author: RAILEY, C.-

text:
    F. TITUS, Appellant, v. NORTH KANSAS CITY DEVELOPMENT COMPANY.
    Division One,
    March 2, 1915.
    1. EJECTMENT: Equitable Defense: Sec. 2535, R. S. 1909. Where to an action in ejectment the defendant pleads, in addition to a general denial and adverse possession, the equitable defenses of res judicata and estoppel in pais, and asks the court to treat the case as an equity suit, the court, by virtue of Sec. 2535, R. S. 1909, is warranted in so treating it.
    2. -: -: Motion to Strike Out Overruled: Reply: Waiver. By filing a reply after his motion to strike out defendant’s equitable defense was overruled, the plaintiff waived his right to' contest the ruling of the court upon appeal, the equitable defense having stated good ground for relief under Sec. 2535, R. S. 1909. ‘
    3. -: -: Unrecorded Deed: Innocent Purchasers. In 1889 S deeded certain lands to his son E. A., but the deed was never recorded and was lost. In 1892 the land was sold under a tax judgment against S and another, and the deed was recorded, as was likewise a quitclaim deed to E. A., executed by the grantee in the sheriff’s deed. E. A. and those claiming under him were in possession from 1889 onward. In 1902, for an antecedent debt, T took a conveyance of an undivided interest in the lands from O. S., an heir of S, but he did not record his deed until 1909, nor is there any .evidence that he even inquired how those in possession of the land were holding. Held, that T was not an innocent purchaser for value, and that he acquired no title, his grantor having none to convey.
    4.--: -: -: Attorney in Prior Suit: Bound by • Decree. In 1889 S deeded certain land to his son E. A., but the deed was never recorded and was lost. In 1902, for an antecedent debt, T took a conveyance of an undivided interest in the land from O. S., an heir of S, but he did not record his deed until 1909. The heirs of E. A. brought suit in 1904 to restore the lost deed from S to E. A., and T, as attorney for his grantor O. S., but without ever disclosing his own interest, filed an answer and a cross-bill in partition, and had complete charge of the litigation to final judgment on appeal, whereby the deed was established and his grantor divested of all title. Thereafter he recorded his deed and brought ejectment. Held, that he is bound by the decree in the first suit.
    Appeal from Clay Circuit Court. — No». J. W. Alexander, Judge.
    Affirmed.

      Frank Titus for appellant.
    "Whether the judgment in the case of Stevens v. Fitzpatrick, or the case itself in any of its features, concluded and barred the plaintiff in the present ejectment proceeding was essentially a question for the decision of a jury upon the facts constituting such alleged estoppel. Gwin v. Waggoner, 116 Mo. 152; Thompson v. Bank, 132 Mo. App. 228; Bank v. Redfearn, 141 Mo. App. 386; Dyer v. Tyrell, 142 Mo. App. 472; 16 Cyc. 813; Vaughan v. Scode, 30 Mo. 604; Ice Co. v'. Tamm, 138 Mo. 393; Eckrich v. Transit Co., 176 Mo. 648; McKee v. Allen, 204 Mo. 674; Peniston V. Brick Co., 234 Mo. 698 ; Minor v. Burton, 228 Mo. 563; Berry v. Railroad, 223 Mo. 358; Fronein v. Page, 231 Mo. 90; Lee v. Conran, 213 Mo. 414; 24 Cyc. 105; Constitution of Missouri, art. 2, see. 28; Secs. 1968,1970', R. S. 1909.

      Kenneth McG. DeWeese for respondent;
    The plaintiff herein is barred, not only by his conduct, but concluded as well by the judgment in the case of Stevens v. Fitzpatrick, 218 Mo. 708. Turner v. Edmonston, 210 Mo. 411, 212 Mo. 377. The plaintiff in this case claims by, through and under the deed from Oscar Hampton Stevens' and wife, yh.o were parties defendant in the suit of Stevens v. Fitzpatrick, and who filed an answer and cross bill therein by the plaintiff herein as their attorney. He is bound and concluded by that judgment. At the time of the execution of the deed to the plaintiff by Oscar Hampton Stevens and Fannie D. Stevens, his wife, Shaffer was in possession of the land under the contract with Edward A. Stevens, of January, 1902. Such possession was notice to the plaintiff of Shaffer’s rights in the premises, and charged the plaintiff with knowledge of all that inquiry by him would have imparted to him. The plaintiff is therefore not an innocent purchaser for value received without notice or knowledge. “Actual possession of land by a party is notice to all others of his claim of title.” Bartlett v. Glascock, 4 Mo. 62; Beattie v. Butler, 21 Mo. 213. “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.” Davis v. Briscoe, 81 Mo. 27. “So of actual possession and cultivation.” Martin v. Jones, 72 Mo. 23; Cordova v. Hood, 17 Wall. 1; Long v. Weller, 29 Gratt. 347; Wood v. Krebbs, 30 Gratt. 708; Iron Co. v. Trout, 83 Va. 419; Yan Gunclen v. Coal & Iron Co., 52 Fed. 849; Hughes v. United States, 4 Wall. 232; Webb on Record of Titles, sec. 228, pp. 365-366.
   RAILEY, C.-

Plaintiff commenced an action of ejectment in the circuit court of Clay county, Missouri, on October 7,1910, to recover from above defendant (a Missouri corporation) the possession of an undivided one-third interest in the east half of the southeast quarter of the northeast quarter of section 23, township 50, of range 33, situated, in the county of Olay aforesaid. The petition avers that on February —, 1904, said defendant entered into possession of said, premises and since said date has unlawfully withheld from plaintiff the possession thereof, to his damage in the sum of $500.'

The answer pleads a general denial; that F. Titus and Frank Titus are one and the same person; that plaintiff is barred by the ten-year Statute of Limitations; and that defendant has acquired a good title by adverse possession. The answer likewise pleads an equitable defense of former adjudication, and alleges that the matters and things in controversy were, by reason thereof, res adjudicata. It also pleads estoppel in pais.

The reply may be treated as a denial of the new matter pleaded in the answer. It asserts title in plaintiff through the heirship to William Stevens, deceased, who was the common source of title. It alleges that William Stevens was lawfully seized of the premises described in the petition, from 1881 up to the time of his death in 1902. It pleads estoppel on account of alleged admissions of defendant in the case of Stevens v. Fitzpatrick, 218 Mo. 708 and following, and the judgment rendered in said cause. Plaintiff avers in the reply that he was not a party to the above action reported iii 218 Mo., supra, and is not estopped or deprived of his estate acquired by the deed of Oscar H. Stevens to him, of date November 1, 1902. He further avers that the conveyance to him was upon a valuable consideration, and without knowledge or notice on his part of the matters alleged as adjudicated in said cause in said circuit court. ; It is further averred that the defendant in this action and plaintiff in the above case of Stevens v. Fitzpatrick were put upon notice and inquiry, as to plaintiff’s estate and interest in said real property involved here, long before tbe commencement of above action in August, 1904. Tbe reply admits that an appeal was taken to this court in tbe above cause and that tbe plaintiff herein appeared as attorney of record in behalf of said appellants therein, Oscar H. Stevens and Fannie D. Stevens. Plaintiff admits that bis deed aforesaid was not filed for record in Clay county, Missouri, until April 5, 1909. Tbe reply concludes by pleading laches on tbe part of defendant, and an abandonment of its claim, to tbe effect that tbe land in question was owned by Edward A. Stevens in bis lifetime, etc.

On December 6, 1911, this cause was beard upon tbe equitable defense set up in tbe answer. Tbe court found tbe issues in favor of defendant, and adjudged that it was entitled to tbe relief sought and prayed for in its answer; that defendant was seized and possessed of a good and indefeasible estate of inheritance in and to tbe real estate described in plaintiff’s petition, in fee simple, and that tbe plaintiff bad no right, title, interest or estate therein. A formal decree was entered in behalf of defendant, and an appeal taken therefrom to this court.

Plaintiff’s Title.

"William Stevens is conceded to be tbe common source of title. It is contended by plaintiff that William Stevens died in 1902, as tbe absolute owner of tbe land involved here, without ever having conveyed tbe same, and that Oscar II. Stevens, a son and heir of William Stevens, deceased, inherited said east half of tbe southeast quarter of tbe northeast quarter of section 23, township 50, range 33, and that on November 1,1902, said Oscar H. Stevens and wife, by their general warranty deed of said date, containing full covenants of warranty, conveyed an undivided one-third interest in tbe land aforesaid to plaintiff, and recited in said ■ deed that tbe remaining undivided two-tbirds interest therein had been conveyed to Jacob Davis. The undivided one-third interest in ten acres of other land was described in the deed to plaintiff, and the expressed consideration therein was $500. Plaintiff’s deed aforesaid was not recorded until April 5, 1909. The Davis deed, supra, contains this recital: ‘£ The remaining undivided one-third of the said interest and estate of the grantors herein to said lands has been sold and duly conveyed to another and different grantee by the grantors herein.”

Plaintiff testified as a witness in his own behalf, and said that he became the purchaser of said undivided one-third interest of Oscar H. Stevens in the land aforesaid on November 1,1902, and that said O. H. Stevens then claimed to be the owner in fee simple of said land; that the conveyance was taken by him in good faith, and for a valuable consideration, said grantors being then indebted to him, and without any knowledge or notice on his part of any claim by the plaintiffs in the action of Stevens v. Fitzpatrick, reported in 218 Mo., supra; that he had no notice that any other person claimed any interest in said land; that the records disclosed that William Stevens died seized as the owner thereof; that he had no notice that on the death of said William the land aforesaid did not at once vest in Oscar H. Stevens, George, Edward A. and Miller Stevens, and their respective descendants or assigns. He further said that shortly after the death of said William Stevens, his grantor O. PI. Stevens employed him professionally to prepare and bring a suit for the partitioning of said east half of the southeast quarter of the northeast quarter of section 23, township 50, range 33, among and between the children and heirs of said intestate parent; that in the course of such employment, Mr. Martin D. Lawson, an experienced and capable attorney, examiner and abstracter of land titles, prepared and furnished an abstract of title to said land appearing upon the public records of said Clay county, and which said abstract disclosed the title to said land to be vested in William Stevens at the time of his death. He testified that, in reliance upon such title and abstract, he prepared a petition for partition of said real estate, in which all of the heirs of said William Stevens were named as parties, but before such suit was begun, the petition of Ellen S. Stevens and others, being heirs and devisees of Edward A. Stevens, deceased, as plaintiffs, was filed in the circuit court of Clay county, in August, 1904 (being the same case reported in 218 Mo., supra), and as such petition disclosed a claim on the part of the plaintiffs therein of the existence of an undisclosed, unrecorded deed, having been executed by the father of said Edward A. and Oscar H. Stevens, affecting the land in question, the suit in partition was not instituted.

