author: ROY, C. PER CURIAM.

text:
    EDWIN S. MARSTON, Appellant, v. JOHN C. CATTERLIN.
    Division Two,
    February 6, 1912.
    ESTOPPEL IN PAIS: Abstracter Omitting Entry of Encumbrance: After-Acquired Title. Defendant was an abstracter and the agent for a loan company. He prepared an abstract to certain property and acted as the loan company’s agent in making a loan upon the land, secured by a deed of trust. He omitted from the abstract a prior deed of trust. Defendant also at the same time lent his own money upon the land. The loan company assigned the loan and trust deed to another company, of which plaintiff is president. That company foreclosed the deed of trust and plaintiff holds the title as its trustee. Defendant purchased the land under a foreclosure sale under that prior deed of trust whict he had omitted from the abstract. Plaintiff brought this suit to set aside the trustee’s sale and the deed to defendant, or to allow a redemption from the sale. Held, that the defendant is estopped from asserting title against the plaintiff. The property should be adjudged to plaintiff, defendant to have a lien upon it for the amount paid by him for the title. However,- the - defendant must account for the rents and profits, after deducting for all legitimate expenditures by him about the property.
    Appeal from Bales Circuit Court.— TIon. W. W. Graves, Judge. .
    Reversed and remanded (with directions).

      Boiversoclc é Hall and Thomás J. S'inUh for appellant.
    (1) An abstracter having omitted an instrument from his abstract ought not to be allowed to set up a claim under such instrument against one who was misled by his omission. Pomeroy, Equity Jurisprudence (2 Eel.), secs. 1047, 1053; Clark v. Bank, 57 Mo. App. 277; Bircher v. Sheet Metal Ornament Co., 77 Mo. App. 509; Deal v. Bank, 79 Mo. App. 262; Harrison v. Murphy, 106 Mo. App. 465; Jolmson-Brinkman Co. v. Central Bank, 116 Mo. 558; Pettit v. Carpenter, 86 Mo. App. 452. (2) An agent cannot be allowed to enrich himself unjustly at the expense of his principal or the privies of his principal. Bingo v. Binns, 10 Pet. 269; Reese v. Wallace, 113 111. 589.

      Silvers S Silvers for respondent.
    (1) It is a familiar maxim that where the equities-are equal, the law will prevail. In this case the New England Loan & Trust Company and defendant each simultaneously furnished money to Harris to pay his. debts. Their equities are equal. In his own protection, however, without fraud and for value, Catterlin procured a prior lien. The law clearly gives him the right to this advantage. He was in duty bound to protect himself as against another to whom he owed no duty. 11 Ency. Law (2 Ed.), p. 188; Williams v. Charlier, 15 N. Y. App. 128; Phillips v. Crammond, 2 Wash. 441; St. Johnsbury v. Morrill, 55 Vt. 165; Newton v. McLean, 41 Barb. (N. Y.) 285; Rexford v. Rexford, 7 Dans. (N. Y.) 10; Russell v. Petree, 10 B. Mon. (Ky.) 184; Brimstone v. Carter, 24 Am. Dec. 230.' There is no testimony that Marston or the Farmers’ Loan & Trust Company was ever misled by the abstract. The abstract was kept by the New England Loan & Trust Company. If so neither Marston nor the Farmers’ Loan & Trust Company ever saw it, and therefore could not be misled by it. If, as a matter of fact, the Farmers’ Loan & Trust Company or Mars-ton had been misled by the abstract, it would have been an easy matter to produce the testimony of plaintiff or of some officer of said company to have shown this fact. This omission is fatal to plaintiff’s contention. In the absence of any fraud on Catterlin’s part, and in the absence of any statement or representation made by him tending- to mislead the plaintiff or the Farmers’ Loan & Trust Company, plaintiff and such trust company are bound to take cognizance of the public records in Bates county, Missouri. These records imparted notice to them as well as to Catterlin of the Kerns deed of trust. So that the Farmers’ Loan & Trust Company bought the New England Loan & Trust Company’s paper with constructive notice of the fact that it was inferior to the Kerns trust deed. If such company slept upon its rights and failed to take care of its interests and suffered the trustee to sell under the Kerns deed, it would hardly be fair to charge Catterlin up with this negligence and want of care, as the evidence fails to show that he was under any special obligations to such company. He who sleeps upon his rights must suffer the consequences. Pomeroy’s Eq. Jur. (2 Ed.), sec. 418; Pomeroy v. Benton, 57 Mo. 531; Smith v. Washington, 88 Mo. 475; Miller v. Bernecker, 46 Mo. 194; Sommer v. Railroad, 4 Mo. App. 586; Reel v. Ewing, 71 Mo. 17.
   ROY, C.

