text:
    M. J. JONES v. MARGARET NICHOLS et al., Appellants.
    Division One,
    December 20, 1919.
    1. FRAUD: Proof: Presumption. The burden is upon the party allege ing fraud to prove it by clear and convincing evidence. While fraud may be inferred from facts and circumstances, it will not be presumed without or against evidence; and where the transaction may as well consist with honesty and fair dealing as with a fraudulent purpose, it is to be referred to the better motive.
    2. -: Conspiracy: Delay in Probating Will: Intermediate Conveyances. Where the owner, the father of three married daughters, devised land to his wife, and she delayed for twelve years in having the will probated, and was told by the justice of the peace and a lawyer that it was not necessary that it be probated, and in the meantime two of the daughters and their husbands, long after the will was made, conveyed a two-thirds interest in the land to secure a loan made to them by plaintiff, who examined the records of the probate court before making the loan, a conspiracy between said vendors and the widow to defraud plaintiff and the public is not established by mere proof that the vendors knew of the existence of the will, there being none that the widow delayed its probating for any such purpose, or was in any wise a party to the alleged conspiracy.
    3. LIMITATIONS: Land Subject to Dower and Homestead: Married Women. The claim of title by defendants in this ease by adverse possession must be denied, if the property was the homestead of their father and dower has not been assigned to his still surviving widow, and all of the children were married women when their father died, and the husband of no one of them had been dead ten years at the time of the trial.
    4. TITLE OF DEVISEE: Unprobated Will: Intervening Conveyance. Title does not pass by will until the will is probated, but when probated it relates back and takes effect as of the date of testator’s death, and all intervening conveyances to purchasers who had notice, actual or constructive, are eliminated. The statute fixes no time within which a will must be probated, and the law does not make void an unprobated will.
    5. -: -: -: Possession as Notice: Homestead: Innocent Purchaser. Where the will gave the property to testator’s widow and was not probated for twelve years after his death, a purchaser who, eight years after testator’s death, took a conveyance from her two married daughters, residing elsewhere, with actual knowledge that she was in the open and exclusive possession, was bound to inquire of her the ground, source and right of her possession, and, having made no such inquiry, took with notice of the will. The fact that she was testator’s widow and the property was a homestead did not vest the purchaser with the right to attribute her possession to her marital rights and relieve him of the duty to inquire of other rights she might have; and since her rights as widow and devisee were cast upon her at the same instant by the death of her husband, it cannot be said that she went into possession under one right and afterwards acquired another. The rule of law is that open, exclusive, separate and distinct possession is notice to all the 'world of all the rights of the possessor, whether they be those of devisee or as the widow of testator. [Distinguishing Lincoln v. Thompson, 75 Mo. 613.]
    Appeal from.Pike Circuit Court. —Eon. Edgar B. Woolfoili, Judge.
    Reversed.

      Pearson & Pearson for appellants.
    (1) The will conveyed to and vested in the widow the absolute title in fee to the property described in plaintiff’s petition. Secs. 525, 537, R. S! 1909. The petition alleges, and the decree adjudges, such to he a fact. (2) The fact that the will was not probated immediately upon the death of the testator did not affect the title that was devised to the widow. The probating of a will relates back to the death of the testator, and vests title in the devisee from that time. The fact that a will under which a defendant claims title to land was not probated until after the bringing of a suit, is no objection to its admission, in evidence. Bernard v. Bateman, 76 Mo. 415; Snuffer v. Howarton, 124 Mo. 649. By probating and recording the will, be it ever so many years after the death of the testator, the title to the property in the devisee under the will is perfected; and possession during all the years from the death of the testator gave notice to the world that she claimed title thereto. The statute nowhere fixes a time within which a will must be probated. It is only directory, as to recording the will; and fixes no penalty for delay in either probating or recording a will. Wolff v. Brown, 142 Mo. 617; Nichols v. Hobbs, 19l7 S. W. 260q Wilcox v. Moore, 199 S. W. 136. (3) Possession of property is prima-faeie evidence, and actual and legal notice, of a claim of title; and any purchaser having knowledge of the possession of Such property, is put upon inquiry. Schaeffer v.'Detie, 191 ' Mo. 392; Keith v. Bingham, 100 Mio. 308. The testimony was uncontradieted that the respondent had known Mrs. Nichols and her husband since a long time before his death in January, 1903; that he knew that she was in the actual possession of the property, upon which he took a deed of trust to secure his alleged loan; knew that she had been in the actual, continuous and exclusive possession of the same since January, 1903; and, made no inquiry or investigation as to her claim of title. He stated that he had lived in the town of Frankford, which is within a mile and a half or two miles of this property, for many years. (4)i If she had no? other claim, Margaret Nichols’ title to this property had ripened and vested by the Statute of Limitations. There was no evidence that her twelve years’ exclusive possession was otherwise than under a claim of ownership. The will, had it never been probated, was sufficient color of title to set the Statute of Limitations in motion. Shaeffer v. Detie, 191 Mo. 393.

      Jones S Gorwine and Hostetter $ Haley for respondents.
    (1) The continued occupancy by the widow of the “mansion house of the husband and the messuages or plantation thereto belonging,” can have no such effect as is so stoutly and vehemently claimed for it by opposing counsel. Until dower be assigned she has the right to continue in the possession of such premises indefinitely. This right is expressly conferred on her by statute. Sec. 366, R. S. 1909. Ñor is such possession hostile to the heirs, and, prior to the assignment of dower, no Statute of Limitations runs against the heirs, no matter how long the possession of the widow, or her grantee, may continue. Brown v. Moore, 74 Mo. 633; Melton v. Fitch, 125 Mo. 281; Westmeyer v. Grallenkamp, 154 Mo. 28; Fischer v. Siekmann, 125' Mr. 165. (2) Until a will is produced there is a presumption that the realty goes where the law casts' it. Miller v. Speight, 6.1 Ga. 460; Adams v. Phillips, 132 Ga. 455. In order to charge purchasers and others with constructive notice of the conveyance of title by will, it is essential that a copy of the will duly probated should be recorded in the county where the land is situated. Borland on Wills, pp. 185-6; Wolf v. Brown, 142 Mo. 612; Rodney v. Landau, 104 Mo. 260; Keith v. Keith, 97 Mo. 223; Yan Syckel v. Beam, llO' Mo. 589'; Hartwell v. Parks, 240 Mo. 537-550; Parris v. Burchard, 242 Mo. 1; Wilson v. Wilson, 54 Mr. 215; Watson v. Alderson, 146 Mo. 333; Graves v. Ewart, 99 Mo. 13. Sec. 544, R. S. 1909, provides that a testator shall be deemed to have died intestate as to children not named in will. Section 584 confers on probate courts power to compel production of a will by summons and attachment. Title to land will not pass by will which was never probated. Snuffer v. Howerton, 124 Mo. 637; Smith v. Estes, 72 Mo. 310; Barnard v. Bateman, 76¡ Mo. 414-. Section 566 requires wills devising lands to be recorded in Recorder’s office of county where the land is situated; and when devised land is in different counties, then such copy shall be recorded in each county within six months after probate. In fact, the general legislative policv discloses the existence of the doctrine that wills are to be probated promptly; that no notice is imparted to third persons until the will has been probated or recorded ; and that it is the duty of persons in possession of wills of .deceased persons to promptly produce them for probate or be subject to summons and attachment. (3) Mrs. Nichols, by her conduct in wilfully concealing the will, keeping it from probate for more than twelve years, is in equity and good conscience estopped from asserting any claim under the will against persons who were lured by her acts to treat and deal with the property as if her husband had died intestate. 2 Pomeroy’s Eq. Jur. (4 Ed.) sec. 802. The conduct of the widow tended to accentuate the false idea that her husband had died intestate. Clark v. Lewis, 215 Mo. 187; Boggs v. Burton, 180 S. W. 402; 2 Pomeroy’s Eq. Jur. (4 Ed.) 'sec. 801. (4) The possession of the widow in this case without probating the will for twelve and one-half years, simply said to all the world that Josephr Nichols died intestate and his widow is occupying his mansion house and enjoying the messuages connecte therewith until dower be assigned, and the heirs are indulgent enough not to cause her dower to be assigned; therefore she is lawfully entitled to hold possession of all the premises, including, the excess above the $1,500 homestead, and that the three daughters each own an undivided one-third interest in the 120' acres, subject to their mother’s quarantine, homestead and unassigned dower rights therein.
   SMALL, C.

