author: LAMM, P. J.

text:
    MARGARET C. HAYDON and W. J. HAYDON, Appellants, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY.
    Division One,
    July 1, 1909.
    1. APPELLATE JURISDICTION: Cancellation of Deed. A suit in equity having for its object the cancellation of a deed to real estate, involves title to real estate, and hence the Supreme Court has jurisdiction of the appeal.
    2. TENDER: Equity: Suit to Cancel Contract. In a suit for the cancellation of a contract and deed for land, made by plaintiffs to defendant, in settlement of damages then claimed by them from the establishing of a railroad switch in front of their property, their petition does not fail to state a cause of action because they have failed to pay back, or it fails to tender back,.the money paid by defendant as the consideration for said contract and deed, if the bill contains a general offer to do equity, as the price of a decree; for then the chancellor has full power to restore the status.
    3. -: -: -: Unliquidated Damages. And making no tender back of the money actually paid by defendant for the contract it is sought to rescind, the bill does not fail to state a cause of action for rescission simply because it goes further and seeks to set off against plaintiffs’ unliquidated damages claimed therein the money actually paid by defendant.
    4. -: -: -: Commingling Equitable and Legal Actions. If the bill states a causé of action for the cancellation of a contract, it will not, in the absence of a special demurrer, be held bad as a bill in equity, upon an objection to the introduction of any evidence, because it also asks for unliquidated damages.
    5. RESCISSION OF DEED: Condition Subsequent. Conditions subsequent are not favored in equity, because they have the effect in case of breach to defeat vested estates.

      6. -: -: Not Expressed. While not controlling, it is not entirely without significance that the deed sought to be rescinded contains no express provision making the subsequent doing of the thing depended upon by the bill as working a forfeiture a condition subsequent or a mutual dependent covenant.
    7. -:-:-: General Rule: Reverter, Etc.: Good Sense of The Thing. As a general rule rescission is an equita- ' ble remedy restricted to fraud, accident, mistake, surprise or duress; and where the deed contains no express provision making the doing of the thing complained of a condition subsequent, and contains no mutual dependent covenant, and contains no clause of reverter, the court is left to an interpretation of the contract by the good sense of the thing in the light of the subject-matter and the language used.
    8. -: -: Failure of Consideration: Exception. Rescission is an equitable remedy applied in exceptional cases where there is a failure of the entire consideration of the contract, or where there is such a radical non-performance of a mutual dependent covenant, going to the very root and life of the contract, as amounts to an abandonment of the contract and releases the other party from any duty to further recognize its obligation. But there is a sensible limitation upon "this rule, which is, that a bill for rescission cannot ordinarily be maintained where the ground of relief is merely a breach of contract for which complainant can obtain adequate compensation in an action at law. And measured by this rule it is held that plaintiffs’ deed to defendant cannot be rescinded for that defendant has permitted cars to stand on the tract of land near their residence, deeded to defendant. The contract means that further damages for the improper use of the switch were not settled, and that defendant agreed not to make such specified improper use of it; and there being no obstacle in the road of recovery of full damages by a suit at law for such improper use and for the non-performance by defendant of the agreement as to the use of the switch, and that failure not going to the whole consideration, the deed will not be rescinded.
    Transferred from St. Louis Court of Appeals.
    Affirmed.

      W. A. Gardner, Guy D, Kirby and L. M. Haydon for appellants.
    (1) A proceeding for a rescission of a contract is a different thing from one which is based npon a rescission. In a proceeding as for a rescission, a party may offer in Ms complaint to restore, unless he shows he is entitled to retain what he has received. And when a party seeking the aid of a court of equity to rescind a contract offers to conform to such, orders of the court as may he deemed just and equitable, his bill is not demurrable for a want of an offer to restore the consideration. Paquin v. Milliken, 163 Mo. 104; Lincoln Trust Co. v. Nathan, 175 Mo. 32; Gould v. Bank, 86 N. Y. 80; Shuee v. Shuee, 100 Inch 447; Allerton v. AHerton, 50 N. Y. 670. (2) The right to rescind a contract arises when the acts and’ conduct of one of the parties thereto evince an intention not to be further bound by its terms, or if his acts amount to a recission, had he power to rescind. Freeth v. Burr, L. R. 9 C. P. 208; Mercy Steel & Iron'Co. v. Naylor, 9 Mo. App. 442; Railroad v. Richards, 30 L. R. A. 33; Lincoln Trust Co. v. Nathan, 175 Mo. 33. (3) To determine whether the failure to execute an engagement will authorize the rescission of a contract, it is only necessary to consider whether it be .such that the contract would not have been made without it. Lucy v. Bundy, 9 N. IT. 298; Moreau v. Charoni, 8 Rob. (La.) 157. Parol evidence is admissible to show the contract would not have been made unless both parts had been agreed upon. Graves v. Scott, 8 Pa. St. 83.

      L. F. Parker and Woodruff & Mann for respondent.
    (1) The petition does not state facts sufficient to constitute a cause of action in equity, and there is no equity in the bill or petition, (a) Because failure of consideration and breach of a contract, after its execution, are clearly no grounds for rescission. Paquin v. Milliken, 163 Mo. 102. (b) Because the petition shows upon its face that the entire controversy was heretofore settled, and $600 was paid as a consideration for the settlement, and defendant also, under the terms of said settlement, paid the court costs of two suits then pending, and the petition further shows that no part of said $600 has been tendered back to defendant, neither has the amount paid as costs by defendant been repaid to it; and hence, for these reasons, plaintiffs are not entitled to recover in an action to rescind said contract. Robinson v. Siple, 129 Mo. 208; Smith v. Kander, 85 Mo. App. 33; Culbertson v. Young, 86 Mo. App. 277; Winter v. Railroad, 73 Mo. App. 202; Alexander v. Railroad, 54 Mo. App. 66; Girard v. Car Wheel Co., 123 Mo. 383; Och v. Railroad, 130 Mo. 27; Retzer v. Dold Packing Co., 58 Mo. App. 264. (e) The rule that one is not bound to restore to the other party to a contract that which he has received under it when the other party is indebted to him in a larger amount; that in such case the sum compromised upon is at least due, and need not be returned, can have no application in a case where all liability is denied, as in this case. Winter v. Railroad, 73 Mo. App. 202; Alexander v. Railroad, 54 Mo. App. 66; Girard v. Car Wheel Co., 123 Mo. 383; Gould v. Bank, 86 N. Y. 75. (2) (a) . Because if the contract set out in the petition or bill is one that can be sued upon by plaintiffs for the breach thereof, plaintiffs have a plain, adequate and complete remedy at law for the breach thereof. Benton Co. v. Morgan, 163 Mo. 661; Planet Poop. & Finan. Co. v. Railroad, 115 Mo. 619; Verdin v. St. Louis, 131 Mo. 105; Merriam v. Railroad,' 136 Mo. 164; Bank v. Packing Co., 136 Mo. 93; Lackland v. Railroad, 31 Mo. 180; Swenson v. Lexington, 69 Mo. 157; Cross v. Railroad, 77 Mo. 318; Rude v. St. Louis, 93 Mo. 408; Sheehy v. Railroad, 94 Mo. 574; Mfg. Co. v. Railroad, 113 Mo. 308; Spencer v. Railroad, 120 Mo. 154; DeGeofroy v. Bridge Co., 179 Mo. 698; Tate v. Railroad, 64 Mo. 149; Meyers v. Sfc. Louis, 8 Mo. App. 266; Martin v. Railroad, 47 Mo. App. 452; Stephenson v. Railroad, 68 Mo. App. 64; Farrar v. Railroad, 101 Mo. App. 140. (b) Plaintiffs’ petition or bill must affirmatively show lipón its face by the statement of facts that the plaintiffs have no plain, adequate and complete remedy at law.
   LAMM, P. J.

In 1902 plaintiffs sued in the Greene Circuit Court in equity for the cancellation óf a certain contract, and a deed made pursuant. Such contract and deed evidenced a compromise arrangement between plaintiffs and defendant whereby damages in tort, past, present and prospective, were released. Accordingly, in addition to rescission, plaintiffs sought to recover not only the damages compromised but damages for a continuance of the wrong (the maintenance of a switch track and switching and standing cars thereon) down to the date of suit — laid at $3,000 actual, and $1,000 punitive.

When plaintiffs offered their first witness defendant objected to any evidence, putting its objection on the ground the petition did not state facts sufficient to constitute a cause of action in equity and making five specifications under such general head, the divisions being immaterial. That objection was sustained — plaintiffs excepting.

Suffering a nonsuit, and failing to get it set aside, plaintiffs appealed to the St. Louis Court of Appeals. There Judge Goode did not sit. The two sitting judges disagreed — Bland, P. J., holding the ruling right; Nortoni, J., contra. Eventually such steps were taken that the Hon. B. Schnurmacher sat as special judge and wrote the opinion on a motion for rehearing, concurring with Bland, P. J. [Haydon v. Railroad, 117 Mo. App. 76.] Thereupon, on the dissent of Nortoni, J., the cause was transferred to this court on the theory that the majority opinion was in conflict with Lincoln Trust Co. v. Nathan, 175 Mo. 32.