— This suit was instituted in the circuit court of Bates county, December 3, 1903, to set aside a trustee’s sale and deed, either absolutely, or, in the alternative, to allow a redemption from the sale. The cause was tried May 19; 1904, and on December 12, 1904, the issues were found for the defendant and judgment entered accordingly, and plaintiff has appealed.

On October 4, 1893, John B. Harris executed a deed of trust to J. R. Hales, trustee, to secure the payment of a note for $100' to Francis Kerns on 87 acres of land in Bates county.

In March, 1896, the defendant was in the business of making and furnishing abstracts of title to real estate in said county, being the owner of a set of abstract books, and was the agent of the New England Loan & Trust Company in the making of loans by that company on such real estate.

Harris applied to defendant in March, 1896, for a loan of $1950 on 213 acres of land, including the land in the Kerns deed of trust. Defendant furnished Harris an abstract of title to all said land and sent it to his said company and the loan was made. At the same time defendant loaned Harris on a deed of trust on the land $450 subject to the $1950 debt, and about a month later defendant furnished Harris $150 more on another deed of trust on the land. All said deeds of trust, including the Kerns deed of trust, were promptly placed on record when made.

On March 5, 1898, defendant had the $150 deed of trust foreclosed and became the purchaser and received the trustee’s deed. On April 27, 1896', almost immediately after making said loan, the New England Loan & Trust Company assigned the $1950 deed of trust and note to the Farmers’ Loan & Trust Company, trustee, of New York, of which company the plaintiff was and still is president. On Wednesday, March 28, 1900, the $1950 deed of trust was foreclosed, the plaintiff purchased the land at the sale on behalf of his company and took the deed to himself for convenience, and holds the title as trustee for his company.

There was a controversy in the pleadings and the evidence as to whether the Kerns deed of trust was left off the abstract as originally made and subsequently inserted. The defendant testified that he had never seen the abstract from the time the loan was closed untiHie saw it in possession of plaintiff’s counsel after the beginning of the litigation, and he was not directly contradicted by any witness.

The abstract is before us. It consists of ninety sheets, consecutively numbered, each sheet being devoted to a separate instrument in the chain of title. Each sheet consists of a printed form filled out by the abstracter to show the substance of the instrument abstracted. All these forms are alike except as to the printing; and in that respect there are three different forms, which we will designate as forms A, B and “C.

All the numbers of the abstract except 15, 16, 86, 87 and 88 are on form A. Numbers 15', 86, 87 and 88 are on form B and are abstracts of deeds filed after the date of the abstracter’s first certificate, while number 16, which is the abstract of the Kerns deed of trust, is on form C, and the only one on that form. The entire written part of the abstract is in the handwriting of Ted Kendall, a clerk of defendant, except number 88 and the indorsement “Given to secure $100” on number 16, and the consecutive numberings of the sheets in red ink and a few other unimportant particulars. Defendant did all the writing on the abstract which was not done by Kendall.