This suit in equity was instituted in the Circuit Court of Pike County to vest title in an undivided two-thirds interest in 120 acres of land in said county in the plaintiff, subject to the dower rights of Margaret Nichols, as widow of Josephus Nichols, deceased, on the theory that, as to the plaintiff, said Josephus Nichols died intestate. Margaret Nichols and Dolly Seely are defendants.

Plaintiff alleges that said Josephus Nichols died at his residence on said land January 5, 1903. That he left surviving him his widow, the defendant Margaret Nichols, and his three daughters: Susan Foutes, wife of Andrew Foutes, since deceased; Nancy Foutes, wife of Edward Foutes; and Dolly Seely, wife of William H. Seely. That said Josephus Nichols died testate, and by his will devised the whole of the land to his widow. That as to all the world, except Mrs. Nichols and her daughters and their husbands, it appeared that said Josephus Nichols died intestate, and plaintiff had no knowledge to the contrary until the will was probated, which was July 26, 1915. That defendants and A. N. Foutes, then the husband of Susan Foutes, “combined, confederated and conspired” together to keep said will from being probated and its existence a secret, in order to. deal with the land as if it belonged to the widow and her daughters under the laws of descent, and to defraud the plaintiff by inducing him to loan $875 on the two-thirds interests of Susan Foutes and Nancy Foutes. That in pursuance of such conspiracy, Susan Foutes and her husband, A. N. Foutes, conveyed her one-third interest to Edward Foutes, and Edward Foutes and his wife on March 28, 1911, borrowed $875 from the plaintiff, secured by a deed of trust on two-thirds interest in said land. The money not being paid when due the property was sold under the deed of trust, November 16, 1914, and bought in by William C. Smith for the plaintiff, who afterwards conveyed to the plaintiff. That defendant Margaret Nichols by keeping the existence of the will a secret from the plaintiff, aided Nancy Foutes and Edward Foutes “in the perpetration of their skillful scheme to cheat and defraud the plaintiff as aforesaid.” And that the will was probated March 26, 1915, and the property afterwards conveyed by Mrs. Nichols to her daughter Dolly Seely “in furtherance of the scheme and conspiracy hereinbefore mentioned.”

The answer of the defendants admitted the death of Josephus Nichols, the making and probating of the will, and alleged that ever since his death defendant Margaret Nichols had been in the open and notorious possession, claiming to own said property under said will, and also by adverse possession of ten years. The answer also contained a general denial.

Plaintiff took the depositions of the defendants and read them at the trial.as admissions.

In her deposition, defendant Margaret Nichols, testified: That she was 79 years old. That her husband died March 5, 1903. That they lived on this 120 acres until the time of his death. * That he left three children at his death, Nancy, Susie and Dolly, all of them married, as stated in the petition. They lived with their husbands a mile or two away from the home place, except Mrs. Seely, who lived near Madisonville, about ten miles away. Mr. Brown wrote her husband’s will. She was present, together with her daughter Susie, Andrew Foutes, Mr. Shaw and Dr. Burns. The will was made a week before her husband’s death. She did not have the will probated because Mr. Brown said it was not worth while, that it was all hers any way, whether the will was probated or not. The probate judge, Judge Motley, and Governor Major also told her that it was not worth while to go to any expense in probating the will. Mr. Brown kept the will until just before he died, which was about two years before it was probated. She never knew of Edward Foutes buying any land from her daughter, Susie. She knew nothing about their borrowing money from the plaintiff until long after it was done. She never knew that her daughters claimed to own any interest in the land. She knew nothing about their transactions with each other or the plaintiff. She says: “I didn’t make any effort to learn anything, because they were mad at me and I didn’t know what they were driving at. They never spoke to me about nothing. They never had nothing to do with me. ’.’ Edward Foutes never told her that he wanted to buy the place from the girls. lie never told her that Andrew Foutes’ wife wanted to sell her interest to him. “I don’t remember any suck tiling, because it never happened.” She deeded the farm to her daughter, Dlolly Seely, .“because she helps support me and taires care of me, and does for me, and none of the rest did. She paid up the taxes and paid me some money.” She, however, lived at home, and her daughter would come there to care for her. She was feeling very badly when her deposition was taken. She was suffering from a fall she got the week before. She was in misery all of the timei She got Pearson and Pearson to probate the will after Mr. Smith had brought suit against her, which was afterwards dismissed.

In her deposition, read by the plaintiff, Dolly Seely testified: She knew when her father died he left a will. So did the other members of the family. Brown had custody of the will. She knew the property had been left to her mother, but she did not know that her sisters knew it. She knew nothing about her sisters borrowing money on their supposed interests, until after they had borrowed it, nor of one of her sisters selling her interest to Edward Foutes, until after it was over, when her sister said she did it because her husband was sick and they were in need. She never discussed with he]’ mother or sisters whether or not her sisters had any interest to sell. Nancy and Ed Foutes knew about the will.

Mrs. Susan Foutes and Mrs. Nancy Foutes also testified for the plaintiff. The substance of their testimony is that they knew Mr. Brown made some kind of a writing a few days before their father died, but they did not know it was a will. That their mother never told them’that it was a will, and they never discussed with her whether they had any interest in the farm. They never claimed to have any snch interest to their mother. She always remained in possession of the farm, cultivating it and getting all of the proceeds, ail'd she “just went on and managed the farm as her own.” They thought they owned one-third interest each in the farm, when Mrs. Susan Foutes sold her interest to Edward Foutes, and when Edward Foutes and his wife borrowed the money from the plaintiff. . Mrs. Susan Foutes got $700' of this money for her third interest, besides a tract of land worth $300. The money was obtained from the cashier of the Exchange Bank of which plaintiff was president.