I. It seems our jurisdiction need not stand alone on the reason given by the St. Louis Court of Appeals. This because the bill had for one of its objects the cancellation of a deed to real estate. This being so, title to real estate is involved, hence, the cause belongs here on appeal. [Balz v. Nelson, 171 Mo. 682; Thomas v. Scott, 214 Mo. 430.]

II. The only question being whether the bill states a cause of action, a resume of its averments should precede the determination of the point. Attending to the bill, it alleges a contract between plaintiffs and defendant dated September 1, 1898 — setting it forth in full. That contract narrates the pendency of two certain suits. In one the present plaintiffs sued the city of Springfield and John F. Myers and Sons.' In the other they sued the present defendant and said Myers and Sons. In the first, plaintiffs obtained judgment for $100 damages and costs and defendants took steps to appeal to the St. Louis Court of Appeals. The second was pending in the Webster Circuit Court on change of venue. The contract further narrates that all said litigation had arisen because of the location by defendant railway company and Myers and Sons of a railway switch in front of plaintiffs’ property in Springfield, Missouri (describing it), and the subject-matter was the damages accruing and injunctive relief. The contract continues as follows:

“Now as a fair and complete settlement of all questions connected therewith, and full payment for all damages, past, present and prospective for the location and operation of said switch in front, of plaintiffs ’ property, defendants, the railroad company and John F. Meyer & Sous, agree to pay the plaintiffs the sum of six hundred dollars as satisfaction in full for all damages aforesaid, and also to pay all costs and expense: aCcn.hrg said litigations and save said plaintiffs harmless on account thereof, and free from all costs necessary to be incurred for the final dismissal and settlement of said suits, and on account of said $600 paid to plaintiffs, receipt of which is hereby acknowledged and payment of costs as aforesaid, said plaintiffs grant and convey to defendants full power and authority to use said switch freely in front of their said property for railroad and milling purposes, but with the distinct understanding, that neither the milling company or railroad company shall be permitted to use said switch in front of plaintiffs’ property to stand cars thereon, but that the switch in front of their said property shall be kept open and free from cars except when in actual use as aforesaid. ’ ’

After setting forth the compromise contract, plaintiffs’ bill avers full performance of all its terms on their part and that defendant railway company paid plaintiffs the compromise sum of $600 and the costs incurred in the two suits mentioned in the contract; then charges as follows:

“Your petitioners further allege that by the agreement above mentioned, the plaintiffs granted to the defendant railroad company the power and authority to use said switch in front of said property upon the express condition (without which, said agreement would not have been made) that it would not use said switch to stand or store cars thereon, and that said switch was to be kept free and open from cars. But the plaintiffs allege that the defendant railroad company, wholly disregarding its' obligations in this behalf, continued to stand and store its cars on said track in front of plaintiffs’ said property.
“Your petitioners further allege that in pursuance of said agreement and as a part thereof, they did, about the time said above mentioned agreement was made, to-wit, on the thirteenth day of September, 1899, execute and deliver to defendant, a quitclaim deed, granting them the right to maintain and nse said switch track in front of said premises, bnt not granting the right to store or stand cars thereon in front of said premises. Bnt the plaintiffs say that no other consideration was given to or received by the plaintiffs for said deed than that given for the above mentioned agreement and the plaintiffs say that no other rights were intended to be granted by said deed than those expressed by said above mentioned contract, bnt that the rights and privileges granted by said deed were upon the.same conditions as stated by said agreement. That is to say, that said company was not to stand its cars in front of said property.
“Your petitioners further state, to-wit: About two years prior to the making of said agreement said railroad company had wrongfully and unlawfully built a switch and had been unlawfully standing its cars thereon, in front of said premises and had thereby caused a depreciation of the rental of said property, and- your peiitioners had been damaged by the wrongful acts of defendant at the time of the making of the said agreement, to-wit, in the sum of fifteen hundred dollars, and that the payment by said railroad company of the said sum of six hundred dollars was on account of the damages your petitioners had suffered by the wrongful acts of said company prior to the making of said agreement and was made with the distinct understanding that said cars of said defendant were not to be stood in front of said premises.
“Your petitioners therefore ask that the said sum of six hundred dollars be regarded as part payment of so much as was really due by said railroad company to the plaintiffs at the time of the making of the said agreement, as your petitioners will fully show upon the trial of the issues herein, was much more than said sum of six hundred dollars and petitioners offer to accept and do on their part, whatever equity requires in the premises.
“Tour petitioners further state that they have been damaged by the wrongful acts of said defendant company in building the switch as aforesaid and keeping its cars standing in front of said premises from the time their tracks were laid as aforesaid, to the first day of November, A. D. 1902, the sum of three thousand dollars depreciation in the rental value thereof.
“Tour petitioners further state that the placing of said cars in front of the premises aforesaid without the, permission of the plaintiffs, was a wanton and willful disregard of the duty of the defendants to the damage of the plaintiff’s in the sum of one thousand dollars, for which they ask judgment. '
“Tour petitioners further say that they have been damaged by the wrongful acts of the defendant in the total sum of four thousand dollars.
“Tour petitioners therefore pray this Honorable Court that it cancel and annul said agreement and deed, and set the same aside and hold them for naught, that the said defendant may be required to pay the damages which- have accrued to the plaintiff because of the depreciation in the rental value of said premises, because of the building of said switch, and standing cars on said switch, in front of said premises, from the date of the laying of said tracks to the 1st day of November, 1902, as aforesaid, less six hundred dollars paid as aforesaid, and such punitive damages as this court may see fit to inflict upon the defendant because of the premises and such other and further relief as may be deemed just and equitable.”

The answer, barring an admission of defendant’s incorporation, is a general denial.

(a) It is argued the bill is obnoxious to the cardinal equity maxim .that he who seeks equity must do equity; that it makes no offer to put defendant in statu quo ante, in that no tender or offer is made’, to return the $600 and costs paid under the compromise, but that the only offer is' to credit that sum. upon an unliquidated amount of damages, guessed off at $1,500. Changes are rung in defendant’s brief on. the foregoing contentions, but the pith of it all is as put by us.

Can the demurrer to the introduction of evidence stand on such fact? If the case were at law, the contention would be sound beyond question; but it, is in equity and the better doctrine seems to be that under a bill (good otherwise) containing a general offer to do equity the chancellor, as the price of his decree, may let conscience have full play in doing her perfect work in disentangling the relations of the parties, and in placing them where they were before as-nigh as may be. Such is the doctrine of Whelan v. Reilley, 61 Mo. l. c. 569 et seq. and cases cited. That case was followed in Clark v. Drake, 63 Mo. l. c. 360. In Kline v. Vogel, 90 Mo. 239, the doctrine of the Whelan case was somewhat shaken. But in a later case, Paquin v. Milliken, 163 Mo. 79, the question was again up, our decisions were marshalled, distinguished and applied. The reasoning of the Whalen case was greatly corroborated and fortified by the exhaustive consideration given in the Paquin case, and the doctrine needs no new exposition.

In leaving the matter we may refer to Shuee v. Shuee, 100 Ind. l. c. 481. In that case it was said: “It is urged that the court below should have sustained a demurrer to the bill, because it failed to show an offer to rescind on the part of the plaintiff before filing the bill, and it is argued that because it appears from the facts as found by the court, that no offer to rescind was made, nor to return the money paid as the consideration of the settlement, before the suit was commenced, the court could make no decree in plaintiff’s favor setting aside the settlement. It is always within the power of a court of equity, where its decree is invoked, to require, as ‘the price of its decree,’ that the person invoking it shall submit to equitable terms, and accordingly a chancellor always inquires concerning the equities which the plaintiff must do, in order that he may be entitled to the relief which he seeks. Whenever any benefit has been received under a contract which the court is asked to set aside, the court will fasten a trust on the conscience of the party, in respect of such receipts, and direct an account and repayment.”

Such, too, was the conclusion reached by all the judges in Haydon v. Railroad, 117 Mo. App., supra, l. c. 90 to 94, inclusive.

The premises considered, we rule the point against defendant. In doing so we put aside certain contentions; for instance, it is pointed out (as we grasp it) that the plan of the bill is to off-set the hard cash paid by defendant by way of compromise against a running account of unliquidated damages. It is argued that this cannot be done, that the compromise amount is a fixed sum settled by contract and that the other is in nubibus (mere moonshine). But it must be apparent that question, if we state it accurately, is afield at this stage of the case. This, because the chancellor could mold his decree so as to adjust all its ramifications to the very nicest requirements of full equity. If, on the equity of the whole case on the hearing, defendant be entitled to repayment of the compromise sum and costs as the price of recission, the decree could go that way. Clearly there is nothing in plaintiffs’ mere offer putting the conscience of the chancellor in bonds in that behalf.

Again, it is argued the bill is bad for that it commingles a cause of action in equity with one at law— that plaintiff should have sued in two counts, one in equity for a rescission and one at law triable to a jury for the unliquidated damages for the tort. But the same disposition should he made of this as of the other contention. The question in hand might (whether well or ill) arise on special demurrer, hut cannot arise on a mere objection to the introduction of any testimony based on the ground that the bill fails to state a cause of action in equity. No one would contend that the matter of rescission was not in equity. That being clear, we need look no further. Therefore, a ruling on this phase of the case is reserved.