Plaintiff said he was employed and appeared in said cause of Stevens v. Fitzpatrick, as attorney of record for Oscar H. Stevens and Fannie D. Stevens, and as such attorney prepared and filed the pleadings of his clients in said cause, but states that he never knew or heard of the matters stated or claimed in the petition of said Ellen S. Stevens et al., until the filing of such suit by them to establish an alleged deed from William Stevens to his son Edward A. of the entire tract mentioned. As heretofore stated, the suit brought by plaintiff is for the possession of the undivided one-third interest in the land in controversy.

Defendant’s Title.

Henry Smith and wife, by quitclaim deed of date March 9, 1881, conveyed to William Stevens the east half of the southeast quarter of the northeast quarter of section 23, township 50, range 33, for the expressed consideration of $39.05. This deed was filed for record February 19, 1885.

The evidence tends to show, that Edward A. Stevens was the owner of the above land, although the record title stood in the name of his father, William Stevens; that Edward A. Stevens had an unrecorded deed from his father, William Stevens, to said land and that said deed was lost. On December 7, 1891, Bras-field, as collector of Clay county, Missouri, obtained a tax judgment against T. F. Frinke and William Stevens for $7.15 and costs, for taxes due on land involved here for taxes of 1888, and said land was sold under said judgment to Wm. J. Courtney, and a deed made to him December 10, 1892, therefor, which was recorded October 5> 1894. On March 12, 1896, said Courtney and wife conveyed by quitclaim deed said land to Edward A. Stevens. This deed was recorded March 19,1896. On or about January 3, 1902, Edward A. Stevens contracted in writing with one Stillman L. Shaffer, to sell and convey to the latter or his order the real estate in question. At the time of the execution of this contract, Edward A. Stevens was paid $1000 on the purchase price. Pursuant to the contract, Shaffer was put into possession of said land by his vendor. The time was extended on said contract to July 1, 1902, and the further sum of $3000 was paid on the purchase price. Before said contract was performed, Edward A. Stevens became ill, incapable of attending to his own affairs, and on August 25,1902, died testate in Jackson county, Missouri. In his will, Ellen S. Stevens, his widow and relict, was made sole devisee and legatee and appointed executrix. He left two children surviving him, named William P. M. Stevens and Aileen Stevens. The latter married Hebard James, of Jackson county, Missouri, and was known as Aileen Stevens James. The widow, Ellen S. Stevens, qualified as executrix in the probate court of Jackson county, Missouri. The deed from William Stevens to Edward A.- Stevens could not.be found after the death of the latter. Thereupon, said Ellen S. Stevens, individually, and as executrix aforesaid, Wm. P. M. Stevens, Aileen Stevens James and her husband, brought suit in the circuit court of Clay county, Missouri, against the heirs at law of William Stevens, to have said lost deed restored. The petition was in two counts. In the first, the court was asked to ascertain and determine the interest and title of all the parties, plaintiffs and defendants, and to enter a decree adjudging such titles and interest, etc. In the second count plaintiffs prayed the court to enter an order and decree restoring the lost deed from William Stevens to Edward A. Stevens, and to divest the defendants in said action of any interest or title they might have hy record in and to said property, and to vest the saíne in said Ellen S. Stevens,, etc.

Among other defendants to that suit were Fannie D. Stevens and O. H. Stevens here husband, who appeared by attorney, F. Titus, the plaintiff in the case at bar, and filed an answer on November 7,1904. Fannie D. Stevens and her husband O. H. Stevens thereafter filed a cross-bill in partition, on the 20th of February, 1905, in which said defendants, as plaintiffs in the cross-bill, appeared by F. Titus, as counsel and attorney, and asked the court to sell the land in controversy and partition the proceeds, as it could not be divided in kind between the parties, and to allow $100 as attorney’s fee on account of the cross-bill. The North Kansas City Development Company, to whom Stillman L. Shaffer had assigned the aforesaid con1 tract of purchase with Edward A. Stevens, and then in possession of said land, was made a party defendant in said suit and filed its answer, in which said answer it pleaded said contract and prayed for specific performance thereof. Final judgment was rendered in said suit. From this judgment, O. H. Stevens and Fannie D. Stevens appealed to the Supreme Court of Missouri. The appeal was heard, and the judgment of the lower court affirmed on March 31,1909, in Division Number One, and is reported, in 218 Mo. at page 708. The plaintiff in this case, as an attorney at law, appeared for Oscar Hampton Stevens and Fannie D. Stevens in all the stages of that case. The plaintiff claims by, through and under Oscar Hampton Stevens and Fannie D. Stevens, by reason of the deed offered in evidence, dated November 1, 1902, which contains full covenants of warranty, etc., but which was not recorded until the 5th day of April, 1909, after the Supreme Court had affirmed the judgment of the lower court, on March 31, 1909. At the date of the execution of this deed to plaintiff, Stillman L. Shaffer was in possession of the land, under his contract with Edimrd A. Stevens. He and this defendant have been in continuous possession of the land in controversy ever since the third day of January, 1902.

On May 10, 1909, after affirmance of said cause in this court (218 Mo. 708), Ellen S. Stevens, ’William P. M. Stevens, Jessie H. Stevens, Aileen Stevens James and Hebard James, heirs, etc., of Edward A. Stevens, all of Jackson county, Missouri, conveyed by warranty deed to the defendant herein, said east half of the southeast quarter of the northeast quarter of section 23, etc., subject to the rights of way of the Chicago, Burlington & Quincy Railroad Company, the Wabash Railroad Company and the Union Depot Bridge and Terminal Railroad Company, for the expressed consideration of $7,709.88.

Upon the record thus made, appellant, at the commencement of his brief, tersely states the issues involved, as follows:

“First: Does the evidence disclose legal title to the land involved, in the appellant as plaintiff?

“Second: Is such legal title defeated by an alleged ‘privity’ arising out of an employment of plaintiff by certain defendants in a former cause affecting the title to a tract of which the land herein sued for is apart?”

I. This suit was commenced on October 7, 1910. Section 2535, Revised Statutes 1909, was then in full force and effect. In view of the pleadings, evidence and the entire record in the case, the trial court properly treated the action as one in equity, and disposed of it accordingly. The defendant had been compelled to litigate with plaintiff’s grantors, in the case of Stevens v. Fitzpatrick, supra, practically all of the questions involved in this litigation, and with the present plaintiff as attorney of record for said Oscar H. Stevens and his wife. In other words, this plaintiff, with an unrecorded warranty deed containing general covenants of warranty from Oscar H. Stevens and wife to the land in controversy, was attempting through his grantor to defeat the right of Edward A. Stevens’s heirs to have restored their lost deed from William Stevens, the common source of title, made in 1889 to said Edward A. Stevens. With this deed restored, it left William Stevens without title to the land in litigation here, and likewise established the fact that Oscar H. Stevens and wife, by reason of the foregoing, had no title in said land to convey to this plaintiff. Defendant therefore had the right to invoke the provisions of said section 2535, Revised Statutes 1909, and to ask the court, as it did in its answer, to try the case as a proceeding in equity and to definitely determine the title, interests, etc., of the parties hereto, and to enter a decree accordingly. The suit was properly treated and decided in the court below as a proceeding in equity, and hence will be disposed of here in the same manner. [Chilton v. Metcalf, 234 Mo. l. c. 40; Hutchinson v. Patterson, 226. Mo. l. c. 182, and cases cited; Stone v. Perkins, 217 Mo. l. c. 601-2; Hudson v. Wright, 204 Mo. l. c. 423-4; Ball v. Woolfolk, 175 Mo. l. c. 285.]

II. Complaint is likewise made that the trial court erred in overruling plaintiff’s motion to strike out a part of defendant’s answer. The motion 0;Q]y devoid of merit, hut when overruled the plaintiff filed a reply, and hence waived his right to contest the ruling of the court upon said matter. [Ashton v. Penfield, 233 Mo. l. c. 417; Hanson v. Neal, 215 Mo. l. c. 277, and cases cited; Hudson v. Cahoon, 193 Mo. l. c. 557; Jones v. Railroad, 178 Mo. 528.]

The above ruling has no application when the petition or equitable answer fails to state a cause of action or grounds for equitable relief. Under such circumstances, the pleading may be attacked for the first time in this court. [Turner v. Hunter, 225 Mo. l. c. 84; Wilson v. Darrow, 223 Mo. l. c. 531; McQuitty v. Wilhite, 218 Mo. l. c. 591.] The answer, however, clearly states a good ground for equitable relief under section 2535, Bevised Statutes 1909, and hence the ruling of trial court upon the motion aforesaid is sustained.

III. Appellant in his brief, in referring to the case of Stevens v. Fitzpatrick, 218 Mo. 708, said: “The record of that cause is filed herein as an aid to the court in the present cause and marked ‘Exhibit A;’ and as the court takes judicial notice of its records, nothing therein discloses that plaintiffs sought a comparison of titles, ’ ’ etc.

Beferring to pages 32 and 33 of said Exhibit A, we find that the decree in the circuit court in the Stevens-Fitzpatrick case reads as follows:

“About the year 1889, said William Stevens duly executed, under his hand and seal, and acknowledged and delivered to the said Edward A. Stevens, during his lifetime, a good and sufficient deed, conveying said property to the said Edward A. Stevens; that said deed was received and accepted by the said Edward A. Stevens, and by him placed among his other papers, but the same was never recorded, and has become lost and cannot be found, although diligent search has been made therefor by the plaintiffs herein,- that, ever since the purchase of said land, as aforesaid, by the said Edward A. Stevens, the said Edward A. Stevens and his said heirs and devisees have been in possession thereof, claiming the same as their own, and paying taxes and making improvements thereon; that the said Edward A. Stevens and the plaintiffs herein, as his heirs and devisees, have been in the open, notorious, continuous, undisturbed and adverse possession of said land, claiming to own the same, for more than ten years next prior to the bringing of this suit; that, by reason of the failure of the said Edward A. Stevens to record said deed from said William Stevens to Edward A. Stevens, and the loss thereof, the record title to said property appears to be in the said heirs of the said William Stevens, deceased, when in truth and in fact, said defendants have no right, claim or title thereto.”