Edward Foutes testified for the plaintiff. He did not know that Josephus Nichols had made a will, but he learned of it afterwards through Mir. Brown. This was before he bought his sister-in-law’s interest. He had never heard what was in the will. At the time of Josephus Nichols’ death, he and his family lived at Frankford. But at one time, Mr. Brown, who had an adjoining forty acres, asked him to help him build a fence between his land and the land in question. Brown said he would furnish the materials, if he (Foutes) would do the work. “It is as much to your interest as mine,” Brown said. And Brown further said: “You will have an interest in the place.” That was all 'of the conversation he had with Brown. When he bought his sister-in-law’s interest, he thought he was getting what the deed called for. He had a conversation with his mother-in-law before he purchased from his sister-in-law. “Q. State what that conversation was? A. Well, I told her that Susie wanted to sell her part of the place, that they needed money, and that they had a buyer, and I don’t know that I told her it was Mr. Cash or not, but anyhow, I told her likely I would buy it if I could. If I could, make arrangements to get the money, thought perhaps it would suit better. Q'. Is that all that was said? A. No, sir; I think not. I think that she said they couldn’t sell if and cited as a reason that she had redeemed this land. Seemed like her brother, William Wilson, when he was administrator of the place, had given a bond and lost it or forfeited the property, and Joe Nichols had bid it in. I suppose ■you are more familiar than I am, it was in the probate court, but she claimed it under the right of redemption. Q. Did she say anything about a will of her husband’s? A. Never mentioned the will to me in her life, not a word said about the will. Q. Now, what did you give your sister-in-law Susie for her supposed one-third interest in the farm?. A. I think that she got six or seven hundred dollars, I wouldn’t say which, and a piece of land, in consideration, that was between the two places.”

On cross-examination this witness said that he had heard that his father-in-law made a will before he died, but had not heard until lately that he left the farm to his wife. Mr. Brown was a justice of the peace and was a neighbor. Mr. Brown told him that he had written the will. He did not ask about its contents. He did not tell the cashier what he knew or had' heard about his father-in-law making a will. At the time he was trading with his sister-in-law he had heard that his father-in-law had made a will, but notwithstanding that, he went ahead and traded with her. He did not know why he did not tell the cashier what he had heard about the will. He did not think anything about it. The cashier said “he knew more about it than I did.” The conversation with his mother-in-law took place at her home a few days before he purchased his sister-in-law’s interest. No one was present with them. Q. And you think you told your mother-in-law that you were figuring on buying Susie’s interest. A. Yes, sir. Q. And your mother-in-law told you that Susie could not sell her interest? A. Yes, sir. That is what she said. Q. Noth withstanding your mother-in-law told you that, you went ahead and bought it anyhow? A. Yes, sir.”

The testimony of other witnesses for the plaintiff, Jesse B. Jones and the plaintiff himself, shows that plaintiff loaned the money to Foutes in good faith without any actual notice of the will, after examining the records of the probate court. That plaintiff had lived at Frankfort! within a stone’s throw of the property and had known the Nichols, family and property practically all of his life. H'e knew that Mrs. Margaret Nichols was in possession, but that neither the plaintiff nor any one for him inquired of her as to her rights in the property or said anything to her about the transaction with her daughter or her son-in-law, Foutes. It further appeared that William. Seely, husband of Dolly Seely, defendant, bid -$600 on the property at the trustee’s sale, but that it was sold to Mr a Smith for the plaintiff for $909.

Defendants introduced in evidence the petition in the case of Smith v. Margaret Nichols et al. It was a suit to have the land sold in partition. Plaintiff Smith alleged he owned two-thirds interest and the defendant, Dolly Seely, owned one-third interest, subject to the dower of the defendant Margaret Nichols, who the petition alleged had, since her husband’s death, been in the open, notorious and exclusive possession adversly to all the world except as to the plaintiff, his grantors and Dolly Seely.

The defendants were not present at the trial and offered no testimony, other than their depositions.

The court found for the plaintiff, and decreed that he had a lien upon an undivided two-thirds interest in said real estate for the amount of money he had loaned thereon, together with interest, because, as found by the court, “the defendant, Margaret Nichols, had at the time of such transaction, knowledge of the conveyances made by her two' daughters, as aforesaid, and of the fact that plaintiff was loaning money on the apparent title which said daughters owned in said real estate, based on the apparent intestacy of Josephus Nichols, and that the plaintiff had no knowledge of the existence of such unprobated will.” The court further ordered that the undivided two-thirds interest in said real estate be sold, subject to such rights as said Margaret Nichols would have therein in the event of. her husband, Josephus Nichols, having actually died intestate, viz., homestead, dower and quarantine right. Defendants duly appealed to this court.

I. The evidence wholly fails to sustain the allegations of fraud and conspiracy charged against the defendants or either of them. The burden of proof in such cases is upon the plaintiff to make' out his case by clear and convincing evidence. While fraud may be inferred i'rom facts and circumstances, it is never to be presumed without or against the evidence. And where the transaction under consideration may as well consist with honesty and fair dealing, as with a fraudulent purpose, it is to be referred to the better motive. [Garesche v. MacDonald, 103 Mo. 1; Hardwicke v. Hamilton, 121 Mo. 465; Warren v. Ritchie, 128 Mo. 311.] Viewed in the light of these rules, we are constrained to find from the record that all of her daughters, and both of her sons-in-law, Andrew and Edward Foutes, knew that the property had been devised to Mrs. Nichols by their father ’s will before Mtrs. Andrew Foutes made her deed to Edward Foutes, and that Mrs. Nichols never told Edward Foutes that she claimed to own the property under a right of redemption, and’ never said to him that her daughter could not sell her interest for that reason. Indeed, the petition itself, in effect, alleges that all of her daughters and sons-in-law knew the will devised the property to her, and conspired with her to suppress all knowledge of its existence, so as to mislead and defraud the public and plaintiff. And the petition further alleges that the deed from Mrs. Andrew Foutes to Edward Foutes was made and the loan from the plaintiff secured by Edward Foutes in pursuance of said conspiracy. The evidence totally fails to prove any such conspiracy, so far as the defendants are concerned, but all tends to disprove it.

We are also satisfied that Mrs. Nichols never wilfully withheld the will of her husband from probate for any such sinister purposes as alleged in the petition. She gave the will to Mr. Brown, the justice of the peace who wrote it, and advised with him as to probating it, and he informed her it was not necessary to do so, that the property was hers just as well without being probated. The probate judge, Judge Motley, and Mr. Major, after-wards Governor Major, whom she also consulted, gave-her similar advice. If this venerable mother intended to commit a wrong or defraud the plaintiff or the public by secreting the existence of the will, would she have gone to these public officials to advise her in regard to probating it! But it is not necessary to prolong the discussion of this branch of the case. Suffice it to say, that there is in this record not even the breath of suspicion of wrong-doing on the part of Mrs. Nichols in failing to probate and record the will, or that she ever knowingly stood by and allowed her daughters to deal with the property as their own, or had any knowledge of plaintiff’s transactions with her daughters and sons-in-law until subsequent thereto.

II. The claim of title by the defendants by adverse possession must be denied, because the property was the homestead of Josephus Nichols, and dower had never been assigned to the widow, and the daughters were married women when their father died, two ^ them remaining so until the trial, and the husband of the other had not been dead for ten years before that time.