(b) With the foregoing preliminary questions at rest, we confront the main proposition, viz.: Under the allegations of the bill is there a cause of action stated for rescission of the compromise contract and deed? In determining the question, it is well at the outset to remind ourselves of some general propositions indicating the trend of the judicial mind in this behalf. The question of rescinding deeds and contracts for the non-performance of conditions precedent or subsequent has been often before this court. The question always hinges on the dependence or independence of the covenant in the deed or contract. Thus, in Freeland v. Mitchell, 8 Mo. 487, Thomas sold to Freeland some land and bound himself in the penal sum of $600 to give Freeland possession. Presently (Thomas dying) Mitchell, his administrator, brought an action of debt for the balance of purchase price. The declaration did not aver any delivery of possession and defendant demurred on that ground. The question was whether the delivery of possession of the land was a condition precedent to the recovery of the purchase money. The conclusion reached by the cburt was that if a penal sum had not been fixed by the contract for failure to give possession then the covenant in the -contract would have been considered dependent — i. e., no delivery of possession, then no payment of the purchase price. But as there was a penal sum provided for in the contract for such failure, the covenants were not inter-dependent but were independent. The general principle guiding to that determination was said to be this: “The only principle to be extracted from the numerous cases in relation to the dependence or independence of covenants is, that they are to be construed according to the intention and meaning of the parties, and the good sense of the case.”

Studdard v. Wells, 120 Mo. 25, is an illuminating case on the general law. There the widow and children of Theodore Studdard brought ejectment against the executor of the last will of Chas. F. Studdard. Chas. F. was the father of Theodore and, with Matilda, his wife, conveyed the locus to Theodore by a deed reciting a consideration of $3,000 paid, and further reciting that the land was a gift, that it was to remain in possession of grantors during their natural lifetime and was to become the property of Theodore on the death of grantors. A provision was inserted that Theodore was to pay the taxes, followed by this: “and has to support the said Charles F. Studdard and Matilda Studdard during their natural lifetime.” At the date of the deed all parties resided on the land. Matilda died, then Theodore. Up to his death he had supported his father and also his mother while she lived. Shortly after Theodore’s death a squabble arose between his widow and Chas. F. and the widow left the premises and thereafter furnished no support to him, nor did Theodore’s estate. The merits of the quarrel were not deemed controlling by this court. Two or three years subsequently Chas. F. died testate and by his will made disposition of the land different from that in his former deed. Thereupon the widow and minor children of Theodore sued for possession. It was ruled that the support of Chas. F. was not expressly made a condition precedent in the deed. The remaining question was whether the conveyance was made upon a condition subsequent. In ruling on that question it was pointed out as of significance that in most of the cases in this court arising out of conditions subsequent, the conditions were clearly expressed. Messersmith v. Messersmith, 22 Mo. 369; Moore v. Wingate, 53 Mo. 398; Clarke v. Brookfield, 81 Mo. l. c. 513; Ellis v. Kyger, 90 Mo. 600; O’Brien v. Wagner, 94 Mo. 93, are cited as cases so marked and distinguished. Black, P. J., writing for the court, commented on those cases as follows: “In these cases words of condition were used or there were clauses of re-entry or reverter. It is a familiar rule often, asserted in the books that conditions subsequent are not favored in the law, because they have the effect in ease of breach to defeat vested estates; and when relied upon to work a forfeiture they must be created in express terms or by clear implication. [2 Wash. on Real Prop. (5 Ed.), 7; Morrill v. Railroad, 96 Mo. 174.] And courts will construe clauses in deeds as convenants rather than conditions, if they can reasonably do so. [2 Wash. on Real Prop. (5 Ed.), 4.] It is also true that the question whether a clause in a deed is a condition or a covenant, is one of intent to be gathered from the whole instrument by following out the object and spirit of the deed or contract. [St. Louis v. Wiggins Ferry Company, 88 Mo. 618.] Now the substance of this deed is, that the grantors convey the land to their son, reserving to themselves a life estate, with the further statement that he is to pay the taxes and support the grantors during their lives, and at their death he is to have possession. No apt or appropriate words to create a condition are used; nor is there any clause of forfeiture or of re-entry or of reverter. We are unable to find anything in this deed, whether we treat it as a gift, or as made for a money consideration, which will justify us in saying it is a deed upon condition subsequent. To say the stipulation in the deed to pay the taxes and support the grantors is a condition subsequent, the non-performance of which will defeat the estate granted, is to make a stipulation for the parties which they did not see fit to make for themselves. This we cannot do.”

In addition to the general principles, outlined above, we may add that it is familiar doctrine that forfeitures (putting it with mildness) are not favored in equity; and that (while not controlling) it is not entirely without significance that there is no express provision making the subsequent standing of cars on the switch a condition subsequent, or a mutual dependent covenant, nor is there shown to be any clause of reverter in the deed, and we are left to an interpretation of the contract by the good sense of the thing in the light of its subject-matter and language used.

Further, the bill does not proceed on the theory of fraud, accident, surprise, mistake or duress; and it must be admitted that, as a general rule, rescission is an equitable remedy restricted to cases of that character.

However, there is another doctrine, vis.: Rescission is an equitable remedy applied in exceptional cases where there is failure of the entire consideration of the contract or where there is such radical nonperformance of a mutual dependent covenant, going to the very root and life of-the contract, as amounts to ‘ ‘ abandonment of the contract and releases the other party from any duty to further recognize its obligations.” [7 Am. and Eng. Ency. Law (2Ed.), 121.]

A sensible limitation on the last doctrine is stated in the work last cited (volume 24, p. 619) to be: “A bill for rescission cannot ordinarily be maintained where the ground of relief is .merely a breach of contract for which the complainant can obtain adequate compensation in an action at law. Courts of equity sometimes, however, exercise jurisdiction to rescind contracts upon the ground of a breach or non-performance by the defendant, in cases where the plaintiff’s remedy at law would be inadequate.”

Plaintiffs must stand or fall on the doctrine last announced, and we have come to the conclusion that the bill, measured by that doctrine and the general principles already outlined, does not state a good cause of action in equity. This because the bill does not measure up to the requirements of the law nor state a case on all-fours, in principle, with cases relied upon by learned counsel to sustain it. Those cases are discussed in the separate opinion of Judges Bland, Nortoni and Schnurmacher, in Haydon v. Railroad, 117 Mo. App. supra. Those opinions should be read in connection with this; for it would serve no useful purpose to fully restate the reasoning employed by the majority of the Court of Appeals.

Reliance is put by learned counsel of plaintiffs on Lincoln Trust Co. v. Nathan, 175 Mo. 32. That case was a suit for rent arising on a written lease. The parties to that lease had the forethought to insert a fire clause. That clause provided that the landlord rebuild or repair in case of fire as soon as possible and in that immediate connection it was further provided that, in consideration of the delivery of the new building to the tenants for occupancy, the tenants agreed to pay the heavy rent reserved for the period of the erection of said new building. A fire occurred. The landlord was guilty of inexcusable delay in rebuilding. The tenants were compelled to make permanent arrangement for another building to conduct the mercantile business. They paid two months’ rent after the fire while the demised premises were unfit for business purposes, and, presently, were sued for the rent of subsequent months. In defense they pleaded the provisions of the lease referred to, asked its rescission and to recover the two months’ rent paid after the fire. This court had no difficulty in reasoning out the conclusion, obviously sound, that in a case of that sort it would be against conscience to permit the landlord to violate the provisions of the lease requiring him to rebuild and at one and the same time exact from the tenant rent for premises, rendered unfit for use through the landlord’s tortious delay. It was well held that the covenant to pay rent during the time the premises were devastated by fire was dependent upon the covenant to rebuild — this, in effect was a holding that there was an entire abandonment and repudiation of that portion of the lease yet to be performed — a total failure of consideration for the executory part of the lease, and rescission was decreed with recovery of the rent paid after the fire in reliance on performance.

Not only is the case dissimilar to the case at bar in vital features, but, observe, there was no attempt to have the lease ripped up from its inception and to recover for all rents paid. The executed part of the lease stood and the rescission related back to the fire. Here, there is an attempt to cancel the compromise agreement in toto, whether executed or executory, and to put the parties where they were at the start, with plaintiffs’ right to recover all past and settled damages, as well as future, restored to them. In the absence of fraud charged and proved, the rescission of an executed contract is not equitable doctrine, but a rescission might go as to part unperformed where there is a breach amounting to abandonment. If the doctrine of the Nathan case be applied closely to this, the rescission would only relate back to the time when the defendant violated its covenant, if covenant it be; and, in that view of the matter, plaintiffs do not contend there was any necessity to go into equity to rescind the contract as to unreleased damages, subsequent to the compromise, for allowing cars to stand on the switch. This, for the plain reason that they can stand on that provision at law and recover their damages.