On page 34 of said Exhibit A, said decree, after reciting that Edward A. Stevens on January 3, 1902, entered into a written contract to sell the land in litigation here to S. L. Shaffer, further finds: ■

“That, upon the making and execution of the said contract for the sale of said land from the said Edward' A. Stevens to Stillman L. Shaffer, the said Edward A. Stevens put the said Stillman L. Shaffer in the possession and control of said land, and the said Still-man L. Shaffer and the North Kansas City Development Company, his assignee of said contract, have been in the possession of said land ever since, occupying the same, and receiving all the emoluments and benefits thereof; that, subsequent to said contract of purchase and while in possession thereof, the said Stillman L. Shaffer assigned his said contract of purchase of said land to the defendant, North Kansas City Development Company, a corporation, and that in making said contract of purchase, the said Stillman :L. Shaffer was acting for and on behalf of said corporation.”

On page 35 of said Exhibit A, the trial court, after finding the facts aforesaid, ordered, adjudged and decreed that the said deed made by William Stevens to said Edward A. Stevens, dated about 1889, and covering the real estate in question here, “be, and the same is hereby restored in full force and effect as if said deed, and the due acknowledgment thereof, had been, upon its execution and delivery to the said Edward A. Stevens, by him recorded in the office of the recorder of deeds of Clay county, Missouri; and it is further ordered, adjudged and decreed by the court that the title to the property, last above described, which appears of record to be in defendants herein, be, and the same is hereby, divested out of defendants herein and invested in Ellen S. Stevens, executrix of the last will of Edward A. Stevens, deceased.”

Ellen S. Stevens and the other heirs of Edward A. Stevens, on May 10, 1909, conveyed the land in controversy to the defendant in this action, and said conveyance was recorded June 12, 1909.

In Stevens v. Fitzpatrick, 218 Mo. l. c. 725-6, Judge Valliant, in concluding his opinion, in which the de: cree below was sustained, said:

“We agree with the learned counsel for appellant in his estimate of the character of evidence that the law requires to establish a case like the one presented in the plaintiffs’ petition. This court in every case where it has had occasion to speak on the point has held the party asserting such a case to a very high standard of proof, and we have never been satisfied with proof that does not measure up to that standard. We think the plaintiffs in this instance have come fully up to that standard, and have proven their case beyond a reasonable doubt. The judgment is affirmed.”

We have carefully read the record in the above case in connection with Judge Yaldiant’s opinion, and without the slightest hesitation concur in the conclusions reached by him. The decree of the circuit court, which was affirmed by Judge Vadliant, leaves Oscar H. Stevens and Fannie D. Stevens without any interest in the land here involved, and has left them in the same position they would have occupied had William Stevens never possessed the legal or equitable title to said land. Hence, Oscar H. Stevens and Fannie I). Stevens had no right, title, or interest in the real estate in controversy to convey to plaintiff on the 1st day of November, 1902, or at any other time.

Plaintiff’s deed was dated November 1, 1902, and was never recorded until April 5, 1909. The decree of the Olay Circuit Court in the Stevens-Fitzpatrick case, supra, was made and entered of record on November 16,1905, or more than three years before the plaintiff finally recorded his deed. Judge Vadliant’s decree was filed on March 31,1909, which was likewise anterior to the recording of plaintiff’s deed. Although plaintiff’s grantors had no title to convey, he iusists that with his warranty deed from the record owner he was an innocent purchaser for value, and should be protected accordingly.

IV. Does the record disclose plaintiff to be an innocent purchaser for value, or has he the legal title to the property in controversy? In view of the decree of this court in 218 Mo., supra, the case stands as though Edward A. Stevens in 1889 had received from his father, William Stevens, the common source of title, a deed to the land in controversy, but had not recorded the same up to the 1st of November, 1902, when plaintiff received his warranty deed of that date from Oscar H. Stevens, son of William Stevens, in which Fannie D. Stevens, his wife, joined. Plaintiff testified in reference to this matter: “That the conveyance in evidence was made and obtained in good faith by witness and for and upon a valuable consideration, send grantors being then indebted to witness, and witness being without any knowledge or notice on his part of any claim by the plaintiffs in said action of Stevens v. Fitzpatrick, afterwards filed in this court, or by or from any other person or persons.”

ITe also testified that he had an abstract of title made by a reputable attorney and abstracter, and that said abstract showed the title to be in William Stevens; that he relied upon such abstract and title, etc.

Neither plaintiff nor his grantors, Oscar II. Stevens and wife, were ever in possession of this land or any part thereof at any time, nor does it appear from the record that either of them ever at any time paid taxes or made any improvements on the land, or that either of them had ever even seen it. It does appear from the evidence that neither plaintiff nor any one for him made any inquiry of the persons in possession as to how they were-holding, or as to whom they recognized as owner or landlord.

The record and decree in the Stevens-Fitzpatrick case show that Edward A. Stevens took possession of the land in 1889, and held possession of same until he contracted to sell it to Shaffer on January 3, 1902. Shaffer went into immediate possession of the land in controversy under his contract of sale. He and the defendant herein ever since said 3rd day of January, 1902, have been in the exclusive possession of said premises, claiming to be the equitable owners thereof.

Exhibit A, above referred to, at pages 52 and following shows that on December 7,1891, a tax judgment was rendered in the circuit court of Clay county, Missouri, in favor of John C. Brasfield, collector of the revenue of said county, against T. F. Frinke and William Stevens, for $7.15 and costs, on account of back taxes for the year 1888, due on the east half of the southeast quarter of the northeast quarter in controversy here. Said land was sold and a sheriff’s deed made to William J. Courtney therefor, on December 10, 1892. This deed was duly acknowledged, and recorded on October 5,1894. On page 57 of said Exhibit A, we find it recorded that plaintiffs, in the Stevens-Fitzpatrick case, supra, offered in evidence a quitclaim deed from William J. Courtney to Edward A. Stevens, conveying the land in controversy, dated February 12, 1896, and recorded March 19, 1896. Here then was a deed purporting to pass the legal and record title of William Stevens to Edward A. Stevens, in 1896, and which was duly recorded in the same year. It was on record when plaintiff g*ot his deed on November 1, 1902. So the plaintiff not only had constructive notice by the deed aforesaid that Edward A. Stevens was the owner of the land, but with Edward A. Stevens and those claiming under him in the actual possession thereof, upon what theory can it be claimed that plaintiff was an innocent purchaser for value, when he received a deed from a grantor who actually had no title to the land? It would he a sad commentary upon our law if plaintiff could be declared an innocent purchaser for value under the facts disclosed by the foregoing records.

Edward A. Stevens had his tax deed on record. He and those claiming under him were in the actual possession of the land. Plaintiff was never in possession, nor did he ever make any inquiry of those in possession as to who owned or claimed the. land. He has no standing in court, on the record as made, which entitles him to be classed as the legal owner of the property in controversy, or as an innocent purchaser for value. He never even recorded his deed until April 5, 1909, and that too after the affirmance by this court of the decree in the case of Stevens v. Fitzpatrick, 218 Mo., supra. Under the laws of this State, his claim as an innocent purchaser for value is absolutely devoid of merit. [Gulley v. Waggoner, 255 Mo. 613, 626; Adams v. Gossom, 228 Mo. 581, and cases cited; Rothenberger v. Garrett, 224 Mo. l. c. 198; Zweigart v. Reed, 221 Mo. l. c. 44, and cases cited ; Stuart v. Ramsey, 196 Mo. l. c. 416, and cases cited; Shaffer v. Detie, 191 Mo. l. c. 393.] Plaintiff was not only not an innocent purchaser for value, but he acquired no title to the land in controversy, for the obvious reason that his grantors had no title to convey.'

Y. Was plaintiff Titus bound by the decree in the case of Stevens v. Fitzpatrick, on account of his interest in the subjcet-matter of said litigation and the relation which he sustained to said controversy while acting as attorney of record for defendants Oscar H. Stevens and Fannie D. S.tevens, his wife, from the inception to the conclusion of said litigation?

As heretofore suggested, Oscar H. Stevens and wife, on the 1st of November, 1902, had conveyed by warranty deed, with full covenants of warranty, the undivided one-third interest of the land in controversy, to the plaintiff Titus, and the latter’s deed was never recorded until April 5, 1909. This deed from Oscar IT. Stevens and wife purported to convey Oscar’s interest in his father’s estate. We have been unable to find any evidence in the record which indicates that Oscar II. Stevens and Fannie D. Stevens, his wife, ever owned, or had the legal right to convey, any other portion of the land in controversy. In the suit of Stevens v. Fitzpatrick, Oscar H. Stevens and his wife were joined as defendants because plaintiff’s deed was not of record and they were presumed to claim whatever title they may have inherited at the death of Ytilliam Stevens, who was the common source of title. The plaintiff in this action appeared as attorney of record for said Oscar H. Stevens and wife, and appears to have taken the entire control and management of their interest in said litigation. He filed an elaborate answer in their behalf, attacking the right of action set up by the plaintiffs in said cause. While the original answer was on file, he prepared and filed a cross-bill for a partition of the land in controversy, in behalf of said Fannie D. Stevens and Oscar H. Stevens. He alleged that they were the owners of the undivided two-thirds interest in said land, but failed to mention who owned the remainder. He likewise failed either to state in his bill or to show by the evidence where his clients and grantors obtained any title to said undivided two-thirds interest. He alleged in said cross-bill for partition, that on account of the various interests, the property could not be partitioned in kind, and therefore asked to have it sold and the proceeds thereof divided between the parties according to their respective interests. He likewise asked, in behalf of his client, that an attorney’s fee of $100 be allowed him for his services in the prosecution of said partition proceeding.

