be admitted to arise from such period.” Afterwards, in the case of Baker against Whiting, (3 Sum. 486,) the same Judge says : The doctrine that no time is a bar to a trust, clearly established, is regularly true, when it is received with the proper accompanying limitations ; that no circumstances exist to raise a presumption from lapse of time of an extinguishment of the trust, and no open denial or repudiation of the trust is brought home to the knowledge of the parties in interest, which requires them to act, as upon an asserted adverse title.” In the case of Pipher v. Lodge, (4 S. & R. 315,) it was held that, though as a general rule, the vendor, before conveyance, is a trustee for the vendee, and while his possession can reasonably be reconciled with the existence of the trust, the statute of limitations has no operation ; yet, if he disavows the trust, the vendee having notice will be barred by the statute of limitations of twenty-one years, such acts being evidence of a dis-seizin. It was thought analogous to the law of tenants in common. One tenant in common, who is in possession of ,the whole, while he does not deny the right of his co-tenant shall be presumed to hold as tenant in common, and the act of limitation will not attach; but when he denies the title of his partner, claims the whole exclusively, and will not suffer him to enter, the presumption of an ouster arises, and the statute takes effect. To the same effect is the case of Walker v. Walker, (16 S. & R. 384.) After a review of the cases on the subject, Angel, in his work on Limitations, 513, says: “Even in cases of direct and technical trusts, if the trustee should deny the right of his cestui que trust, and assume absolute ownership, the latter could not be allowed a remedy beyond tbe period limited for tbe recovery of legal estates at law.”

In cases of resulting, implied and constructive trusts, when a party is to be constituted a trustee by a decree of a court of equity, founded on fraud, it is well settled as a rule of equity, that the statute of limitations and presumption from lapse of time will operate. With regard to the statute of limitations, it will run from the time that the facts are brought borne to the knowledge of the party. He then has a cause of action, and there is no reason for placing him in any better situation than any other suitor. Having a cause and being fully aware of it, there is nothing to prevent the statute from running against him. The statute to be applied in such cases is determined by.the nature of the claim. Lord Redesdale, in the case of Bond v. Hopkins, (1 Sch. & Lef. 429,) says: “ If the equitable title be not sued on within the time within which a legal title of the same nature ought to be sued upon, to prevent the bar created by the statute, the court, acting by analogy to the statute, will not relieve. If the party be guilty of such laches in prosecuting bis equitable title, as would bar him, if bis title were solely at law, be shall be barred in equity. As in suits relating to real estate, courts of equity adopt the limitation of twenty years, that being the period beyond which a writ of entry is barred, so in those relating to personalty, they are governed by the limitation prescribed for personal actions.” Angel, 511, says : “ It is perfectly clear that, whenever a person takes possession of property in bis own name, and is after-wards, by matter of evidence or by construction of law, changed into a trustee, lapse of time may be pleaded in bar. This possession entitles him at least to the same protection as that of a. direct trustee, who, to the plaintiff’s knowledge, disavows the trust and bolds adversely.” (Miller v. Mitchell, 1 Bai. S. C. R. 437. Buchan v. James’ Adm’r, Speer’s Cb. Rep. (S. C.) 375.)

From the foregoing principles relating to the application of tbe statute of limitations in equity for the enforcement of trusts, which we have endeavored to show are established as law, it will follow that, in whatever light this suit is viewed, whether as one seeking to enforce an express or direct trust, or a constructive one, resulting from the proof of fraud in the person sought to be made a trustee, it is evident that the statute of limitation applies.

In this case, there is no evidence wanting to establish the fact that a great many years ago, William Keeton asserted an adverse title to the slaves in controversy. His assertion was open and notorious, accompanied with the possession of the property and claim of ownership. The fact is stated in the bill that a short time after the sale, Keeton held the slaves as his own property, and that they remained under his control until his death, and are now in the hands of his administrator. The sale took place in March, 1830, and this bill was filed in March, 1848.

2. The answer sets up the statute of limitations as a defence to the bill, and there is no charge in the bill of any coverture or infancy or any other matter which avoids it. The exceptions to the statute, not being in the pleadings, no evidence could be received in relation to them ; for the evidence, to be admissible, must be founded on some allegation in the pleadings. The doctrine is now clearly established that, if the statute of limitations is relied on as a bar, the plaintiff, if he would avoid it by any exception in the statute, must explicitly allege it in his bill, or, instead of replying, he must, according to the modern practice, amend his bill, if it contains no suitable allegation to meet the bar. (Pratt v. Vattier, 9 Pet. 416.)

3. But we will consider the cause as though the facts in avoidance of the bar of the statute were in the pleadings. If we are correct in what has been said before, this cause of action accrued between the years 1825 and 1835; consequently, under the eleventh section of the third article of the act concerning limitations, in the code of 1835, the limitation contained in the code of 1825 is that by which it is governed.

By the act of 1825, one entitled to bring any personal action, if out of the United States, beyond seas, an infant or feme covert at the time the cause of action accrued, is allowed to bring bis or ber action witbin sucb time as sucb action is before limited after their respective disabilities are removed. It is now settled that the term “ beyond seas,” in the act of 1825, does not mean out of the limits of the state ; consequently, if a person is absent from this state in one of the United States, he is not witbin the exception of the statute. (Marvin v. Bates, 13 Mo. Rep. 217. Fackler v. Fackler, 14 Mo. Rep. 431.)