Other cases are relied on.by learned counsel. For example, City of Grand Haven v. Grand Haven Water Works, 99 Mich. 106; Farmers’ Loan and Trust Co. v. Galesburg, 133 U. S. 156. Those cases are considered and properly distinguished in the opinions of Judges Bland and Schnurmacher, supra (q. v.). There contracts were entered into to furnish water suitable in quality and amount, and proper fire pressure to extinguish fires in Galesburg and Grand Haven. It was ruled there was not only an entire failure of consideration, but more, to-wit, an inability to perform, and rescission was decreed. A close gloss of those cases shows that the drastic result reached was predicated on vital facts absent from the case at bar.

In a soundly-reasoned case, Union Pac. R. R. Co. v. Travelers Ins. Co., 49 U. S. App. 752, the test formulated by Lord Mansfield, in Boone v. Eyre, 1 H. Bl. 273, is approved, viz.: “Where mutual covenants go to the whole of the consideration on both sides, they are mutual conditions, the one precedent to the other. But where they go only to a part, where a breach may be paid for in damages, there the defendant has a remedy on his covenant, he shall not plead it as a condition precedent,” Judge Sanborn, speaking for the court, commented as follows: “The breach of a covenant of the first class, a dependent covenant which goes to the whole consideration.of the contract, gives to the injured party the right to treat the entire contract as broken and to recover damages for a total breach” (citing authorities). “But a breach of the-covenant of the second class, a covenant which does not go to the whole consideration of the contract, but is subordinate and incidental to its main purpose, does not constitute a breach of the entire contract or put an end to the agreement, but the injured party is still bound to perform his part of the contract, and the only damages he can -recover consist in the difference between the amount which he actually received or lost and the amount which he would have received or lost if the broken covenant had been kept” (citing, numerous cases).

Now, what was tbe “whole consideration” of tbe contract and deed to be rescinded here? Damages to accrue in tbe future from blocking access to or egress from plaintiffs’ real property by allowing cars to unnecessarily stand on tbe switches? Not at all. That character of damages flowing from that character of wrong, then non-existing because future, was merely incidental. To get at tbe real consideration, we must look to tbe character of tbe controversy. Plaintiffs were contending that tbe switch was unlawfully laid and that any movement of cars whatever on that unlawful switch was actionable, and that the unlawful location of the switch was actionable. They were willing to accept money to settle that controversy. They did accept money and by that act, in tbe absence of fraud, settled it forever, and by deed conveyed to defendant tbe right to locate and use tbe switch for switching purposes, on tbe theory, presumably, that they held tbe fee in the land appropriated by tbe switch (probably a street). Such was tbe controversy and main consideration in its settlement.

Tbe good sense of tbe thing is that tbe location and use of this switch, barring tbe standing of cars thereon unnecessarily, were, as said, set at rest for all time by tbe compromise, and that all past and prospective damages incident to tbe location of tbe switch and tbe proper use of it were estimated, paid and wiped off tbe slate. Tbe contract means that further damages for tbe improper use of tbe switch were not settled and that defendant agreed not to make such specified improper use of it.

Moreover, do not courts favor amicable settlements in tbe absence of fraud, as here? Does equity proceed in rescission in a revengeful mood? "Why rip up this settlement when tbe failure to perform does not go to the whole consideration and when there is no obstacle in tbe road of recovery of full damages by a snit at law for non-performance in one particular? If the words of the contract following the phrase, “but with the distinct understanding,” be construed as a covenant that defendant will keep its switch cars moving and not unnecessarily standing in front of plaintiffs’ property, then what legal reason can be given why full relief by way of damages for its breach may not be recovered? We know of none. Or if plaintiffs prefer to ignore the contract and sue for the wrong done them in obstructing access to and egress from their property since the compromise agreement, could defendant interpose the contract as a defense? Would not its very profeit in court show that such “prospective” damages were not compromised?

It has been loosely said that if the contract would not have been entered into but for the covenant broken, then there is such failure of consideration as will entitle the innocent party to rescission. We find but one case going to that extent — an old one in Louisiana, Moreau v. Chauvin, 8 Rob. 157. That case seems to have ridden off on a construction of the Louisiana Code — a code based on the civil law. As a general proposition, we do not agree to the rule announced. Many provisions in many contracts do not go to the whole consideration or touch the life and essence of the contract and yet, peradventure, the contract would not have been made if the provision had not been inserted. The approved doctrine is contrary to the holding in the Moreau case, and the rule announced there is too narrow. Therefore, if plaintiffs had proved by oral testimony that they would not have enterd into the contract of compromise and executed the deed, except the provision we have been considering had been put into it, yet it is for the court to construe the contract, and, if such evidence were admissible, we must still bold tbe contract and deed were not subject to be rescinded on tbe case made by tbe bill.

Let tbe judgment of tbe circuit court be affirmed.

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    J. H. DODDRIDGE v. G. W. PATTERSON et al., Appellants.
    Division One,
    July 1, 1909.
    1. ABSTRACT: Incomplete. Where respondent has not brought up a full copy of the record, or a certificate of the clerk of the trial court showing that appellants’ abstract does not contain all the evidence introduced, or any other evidence of that fact, respondent’s motion to dismiss the appeal on the ground that the abstract is incomplete and does not contain all the evidence, will be overruled. Such motion does not prove itself.
    2. -: Narrative Form. Ordinarily it is best that the evidence be not set forth by questions and answers, but a narrative form is preferable. It is only when the questions and answers are necessary to convey to the appellate court the intention and meaning of the witness, that they should be set out in Jiaee verba.

    3. SCHOOL LANDS: Sale: No Sufficient Petition. The county court has no jurisdiction to order the sale of a full section 16 unless as many as fifteen householders reside in the township, nor unless a majority of the householders in the township petition for the sale.' And where the county court’s records are silent on the subject of the petition, although they show that it ordered the section to be sold, the jurisdiction of the court to order the sale is not shown by the testimony of a witness who testifies that the petition had fifteen names on it, but does not say they were householders of the township or how many householders resided in the township; and the court having no jurisdiction to make the order, the sheriff’s sale was void, although the purchaser paid the sheriff for the land and received from him a certificate.

      4. -: County Court. The county court is a court of inferior jurisdiction, and in the sale of school lands it proceeds under special statutory directions, and it will not he presumed that it had jurisdiction to mahe the sale unless it he made to affirmatively appear that it observed those directions.
    Appeal from Stoddard Circuit Court. — Eon. J. L. Fort, Judge.
    Reversed.

      Wammack & Welborn and N. A. Mosley for appellants.
    (1) The county court of 1891 could not have made an order for the sale of this land until a petition of householders had been filed as required by Sec. 8161, R. S. 1899. McDonald v. Mangold, 61 Mo. App. 293; Eaton v. St. Charles County, 76 Mo. 492. (2) The county court, in making the order for the sale, was, exercising special statutory jurisdiction, and not proceeding according to the course of the common law; consequently, its jurisdiction to make this order must affirmatively appear on the face of its record. State v. Metzger, 26 Mo. 65; Sutton v. Cole, 155 Mo. 213. (3) It not appearing upon the face of the record that the county court of 1891 had any jurisdiction to make the order introduced in evidence, the order was void, and not only was it not the clear legal duty of respondents to make out the abstract of sale and furnish it to the Secretary of State, but they had no legal right to do so, and if they had attempted to do so, they could have been compelled, in a proper proceeding, to desist. State ex rel. v. Higgins, 71 Mo. App. 185; State ex rel. v. Page, 107 Mo. App. 213; State ex rel. v. Port, 107 Mo. App. 334. (4) Nor could the fact that there was nothing appearing on the face of its record to show that the county court of 1891 had jurisdiction to sell this land, be supplied by parol. The fact must appear somewhere in the record. State v. Metzger, 26 Mo. 65; Corrigan v. Morris, 43 Mo. App. 461; State ex rel. v. Cunningham, 106 Mo. App. 58. (5) Even if it could have been shown by parol that there was a petition of householders presented to the court, and that, on that petition, the court made the order introduced in evidence, still the evidence failed entirely to show that there was any petition such as is required by See. 8161, E. S. 1899. Cunningham v. Railroad, 61 Mo. 36.
   WOODSON, J.

The relator filed his petition in the circuit court of Stoddard county, asking for an alternative writ of mandamus against the members of the county court of that county, to compel them to make out and forward to the Secretary of State an abstract showing that the northwest quarter of the northeast quarter, the northeast quarter of the northeast quarter, and the southeast quarter of the northeast quarter of section 16, township 27, range 12, of the school land of said county, had been sold in the year 1891 to one O. C. Prisbee.

The alternative writ issued, and, upon the filing of the return of the respondents, a trial was had, and the court found the facts for the relator, and ordered a peremptory writ to issue. After taking the proper preliminary steps therefor, the respondents appealed the cause to this court.

As no question is raised as to the sufficiency of the pleadings, they wifi not be set forth in the statement of the case. A statement of the substance of the evidence- will sufficiently indicate the issues made by the pleading and the facts found by the trial court.