III. As to the title of Mrs. Nichols under her husband’s will. It is true, as asserted by; respondent’s learned counsel, that title to land does not pass by will until the will is probated. [Snuffer v. Howerton, 124 Mo. 637.] But it is equally true that - title does pass upon the probating of the will and relates back and takes effect as of the time of the testator’s death. [Barnard v. Bateman, 76 Mo. l. c. 415; Wilson v. Wilson, 54 Mo. 213.] Our statute no where fixes a time within which a will must be probated after the testator’s death, nor is there any provision making a will void until it is probated. A sheriff’s sale does not pass title until a sheriff’s deed is made and acknowledged as required by the statutes. Yet, upon the making, acknowledgment and delivery of the sheriff’s deed, it relates back and conveys title as of the inception of the lien of the execution or judgment, except as to intervening innocent purchasers, that is, purchasers without notice of the sheriff’s sale. [Strain v. Murphy, 49 Mo. 337; Leach v. Koenig, 55 Mo. 451; Lewis v. Cury, 74 Mo. 49; Land & Lumber Co. v. Franks, 156 Mo. l. c. 689.] The same rule must apply to wills. Upon their being probated they relate back to the death of the testator aud eliminate all intervening purchasers who had notice, actual or constructive, of the will. In this case the plaintiff had no actual knowledge of the will. So that the sole question for our decision is whether he had constructive notice of it by reason of the open possession, to his knowledge, of the property by Mrs. Nichols, at and before' the time he made his loan to the Foutes. Respondent’s learned counsel do not deny that such possession and knowledge thereof by the purchaser would generally charge the purchaser with notice of the title of the party in possession, but they contend that this should not be so in this case,, because plaintiff knew that Mrs. Nichols was the widow of Josephus Nichols, and occupied the homestead and, therefore, he had a right to attribute her possession to her right as widow, and was not bound to inquire as to any other right she might have in the property. No authorities are cited in support of the suggestion of learned counsel; but we find that in some other jurisdictions there are exceptions to the general rule, and one is, that when a tenant goes into possession under a lease and after-wards buys the landlord’s title and fails to put his deed on record, but remains in possession under circumstances not sufficient to attract attention to the change of his former title, his possession is not notice to third parties of his title under his deed from the landlord. [2 Devlin on Deeds, p. 1412, sec. 770, citing among other cases, Lincoln v. Thompson, 75 Mo. 613.] But the author closes the discussion, in support of which he cites many authorities, by saying (Id.): “But the proper rule seems to be that possession should be held to be notice of all the rights of the party in possession, when that possession is open, visible, exclusive, distinct and unequivocal.” Pomeroy’s E:q. Jur., Vol. 2, sec. 616, also notes the same distinction and says of the cases holding that such exception is not well founded (note 2): “In my opinion these decisions are much more in harmony with the general doctrine than those others which have drawn refined distinctions upon the amount of notice derived from the occupant’s original right to the possession. The reasons' upon which the whole doctrine rests seem to be conclusive. The possession of a third person is said to put a person upon an inquiry; and he is charged with notice of all of that he might have learned by a due and reasonable inquiry. Clearly a purchaser, who is thus put upon inquiry, is bound to inquire of the occupant with respect to every ground, source and right of his possession; anything short of this would clearly fail to be the ‘due and reasonable inquiry’ ” citing numerous cases. But we do not regard the case in hand as coming' within the exception which these learned authors say is not supported in principle, nor by weight of authority. The reason for the exception is lacking here. In this case Mrs. Nichols’ rights as devisee and widow were cast upon her at the same instant by the death of her husband, so that it cannot be said that she went into possession under one right or claim and afterwards acquired another. We hold, therefore, that the law in this State is that open, exclusive, separate and distinct possession such as is shown here. to have been in Mrs. Nichols, after the death of her husband, is and was notice to the world of all of' her rights, those as devisee of her husband, as well as those cast by the law upon her as his widow. In the case of Lincoln v. Thompson, 75 Mo. 613, above noted, the remarks of the court tending to support the exception to the general rule above mentioned, the wife had hot been in exclusive possession, nor possession at all. The possession had been in her husband. The remarks of the court were therefore obiter. On the other hand, in Davis v. Briscoe, 81 Mo. l. c. 37, this court, per Phillips, C., quoting Buck v. Holloway, 2 J. J. Marsh. (Ky.) 180, said: “The only sensible rule is, that actual residence upon the land is notice to all the world of every claim which the tenant may legally assert in defense of his possession.” The Supreme Court of Kentucky, thus quoted with approval, further added: “We cannot split up the claims under which the tenants in possession may hold, in this manner, for the benefit of those who purchase over their heads.”

The rule that open and unequivocal possession of land gives notice to the world of the rights of the occupant, as fully as actual notice or record of the muniments of title, has always been the law of this State. [Bartlett v. Glasscock, 4 Mo. 62; Leavitt v. LaForce, 71 Mo. l. c. 357; Masterson v. Railroad, 72 Mo. l. c. 342; Davis v. Briscoe, 81 Mo. 27; Ins. Co. v. Smith, 117 Mo. 261; Desteiguer v. Martin, 162 Mo. 417; Myers v. Schuchmann, 182 Mo. 159; Shaffer v. Detie, 191 Mo. l. c. 393; Stuart v. Ramsey, 196 Mo. l. c. 415; Squires v. Kimball, 208 Mo. 119; Stone v. Railroad, 261 Mo. l. c. 76; Titus v. Development Co., 264 Mo. l. c. 245.]

In Shaffer v. Detie, 191 Mo. l. c. 393, this court, per Lamm, J., says: “But it is strenuously urged by appellant that the proof showed no notice to him; and that he was an innocent purchaser. The record bears ear-marks indicating all of the parties resided in New Madrid County and hence no question of non-residence is in the case. We assume appellant’s contention is based on the doctrine that under our registry acts a deed should be recorded in order to impart notice. But .visible possession of real estate, with acts of dominating control, improvements, the continuous cultivation of the land, etc., are as potential in imparting notice of a claim of title as the record of a deed. One may not be allowed to blindfold himself to the visible indices of ownership, such as abound in this case, and say that he had no notice. To this effect has always been the law in Missouri. [Bartlett v. Glasscock, 4 Mo. 62; Davis v. Briscoe, 81 Mo. 27.] And such is the general doctrine. [2 Dev. on Deeds (2 Ed), secs. 760 and 769.] The possession of J. C. Morehead was continuously perpetuated down to the day of the trial under the chain of title relied upon by the respondents, and it became either actual notice or put appellant on inquiry and he is impaled on either horn of the dilemma.”

And in Squires v. Kimball, 208 Mio. 119, this court, per Fox, J., says: “It is no longer an open question in this State that a person who buys property in the visible possession of a third person is chargeable with notice of the title and right of that person to the premises.”

We hold that under the facts and circumstances shown in the case, the circuit court erred in not rendering judgment for the defendants. We therefore reverse the case with directions to the lower court to set aside the judgment rendered for the plaintiff and enter up "judgment for the defendants.

Brown and Ragland, CC., concur.