4. Clarissa, the youngest child, was an infant at the time-the cause of action accrued. She was born in November, 1822, and was of age in November, 1843. She was married in 1837" or ’38. Now ber marriage did not merge ber disability of infancy, nor did it prolong ber right to sue, as it did not exist at-ibe time ber cause of action accrued. It was a cumulative disability, and therefore not allowed. By the statute, she bad' five years witbin which to bring ber action, after the disability of infancy was removed. Her husband’s failure to sue, although be might have brought an action, did not affect ber right-to sue witbin the time allowed by the exception. (Robertson v. Wardeman, 2 Hill (S. C.) Rep. 324. Angel on Limitations, 206-7-8-9. Butler v. Howe, 13 Maine, 400. Wood v. Aiken, 1 Paige Chan. 616.) According to this, the statute bad not run against Clarissa, at the time this suit was commenced in March, 1848. The five years would have been out-in November following, and she would have been barred. Her two elder full sisters would be barred, as the five years would' have expired as to them, from the removal of their disability of infancy, it being less than a year witbin the time of expiring as to a younger sister. It matters not when they were married, as they were single when the cause of action accrued, as we have seen that marriage, occurring after the cause of action has accrued, does not prolong the protection of the statute. As to the two sisters by the first 'wife, it does not appear when they were born, or when they were married. If they were both under age and married at the time of the accruing of the action, then both disabilities must be removed before the statute will run against them. If they .were adults and married, at the time of the accruing of the action, their coverture, so long as it continues, will prevent the running of the statute. Of course, the same marriage or coverture is meant, as existed at the time the cause of action accrued.

5. It thus appears that some of the plaintiffs are barred and some are not. What effect will this have ? If it be true that, in the application of the statute of limitations, courts of equity are governed by analogy to its application in suits at law, then it would seem that, as at law, in all actions jointly instituted, unless all the plaintiffs are under disability, the operation of the statute is not arrested, a disability existing on the part of one of the plaintiffs will not prevent the running of the statute against all of them. The application of this rule- in equity would seem to be less harsh than at law; for, in equity proceedings, if one plaintiff will not join, he may'be made a defendant. In the case of Riden and others v. Frion, (3 Mur. (N. C.) Rep.) in an action of detinue for slaves descended to three heirs, it was held that the infancy of one of them did not prevent the running of the statute. The other heirs not being entitled to the protection of the statute, the suit was barred as to them, and being barred as to some, it was barred as to all. The case of Perry v. Jackson, (4 Term Rep. 516,) was on a bill of exchange by several plaintiffs. It was held that, though one of the parties was not barred by reason of his disability to sue, yet one being barred, all were barred. In Marsteller v. McLean, (7 Cr. 156,) which was an action for mesne profits, the same doctrine was maintained. In Turner v. Debell, (2 Mar. (Ky.) Rep. 884,) suit was brought by two executors, and it was held that the disability of one of them did not prevent the statute from running.

The same rule prevails in real actions, if the tenants unite in a joint demise. In such case, the disability of one of the joint tenants does not aid the others. If one is barred, all are barred. By making a separate demise, and suing for his own interest, be wbo bas been under a disability may recover bis share. But if be sues jointly with others wbo are barred by the statute, be will not be protected. (Roe v. Rowlston, 2 Taun. 445.)

6. Then there are two objections to this suit. First, that the statute of limitations is set up in the answer as a defence, and there is nothing in the bill which avoids the effect of that bar; second, courts of equity, applying the statute of limitations, enforce it as it is enforced at law, and as at law a joint action being barred as to some of the plaintiffs, is barred as to all, some of the plaintiffs in this suit being excluded from the protection of the statute, all are excluded. As these objections may be obviated by amendments, and as a dismissal of the bill might enable the party to plead the statute of limitations against Clarissa, if not against others, the decree will be reversed and the cause remanded.

7. This course will render necessary an expression of our opinion as to the conduct of William Keeton in relation to the slaves entrusted to him as administrator. The facts established by the evidence abundantly show that the sale made by him was a feigned one ; that he was guilty of a fraud, and converted his intestate’s estate to his own use. He was poor and thriftless, unable to pay his debts before he became administrator. Suddenly he becomes rich and is, to all appearance, a man of wealth. This is not accounted for in any way. It does not appear that he was enriched from any other source, or by any other means. His apparent prosperity can only be ascribed to the possession of John Keeton’s estate. Most if not all the witnesses who were present at the sale, inform us that William Keeton was the purchaser of most of the slaves. The bill of sale to Elizabeth Keeton seems to have been an after thought. It was dated in April, 1882, more than two years after the pretended sale, and within a few days thereafter, a bill of sale is executed by Elizabeth Keeton to William Keeton, reconveying the slaves. The bill of sale to E. Keeton is made to recite the falsehood that the slaves were delivered to her at the administration sale, at which it is pretended she bought them, when all the evidence shows that William Keeton always retained possession of them. It is recited therein, that it was made in satisfaction of alleged advancements of William Keeton to John Keeton’s estate, amounting to the sum of $2,691. Now the order of court under which the sale took place, recited that the debts against the estate, for the payment of which the sale was made, only amounted to the sum of one thousand dollars and upwards. If William Keeton had made advancements to the estate, why were they not passed upon and allowed before the sale and their payment provided for ? The sale was also made to enable the administrator to make distribution of the slaves among the heirs. It would seem then, that this was a winding up of the estate. Is it not singular, then, that it should not appear until after this step that the estate was indebted to him for advancements, and that too, in an instrument signed by a confiding sister, who unfortunately found out too late that her confidence had been betrayed?- The administration sale of the slaves was without notice of its terms. Against the usual course in such sales, it was made for cash, causing a diminished price for the slaves, and producing dissatisfaction among those attending it.

It is unnecessary to pursue this subject farther. Every circumstance is against the fair dealing of William Keeton, and there is nothing in the record to relieve his administration of John Keeton’s estate from the imputation of fraud and mismanagement under which it rests and must rest.

The plaintiffs will have leave to amend, and the decree is reversed and remanded, with the concurrence of the other judges.