The following is a substantial statement of the evidence, as it appears in respondents’ statement of the case, which, after a careful reading of the abstract of the record, we find to be full and fair:

“On the trial of issues, relator introduced J. W. Buchanan, who testified that he was present and saw Mr. Barham sell the lands described in the writ to Frisbee at the time and place set out in said writ, saw Frisbee pay Barham the $150, and saw Barham give Frisbee a certificate of purchase or receipt for the money, and upon being shown the certified copy, afterwards introduced in evidence, stated that, in-his opinion, it was an exact copy of the one given by Barham to Frisbee.
“Relator then introduced the deputy county clerk, who identified the county court records, later introduced, and who further testified that he had made a careful search of the records, papers and files in the county clerk’s office and that the entry in the minute book and record, afterwards introduced, constituted all the reference to the said sale of these lands; that he made diligent search and could not find a petition of householders asking for a sale of said lands; that he could not find any report filed or made by the sheriff of any such sale and that the records did not show that any money was paid into the treasury on account of such a sale.
“Relator next offered an order entered in the minute book and also in the record of said court, of date November 17, 1890. Said order is the same in both the minute book and record, and is as follows :
“ 'In the county court of Stoddard county, Missouri, Monday, November 17, 1890.
“ 'It is ordered by the court that section number sixteen in township number twenty-seven, range twelve east, be sold at not less than one dollar and a quarter per acre, at the March term, 1891, of circuit court. Terms of sale to be one-half cash and the balance in twelve months.’
"Relator next introduced Mr. Munger, one of his attorneys, who testified that he had been in possession of the certificate of purchase given by the sheriff to Frisbee, and also a copy of the Bloomfield Vindicator, showing the notice of said sale, and that the same were taken from him without his consent or knowledge, and that he did not know where they were; that the certified copy afterward introduced was an exact copy of said certificate of purchase, and that said sheriff’s sale was regular and was regularly published, as appeared from said files of said paper.
“Relator then offered what has heretofore been referred to as the certified copy of the certificate of purchase given by the sheriff to Frisbee, which is as follows (formal parts omitted):
“ ‘This is to certify that I, sheriff of said county, have this day received from O. C. Frisbee one hundred and fifty dollars, being payment in full for the following described real estate, to-wit: The N. % N. E. % and the S. E. %, N. E. section No. 16, township No. 27, range No. 12 East, purchased by O. C. Frisbee at an order of sale of school land, held by me on the 6th day of March, 1891.’
“Relator then introduced W. F. Ford, the prosecuting attorney of the county at the time of the making of said order and sale, and also Isaac Magee, who was one of the county judges at'that time. Both these witnesses testified that they had no recollection of any petition of householders having been filed, asking for the sale of said lands, and had no recollection whatever of the matter.
“The only evidence upon the issue of whether there was any petition of householders, asking for said sale of said land, is found in the deposition of O. C. Frisbee, and all that he stated upon this issue is contained in the following questions and answers:
“ ‘Q. State who assisted you in getting up the petition to the county court, asking for the sale of these lands? A. I could not say. Q. State, if you know, if there were fifteen names on this petition? A. There certainly was. ’
“The witness further testified that he paid the purchase price for the land to the sheriff, that he received from the sheriff a certificate of purchase; that he turned this certificate of purchase over to Mr. Doddridge and that he afterwards sold and deeded the land to relator.
“On his own hehalf, relator testified that he bought the land from Edward L. Hall in 1901, and has paid all the taxes on the land to the time of trial, including a lot of back taxes; that he had had the original certificate of purchase given 'by the sheriff, but had turned it over to Mr. Munger, who lost it, and that the certified copy introduced was an exact copy.
“Relator also introduced a warranty deed from O. C. Frisbee to Edward L. Hall of date January 30, 1894, conveying the lands in question, and a warranty deed from Edward L. Hall to relator of date March 28, 1901, and conveying same lands.”

This was all of relator’s evidence. Respondents introduced no evidence, but offered a demurrer to the relator’s evidence, and, this being overruled, the court entered judgment that the alternative writ be made peremptory, and respondents appealed the case to this court.

I. The relator has filed a motion in this court to dismiss the appeal for the following reasons:

“First. Because appellants have failed to file in this cause in this court so much of the record and evidence made and adduced in the trial of same in the circuit court as is necessary to a full and complete understanding of all the questions presented to this court for decision.
“Second. Because the abstract filed by appellants in this cause does not set forth a copy of so much of the record of the trial of this cause in the circuit court as is necessary to be consulted in the disposition of tbe errors assigned in their briefs.”

Counsel for relator has not brought up a full copy of the evidence, nor a certificate of the clerk of the circuit court showing that appellants’ abstract of the record does not contain all the evidence introduced at the trial, or any other evidence of that fact. The record before us, apparently, contains a full abstract of all the evidence introduced at the trial, and in the absence of a proper showing to the contrary, we must presume counsel for appellants obeyed the statutes and the rules of this court governing that matter, since the allegations of the motion do not prove their own truthfulness. This alone would justify the court in overruling the motion, but when we consider the oral contention of counsel made in the argument of this case before this court, we are satisfied therefrom that there is no merit in the motion in point of fact. It is not contended that the abstract does not contain a full and fair statement of all the testimony introduced at the trial, but the objection is made that it is stated in a narrative form, and that the questions and answers are not set out in haec verba as they were propounded to and answered by the witnesses upon the stand. The rules of this court do not require that, except where the questions and answers are absolutely necessary in order to convey to this court the intention and meaning of the witness, and where that object cannot be done by stating the testimony in narrative form, as was held in the case of Bradley v. Bradley, 119 Mo. 62, the questions and answers should be set out. But ordinarily the narrative form is preferable, for the reason that it greatly shortens the record, and generally eliminates all superfluous and immaterial matter therefrom. None of relator’s rights have suffered from the presentation of the evidence.in this case, in the narrative form.

We are, therefore, of the opinion that the motion should be overruled-

II. There are several legal propositions discussed in briefs, as there were several argued orally before the court, but in the view we take of the case, it will not be necessary for us to consider but one of them, as it goes to the very marrow of relator’s right to a recovery.

Section 8161, Revised Statutes 1899, reads as follows: “In all congressional townships in this State in which there are fifteen householders, they shall have the right to sell their sixteenth sections, or such lands as have been or shall be selected in lieu thereof; and upon a petition of a majority of such householders, the county court shall make an order, a copy of which shall be furnished the sheriff, directing him to expose such lands to sale at the courthouse door, and while the circuit court of the county is in session, after giving twenty days ’ notice thereof: Provided, that in any fractional township in this State wherein less than fifteen householders now or shall hereafter reside, a majority of the householders of such fractional township may petition the county court for an order to sell the sixteenth section in such township, or other lands which have been or shall be selected in lieu thereof, in like manner as hereinbefore provided.”

This record contains no evidence that the township in which this land is situate is a fractional township, as referred to in the proviso of that section; so, we must therefore presume it was an ordinary full congressional township. By reading that section, it will be seen that the county court has no authority upon its own instigation to sell the school lands of the respective townships of the county, but that its authority and jurisdiction to order such lands to be sold in the ordinary townships depend upon two conditions precedent or jurisdictional facts — first, that the township must have at least fifteen householders; and, second, that a majority of them must petition the county court to make an order to sell the lands.

The only evidence contained in this record hearing upon that question is the following:

“Q. State who assisted you in getting up the petition to the county court, asking for the sale of these lands? A. I could not say.
“Q. State, if you know, if there were fifteen names on this petition? A. There certainly was.”

This evidence fails to show the county court acquired jurisdiction to order the sale of these lands for two reasons: First, the statute requires a majority of the householders of such a township to petition the court for an order of sale, and this evidence does not show a majority of them signed the petition referred to by Frisbee. He testified that “there certainly were” fifteen who signed it, but he does not pretend to state those fifteen were a majority of the householders of that township. There may have been fifty or more. A congressional township is six miles square and contains thirty-six sections of land, and for this court to presume only twenty-nine householders resided therein would be doing great violence to such facts regarding most congressional districts of this State. But, independent of that, in the absence of all evidence upon that question, we have no right to presume the fifteen referred to by Frisbee in his testimony were a majority of those of that township. If the county court had found that fifteen were a majority of them, then quite a different proposition would be here presented; but that court made no such finding — in fact, there is no evidence which even tends to show that the petition asking for the order of sale was ever filed or presented to the court for its consideration.

The second reason why the county court did not acquire jurisdiction to make the pretended order of sale was, the evidence totally fails to show that the fifteen householders who signed the petition were residents of or lived in the township in which this land was located.

While said section does not in express terms require the county court to find that they were residents of the township, yet it requires that they must he, and in the very nature of things no one else could % make that finding for the court in the absence of an express statute to the contrary.

We are, therefore, of the opinion that under this statute the county court had no jurisdiction to make the order of sale, and, consequently, no title passed, even though it be conceded the land was sold by the sheriff to Prisbee. [McDonald v. Mangold, 61 Mo. App. l. c. 293; Eaton v. St. Charles, 76 Mo. 492.]

And as was said by this court in the case of Sutton v. Cole, 155 Mo. l. c. 213, “It has long been settled law in Missouri that the jurisdiction of courts of inferior jurisdiction, and of courts that do not proceed according to the course of the common law, must affirmatively appear on the face of the proceedings.” Citing State v. Metzger, 26 Mo. 65; Hansberger v. Railroad, 43 Mo. 196; Edmonson v. Kite, 43 Mo. 176; Schele v. Leland, 45 Mo. 289; Iba v. Railroad, 45 Mo. 469.