We are at a loss to understand what various interests were referred to in said cross-bill for partition. Plaintiff alleges that he owned the undivided one-third of said land, and if his grantors and clients, Oscar H. Stevens and wife, owned the other undivided two-thirds interest, what other interests were outstanding ? It is therefore manifest that the right to partition this land depended upon the question whether Oscar H. Stevens and wife had any title in the land which warranted them in calling upon the court to have it partitioned or sold and the proceeds divided between the parties. The main controversy in that litigation was to determine whether William Stevens, the common source of title, and the father of Oscar H. Stevens, had deeded the land in controversy to his son, Edward A. Stevens, in 1889, and whether or not the deed thus made by William Stevens had been lost while unrecorded. It must therefore have been clear to plaintiff that his grantors and clients had no standing in court, on account of their interest having been conveyed to him. Again, it was obvious that if the lost deed to Edward A. Stevens should he restored,, it would destroy whatever title Oscar Stevens had of record as the heir of William Stevens.

It is apparent from the record that plaintiff was attempting, in the na/me of his grantors, to litigate his own title with the heirs of Edivard A. Stevens behind a mashed battery, and if unsuccessful, as he was in that litigation, to open up a new proceeding as an innocent purchaser for value, as he has attempted to do in this case. Plaintiff, with his long experience at the bar, must have known that, in a proceeding for equitable partition, the attorney representing the moving party in such action would he expected to bring before the court all the parties who had an interest in the land sought to be partitioned, and that he would truthfully set out, to the best of his knowledge, the interest of each owner. As plaintiff and his' grantors sigiially failed to show, in the trial of said cause, that Oscar H. Stevens and his wife had any interest in the land sought to be partitioned at the time said cause was tried, then why did plaintiff conceal from the court his own title, and refrain from setting out and showing the interest, if any, which his grantors had therein?

We do not deem it necessary to prosecute this inquiry further. It is manifest upon the face of the record that plaintiff defended the above cause from start to finish while apparently as attorney of record for his grantors, yet as a matter of fact, in his own behalf. The record fails to show; that his grantors had any substantial interest in the controversy after having executed the deed to plaintiff on the 1st of November, 1902. We are satisfied, from the record, that plaintiff had the entire control and management of said cause in behalf of his grantors, and that every step taken therein was for his own benefit and in defense of his own title. We therefore conclude that on the facts presented here the plaintiff is as much bound by the decree in the above cause as he would have been had he been, joined as a defendant in said action. [Wilson v. Drainage District, 257 Mo. l. c. 283; Davidson v. Real Estate & Inv. Company, 249 Mo. 474, 503, and cases cited; Landis v. Hamilton, 77 Mo. 554; Strong v. Insurance Company, 62 Mo. l. c. 299; Wood v. Ensel, 63 Mo. 193-4; Harvie v. Turner, 46 Mo. l. c. 448; State to use v. Coste, 36 Mo. 437-8; Sturdivant Bank v. Huters, 87 Mo. App. 539-40; State ex rel. v. Barker, 26 Mo. App. 487.] The above authorities sustain the conclusion reached in respect to this matter.

The most casual reading of the record will disclose that the plaintiff herein, in the names of his grantors, took charge of the case and tried it as though he were joined as a party therein. He filed all the pleadings as attorney of record for his grantors; examined all the witnesses in the ease, and finally appealed the cause to this court, where he likewise briefed the case in behalf of his grantors. If plaintiff’s grantors had been successful in the Stevens-Fitzpatrick case, it would have established an important link in his chain of title. He could have accomplished no more in defending said action if he had been formally joined as a defendant therein. He has presented no meritorious reasons to this court for setting aside the decree below. On the record presented here, plaintiff is concluded by the decree in Stevens v. Fitzpatrick, which was affirmed by this court in 218 Mo., page 708 and following.

For the reasons heretofore assigned, the judgment below should be and is hereby affirmed.

Brotan, G., concurs in result.

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

All the judges concur.


source: Caselaw Access Project

author: GRAVES, P. J.

license: Public Domain

text:
    WILBUR A. WESTON, Appellant, v. JOHN M. FISHER et al.
    Division One,
    March 2, 1915.
    APPELLATE JURISDICTION: Claim to Personal Property. Whether the petition he a hill in equity or states an action at law, if it is not ejectment and asserts that the legal title is in plaintiff, and that defendants only claim possession of the farm until such time as their asserted interest in the increase of plaintiff’s stock and other personal property used in a joint farming arrangement, which is averred to he of the value of $2000, may he adjusted, the Supreme Court does not have jurisdiction of an appeal from a judgment sustaining an ohjection to the introduction of evidence under the petition on the ground that plaintiff has an adequate remedy at law.
    Appeal from Johnson Circuit Court. — Hon. Andrew A. Whitsett, Judge.
    Transferred to Kansas City Court of Appeals.

      George W. Littick and J. W. Suddath & Son for appellant.

      Nick M. Bradley and T. N. Haynes for respondents.
   GRAVES, P. J.

The petition in this case is a legal curio and should he preserved. We shall not name it, but permit counsel to give it a name. They say in the brief here it is a bill in equity. They so considered it nisi. It reads:

“Plaintiff, for his cause of action, states that on or about the first day of March, 1908, defendants became and were the owners of the west half of the northwest quarter of the northeast quarter of section eleven, in township forty-sis, of range twenty-nine, in Johnson county, Missouri, which thereafter became subject to two mortgages aggregating about seven hundred dollars, and being in excess of its value; that the defendants undertook to cultivate the same but had very little property of any kind and were indebted to the plaintiff in the sum of $468, which was secured by a mortgage on said twenty acres. That between March 1, 1908, and March 1, 1909, plaintiff advanced to defendants at their special instance and request the sum of $133.90 for their use in purchasing feed and provisions, which sum has never been repaid.

“That on or about April 3, 1909, defendants, finding their inability to carry on said farm of twenty acres then and there entered into an agreement with plaintiff herein; that in consideration of said plaintiff advancing money, supplies, etc., to carry on and operate said twenty acres as a place to raise stock and poultry, said farm to be known as ‘Rocky Ridge Poultry Farm,’ they agreed that they would do all necessary work, give all care and attention and devote their entire time tc said business of caring for said poultry and stock and that plaintiff would further advance to them money to pay grocery bills, dry goods, tobacco and other expenses incurred and out of t'he proceeds raised upon said farm defendants were to first repay to plaintiff the sums advanced for feed and personal expenses and next one-half of all sums paid for stock and implements and then deed to plaintiff a one-half interest in said twenty acres and from that time to share in the net proceeds with the plaintiff equally. That in pursuance of said agreement this plaintiff advanced to defendants the sum of $1369.12 during the year commencing April 1, 1909, and during all said year commencing April 1, 1909, fully performed his part of said agreement. That defendants gave but little or no attention to said business, and so poorly managed and controlled the same that at the end of the year, to-wit, April 1, 1910, they were indebted to this plaintiff personally $2026.02, paid out for grocery bills, feed, personal expenses of the defendants, hired help, etc., and in addition to that had never paid to plaintiff any of said personal indebtedness; and that which arose from the increase of stock, etc., had nsed and not accounted for any part thereof. That during said whole year, as in the year before, defendants gave but little, if any, attention to the management and feeding of said stock or to the raising of any stock and made no effort whatever to pay said various obligations.

“That during the year 1909, to-wit, about August, 1909, plaintiff purchased one hundred and seven acres, adjacent to' said twenty acres, which was described as follows, to-wit: The east half of lot one of the northwest quarter, the south seven acres of the west half of lot one of tbe northwest quarter, the northwest quarter of the southwest quarter and the west twenty acres of the northeast quarter, all in section two in township forty-six of range twenty-nine; and in the early part of 1910 he purchased the further tract of one hundred and thirty-two acres, described as follows: The east half of the northeast quarter of the southwest quarter, the southeast quarter of the southwest quarter, the west half of lot one of the northeast quarter and the west three-fourths of the southeast quarter of the southeast quarter, all in section two, in township forty-six of range twenty-nine, making in all two hundred thirty-nine acres, belonging to this plaintiff, adjoining’ said twenty acres, belonging to defendants.

“That at the expiration of the year 1909-1910, about April 1, 1910, the defendants having wholly failed to successfully manage said business, repay any of said indebtedness above enumerated, convinced that they were unable to make a success of the business or even to make a living, urged plaintiff in some way to relieve them, offered to deed to plaintiff said twenty acres for the consideration that plaintiff would assume the payment of the mortgages thereon, which proposition plaintiff then and there accepted-and the deed to said twenty acres was made pursuant to said agreement on May 10, 1910.

‘ ‘ That on said first day of April, 1910, at the time . said agreement was made and accepted, a new oral agreement was entered into by and between plaintiff and defendants. That it was agreed that defendants, being wholly insolvent, wholly without property or means, and yet.without any place to go, that they should stay there in the building which is situated on said twenty acres above described, at the pleasure of the plaintiff as the employees, servants and agents of the plaintiff and operate said farm and receive as their compensation therefor one-half of thé net proceeds of stock placed upon said farm by the plaintiff and one-half of the proceeds of the crops that might be sold from said place, over and above what was needed to feed the stock and one-half of the net proceeds of the poultry, after the same were fed. That out of said proceeds were first to be paid the personal indebtedness first above enumerated and that incurred up to the time of this agreement and any that might be thereafter incurred by plaintiff furnishing to defendants money to pay their personal bills and expenses; that these debts and expenses were to be paid out of the one-half of the net proceeds that would be going to the defendants.

“That in pursuance of this agreement plaintiff ■ put upon said farm fifty-three head of sheep, sixteen head of lambs, one buck, one sow and ten pigs, forty head of two-year-old heifers and other cattle, two horses, three mules and implements to the value of three hundred dollars, to operate said farm as the employees of plaintiff, until such time as the plaintiff might make any further arrangements.

“That in pursuance of said contract the defendants took charge, as the employees of plaintiff, of said stock and implements and farm, agreeing to take care of all said stock, farm said lands in a good and husband-manlike manner, receive for their part one-half of the net proceeds as above enumerated and their share of the net proceeds to be applied to their personal indebtedness as above enumerated.