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

All of the judges concur, Bond, J., in the result.


source: Caselaw Access Project

author: WILLIAMS, J. BLAIR, J., WALKER, C. J.,

license: Public Domain

text:
    THE STATE v. WILLIAM L. ROBERTS, Appellant.
    In Banc,
    January 26, 1920.
    1. EVIDENCE: Exclusion of Proffered. Testimony: Preserved for Review. A complaint that the trial court erred in excluding evidence of specific turbulent prior acts of deceased known to appellant, cannot be reviewed on appeal unless appellant offered to prove what the prior acts were.
    2. SELF-DEFENSE: Perfect and Imperfect: Instruction. Defendant went to deceased’s feed lot in response to a request by deceased that he keep his turkeys on his own premises. In the quarrel which ensued, each, called the other a liar, and deceased threw a neck-yoke at defendant, who hurriedly went away in the direction of his residence, one'-eight of a mile distant, saying he would return in a few minutes. He returned in a few minutes with a double-barrelled shot-gun, and as deceased was approaching him and was in the act of climbing over a fence, with an ax in his hand, and was yet seventy-five feet distant, defendant fired both barrels of the gun in rapid succession. In explanation of his return to the feed lot defendant testified: “I went down there to see if I could settle the'difficulty without any further trouble, because I wanted to settle it while it was new. He and I had been good friends, and I thought probably I could do it that way, and I took the gun along with me to defend myself if I couldn’t.” Held, first, that upon this explanation defendant was entitled to have the court instruct on the imperfect right of self-defense, and the instruction denying him that right was error; and, second, that the evidence would not justify an instruction on the perfect right of self-defense, and the portion of the instruction which.deals with that subject was more favorable to defendant than the evidence warranted.
    3. -: -: Return to Scene of Difficulty: Guide. If the testimony clearly shows that defendant returned to the scene of the former difficulty in a threatening, bluffing or menacing manner, armed with a shotgun, and by such means intentionally provoked or brought about a renewal of the difficulty, with the felonious intention of causing deceased to renew the attack so that he might have a pretext for killing him or doing him great bodily harm, he is not entitled to invoke any phase of the right of self-defense, even though, after he had renewed the quarrel, deceased started towards him with an ax in hand, and defendant shot him while he was yet seventy-five feet away. If, however, defendant wrongfully sought a renewal of the quarrel with the intention of merely overawing the deceased, or of holding him in check while a discussion could be had and a settlement or a mutual understanding reached, or to accomplish any result other than the death or great bodily harm of the deceased, he is entitled to invoke the imperfect right of self-defense, which would reduce the homicide to manslaughter in the fourth degree.
    4. —.-: Apprehended Danger: Unnecessary Force. The sentence “nor is any one justified in using any more force than is necessary to get rid of his assailant” has no proper place in an instruction on self-defense.
    5. - — : Voluntarily Engaging in Difficulty. An instruction on self-defense which tells the jury that if they believe from the evidence that defendant “voluntarily and of his own free will engaged” in the difficulty, is erroneous. Such a clause unmodified has no place in an instruction' dealing with the subject of self-defense.

      Appeal from Boone Circuit Court. — Hon. David H. Harris, Judge.
    Reversed and remanded.

      Bniton & Hulett, Frank G. Harris and M. B. Con- . ley for appellant.
    (1) The court erred in giving Instruction 12 for the reason that it erroneously set forth the law as applied to the facts in this case in the following particulars: (a) Said instruction thus stated the law of th quantum of force and resistance defendant was justified in using. This proposition is stated in the instruction in the language: “Nor is any one justified in using any more force than is necessary to get rid of his assailant. ’ ’ This statement of the law without qualification has been condemned by this court. State v. .Hollingsworth, 156 Mo. 186; State v. Harper, 149 Mo. 527; State v. Rose, .142-Mo. 428; State v. Palmer, 188 Mo. 568'. (b) Said instruction also erroneously stated the following propositions of law: “But on the other hand the law' does not permit a person to voluntarily seek or invite a combat or put himself in the way of being assaulted in order that when hard pressed he may have a pretext to take the life of his assailant. The right of self-defense does not imply the right of attack and it will not follow in any case where the difficulty is sought for and induced by the party by any willful act of his, or where he voluntarily and of his own free will enters into it. . . . So if you believe from the evidence in this case that the defendant Roberts voluntarily sought or invited the difficulty in which Ryland lost his life, or that he, defendant, provoked or commenced or brought it on by any wilful, act of his own, or that he voluntarily and of his own free will engaged in it, then in that case you are not authorized to acquit him on the ground of self-defense.” This instruction was erroneous for the reason that it omitted to state the intent with which the defendant must have voluntarily entered into or put himself in the way of a difficulty, which must he for the purpose of committing a violent act, and has been condemned in the following cases: State v. Gilmore, 95 Mo. 554; State v. Stilts, 97 M'o. 120'; State v. Cable, 117 Mo. 380 ; State v. Gamble, 119 Mo. 427; State v. Sharp, 233 Mo. 269, 292. (2) The court erred in refusing defendant’s Instruction D. This instruction was framed to present defendant’s theory of self-defense and the issues of law involved in it necessary to be applied to the facts in the case. The following portions of it are particularly relevant and pertinent and were not embodied in any other instructions in the case: “In this connection you are further instructed that the law did not require the defendant ■ to retreat or to wait until said Ryland actually attacked him but that he could use any means for his own protection that appeared reasonably necessary under the circumstances.” See authorities, supra.

      Frank W. McAllister, Attorney-General, G. P. Le Mire, Assistant Attorney-General, for respondent; Don G. Carter of counsel.
    (1) Under the facts in this case, it was unnecessary for the court to instruct on any pha.se of the law of self defense. Wharton on Homicide (3 Ed.), secs. 319-328; Bush v. State, 40' Texas Crim. 539'; Henry v. People, 198 111. 16>2; State v. Evans, 124 Mo. 4Í0q State v. Evans, 128 Mo. 412; State v. Hudpseth, 150 Mr. 32; State v. Patterson, 159 M!o. 561; State v. Peely, 194 Mo. 322; State v. Eastham, 240' Mo. 249; State v. Larkin, 250 Mo. 245; State v. Miles, 253 Mo. 438. Where the statements of the defendant are contradicted by all the other evidence, and the physical facts, and are unreasonable and inconsistent with the experience of mankind, the court is not bound to instruct the jury in regard thereto. State v. Tucker, 2*32 Mo. 18; State v. Arnold, 206 Mr. 600; State v. King, 203 Mo. 571; State v. Vaughan, 200 Mo. 22; State v. Praga, 199 Mo. 136; State v. Hamilton, 170 Mr. 377; State v. Hoiloway, 161 Mo. 144; State v. Hancock, 148 Mo. 488. (2) Under the evidence in this case Instruction 12 was sufficient, and furnishes no basis for reversible error. State v. Eastham, 240 Mo. 249; State v. Feely, 194 Mo. 322; State v. Patterson, 159 Mo. 561; State v. Partlow, 90 Mo. 608; State v. Darling, 202 Mo. 172; State v. Gilmore, 95 Mo. 554. •
   WILLIAMS, J.

Upon an information charging him with the crime of murder in the first degree, defendant was tried in the Circuit Court of Boone County, found guilty of murder in the second degree and his punishment fixed at twenty years’ imprisonment. Defendant has duly perfected an appeal.

The evidence may be summarized as follows:

William L. Roberts (hereinafter referred to as appellant), about eight o’clock a. m., July 30, 1917, killed, by firing in rapid succession both barrels of a double-barreled shotgun, one William A. Ryland (hereinafter referred to as deceased).