The county court is not only a court of inferior jurisdiction, nor was it proceeding according to the course of the common law in the sale of these school lands, but it was acting under special statutory directions, which must have been observed, before it could acquire jurisdiction of the subject-matter.

We are, therefore, of the opinion that the judgment should be reversed.

It is so ordered.

All concur.


text:
    ETTA M. REINEMAN (Renneman) and ISAAC REINEMAN v. MAMIE LARKIN, J. S. LARKIN and DAVID MORAN, Appellants.
    Division One
    July 1, 1909.
    1. DEATH OF APPELLANT: Revivor. On the death of one of a number of appellants, a cause may proceed on appeal without a revivor.
    2. BILL OF EXCEPTIONS: Interlocutory Decree: Term Bill: Dower. Exceptions die with the term unless their life is preserved by a bill of exceptions filed during the term or afterwards by leave then granted. So that where plaintiff was adjudged at one term to have dower in certain lands and commissioners were appointed to admeasure and set off the same, and at the next term they reported and their report was approved, and thereupon evidence was put in on the question of her damages and final judgment was then rendered, but at the former term when she was adjudged to be entitled to dower no motion in arrest or for a new trial was filed, and the evidence upon that issue was not preserved by a bill of exceptions filed at that term, or afterwards by leave then granted, that issue, though a bill of exceptions containing the evidence is timely filed after the final judgment awarding damages, is not for review on appeal; and hence the court cannot consider the question whether or not plaintiff was the lawful wife of the deceased intestate. Defendants were not entitled to appeal from the interlocutory decree adjudging plaintiff entitled to dower, but only from the final judgment, but such an appeal does not bring up the evidence at the trial resulting in the interlocutory judgment at the former term, unless both such evidence and the exceptions thereto are preserved in a timely term bill of exceptions.
    3. DOWER: Judgment: Whole Tract. A judgment for dower which awards to the widow a writ of possession for the whole tract owned by the deceased intestate is self-evidently erroneous. It should award her only the part admeasured and set off to her by the report of the commissioners.
    4. -: -: Damages: General. The judgment for damages in the dower suit should not be a personal judgment against defendants; the execution for damages should be awarded only against the estate in which , dower has been assigned.

      5. GUARDIAN AD LITEM: Appointment: Perfunctory. The appointment of a guardian ad litem, to represent a minor defendant, is not a mere technical matter, nor are his duties merely perfunctory or shadowy. He is to do for the minor, without experience and personally under legal disability, what with riper judgment he would do for himself.
    6. -: -: Consent: Waiver: Filing Answer. The guardian ad litem should he notified of his appointment and should file his acceptance of the office in writing. But his acceptance in writing may he waived hy him by an acceptance of the office in fact, which may he made manifest hy a record showing that he entered upon the performance of his duties and performed them under the eye of the court, such as his appearance in the suit and the filing of an answer for the minor. But where W. S. Anthony was appointed guardian ad litem for the minor child and the only child of deceased intestate, in a suit hy the widow for dower, in which there were other defendants, and there is nothing in the record showing that he ever heard of his appointment, and all the record shows of his acceptance is that a firm of attorneys styled “Smith and Anthony” filed an answer to the first petition before the appointment of .a guardian ad liiem, and after the appointment the same firm filed an answer for all the defendants, uniting another attorney with themselves, it cannot he held that there was either notice or written acceptance of the appointment, or consent to serve, or waiver of written acceptance, hy W. S. Anthony; and the judgment against the minor, on her appeal, these matters being apparent on the face of the record proper, will he reversed, although there was no timely hill of exceptions.
    7. DOWER: Sufficient Pleading: Damages. The statute (Sec. 2955, R. S. 1899) contemplates that under certain contingencies damages for the deforcement of dower do not begin to run until demand is made. So that' in a suit hy the widow for the admeasurement of dower and for damages for deforcement, the petition should allege that those defendants who are the children of the deceased intestate inherited as his heirs, and there should he averments as to the interests of the other defendants; hut if the petition is aided hy reasonable inferences in these respects, it will not he held insufficient after verdict.
    Appeal from St. Francois Circuit Court. — Eon. Bobt. A. Anthony, Judge.
    Reversed and remanded,

      Wm. H. Clopton and W. S. Anthony for appellants.
    (1) (a) The petition does not describe the land with snch certainty that a writ of possession would enable the officer to execute it. (b) It does not define the interests of defendants. See. 2933, R. S. 1899, provides that dower in leasehold estates for a term of twenty years or more shall be granted and assigned as in real estate; but for a term less than twenty years shall be granted and assigned as in personal property. The petition should describe with particularity the estate of the husband. Garrison v. Young, 135 Mo. 203. By parity of reasoning the estates of defendants holding with or under the husband should be particularly described. The estate may have been alienated by the heir, in which case the widow could recover damages only from the time of demanding her dower. There is no evidence that dower was ever demanded of defendants J. S. Larkin and David Moran, (c) The petition fails to state whether Andrew Larkin died intestate. Sec. 2948, R. S. 1899. (2) No guardian ad litem for the minor defendant was appointed as required by the statute. Secs. 558, 559, and 560, R. S. 1899, must be construed together as one act. After service of process on an infant defendant a guardian ad litem should be appointed before any further steps are taken in the case. Wells v. Wells, 144 Mo. 198; Rush v. Rush, 19 Mo. 441; Neenan v. St. Joseph, 126 Mo. 89; Charley v. Kelly, 120 Mo. 134; Fisher v. Seickman, 125 Mo. 165; Campbell v. Gas L. Co., 84 Mo. 366; Shaw v. Gregiore, 41 Mo. 414; Wass v. Coudry, 102 Mo. App. 65. The fact that Mr. W. S. Anthony continued to act as attorney for all the defendants (the infant included) after the court appointed him guardian ad litem of the minor does not estop the minor from the defense that she appeared by attorney and not by guardian ad litem.
      Estoppel does not affect minors. Campbell v. Laclede Gr. Co., 84 Mo. 368. Mr. Anthony by appearing as her attorney conld not waive the necessity of his assent to act as guardian ad litem, and the necessity of his appearance as guardian ad litem, in the answers and appearances made after his appointment. A guardian ad litem cannot waive anything. Collins v. Trotter, 81 Mo. 275 ; Revely v. Skinner, 33 Mo. 101. (3) The judgment is erroneous because it décrees that the plaintiff be put in possession of all the lands. Orris v. Elliott, 65 Mo. App. 100; Jones v. Hart, 60 Mo. 351; Hall v.Lane, 123 Mo. 633; Harber v. Railroad, 32 Mo. 423; 1 McQuillin’s PI. & Pr., sec. 889. (4) The evidence shows that plaintiff was never divorced from James Clinton. Her petition failed to state that she was a resident of the State of Missouri or of the county of Reynolds, at the time the suit was filed, nor did the decree find that she was a resident of the State or county of Reynolds. Such jurisdictional facts must be averred or the decree is void and may be attacked collaterally. Pate v. Pate, 6 Mo. App. 49; Wertz v. Wertz, 11 Mo. App. 26; Gant v. Gant, 49 Mo. App. 3; Smith v. Smith, 48 Mo. App. 612; Hinkle v. Lovelace, 204 Mo. 208; Hope v. Blair, 105 Mo. 85; Wyeth v. Lang, 54 Mo. App. 147; Andrews v. Andrews, 176 Mass. 92.

      D. L. Rivers for respondents.
    (1) Between the courts of general jurisdiction and courts of limited jurisdiction there is a broad and well-settled distinction everywhere recognized and nowhere disputed. In support of the regularity and binding effect of judgments and decrees of courts of general jurisdiction, every presumption is to be indulged. The courts will presume that everything was done that was necessary to be done to make a valid judgment or decree, where the court has jurisdiction of the parties to the suit and of the subject-matter of the action. Const., art. 6, sec. 13; R. S. 1899, sec. 2922; Gilman v. Hovey, 26 Mo. 288. (2) The divorce statute does not prescribe what facts shall be alleged in the petition. This is determined in a divorce suit, just as it is determined in any other civil action, by the rules of pleading. Neither section 2922, nor section 2924, nor any other section, prescribes the form of pleading. They prescribe facts to be proved, and relate to a question of evidence only, and not of pleading. This omission is also cured by the Statute of Jeofails. It was designed expressly to prevent the alarming consequences which would ensue if a defective statement of a cause of action were held to vitiate judgment of a court of general jurisdiction, and. render it null and void. Sec. 672, R. S. 1899: It is not necessary to allege intestacy. (3) The guardian ad litem for Mamie Larkin was appointed by the court as provided by the statute. Sec. 558, R. S. 1899. Whatever the court may think of the judgment against the infant, Mamie Larkin, it must stand good as to the other parties. Horten v. Nation, 126 Mo. 97; State ex rel. v. Tate, 109 Mo. 265. ' (4)' The error of the clerk in entering the judgment of the court on the ■'report of commissioners is a clerical one, and does not vitiate the judgment. This court is authorized to enter the proper judgment. R. S. 1899, sec. 673; Hogan v. Moberly, 131 Mo. 19.
   LAMM, P. J.