“That during said year the plaintiff expended in improvements upon said farm' something over two thousand dollars and expended for seed and feed something over four hundred dollars. That defendants' wholly neglected to carry out said contract. That they employed hired help without the knowledge or consent of the plaintiff, for which plaintiff became liable and was compelled to pay in the sum of about four hundred dollars. That they neglected the stock and poultry in such manner that it caused plaintiff great loss, permitted the young of the poultry to drown and starve for inattention, permitted the hogs to deteriorate in value from lack of feed and attention. Permitted the cattle to so far deteriorate in value and condition from want of feed and care that this plaintiff was compelled to take about forty-five head of cattle to one Johnston, another farmer there, to be cared for and fed.

“That the defendant John M. Fisher so far neglected his duties that he gave the stock no attention whatever, that he became and was a morphine eater and remained almost constantly under the influence of the drug and gave no attention to plaintiff’s business whatever. That he failed in every particular to carry out his part of said last agreement, as he had said former agreement.

“That in December, 1910, finding that defendants were wholly neglecting their duties, wholly failing to carry out said contract, wholly failing to give any attention to the stock of plaintiff or- to the farming lands of plaintiff, plaintiff notified them that he would terminate their employment.

1 ‘ That the defendants at that time agreed that they were wholly unable and incapable of carrying out their contract and were willing to cease and get off said place and permit the plaintiff to pnt another party in the house and in charge of said stock and place and asked to he relieved from any further obligation to carry out said contract of employment and requested that plaintiff would, as soon as possible, procure someone to relieve them. That plaintiff acceded to this request and agreement, terminated the contract of employment then and there, but requested that they would stay and care for said stock until he could procure a man to take their place, which they agreed to do.

“That during the months of January and February, 1911, plaintiff sent two different men down to look over the farm, to each of whom defendants showed the place and stock and expressed a willingness to turn the same over whenever they were ready to come, but plaintiff did not consummate a contract with either of them.”

To this petition the defendant filed an answer in the nature of a general denial. A receiver was appointed and qualified, and he then took possession of the property. When the cause came on for trial the following occurred:

“The plaintiff, to maintain the issues upon his part, introduced the following evidence:

“Wilbur A. Weston, being sworn upon the part of the plaintiff, testified as follows:

“Direct Examination by Mr. Littick.

“Q. Just state your name, please. A. W. A. Weston.

“Q. Where do you reside? A. Kansas City, Kansas.

“Q. Are you the plaintiff in this case? A. I am.

“By Mr. Bradley: The defendants objected to the introduction of any evidence in this case, for the reason that the petition, or bill in equity, does not state a cause of action, for the reason that it is a suit in equity as shown by this bill and petition, and that it cannot be maintained, because the plaintiff has an adequate remedy at law, to-wit, for the recovery of the real and personal property, and this fact is shown on the face of the petition.

“ Objection sustained by the court.

“Plaintiff excepted at the time.”

The abstract of record shows no judgment, but g’oing to the short transcript, which we are permitted to do, it appears that the plaintiff refused to plead further, and the court thereupon dismissed the bill and so entered judgment. Prom this judgment the appeal here is taken.

I. Counsel urge several questions for the reversal of the judgment nisi. They say that although they have treated the cause as one in equity throughout, yet we should now say that it is an imperfectly stated cause of action at law, and hold that the petition as thus construed did not wholly fail to state a cause of action, and the court erred in sustaining the objection to the introduction of evidence. They also urge that it sufficiently states a cause in equity.

Counsel for defendant urges that the petition is wholly deficient as a bill in equity, because it shows upon its face adequate, ample and plain legal remedies. They also urge that counsel, having proceeded below as in equity, cannot in this court shift their position and say that they are and were upon the law side of the court. They also urge with much force that plaintiff has little comfort from those cases such as the Duerst case, 163 Mo. l. c. 621, wherein this court has said:

“When the defendant files an answer and puts in issue the averments of the petition without having previously challenged their sufficiency, it is too late to do so after the jury is sworn, if the language in the petition is susceptible of a construction that states a cause of action.”

They say that this court meant by such language that if the case was in equity and the language was susceptible of a construction that would make it state a cause of action in equity, then the objection to the admission of testimony should be overruled. Likewise, if it was on the law side. But. the question is, can they shift from one side of the court to the other in order to have the appellate court say that a cause of action might be found within the language of the petition or complaint? We shall not answer any of those questions for reasons to be stated.

II. To our mind we are clearly without jurisdiction in this case. It is clearly not a cause wherein the title to real estate is so involved as to give us jurisdiction. It is not an action in ejectment. We are not asked to destroy any muniment of title. We are not asked to decree title in plaintiff, but on the contrary plaintiff says he has the legal title, and the defendants only claim possession until such time as their claimed interest in the personal property is settled. The language of the petition on this point is:

“That about the latter part of February or first of March, 1911, plaintiff consummated an agreement with one Dunkel and about the first of March he went ■down to take charge and then for the first time defendants refused to permit him to move into the house and take charge of said stock, claiming that they had an interest in the increase and that as soon as that was paid they would surrender possession of everything, never at any time claiming that they had any right' to the possession of the place, but persisted in holding possession and interfering with said Dunkel as the agent and employee of the plaintiff, in taking charge of said place and stock.

“That the defendants now claim that they have some interest in the increase of said stock grown upon said place by way of payment to them for services rendered.”

The amount involved does not give us jurisdiction. The personal property held by defendants is averred to be $2000 in value, and the alleged debt from defendants to plaintiff is $2,449.69. If we add them it falls short of our jurisdiction. We can find nothing upon the face of this record to give us jurisdiction. The case should be transferred to the Kansas City Court of Appeals and it is so ordered.

All concur.


author: WOODSON, J.

text:
    CLARA BREEZE, Appellant, v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY.
    Division One,
    March 2, 1915.
    1. NEGLIGENCE: Master and Servant: Servant’s Suicide: Ordinary Diligence. If the act of the deceased employee of defendant, who bad heen taken to a hospital for an operation for appendicitis, in thereafter leaping from a window, was not the usual or ordinary conduct that the defendant, as an ordinarily prudent person, should have anticipated, the defendant is not liable in damages for his consequent death; and in the absence of suicidal mania, and of evidence indicating a suicidal intention, it cannot he held that defendant was negligent in not barring the window or having a nurse constantly in attendance upon him.
    2. -: -: -: Jumping From Hospital Window. Plaintiff’s husband was an employee of the defendant railroad company, and as such was entitled to enter defendant’s hospital • and there receive hospital, medical and surgical treatment. He was taken to the hospital and a surgical operation for appendicitis was skillfully performed. The operation revealed an unusual accumulation of fluid in and about the diseased parts, which was indicative of serious complications, not necessarily present in such diseases. After the operation, he was placed in a room on the second floor of the hospital, under the care of trained nurses, but the windows of the room were not secured by iron grates or bars. At intervals he became delirious and possessed of delusions, but there was no evidence tending to show suicidal mania, or to indicate that he intended to do himself physical harm. The nurses were not in constant attendance upon him, but each nurse attended one or more patients on the same floor, according to their need. On September 21st his nurse left him for about five minutes, and on her return discovered that in her absence he had arisen from his bed, gone to the unguarded window and jumped to the pavement below. His death resulted soon afterwards. Held, that, in the absence of evidence of suicidal mania and of evidence tending to show any suicidal intentions, it was not defendant’s duty, as an ordinarily prudent person, to have anticipated his suicidal act, and the court properly compelled a nonsuit.
    Appeal from Jackson Circuit Court. — Eon. W. 0. Thomas, Judge.
    Affirmed.

      John A. Eall and Botsford. Deatherage & Greason for appellant.
    (1) The Employee’s Hospital Association was created by tbe defendant company and not by its employees. It was tbe alter ego or at most tbe agent of defendant company under tbe sole control of defendant and was organized for defendant’s benefit. Phillips v. Eailroad, 211 Mo. 419; Haggery v. Eailroad, 100 Mo. App. 424. (2) Defendant company owed J. A. Breeze tbe duty, under tbe evidence in this case, to furnish him a separate room with barred windows and special nurses to be at bis bed at all times until be was out of danger of doing violence to himself. Phillips v. Eailroad, 211 Mo. 435. (3) “It is not necessary that tbe injury in tbe precise form in which it in fact resulted should have been foreseen. It is enough that it now appears to have been a natural and probable consequence. In other words, it is not necessary to a defendant’s liability, after Ms negligence bas been established, to show, in addition thereto, that the consequences of his negligence could have been foreseen by him; it is sufficient that the injuries are the natural though not the necessary and inevitable, result of the negligent fault.” Phillips v. Railroad, 211 Mo. 442. (4) In considering the demurrer of the defendant to the evidence the trial court should deal with the disputed and uncertain facts in a way as favorable to plaintiff as the record will allow, laying to one side, as within the province of the jury, both self contradictions of and disagreements between witnesses. Mowry v. Norman, 223 Mo. 468'; Wightman v. A. O. W. W., 121 Mo. App. 263; Fink v. Railroad, 161 Mo. App. 327; Phelan v. Paving Co., 227 Mo. 704; Hallweg v. Tel. Co., 195 Mo. 165; State v. Baldwin, 214 Mo. 308. (5) It was the duty of defendant’s agents in charge of plaintiff’s husband during his last sickness to anticipate a thing which was the natural consequence and likely to happen from the negligent acts and to guard against such possible results, even though that specific thing which did happen could not have been foreseen by it. Phillips v. Railroad, 211 Mo. 422; Miller v. Railroad, 90 Mo. 394; Railroad v. Artist, 60 Fed. 366; Hoeffer v. Hotel Co., 142 Mo. 378; Harrison v. Light Co., 195 Mo. 606; G-raney v. Railroad, 140 Mo. 89; Miller v. Railroad, 90 Mo. 389. (6) There is a presumption that out of love or life and self-preservation, one does not willingly destroy himself, and the proof of self-destruction together with any other evidence tending to prove mental derangement, makes a case for the jury as to whether or not deceased was mentally deranged and its cause. Holten v. Cochran, 208 Mo. 425; Wood v. Railroad, 181 Mo. 448; State v. Wright, 134 Mo. 418; Rossier v. Met. St. Ry., 125 Mo. App. 162; Torreyson v. Railroad, 144 Mo. App. 635; DeCourcey v. Const. Co., 140 Mo. App. 179; Saeger v. Railroad, 131 Mo. App. 287; Johnson v. Railroad, 150 Mo. App. 319; Ins. Co. v. McConkey, 127 U. S. 667. (7) A delusion, that is, a belief in a condition which does not in fact exist, is evidence of mental derangement. Knapp v. Trust Co., 199 Mo. 667; Buford v. Gruber, 213. Mo. 253.