Appellant and deceased for many years prior to and up to the time of the tragedy lived on adjoining farms as friendly neighbors. Early on the morning of the homicide the deceased and one Charles Palmer, a colored farm-hand, went down to a feed lot on deceased’s farm for the 'purpose of feeding hogs and unloading some shelled corn. The feed lot was about one-half mile from deceased’s farm house, and approximately one-eighth mile from defendant’s farm house. While deceased and his helper were unloading the shelled corn some of appellant’s turkeys came over near the feed lot. At about the same time some of appellant’s boys were seen by the deceased. The deceased thereupon told his helper to go over and tell appellant’s boys to tell appellant that he (deceased) desired that the turkeys be kept out of the hog lot until he had finished fattening the hogs. The colored farm-hand did as he was instructed, and the appellant’s boys delivered the message to the appellant. In a few minutes appellant went down to the hog lot. After some discussion concerning the turkeys, each called the other a liar, and deceased threw a neck-yoke at appellant. Appellant hurriedly went away in the direction of his home, saying he would return shortly. He kept his promise, and in a few minutes returned with a double-barreled shotgun, and after more discussion and while deceased was in the act of climbing the wire fence, with an ax in his hand, appellant fired in rapid succession, both barrels of the shotgun, inflicting the wounds from which the deceased shortly thereafter died.

The appellant and the colored farm-hand are the only living witnesses to the tragedy. The farm hand testified for the State, and the appellant testified in his 'own behalf. There is some conflict in their testimony. The farm hand, testifying for the State, related the occurrence as follows:

“Well, he [appellant] came down and he says, ‘What kind of word is that?’ and he said to me, ‘I don’t want you to be chumping my turkeys’ and I said, ‘Mr. Roberts, I would not hurt your turkeys, I just merely throwed a little stick along behind them to hurry them along,’ and Mr. Ryland said, ‘I don’t think he has been chumping your turkeys,’ and he [appellant] said, ‘You are a liar.’ . . . Mr. Ryland just reached down and picked up a neck-yoke and threw it at Mr. Roberts, and M.r. Roberts broke and run away from the' fence then, and he [appellant] says, ‘I will be back in a few minutes.’ ” Appellant went away in the direction of his house and in a short time was seen returning. The deceased said to the witness, “Yonder comes Mr. Roberts back.” The witness raised up and saw that appellant had a gun and the witness said to deceased, “What in the world is he going to do?” and deceased said, “I guess he is going to mean business.” That appellant came up within about twenty-five steps of deceased and stopped between two trees and addressing deceased said, “Now, you son-of-a-bitch, if you want to get. a neck-yoke, get a neck-yoke, and I will show you that I am game.” Thereupon “Mr. Ryland picked up an old ax and walked np kind of to the fence and said, ‘You’re on my premises,’ and lie [deceased] kind of raised bis foot up like be was going to step up on tbe wire [fence], and Mr. Roberts said, ‘I mean business,’ and then, “Boom! Boom!” Tbe deceased fatally wounded turned and walked a few feet and sat down on a plank. Tbe appellant broke bis gun for tbe purpose of removing- tbe shells and walked back towards bis home.

Appellant, testifying in bis own behalf, stated that be and deceased had been good friends for many years prior to this trouble and that two or three times prior thereto the colored farm-band told appellant’s children to keep tbe turkeys away, and that tbe children did their best to do so. Tbe day before the tragedy appellant’s daughter told him that she had seen tbe colored man clubbing the turkeys, “trying to kill them.” Early on tbe morning of the tragedy, appellant’s boys came to him and told him that the colored man bad just told them that deceased “did not want to catch them [tbe turkeys] on bis side of the fence any more.” Appellant told bis boys that be would go down and see tbe deceased and that be didn’t believe tbe word tbe colored man bad sent, because tbe deceased bad told appellant a few days before that “the turkeys weren’t bothering to amount to anything and that be wasn’t kicking.” Appellant then went down to where tbe deceased and the colored man were at work, and after exchanging friendly greetings they talked several minutes about the crops and the weather and tbe scarcity of water. Appellant then related what occurred as follows:

“Well, I said, ‘What about these turkeys, are they bothering you?’ and be said, ‘Well, some, but not a great deal,’ and I said, ‘Well, I didn’t know, I have been away from home and tbe boys have been getting some word, or I got some word, and I thought I bad better come and see you, — maybe they bad been bothering,’ and be said, ‘ YAH, I haven’t sent no word or authorized anyone to give yob. any word’ and I said, ‘Well, I will tell you what you had better do — you had better stop Charlie from meddling with your business then.’ He said, ‘Charlie has not been meddling with ¡my business,’ and I said ‘Yes, he has,’ and he said, ‘You are a liar,’ and I said, ‘Well, he just sent me word down there this morning that you said not to let the turkeys get over the fence,’ and he said, ‘He never did no such a damned thing,’ and I said, ‘Well, I know he did,’ and I said, ‘Mr.' Ryland, he was clubbing them turkeys and I doii’t think you ought to let him club' them, and the boys are working hard to keep them out and they have been working hard and it is so close,’ andhe,said, ‘He has not been clubbing your God-damned turkeys,’ and I said, ‘Mr. Ryland, my daughter saw Charlie clubbing those turkeys along about nine o’clock in the morning,’ and he said, ‘That is a God-damned lio.’ I said, ‘Well, you are a damned liar, yourself,’ and I said, ‘I know she ain’t,’ and he said, ‘I will kill you, you God-damned son-of-a-bitch,’ and there was a neck-yoke lying there at his feet, and he was a very quick man, and he reached for that neck-yoke, and of course I had nothing to defend myself with and I was close to him, and when he come up with the neck-yoke I jumped back from the fence some four or five feet, out of reach of him with the neck-yoke, unless he would get over the fence. When he found he could not reach me with the neck-yoke, he let loose and it passed on over my head some ten or twelve steps, out nearly to the edge of the bluff. Well, then I started for the house, and I went on to the house — went in a run. As I left, I told him I would be back.”

The appellant then went to his house, procured a couple of shells and his double-barreled shotgun and returned to within twelve steps of deceased, who was then standing near the wagon in the hog lot. The wire fence was between the two. Appellant was carrying the shotgun on his shoulder. What occurred thereafter is related by appellant as follows:

“Well I told him, ‘Now, Mr. Ryland, I want you to tell me what you want me to do with these turkeys, and let’s not have no more foolishness.’ ”... He [deceased] said, ‘I am going to tell yon this, yon big son-of-a-bitch, yon are over on my side of the fence now and yon have got that gnn and, Cod-damn yon, yon nse it and yon nse it quick, or I will get yon, as sure as hell,’ and he run out where the ax was laying out close to the edge of the pond and picked np the ax and, when he turned around and faced me, I said, Mr. Ry-land, yon missed me a minute ago — now make sure of this, if yon come at me with that ax I am going to nse this gun just as sure as there is a Cod in heaven,’ and he says, Cod-damn yon, I ain’t going to take a word off of yon,’ and he made a dive for the fence and about a step or two before he got on the fence I said, For Cod’s sake, don’t do it.’
“Q. Did he start to get over the fence? A. Yes,. sir, he had one foot np in the fence and his left hand on the wire.
££Q. "What, if anything, did he have in his right hand? A. Well, he had the ax in his right hand.
“Q. Do yon know what kind of an ax this was? A. No, sir, I didn’t know exactly what kind. I could just see it was an ax, and that was all.
££Q. What did yon do when he got up on the fence? A. Well, I- emptied the gnn.
££Q. What did yon shoot him for? A. Well, it was just this; I knew it would be only a few seconds until he would be on me with that ax and I knew that it had come that one or the other of ns had to go and I shot him, to save my own life. ’ ’

After the shots were fired appellant saw deceased go towards the boxes, and appellant turned around and started to his home, and after turning around took the empty shells out of his gnn.