The plaintiff, Etta, whose name appears as Etta Larkin Renneman and as Etta Reineman (and in several other forms) in this record, is the wife of Isaac Renneman, or Reineman, and, claiming to be the widow of Andrew Larkin, sues for dower in certain real estate in St. Francois county of which Andrew died seized of an estate of inheritance — Lot 1, northwest quarter, section 6, township 35, range 4, being the, locus in quo.

At a certain term of the St. Francois Circuit Court she was adjudged such dowress and entitled to have assessment of damages, and commissioners were appointed to admeasure dower. At the next term the commissioners reported, setting off to her five and eight-tenths acres as dower land, said parcel being described by metes and bounds and as part of lot one of the northwest quarter of section 6, aforesaid. Said report was approved at the next term, and thereupon evidence was heard on the question of damages and the issues found for plaintiff, assessing her damages at $100.

The concluding part of the final judgment reads: “It is therefore adjudged by the court that the plaintiff have and recover of and from the said defendants the said sum of one hundred dollars, her damages so assessed, and that she have execution therefor; and it is further ordered and adjudged that the plaintiff be and she is hereby awarded writ of possession according to the report of the commissioners, and that is to say that she is put in possession of the following part of said lands assigned by said commissioners as her dower, to-wit: Lot one of the northwest quarter of section six (6) township 35, range 4 east.”

There was a sharp issue as to whether plaintiff was entitled to dower, and proof was put in pro and con. Defendants filed no motion to arrest the judgment rendered on that issue and no motion for a new trial, nor did they preserve (in a bill of exceptions filed during the term, or afterwards by leave then granted), the evidence introduced on the issue of dower or no dower, or the exceptions saved at that trial.

At a subsequent term, when judgment was rendered for the damages and execution was ordered for them and a writ of possession was awarded, defendants did file unsuccessful motions for a new trial and in arrest, took due leave to file a bill of exceptions and in due time filed one. In that bill of exceptions they undertook to preserve the evidence introduced and the exceptions saved at the first trial at a former term.

Defendant Mamie is a minor and only child of Andrew Larkin, deceased. Defendant Moran seems to be in possession of the locus in quo, but how he holds, whether as tenant, purchaser or under some other claim of right, does not clearly appear in the pleadings or in the proof. While the pleadings are silent on the point, we gather from the testimony that defendant J. S. Larkin was a brother of Andrew. There is some faint evidence that he acted somewhat in loco parentis in and about taking charge of and renting the real estate for and on behalf of Ms niece, but in what legal capacity, if any, is dark.

At a certain time after the cause was appealed here, the death of J. S. Larkin was suggested. Thereat scire facias issued to one McLaran, administrator of his estate, for the purpose of revivor. The matter was not pursued, no order of revivor was made and the case was argued and submitted with the record in that condition.

Going back to the early stages of the case below, it appears that on a certain day plaintiff, by motion filed, suggested that Mamie was an infant served with process, that she had neglected to procure the appointment of a guardian to defend the suit, and prayed the court to appoint some competent person as guardian for her, as by statute provided.

On that same day an order was entered, vis.: “That Hon. W. S. Anthony be and is hereby appointed guardian ad litem for the minor defendants herein. ’ ’

No notice to such appointee is shown, nor was his written consent filed and no separate answer was filed on behalf of the minor — neither did the guardian ad litem at any time or stage appear in person or by counsel and take any step in the case, so far as disclosed by the record.

On that same day a general answer was filed for all the defendants, not naming them severally, but using a plural form. After a denial of each and every allegation, the answer concludes as follows: “Further answering defendants say that plaintiff was never lawfully married to Andrew Larkin; that at the time-plaintiff claims to have married Andrew Larkin she was a married woman and incapable of contracting marriage. Wherefore defendants pray to be dismissed hence with their costs.” Signed: “Smith and Anthony, Wm. H. Clopton, for Defts.”

To that answer plaintiff replied denying “each and every allegation, intimation and allusion'therein. ”

With the pleadings in this fix, the trial came on on the dower issue, the evidence was heard and, while the matter was in the breast of the court, plaintiff filed an amended petition, reading:

“Plaintiffs state that coplaintiff Etta M. Renneman, was at the date of her intermarriage with Isaac Renneman, the widow of Andrew Larkin, deceased, who departed this life on the — day of February, 1900, seized of estate of inheritance in the following lands, to-wit: Lot number one (1) of the northwest quarter of section six (6) in township thirty-five (35) north, of range 4 east, containing about one hundred acres, lying, being and situate in the county of St. Louis (sic) and State of Missouri.
“Plaintiffs state that Mamie Larkin is the only daughter of the said Andrew Larkin, and that J. S. Larkin and David Moran are in possession of said premises. Plaintiffs state that more than two years have elapsed since the death of the said Andrew Larkin and dower in said land has not been assigned' to coplaintiff Etta M. Renneman, formerly Etta M.. Larkin, the widow of said Andrew Larkin, although she has never released said dower nor done any act to bar the same.
“Wherefore, plaintiffs pray that coplaintiff’s Etta Eenneman’s dower in said land be admeasured, that she be put in possession of the part assigned to her and that she have and recover damages by reason of being deforced of her dower therein and for her costs in this behalf expended.”

There was no answer whatever to this amended petition and no leave asked to file one or to refile the former.

On such record defendants assign error, vie.:

(a) In that the petition does not state a cause of action.

(b) In that there was no guardian ad litem appointed as required by statute and the infant Mamie' was at no time represented by such guardian.

(c) In that the judgment is erroneous because it decrees that the widow be put into possession of all the land described in the petition.

(d) In that the evidence shows that plaintiff was not the lawful wife of Andrew Larkin.

(e) There is a preliminary question, not raised by counsel, vie.-, whether the cause may proceed on appeal after the suggestion of the death of one of the appellants and without a revivor in the name of the administrator.

Of these in reverse order.

I. It has been ruled that on the death of one of a number of appellants, a cause may proceed on appeal without a revivor. [Reed v. Colp, 213 Mo. l. c. 581.]

II. At the hearing leading up to the interlocutory judgment for dower one main issue was whether plaintiff was ever the lawful wife of Andrew Larkin, deceased. It seems Andrew was entangled in an alleged executory contract to marry, and had breached the contract. For that breach, he was sued. Pending siicli suit, lie went from his home in Missouri to Illinois, preceded or followed there by plaintiff who had been his handmaiden. In Illinois, under coyer of a disguised name, viz., “Melvin A. Larkin,” he married plaintiff, then Miner. She was born Miner, had married one Clinton, had procured a divorce and had resumed her maiden name. The twain, Andrew and Etta, returned separately to Andrew’s home in Missouri. There they lived as man and wife for a month and then, on pretense that it would injure him in his defense of the breach of promise case if the fact of marriage leaked out, he put her away from him'— sending her to her sisters in Reynolds county. She saw him no more. Once she heard from him, but the letter is not accounted for and its eontents not shown. Presently, Andrew died leaving the child, Mamie, by a former wife and admittedly seized as owner of the locus in quo. When plaintiff came to show her divorce from Clinton, she introduced a transcript of a judgment of divorce on personal service in the Reynolds Circuit Court. Thereupon defendants introduced an exemplification of the whole record in that suit; and it is upon the showing there made' that they contend the Reynolds Circuit Court had no jurisdiction of the divorce suit. This, because neither did the petition allege nor did the decree find the residence of plaintiff to be in Reynolds county, or that she had resided in the State of Missouri one whole year next before the filing of the petition. [R. S. 1899, secs. 2922 and 2924.]

The point is interesting and grave, but the questions raised are reserved; since the evidence introduced at the first hearing is not properly preserved in the bill of exceptions nor is any exception thereto preserved for review. Defendants were not entitled to an appeal from the interlocutory judgment decreeing dower. This is so because an action to assign dower is not within the class of cases wherein interlocutory judgments are appealable. [R. S. 1899, sec. 806.] They were entitled to appeal from tbe final judgment, but such appeal does not bring up tbe evidence at the trial resulting in the interlocutory judgment at a former term and the exceptions saved to the admission of such evidence, unless both such evidence and exceptions were preserved by a timely term bill of exceptions. [R. S. 1899, sec. 728.] That was not done in this case, and, on the authority of Richardson v. Schuyler County Agr. and Mech. Assn., 156 Mo. 407, neither the evidence nor exceptions thereto are here for consideration. That case but applies the elementary riile that an exception dies with the term unless its life is preserved by a bill. On such showing, we put from us any consideration of the assignment of error in hand.

III. The judgment is self-evidently erroneous in awarding a writ of possession for the whole tract. If she was entitled to a writ, it was only for the part of the land admeasured and set off to her as dower by the report of the commissioners, as approved by the court. [R. S. 1899, sec. 2963.] It is further erroneous in giving a. personal judgment against defendants for the damages and in awarding execution against them personally. Section 2977 ordains that: “Execution thereof (vis., on the judgment for damages) shall be awarded only against the estate in which dower shall have been assigned.” [Griffin v. Regan, 79 Mo. 73.] The judgment should have been special and the award of execution responsive. But we would not reverse on this score as the point is waived by counsel for defendants.