      W. F. Evans and Cowherd, Ingraham, Durham & Morse for respondent.
    (1) If the plaintiff made no case for the jury, admission of evidence over her objection does not affect the merits of the case and does not constitute reversible error. Fritz v. Railroad, 243 Mo. 62. Plaintiff’s action, if she had one, was against the Hospital Association and not against defendant. (3) The trial court was right in sustaining a demurrer to plaintiff’s evidence. Holton v. Cochran, 208 Mo. 425; Ritter v. Insurance Co., 69 Fed. 505; Jones v. Gorham, 90 Ky. 622, 10 L. R. A. 223; 16 Am. & Eng. Ency. Law, 608; 22 Cyc. 1118; Senn v. Railroad, 108 Mo. 142; Turner v. Haar, 1.14 Mo. 335; Culbertson v. Railway, 140 Mo. 35; Heinzle v. Railroad, 182 Mo. 555.
   WOODSON, J.

The plaintiff instituted this suit in the circuit court of Jackson county against the defendant, to recover the sum of $10,000, for the alleged wrongful killing of her husband on September 21,1910. A trial was had, and at the close of the plaintiff’s evidence the circuit court, at the request of defendant, instructed the jury that the plaintiff was not entitled to a recovery. Thereupon she took a nonsuit, with leave to move to set the same aside. In due time said motion was filed and overruled, exceptions saved, and the plaintiff, in due time and proper form, appealed the cause to this court for review.

The facts of the case are few and there is but little conflict in the evidence.

The deceased, J. A. Breeze, was an employee of the defendant, as its station agent, at LaCygne, State of Kansas. By virtue of his employment and the collections, or rather the reductions made from Sis monthly salary, to support the hospital to be presently mentioned, he was entitled to enter and receive hospital, medical and surgical treatment at the defendant’s hospital in Kansas City, Missouri, whenever the character of his sickness required such services. Shortly before the date of his death the deceased became affected with appendicitis, and it became necessary that a surgical operation should be performed upon him for that malady. In pursuance to that right the deceased was carried to said hospital in Kansas City, and a surgical operation was there properly performed upon him by skilled surgeons. No complaint along that line. However, during the performance of the operation, the evidence tended to show that there was an unusual accumulation of fluid in and about the diseased parts, which was indicative of serious complications, not necessarily existing in such cases. The deceased was placed in a room on the second floor of the hospital, under the care and attention of trained and skilled nurses ; but the windows thereof were not secured by iron grates or bars.

The evidence tended to show that at intervals the deceased became delirious. Some of the witnesses stating that he was at times possessed of delusions, and there was what might be termed a scintilla of the testimony tending to show that he was thought to be insane upon one or two occasions.

The nurses were not constantly in attendance upon the deceased, but each nurse would attend one or more patients on the same floor, I gather it, according to the seriousness of the trouble for which they were being treated.

On September 21, 1910, the day upon which the deceased died, his attendant left him for about five minutes, and upon returning she discovered that the deceased had arisen from the bed, gone to the unguarded window and had jumped therefrom to the pavement below, falling upon the cement walk, from which leap he received the injuries that shortly thereafter resulted in his death.

I. Counsel for appellant cite, and with much confidence rely upon, the case of Phillips v. St. Louis & San Francisco Railroad Co., 211 Mo. 419, ^or a reversal of the judgment in this case. The same fundamental principle underlies the two cases; but the evidence introduced in that case radically differs in quantity and character from that introduced in this.

The sole grounds upon which plaintiff in the case at bar seeks a recovery is that the deceased was at times delirious or insane, and that the windows of his room were not guarded by iron grates or bars, to prevent him from jumping through the same from his room to the walk below, during some one of those delirious moments, during the temporary absence of the attendant. I have carefully read the entire evidence in this case, and have failed to find sufficient evidence to have warranted the circuit court in submitting the case to the jury upon those grounds.

There was no evidence introduced tending to show that the deceased was possessed of suicidal mania, or mania of any kind, for that matter, at most that he was insane at intervals, but no indication whatever prior to the fatal leap that he intended to do himself or anyone else any personal harm. In the absence of such showing there was no evidence tending to show that the defendant had any reason to anticipate that the deceased contemplated self-destruction. ■ In other words, the act of the deceased, in leaping from the window, in the absence of suicidal mania, was not the ordinary or usual conduct that the defendant as an ordinarily prudent person should have anticipated upon his part .under the circumstances. It is not every man that is temporarily unbalanced from the effects of a surgical operation that possesses suicidal mania, and in fact there are hut few cases of that character as common observation and experience teach us; and in the absence of evidence tending to show such bent of mind on the part of deceased, the court would not have been justified in submitting that question to the jury, for no one, as previously stated, would have anticipated such conduct upon his part.

In the Phillips case the evidence was overwhelmingly to the effect that he was insane, and that while in that condition he was carelessly permitted to leave the train and wander through a great city traversed by a network of railways and street car- tracks, all of which were death traps for any one in his condition; and all reasonably prudent persons should have anticipated and foreseen the natural result of such a careless act, as Judge Graves so clearly pointed out in that case.

But that is not this case. Even in that case there might have been some question of the defendant’s liability had Phillips committed suicide instead of having been run over by a street car, especially when there, as here, there was no evidence of suicidal mania.

I am clearly of the opinion that the trial court properly sustained the demurrer to the evidence; and for that reason the judgment should be affirmed. It is so ordered.

All concur, except Blair, J., who dissents.


text:
    JOHN H. SPEER v. SOUTHWEST MISSOURI RAILROAD COMPANY, Appellant.
    Division One,
    March 2, 1915.
    APPELLATE JURISDICTION: Constitutional Question: Untimely Raised: Speed Ordinance. Where plaintiff, in an action for damages for personal injuries resulting from a collision between his automobile and a street car, predicated his right of recovery upon a violation of an ordinance which limited the rate of speed of street cars, and set it out in his petition in haeo verba, it was defendant’s duty, if it wished to assert that said ordinance was unconstitutional as an impairment of its contract with the city, to plead its unconstitutionality in its answer, the first door open to it; and if it waited until after verdict, and then for the first time raised the point that the court violated its constitutional right in refusing to admit in evidence another ordinance which it is claimed constituted its contract with the city, it will be held that the constitutional question was an afterthought and untimely raised and therefore is not in the case at all.
    Appeal from Jasper Circuit Court. — Eon. D. E. Blair, Judge.
    Transferred to Springfield Court of Appeals.

      McBeynolds & Halliburton for appellant.

      A. G. Young for respondent; Thomas & Hackney of counsel.
   GRAVES, P. J.

This is a suit for personal injuries. The plaintiff, in company with the owner of an automobile, was injured by reason of a collision between the automobile and one of defendant’s electric street-railway cars. The plaintiff charged in his petition that the electric street-railway car was being run in excess of six miles an hour, in violation of a city ordinance of Webb City, Missouri, and that the defendant negligently failed to give any warning of the approach of said car as said car was approaching a public street crossing. The answer was (1) a general denial, and (2) contributory negligence pleaded in minute detail. Reply a general denial. Plaintiff had judgment for $1000 and defendant has appealed. The cause was evidently brought here on the theory that there was a constitutional question involved. We are of the opinion that there is no such question properly raised or involved in this record, and for that reason, this cause should be transferred to the Springfield Court of Appeals. The constitutional questions are thus stated in the motion for new trial:

“Because the action of the court in refusing to admit in evidence defendant’s franchise and in refusing said Instruction ‘ J’ is violative of section 10, article 1, of the Constitution of the United States, in that the action of the court impaired the obligation of contracts between Webb City and the defendant company.

“Because the act of the court in excluding the franchise between the city of Webb City and the dei fendant company, and in refusing said instruction is violative of section 15, article 2, of the Constitution of Missouri, and is violative of section 30, article 2, of the Constitution of the State, in that it impaired the contract obligation between Webb City and the defendant company, in that it deprived the defendant company of a property right without due process of law. ’ ’

The instruction “ J” referred to reads:

“The court instructs the jury that the ordinance of Webb City limiting speed of cars on and across the streets does not apply to defendant, being in violation of its franchise from city of Webb City.”

Section 12 of Ordinance No. 137, being the franchise ordinance, referred to, .and offered in evidence, but not admitted, reads:

“No car, in any case, shall run at a greater speed than ten miles per hour within the built-up portion of the city; and when cars are turning comers from one street to another, the speed shall not he greater than three miles per hour. In the outskirts of the city, the speed is to he limited to fifteen miles per hour. ’ ’

This is the whole foundation of the alleged constitutional question.

This alleged constitutional question was not timely raised in this case. Questions of this character must come in at the first open door. This alleged constitutional question is an afterthought, horn of an adverse judgment. In this case, the plaintiff predicated his right of recovery (as one ground thereof) on an ordinance which limited the rate of street-car speed in Webb City to sis miles per hour. This ordinance was set out in haec verba in the petition. When duly served, as it was, the defendant was called upon to answer this petition and all parts thereof. The binding character of the ordinance pleaded by plaintiff was a matter for the defendant to have considered in the preparation of its answer. If the ordinance pleaded in the petition involved any contract rights of the defendant, it was the duty of the defendant to embody that defense in its answer. If the ordinance was not applicable to defendant, it should have so pleaded. In other words, the first open door for the alleged constitutional question was in the answer. We shall not cite the numerous cases. It is sufficient to say that when a constitutional question can be raised by answer, it is untimely, and taken as waived, if not then raised. Such has been the uniform holding of this court. We doubt whether the matter complained of is in fact a constitutional question. But we need not encumber this opinion with a discussion of that question. It was not raised in time and that takes it out of the case. The cause is, therefore, transferred to the Springfield Court of Appeals for determination. All concur.


author:
BOND, J.
      WOODSON, J.

text:
    BAXTER SHEMWELL, Appellant, v. W. A. BETTS et. al.
    Division One,
    March 2, 1915.
    JUDGMENT BY DEFAULT: Against Non-Resident: Notice by Publication: Title to Land. Jurisdiction in a suit to quiet title to land, brought in the .circuit court, is obtained by publication regularly made and directed to a non-resident, under the statute (Sec. 1707, R. S. 1909); and a judgment rendered by default- against such non-resident after such default and without his actual knowledge, divesting the title out of him, though the records of the county at the time the suit was brought showed title in him, is unassailable by a subsequent suit in equity on any ground that he might have interposed as a defense therein, unless he was prevented from making said defense by the fraud of the plaintiff, unmixed with any negligence on his part.