On cross-examination appellant testified that deceased had told him that', he always went armed, and for that reason appellant didn’t want to argue with a man who was armed when he himself was unarmed, and for that reason he went home to get his gun and have it with him if he needed it. That he knew the longer the deceased brooded over the difficulty the madder he would get.

Defendant in further explanation of why' he went back the second time said, “Well, I went down there to see if I could settle the difficulty without any further trouble if I could, because I wanted to settle it while it was new. He and I had been good friends, and I thought probably I could do it in that way, and I took the gun along with me to defend myself if I couldn’t.”

On further cross-examination appellant, when asked why he did not leave the scene just at the time deceased threatened him and picked up the ax, said, “Well, I thought he was armed or he would not approach a man that way; that is, I expected him to open up on me if I had left.” He further, testified on cross-examination that he went down “knowing deceased’s disposition and expecting there would be some shooting.” Appellant further testified that deceased’s reputation for being a quarrelsome, dangerous, turbulent man was bad.

The physician and the embalmer who examined the deceased’s body afterwards found that about one-hundred and fifteen No. ’6 shot had penetrated the body between the collar bone and the groin, puncturing arteries in four or five different. places, and causing the immediate death of the deceased.

A large number of witnesses testified that the reputation of the appellant, as a quiet, peaceable, law-abiding citizen was good, and a large number of said witnesses testified that the reputation of the deceased as to being a quarrelsome, turbulent and dangerous man was bad.

In rebuttal a large number of witnesses testified for the State to the effect that the reputation of deceased for peace, quietude and good citizenship was good.

I. It is contended that the court erred in excluding evidence of specific turbulent prior acts of the deceased towards third persons, which acts were known to the appellant. Upon an examination of the bill of exceptions we discover that this point has not been sufficiently preserved to justify a discussion of the same. When the appellant was on the stand he was asked by his counsel what he knew about the con-¿^ct 0f deceased toward men with whom he had had trouble. To this question the State’s counsel objected, and the court sustained the objection. Thereafter no offer tq prove was made by appellant and we are therefore entirely in the dark as to what this excluded evidence was. Absent an offer to prove we have no sufficient basis upon which prejudicial error may be adjudged. [Bingaman v. Hannah, 270 Mo. 611, l. c. 627; Kirkwood v. Cronin, 259 Mo. 207, l. c. 217; Ruschenberg v. Railroad, 161 Mo. 70, l. c. 81.]

II. It is contended that the court erred in giving Instruction No. 12, which was as follows:

“The court instructs the jury that the right to defend one’s self ag'ainst danger, not of his own seeking, is a right which the law not only concedes but guarantees to all men. The defendant may, therefore, havb killed the deceased and still be innocent of any offense against the law. Hence in this case, if y013 Relieve an(j fncl that at the time defendant shot deceased he had reasonable cause to apprehend on the part of deceased a design to do him some great personal injury and that there was reasonable cause for him to apprehend immediate danger of such design being accomplished, and that to avert such apprehended danger he shot, and at the time he did so he had reasonable cause to believe, and did believe, it necessary for him to shoot to protect himself from such apprehended danger, then and in that case, the shooting was not felonious, but was justifiable, and you ought to acquit him upon the ground of necessary self-defense. It is not necessary to this defense that the danger should have been actual or real, or that it should have been impending and immediately about to fall. All that is necessary is that defendant had reasonable cause to believe and did believe these facts. But before you acquit on the ground of self-defense, you ought to believe that defendant’s cause of apprehension was reasonable. Whether the facts constituting such reasonable cause have been established by the evidence, you are to determine, and unless the facts .constituting such reasonable cause have been established by the evidence in the cause you cannot acquit the defendant on the ground .of self-defense, even though you may believe that defendant thought he was in danger.
“But on the other hand, the law does not permit a person to voluntarily seek or invite a combat, or put himself in the way of being assaulted, in order that when hard-pressed he may have a pretext to take the life of his assailant. The right of self-defense does not imply the right of attack, and it will not avail in any case where the difficulty is sought for and induced by the party by any wilful act of his, or where he voluntarily and of his own free will enters into it, no matter how imminent his peril may become during the progress of the affray. The necessity being of his own creation, will not operate to excuse him. Nor is anyone justified in using any more force than is necessary to get rid of his assailant. But if he does not bring on the difficulty nor provoke it, nor voluntarily engage in it, he is not bound to flee to avoid it, but may resist with adequate and necessary force until he is safe.
' “So, if you believe from the evidence in this case that the defendant Roberts voluntarily sought or invited the difficulty in.which Ryland lost his life, or that he, defendant, provoked or commenced or brought it on by any wilful act of his own, or that he voluntarily and of his own free will, engaged in it, then in that case, you are not authorized to acquit him on the ground of self-defense; and this is true no matter how violent defendant’s passion became, or howsoever hard he was pressed, or how imminent his peril became during the progress of the affray. In determining who provoked or commenced the difficulty or made the first assault, you may and should take into consideration all the facts and circumstances in evidence before yon,”

We are of the opinion that appellant’s own testimony in this case clearly shows that he was in the wrong in returning in the threatening, bluffing or menacing manner armed with a shotgun, to the scene of the recent difficulty, and from appellant’s own testimony we think it conclusively appears that he thus intentionally provoked or brought about a renewal of the discussion or difficulty with deceased.

If appellant did this with the felonious intention of causing deceased to renew the attack so that he (appellant) might have a pretext for killing him or doing him great bodily harm, then appellant was not entitled to invoke any phase of the right of self-defense. [State v. Partlow, 90 Mo. 608; State v. Darling, 202 Mo. 150, l c. 172.] If, however, appellant wrongfully invoked or sought a renewal of the quarrel with the intention of merely overawing the deceased, or of holding him in cheek while a discussion could be had and a settlement or a mutual understanding reached as to their future status towards each other, or to accomplish any result other than the death or great bodily harm of the deceased, the appellant, while he would not be entitled to invoke the perfect right of self-defense, would under the well established rule, we think, be entitled to invoke the right known as the imperfect right of self-defense, which would reduce the crime to manslaughter in the fourth degree. [State v. Gilmore, 95 Mo. 554; State v. Part-low, supra; Kelley’s Criminal Law and Practice (3 Ed.), par. 521 and cases therein cited.]

From the State’s evidence it would clearly appear that appellant provoked a renewal of the quarrel with felonious intent. If this were all the evidence there would be no evidence upon which to base an instruction on any phase of the question of self-defense. This was not all of the evidence, however. The appellant in explaining his intention in returning to the scene of the trouble said: “I went down there to see if I could settle the difficulty without any further trouble if I could, because I wanted to settle it while it was new. He and I had been good friends and I thought probably I could do it in that way, and I took the gun along with me to defend myself if I couldn’t.”

Upon this and other similar testimony in the record we are of the opinion that appellant was entitled to have the court instruct on the law of the imperfect right of self-defense.

The above instruction fails to properly instruct on this phase of the law of self-defense and was we think for that reason erroneous.