IV. Is there reversible error to be predicated of the failure of the guardian ad litem to consent to his appointment, whether by filing his acceptance in writing and thereafter acting for his ward by filing answer and participating in the defense, or by filing such answer and so participating in the defense without filing a written consent?

The right determination of those questions can only be reached by considering our statutes and keeping in view the remedy advanced and the mischief to be retarded thereby.

Sections 558, 559 and 560 of the Revised Statutes of 1899, follow:

Sec. 558. “After the commencement of a suit against an infant defendant, and the service of process upon him, the suit shall not be prosecuted any further until a guardian for such infant be appointed.”
Sec. 559. “Such appointment shall be made by the court in which the suit is pending, or by the judge thereof in vacation, upon the written request of the infant defendant, if of the age of fourteen years or more, or, if such infant be under said age, on the written request of a relative or friend of the infant, and on the written consent of any competent person proposed as a guardian, and such request and consent shall be filed in the office of the clerk of the court before any answer by such infant shall be filed.”
Sec. 560. “If such infant defendant neglect, for one day after the first day of-the term at which he is bound to appear to the suit, to procure the appointment of a guardian to defend the suit, the court shall appoint some competent person to be guardian' for such infant in the defense of such suit.”

The three sections are strictly in pari materia, and have been the law for seventy-five years. The first and last have descended as live law without variation or shadow of turning from Revised Statutes 1835. The middle section (now 559) originally read as follows: “Such appointment shall be made upon the request of the defendant, and on the written consent of any competent person proposed as guardian by the court in which the suit is pending, or by a judge thereof in vacation, and shall be filed in the office of the clerk of the court, before any plea by such infant shall be filed.” [R. S. 1835, p. 456, sec. 250

Sections 558, 559 and 560 of our present statutes appeared in the Revised Statutes of 1835 as sections 24, 25 and 26 (p. 456), save that in 1879, section 25, Revised Statutes 1835, was amended to read as it now does. The amendment obscures the sense a trifle, but we think there is no escape from the conclusion that the amended section retains the sense and purpose of the old one, and that all these statutes had a common purpose and must be construed together to effectuate that purpose. Those sections must be held to prescribe that a suit against an infant should not proceed without the appointment of an adult person of mature judgment to defend his rights. The appointment should be made at the very beginning of the proceeding after service of process and before answer. The statute says so (Sec. 658). Such, too, is the general doctrine and the reasons for the rule are obvious. [10 Ency. of Pl. and Pr., 638.]

"We know the appointment of a guardian ad litem has not infrequently been looked upon in practice as a bare technicality and that the office of such guardian has been deemed to involve perfunctory and shadowy duties, but such theory is unreasoned and such practice indefensible. The reason of the thing and the office and duties of a guardian ad litem are set forth with precision and felicity by Hays, president of the court, and received the sanction of no less an oracle of the law than Chief Justice Gibson, in the case of Mercer v. Watson, 1 Watts l. c. 348-9, viz.: “What then is meant by an appearance and defense in an action, and particularly, when it is said that an infant shall appear and defend by guardian? This is considered as an important privilege of the infant: justly so, for it is evident that his privileges with regard to contracts and other transactions would be of slight utility, if he were liable to be dragged into court and exposed there, unprotected in his ignorance, to contend with skill and business, with learning and experience. There is no imaginable situation in which an infant would be likely to suffer more from imbecility of understanding. It may easily be seen that, under these circumstances, he would soon be stripped of his all. It is to protect him against such danger, that the law assigns him a guardian in the suit. This guardian is to do for him what with riper judgment he Would do for himself; he is to appear for him in his proper person, employ competent attorneys, and counsel to prepare and plead his cause; he is to collect testimony, summon witnesses, and at the trial to afford such aid to his counsel as may be necessary in unexpected difficulties. It is only by exercising that attention and vigilance in the cause of the minor, which he would exert in his own, that he fairly discharges his duty. When all this has been done, everything in point of privilege has been secured to the infant which the law contemplates, or justice demands. It is something more than a mere technical defense, which is required by the guardian; for these he might furnish, and yet abandon the essential interests of his ward, by coming in at the return of the writ and entering a plea, and afterwards wholly neglecting the cause. An appearance in general is either by the suitor in proper person, or by his attorneys. But the infant cannot appear in his own person, nor can he authorize an attorney to appear for him; he can only appear by his guardian, who derives his authority, not from the infant, but from the court by which he is appointed.”

Keeping in mind the significance of the office and appointment of a guardian ad litem and the live and important duties in respect to the infant’s rights devolving upon such appointee, our present-statutes (as did the earlier) require his consent to serve. He should he notified of his appointment and accept the office in writing. We do not hold that an acceptance in writing might not he waived by the guardian if he in fact accepted office and the record showed that he entered upon the performance of his duties and performed them under the eye of the court.

In this case there is no record showing' that Hon. W. S. Anthony ever heard of his appointment, or acted under it in any step in the case. It seems that a firm of attorneys, “Smith and Anthony,” filed an answer to the first petition before the appointment of any guardian ad litem. It seems that after the appointment the same firm filed an answer for all the defendants, uniting with themselves Mr. Olopton in the defense. But such record facts do not aid us. It would be audacious, absent light from the answer itself or elsewhere from the record, to take judicial cognizance that the “Anthony” of the firm of Smith and Anthony was the identical Hon. W. S. Anthony appointed guardian ad litem by the court. There may well be more than one person bearing the honorable name of Anthony in that region, and quite learned in the law. Courts take judicial notice of facts of current history, of geographical and scientific facts and of facts commonly known to all mankind. This, because courts should not admit themselves more ignorant than the rest of mankind. We might, if enlightened by subject-matter or context in a document held in judgment, assume that the surname of a given Washington was George or a given Lincoln, Abraham — this because the subject-matter or context pointed to George Washington or Abraham Lincoln, hut no court has ever arrogated to itself such all-pervading and all-embracing knowledge of the facts of local history as would be assumed in taking judicial notice of the surname of an individual member of a partnership in the practice of law at any particular time in any given town in the State of Missouri. Not only so, but if we were to assume that the guardian ad litem was in fact the junior member in Smith and Anthony, attorneys, yet we would be unwilling to hold that the mere appearance of that firm in answering generally for the defendants (without proof absent here) took the place of notice of the appointment as guardian ad litem, effected an appearance as such guardian, fulfilled the statutory requirement of consent to serve, or waived notice of the appointment and evidenced consent to serve by actually taking on his shoulders the burden of defending the infant.

The general doctrine is announced in the work last cited (10 Ency. PL & Pr., p. 662-3-4) to be that a guardian ad litem must consent to act under his appointment in order to render the appointment complete and effective. To quote: “There must, however, in all cases be either an express assent to the appointment or some action taken by the guardian denoting his assent. Thus he may manifest his acceptance by appearing in the suit, and filing an answer for the infant. The acceptance of the appointment should appear of record and where acceptance is not shown a judgment against the infant will be reversed. . . As a general rule, no person can appear as guardian ad litem unless he has been in fact appointed by the court, and the appointment should appear of record. An answer or defence interposed by one acting without appointment will not support a judgment against the infant.”

It has so been ruled, in effect, by the St. Louis Court of Appeals in a memorandum opinion. [Creech v. Creech, 10 Mo. App. 586.]

An entirely different question would be here if the judgment had been in favor of the infant. In such case an appearance by attorney, blest by success in maintaining the infant’s cause, would put the matter on another basis. [R. S. 1899, sec. 672; Padgett v. Smith, 206 Mo. l. c. 313, and cases cited.]

So, if this was a collateral attack on the judgment another question would be here. A judgment against an infant (as is his contract or deed) being voidable only and not void, would not be subject to collateral attack. [Townsend v. Cox, 45 Mo. 401; Charley v. Kelley, 120 Mo. 134; Weiss v. Coudrey, 102 Mo. App. l. c. 69; Shaffer v. Detie, 191 Mo. l. c. 388-9.]

This being an appeal from the judgment it is in the nature of a direct attack upon it. Accordingly, we rule:

First, that the premises considered, the judgment is erroneous and must be reversed;

Second, that the error is manifest on the face of the record and does not depend on matter brought here in the bill of exceptions.

Y. The remaining question is the sufficiency of the amended petition in stating a cause of action. It is scant in allegation. It does not directly allege that the infant inherited the locus in quo as the only heir of Andrew, her father. There is no averment that Andrew died intestate. There is no averment as to the interest or estate of Moran, nor how he holds, nor any averment of similar import as to J. S. Larkin. The statute contemplates that under certain contingencies and circumstances damages for the deforcement of dower do not begin to run until demand is made. [R. S. 1899, sec. 2955.] But shadowy and vague as the petition is in direct allegation, it is aided by reasonable inferences and we shall not hold it bad after verdict. As the judgment must be reversed and the cause remanded for another trial, plaintiff might better amend and may do so if she elect.

In view of conclusion reached and legal propositions ruled, the judgment is reversed and the cause remanded to be proceeded with in accordance with this opinion. It is so ordered.

All concur.