      EelcL, by yUDODSON, J., that it is not correct to say that notice by publication regularly made gives to the circuit court “as much jurisdiction over the persons of non-residents as if they were personally served with process,” but that a suit to quiet title is a proceeding in re to, which does not require personal service, and notice by publication does not give the court jurisdiction over the person of the nonresident defendant, but simply notifies him to appear, and if he chooses not to do so but permits judgment by default to go against the res, he can never again be given the opportunity by suit in equity to litigate the questions involved in the default judgment, unless it was obtained by fraud upon the court concocted by the plaintiff therein.
    Appeal from Oregon Circuit Court. — Hon. W. N. Evans, Judge.
    Abbirmed.

      E: P. Dorris for appellant.
    The proposition is, does plaintiff’s petition state a cause of action? Defendants filed a demurrer to plaintiff’s amended petition whicli admits that its allegations are true. Breimeyer v. Starr Bottling Co., 136 Mo. App. 84. The petition states a cause of action to set aside a judgment purporting to quiet the title to the premises involved and described in said petition and which said judgment was obtained in a manner which cannot be upheld in equity. Tapana v. Shaffrey, 97 Mo. App. 337; Golden v. Whiteside, 109 Mo. App. 523; Johnson v. Chilton, 111 Mo. App. 244; Davidson v. Real Estate Co., 226 Mo. 1; Howard v. Scott, 225 Mo. 685; Collier v. Easton, 2 Mo. 145; Miles v. Jones, 28 Mo. 87; Payne v. Oshea, 84 Mo. 129; Bresnehen v. Price, 57 Mo. 422; Lee v. Hannon, 84 Mo. App. 157; Smith v. Taylor, 78 Mo. App. 630; Wonderly v. Lafayette Co., 150 Mo. 635; Smoot v. Judd, 161 Mo. 673; State ex rel. v. Englemann, 86 Mo. 562. Plaintiff alleges that he is the owner of said premises and is holding under two valid tax deeds duly recorded more than three years before the said judgment, and that plaintiff' in said suit not having commenced his action within three years from the time of recording the tax deeds is barred. R. S. 1909, sec. 11506a. Plaintiff further alleges that to permit said judgment to stand and thereby obtain the title to said premises and deprive plaintiff of his property, would be taking property without due process of law. Constitution, art. 2, sec. 30.
    STATEMENT.
    Appellant (plaintiff below) filed an amended petitition on the 17th of October, 1911, in the circuit court of Oregon county, Missouri, to which pertain persons to whom one J. D. Brooks made a conveyance of a quarter section of land in said county were made defendants, together with certain incumbrancers of said land. The gravamen of plaintiff’s petition is that he, a non-resident of the State of Missouri, was the owner of said quarter section of land to which he had acquired title under two tax deeds; that after the recording of said deeds to Mm, the said J. D. Brooks, who had a deed to said premises, caused the same to be recorded with knowledge of plaintiff’s rights under the tax deeds.
    Plaintiff further states that the said Brooks brought an action to quiet the title to said premises to which plaintiff and other persons were made defendants in July, 1904; that plaintiff was served by publication, but made default, having no actual knowledge of the pendency of said suit; that said suit ripened into a judgment decreeing the title to said premises to be in said J. D. Brooks.
    Plaintiff’s petition further alleges, to-wit:
    “That this plaintiff long before said suit to quiet title was instituted and disposed of and since that time up to the year 1909 has continuously paid all taxes on said premises. Plaintiff further states that in order to obtain said judgment purporting to quiet the title to said premises said J. D. Brooks then represented and claimed that he was the true legal and equitable owner thereof and had the true fee simple title thereto, when in truth and in fact he was not the owner thereof and did not have the true title to said premises, but such fact was withheld from the court and the court was thereby imposed upon and misled and deceived and such conduct operated as fraud in the very procurement of said judgment, which would not and should not have'been rendered in good conscience and equity.
    - “Plaintiff further states that to permit said judgment to stand and thereby vest said J. D. Brooks with the title to said premises through its force and effect and divest this plaintiff of his right, title and interest in said premises should in actual operation and effect amount to taking plaintiff’s property without due process of law.
    ‘ ‘ That said judgment purporting to quiet the title to said premises in plaintiff in said suit is null and void and passed no title to said J. D. Brooks to said premises and lie liad no title to said premises at the time he obtained said judgment.”
    Plaintiff proferred to pay to the defendants the reasonable amount of any improvements which they had made on the premises purchased by them from the said J. D. Brooks, and concluded with the prayer to set aside the judgment of the circuit court in favor of said J. D. Brooks and all transactions thereunder and subsequent conveyances by him of the land therein described. To this petition the defendants demurred, for the reason that it did not state facts sufficient to constitute a cause of action.
    After argument, the demurrer was sustained, plaintiff given leave to amend, which he declined to do, but stood upon his petition.
    Wherefore, it was dismissed, and an appeal duly taken to this court.
   OPINION.

BOND, J.

(After stating the facts as above.) — The allegations of the petition in’this case disclose that the circuit court of Oregon county obtained jurisdiction in the former action brought against plaintiff to quiet the title to the land by publication prescribed by statute in suits against non-residents. [R. S. 1909, sec. 1707.] In cases falling within the purview of that statute, and where it is strictly complied with, a court of general jurisdiction in the classes of cases mentioned in the statute obtains as much jurisdiction over the persons of non-residents upon a publication regularly made as if they were personally served with process. This has been too long the settled rule in this State to be further questioned. Under the statements contained in the petition in this case, the suit in which plaintiff was served by publication was one which fell within the class specified in the statute which, among others, embraces, to-wit:

“And in all actions at law or in equity, which have for their immediate object the enforcement or establishment of any lawful right, claim or demand to or against any real or personal property within the jurisdiction of the court.”

An action to quiet title undoubtedly is comprehended within the above quoted terms. The circuit court therefore in the suit brought by Brooks had jurisdiction of the subject-matter and of the person of .the present plaintiff, the defendant there, in the mode provided by statute for obtaining jurisdiction against non-resident defendants. This being so, its judgment in that action is unassailable by a bill in equity except for fraud in the very procurement of the judgment itself. None of the allegations in plaintiff’s petition in the present case disclose that the judgment in the former suit was fraudulently concocted. The allegations in the present action tend to show many grounds upon which plaintiff might have defended the former, but it has been uniformly held that the judgment of a court of competent jurisdiction having the jurisdiction of the cause and the parties, cannot be upset by a subsequent suit in equity on any ground which might have been interposed as a defense to the former action, unless the party entitled to such defense has been prevented from making use of it by the fraud of his adversary, unmixed with any negligence on his part. This principle has been recently reaffirmed in a case containing a full citation of the authorities in this State. [McDonald v. McDaniel, 242 Mo. l. c. 176, and cases cited.]

Our conclusion is that there was no error in the ruling of the learned trial court in sustaining the demurrer to plaintiff’s petition. The judgment herein is- affirmed.

All concur, Woodson, Jin a separate opinion.

WOODSON, J.

(Concurring in result, but dissenting as to some of the language used.) — On page three of my learned associate’s opinion - it is in substance, if not literally stated, that notice to the defendant, a non-resident, by publication, gave the circuit court of Oregon county £<as much jurisdiction over the persons of non-residents upon publication regularly made, as if they were personally served with process. ’ ’

While, if read in connection with the facts of this particular case, which it should he, there would be no-grounds for misunderstanding, but often both the bench and bar give effect to the general language used by the court, regardless of the limitations which should accompany the same, as shown by the facts of the case when carefully read.

Now, the truth of the matter is, that in the case of Brooks vs. the plaintiff here and others, referred to by my learned brother, in this case, was nothing more or less than a proceeding in rem to quiet title (which did not require, in that case, personal service), nor did it give the circuit court of Oregon county jurisdiction over the person of Shemwell, one of the defendants there and the plaintiff here, as that word is generally used in legal parlance. He was simply notified to appear, if he saw proper to so do, and defend that case; but if he deemed it wise to remain away and let judgment go by default against the res — the land — then the courts of this State, at least, will never again give him another opportunity to litigate the questions involved in such default case.

The question as to what effect has a judgment rendered by default against a non-resident defendant upon publication, has attracted the attention not only of the courts of this State, but of many, if not all of the courts of last resort in most of the other States and of the-United States. While there is a great conflict among them, yet, if critically read and considered, I believe the greatest confusion among them has grown out of the fact that guarded language has not at all times been used in dealing with the question of jurisdiction acquired over the person of non-residents by publication, and the character of judgment (the incident thereof) that may or may not be rendered thereon. If the decree is to affect the res only, then it is valid, that is, if it imposes no personal obligations upon the nonresident over and above debarring him of any future right to litigate the questions involved in that ease, affecting the res; but if the judgment should go further and impose any personal obligation upon or demand of any kind against the defendant therein, then under both the State and Federal constitutions that excess would be absolutely null and void; and may be attacked collaterally or otherwise. '

With the limitations herein suggested I fully concur in Brother Bond's opinion.


text:
    ELLA M. FERGUSON, Appellant, v. CHARLES D. COMFORT and LOUIS NOLTE, Sheriff of City of St. Louis.
    Division One,
    March 2, 1915.
    1. APPELLATE JURISDICTION: How Determined. In determining appellate jurisdiction, the court is not restricted to the amount claimed in the petition, but will go into the whole record and from that determine the amount in dispute.
    :2. -: Replevin: Judgment and Damages: Waiver. Where judgment for $6000 for debt was rendered and execution levied on personal property, and the judgment debtor’s wife claimed the property as her own and brought suit in replevin against the judgment creditor and the sheriff, wherein she aslced for possession of the property and damages in the sum of $5000, and the jury found that plaintiff was not entitled to the possession of the property and assessed in favor of the sheriff the value thereof, at $6000, and one cent damages, and plaintiff at the trial made a clear disclaimer as to damages, the appeal is to the Court of Appeals; and, though her disclaimer of damages at the trial was not wholly unequivocal, yet, if on appeal her brief shows a clear abandonment of any claim for damages, the amount in dispute is $6000.01, and the Supreme Court does not have jurisdiction.
    Appeal from St. Louis City Circuit Court. — lion. George G. Hitchcock, Judge.
    Transferred to St. Louis Court of Appears.