We are of the opinion there is no evidence in this case which will justify an instruction on the perfect right of self-defense, and. since this is true, that portion of the instruction which deals with the perfect right of self-defense is more favorable to appellant than the evidence would warrant. However, lest we might be misunderstood as approving the form of the instruction on that phase we desire to say that the sentence, “nor is any one justified in using any more force than is necessary to get rid of his assailant,” has no proper place in an instruction on self-defense. [State v. Banks, 258 Mr. 479, l. c. 492; State v. Hollingsworth, 156 Mo. 178, l. c. 186.]

Neither should the unmodfied clause, “voluntarily engage in it” or “that he voluntarily and-of his own free will engaged in it” be used in an instruction dealing with the subject of self-defense. [State v. Gordon, 191 Mo. 114, l. c. 120 et seq; State v. Hopkins, 278 Mo. 388.]

III. Appellant further contends that the court erred in refusing to give his instruction “D.” This instruction deals solely with the law on the perfect right of self-defense. We have stated above that we do not find any evidence in the record upon which to ^ase arL instruction- on the perfect right of self-defense. For this reason the court did not err in refusing the instruction.

The judgment is reversed and the cause is remanded.

Goode, J.,'concurs; Blair, J., concurs in a separate opinion, in which Woodson and Graves, JJ., join: Walker, G. J., dissents in a separate opinion, in which Williamson, J., joins.

BLAIR, J.,

(concurring)'. — I agree there is evidence tending to prove facts justifying the giving of an instruction on the law of imperfect self-defense, hut dissent from the ruling that there is no substantial evidence tending to prove appellant acted in the exercise of the right of perfect self-defense. In my opinion there was such evidence. "Whether it was worthy of credence was a question we are unauthorized to decide. That was for the jury. The instruction set out in the majority opinion is bad for the reasons given and for others. I concur in the result of the majority opinion.

Woodson and Graves, JJ., concur.

WALKER, C. J.,

(dissenting). — I do not concur in the majority opinion.

I. Appellant’s testimony is the sole support for the contention that he was entitled to an instruction for manslaughter in the fourth degree. A summary of this testimony is to be found in his explanation of his intention in returning to the scene of the trou- ^ We give it in his own words: “I went down there to see if I could settle the difficulty without any further trouble, if I could, because I wanted to settle it while it was new. He and I had been good friends and I thought probably I could do it in that way, and I took the gun along with me to defend myself, if I couldn’t.”

This testimony is to be measured by the rules governing the testimony of other witnesses. [State v. Martin, 230 Mo. 680.] If such testimony is not found to be at a variance with defendant’s other testimony and the physical facts to the extent of being unreasonable and contrary to the ordinary experience of mankind, then the. instruction should be given. [State v. Anderson, 89 Mo. 332; State v. Gilmore, 95 Mo. l. c. 565; State v. Musick, 101 Mo. 272; State v. Bryant, 102 Mo. 24; State v. Turlington, 102 Mo. 642; State v. Talmage, 107 Mo. l. c. 570; State v. Nelson, 118 Mo. l. c. 126; State v. Brown, 119 Mr. l. c. 588; State v. Pollard, 139 Mo. l. c. 228; State v. Hancock, 148 Mr. 488; State v. Holloway, 161 Mo. l. c. 144; State v. Hamilton, 170 Mo. 377; State v. Fraga, 199 Mo. l. c. 136; State v. Vaughan, 200 Mo. l. c. 22; State v. King, 203 Mo. l. c. 571; State v. Arnold, 206 Mo. l. c. 600; State v. Tucker, 232 Mo. l. c. 18.]

No fell purpose is evident from the tenor of appellant’s explanatory testimony, except the presence of the shotgun. On’ the contrary, its spirit in other respects is commendable, in manifesting a desire to avoid further difference with the deceased. Thus it may be interpreted as it stands alone. It, however, should be construed in conjunction with appellant’s other testimony and the unquestioned physical facts. Looking to this source of enlightenment, we find that the appellant sought the presence of the deceased, bandied words with him, abusive on each side, concerning a minor difference between them. Whereupon, the deceased threw a neck-yoke at the appellant. The latter left the scene, saying he would return shortly, and went to his residence, one-eighth of a mile distant. The deceased did not pursue him or manifest any intention to continue the difficulty. Instead of remaining away,- the appellant returned at once, armed with a loaded double-barrelled shotgun. Ignoring, at this juncture, the testimony of the colored man, the only other witness to the killing, as to the opprobrious words applied by the appellant to the deceased, appellant’s testimony discloses that he returned to the premises of the deceased and some further words, passed between them; that when he was within about seventy-five feet of the deceased, the latter picked up an old ax and was about to advance towards the appellant, whereupon the latter shot twice in rapid succession, killing the deceased almost instantly.

In the face of these facts, we are asked to .give credence to the attempted mitigatory plea of the appellant, that his purpose in returning to the scene was purely pacific; that his going away, the former difference having ended, left no time for deliberation; that his procuring the loaded shotgun and returning to the* scene marked no malign purpose, but indicated that the. symbolical dove was hovering over his disposition. This is the first instance in the turbid history of human passion that a loaded shotgun has been used to typify an olive branch. The proper disposition of this question, however, is a matter of too serious import in the enforcement of the law against crime to be disposed of by decorating it with the furbelows of rhetoric. It demands for its just disposition, plain, stern words, rather than figures of speech. The value, in truth, of testimony, and hence the credence which should -be given to it, may fairly be tested by average human experience or what the ordinary- man would most reasonably be expected to do under like circumstances. Thus measured, in the light of all the attendant facts, the appellant’s testimony falls short of manifesting the purpose its mere words would indicate. It is in ill accord with the usual actions of men that when one is well away from recent trouble, and one knows that his adversary, as appellant states, was a turbulent man, will return to the latter’s presence to mollify his anger, armed with a deadly weapon. Thus accoutered, the return of the appellant immediately following the former difficulty constituted a menace rather than a means of mediation. -Peacefully inclined men do not resort to such aids or assume such attitudes to further their inclination to avoid trouble.

In addition, the presumption of malice attending the use of a deadly weapon must obtain if, as we maintain, appellant’s testimony is unworthy of belief. This would preclude the giving of the instruction for manslaughter. [State v. Bauerle, 145 Mo. 1; State v. Musick, 101 Mo. 260..]

“We are, therefore, of the opinion that the testimony of the appellant, as to the reasons prompting him to return to the scene of the killing is but a weak pretext to hide a purpose deliberately formed to wreak his malice upon the deceased, and that such an interpretation is authorized by the other evidence. So construed, sustained by the array of authorities we have cited, no instruction for a lower grade of homicide than that given was authorized.

II. The giving of instruction numbered 12, on self-defense, is assigned as error in the majority opinion. On the appellant’s own testimony, he was guilty murc^er in either the first or second degree. He went to the scene of the difficulty armed with a deadly weapon and,, under a fair Interpretation of all of the testimony, viewed in the light of human experience, he brought on the difficulty. Under such circumstances, an instruction for self-defense was not authorized (State v. Larkin, 250 Mo. 218; State v. Miles, 253 Mo. 427), and in its giving appellant was favored and has no cause of complaint.

III. The judgment of the trial court herein should Be affirmed.

Williamson, J., concurs in this dissent.