      Zachrits, & Zachrits and Harmon J. Bliss for appellant.

      William F. Smith and Henry Higginbotham for respondents.
   GRAVES, P. J.

Action in replevin. Judgment for defendants, and plaintiff appeals. Charles D. Comfort, one of the defendants herein, had a judgment in the St. Louis Circuit Court against John W. Baker and J. E. North for $5132.25, bearing interest at the rate of eight per cent. On this judgment Comfort procured execution, which was placed in the hands of defendant Nolte, then sheriff of the city of St. Louis, for execution. Nolte levied upon the property described in the replevin petition in this case. Plaintiff, now Ella M. Ferguson, then Ella M. Baker, made claim to the property, which is herein involved, and which had been levied upon as the property of the execution debtor Jno. W. Baker. The present plaintiff was then the wife of John W. Baker, but was afterward divorced, and later became Ella M. Ferguson by remarriage. Upon the receipt of the claim made by Ella M. Baker, now Ella M. Ferguson, the defendant Nolte notified said Comfort, now his codefendant, of such claim, and Comfort with proper sureties executed an indemnifying bond' in tbe sum of $12,000, which was accepted by Nolte, the sheriff. The sheriff declined to receive and accept a claimant’s bond tendered by Mrs. Baker, and was about to sell the property when this replevin suit was filed. In the petition for replevin the plaintiff charges the value of the property to be $6000, and also further says:

“And that afterwards on the same day defendants wrongfully took said property from the possession of plaintiff and still unjustly detain the same at the city and State aforesaid, to plaintiff’s damage in the sum of five thousand dollars.

“Wherefore, plaintiff prays judgment against defendants for the recovery of the possession of said goods and chattels, and $5600 damages for the taking and detention thereof and all injuries thereto.”

Plaintiff gave a replevin bond, with sureties, in the sum of $12,000. Upon trial had the following judgment, omitting the description of the property, was entered:

“Now, again at this day come the parties hereto by their respective attorneys and again come the jury heretofore impaneled and sworn herein, and thereupon the trial of this cause again progressed and being finished, the jurors aforesaid, upon their oaths aforesaid, say:

“We the jury find the issues in favor of the defendants; and we further find that at the time of the institution of this suit the plaintiff was not entitled to the possession of the personal property in the petition described and seized under the writ of replevin in this suit; and we further find that at the institution of this suit the defendant, Louis Nolte, Sheriff of the City of St. Louis, was entitled to the possession of said personal property; and we assess in favor of the defendant, Louis Nolte, Sheriff of the City o'f St. Louis, the value of said personal property at the sum of six thousand dollars; and we assess in favor of the defendant, Louis Nolte, Sheriff of the City of St. Louis, the damages hy him sustained for the taking and detention of said personal property at the sum of one cent. We further find that the defendant, Charles D. Comfort, was not in possession or control of said personal property at the time of the institution of this suit or at the time of the seizure thereof under the writ of replevin.

“P. G. Murray, Foreman.

“It is therefore upon the finding of the jury as aforesaid considered and adjudged by the court that the plaintiff take nothing by her suit in this behalf and that the defendant, Louis Nolte, Sheriff of the City of ■St. Louis, do have and recover of the plaintiff the personal property delivered to her by the coroner of the •city of St. Louis under the order of delivery in this cause and described in the plaintiff’s petition herein as follows, to-wit: . . .

“Or at the election of the said defendant Louis Nolte, Sheriff of the City of St. Louis, he have and recover of the plaintiff and of John H. Vette and H. C. •Grote, sureties on the replevin bond herein, the sum of six thousand dollars, the assessed value thereof, and also have and recover of said plaintiff and John H. Vette and H. C. Grote said sureties, the sum of one cent for his damages for the taking and detention of said property, together with his costs and charges herein expended. And it is further considered and adjudged by the court that the defendant, Charles D. Comfort, go hence without, day and recover of plaintiff his costs herein expended and that execution issue in conformity with this judgment. Verdict and instructions filed. ’ ’

From this judgment the plaintiff appealed to the 'St. Louis Court of Appeals and her said appeal has been by that court transferred to this court upon the ground that more than $7500 was involved in the controversy. An examination of the record shows that plaintiff offered no evidence as to the alleged $5000 damag’e. In the record, however, we find, among other matters, the following:

“The1 witness testified that all the articles mentioned in plaintiff’s petition were either given to her or purchased by her with her own money or with money given to her by her husband for her own use, giving-the details as to each particular article mentioned in plaintiff’s petition; stating if a gift, by whom given and when, or if a purchase made by her, when and where made.

“Witness stated that the chattels mentioned in the petition were levied on by the sheriff on July 12,. 1907. Sheriff did not take them away, hut had possession until witness obtained possession under the order of delivery in this cause.

“Witness stated that the title to the chattels remained the same up to the time the levy was made on July 12, 1907, and remained the same up to the time she got the chattels hack under the writ of replevin. The chattels remained in the house all the time up to-the time they were turned hack to her. The chattels, were in the same condition when witness got them back under the writ of replevin as when the levy was made.

“Mr. Zachritz: I am going to follow it up anyhow by showing their [the chattels’] condition. That is the purpose of it. Just to accommodate Mr. Smith and shorten this matter, I will state that we are going to show, if we can, that these chattels were in substantially the same condition at the time this levy was made at the time they were returned under the writ of replevin, and at the time of this trial and during all that time.

“Mr. Smith: For the purposes of this case, and in order to shorten the matter, we will admit that it may he a matter of record.”

Plaintiff urges sundry errors in instructions given, and in the exclusion of evidence, as well as other matters. We have first the question of our jurisdiction, and if we conclude that such we have, then the errors assigned. This sufficiently states the case.

I. The Court of Appeals held that we had jurisdiction of this case, because the plaintiff had appealed from the judgment in favor of Comfort, as well ns from the judgment against plaintiff and in favor of Nolte. It is clear that .as Nolte had a judgment against plaintiff for $6,000.01, all told, that an appeal from tion in this that judgment conferred no jurisdiccourt. But says the Court of Appeals the judgment in favor of Comfort involved more. That as to such judgment the amount involved is the amount claimed in the petition, i. e., property of the value of $6000 and damages in the sum of $5000. It is true that' where the defendant secures a verdict below, the amount claimed in the petition of the plaintiff usually fixes the appellate jurisdiction, but this does not prevent the court from going to the whole record, and from that determining the actual amount in dispute. Originally the plaintiff, as to both Comfort and Nolte, claimed $6000 in property and $5000 in damages. These sums might be said to fix the appellate jurisdiction in the appeal as to Comfort, if the record does not elsewhere show that plaintiff waived a portion of the claim. She comes very nearly doing so, when the agreement was made as to the condition of the goods at the different dates mentioned in the stipulation which we have set out in the record. In other words it looks as if she was not persisting in her claim of $5000 for the taking and detention of the property. Had the record showed a clear disclaimer as to these damages (and it comes very near so doing) there would be no jurisdiction here — taking the whole record. She practically admits of record that these damages are but nominal, to say the most. What she says in the record amounts to this, “I sued for $5000 damages for the taking and detention of these goods, hnt I now saj that the goods were of the same value all the time and there has been no substantial damage.” It is a practical admission in open court that her claim for damages was imaginary rather than substantial. When she made this admission she eliminated that item as a matter of contest.

II. That the plaintiff abandoned this claim of $5000 is fully demonstrated by the further record in the case. First, there is no evidence of damage in the case. Secondly no such question is presented by the briefs there. Here are the points made in the briefs:

“ (1) So also it was the right of plaintiff to show by competent evidence any fact throwing light upon the actual value of the property at the time of the trial, and it was reversible error to exclude evidence showing that the plaintiff based her averment of value upon the purchase price; and that such purchase price could not be realized upon the property, and was not the true value thereof.

“ (2) The rule of law that the assessment of value of the property must be as of the date of trial and not of the caption is not changed by the fact that the plaintiff in the replevin has by any averment of her petition, assigned a particular value to the property, nor is such plaintiff conclusively bound by such averment for the following reasons.

“(3) To arrive at the true value of the interest of the plaintiff -in the replevin in the property at the time of trial, it is competent to show that such interest is subject to the lien of a mortgage, and to show the amount of that mortgage, and it was reversible error to exclude evidence tending to show such facts.

“It was improper and unjust to assess against plaintiff the full value of the property unaffected by what she owed the mortgaged, Vette, and had conveyed the property to secure.

“(4) The mortgagee of the chattels in question was a proper party to the suit, and it was error for the court to refuse to permit him to he joined as a party defendant.

“A plaintiff may make any person a defendant who has or claims an adverse interest in the controversy, or who is a necessary party to a complete determination of the questions involved therein.

“(5) The defendant Nolte, sheriff of the city of St. Louis, had only a special interest, in the chattels in question, to the extent of the execution in hands, and it was error to assess the value of the chattels in his favor in any larger sum than the amount of his execution. ’ ’

So that it clearly appears that plaintiff was not insisting that she was entitled to $6000 in property and $5000 in damages in the St. Louis Court of Appeals. She had abandoned the damage portion of her case in the circuit court, as above indicated, and she makes no claim in the briefs as to that. She does not even complain of the action of the circuit court in dismissing Comfort from the case.

Viewing this whole record, it is clear the Court of Apeáis was in error in transferring the case to this court. It is accordingly retransferred to the St. Louis Court of Appeals for determination upon its merits.

All concur.