In March, 1896, when the abstract was made, Kendall was seventeen years of age, and of limited experience. lie wrote a reasonably good hand, but of an unformed and amateurish appearance. He began work for Catterlin in November, 1895, and left in September, 1896. Began again for defendant in February, 1897, and continued until February or March, 1902. Between September, 1896, and March, 1897, he worked part of the time for Catterlin. His duties were to post the numerical index books of defendant and make the abstracts, with such help as defendant gave. In making abstracts he took the deeds from the numerical index as far as it went, then ran the records down from the index in the recorder’s office, for from two to five years. Tie testified that sheet number 16 was written at a different time from the balance of the abstract, saying, "Judging from the penmanship I would say that it had been written at a different time from the other; I cah’t tell whether it was two days or a week.” ITe further testified that whenever Catterlin sent him to the recorder’s office to abstract any instrument, he complied with the directions, and that he had never seen the abstract after he prepared it until the trial.

After the foreclosure of the Kerns deed of trust, at which Judge Silvers became the purchaser, he called át defendant’s abstract office to see him about getting the money to pay the amount of his bid. He told defendant about purchasing under the Kerns foreclosure. In his testimony defendant says that he never knew anything about the Kerns deed of trust until that interview with Judge Silvers, and Judge Silvers testified that in that conversation the defendant spoke of wanting to protect an interest for which he thought he might be liable on the abstract which he had furnished for the holder of a prior or subsequent mortgage to the New England Loan & Trust Company, the defendant saying that he might have left that deed of trust off the • abstract. At the time of that interview, the defendant called Kendall to bring him the abstract book to see if the Kerns deed of trust was on it. It was not. It was then entered on the book. Silvers and defendant at that time made the deal by which defendant purchased the land and Silvers delivered him the trustee’s deed with the name of the grantee blank.

Sheet number 16, the abstract of the Kerns deed of trust, shows a mature splendid hand of a business man of experience, markedly different from Kendall’s other writing on the abstract.

The abstracter’s original certificate to the abstract is dated March 27, 1896', and his certificate to the extension is dated April 17,1896, both on the same sheet at the end of the abstract.

Number 15' is the abstract of a release deed dated April 25, 1896', and filed May 1, 1896, after the date of the certificate of extension. Numbers 86 and 88 are abstracts of instruments filed on April 20’ and April 27, 1896, respectively. The abstract is bound together by ordinary fasteners run through and clinched, so that it can be easily taken apart and bound together again.

It is conceded by the parties that Judge Hall, of Kansas City, the examiner for the New England Loan & Trust Company, in his report of his examination of the abstract made no note of the Kerns deed of trust.

During the examination of the defendant as a witness the following occurred:

“A. I represented the New England Loan & Trust Company.
“Q. Had you represented them before that? A. Yes, sir.
“Q. Have you represented them since? A. Yes, sir.
“Q. How long? A. Since they were in existence.
“Q. Have you represented their successors? A. I represented since then the New England Securities Company who are parties that partly ran the western office at Kansas City. ’ ’

Mr. Bowersock testified that he represented the Farmers’ Loan & Trust Company in the foreclosure of the deed of trust for $1950, and that at the time of the foreclosure or later, and not before, he obtained the abstract from the New England Loan & Trust Company.

I. We are driven to the conclusion that the Kerns deed of trust was not shown on the abstract at the time the loan was made, but was inserted therein by defendant after he purchased from Silvers and received the trustee’s deed for the land.

Against such a conclusion is the testimony of defendant that he never saw the abstract from.the closing of the loan until the beginning of this litigation, and no witness directly contradicted him.

On the other hand the evidence to the contrary is overwhelming. The abstract was in possession of the New England Loan & Trust Company at Kansas City, and was not delivered to the Farmers’ Loan & Trust Company. The defendant continued to represent the former company and its successor. As such representative he, no doubt, had the opportunity to see the abstract, and thus had a chance to insert sheet number 16.

The defendant at the time of the loan was the abstracter who made the abstract and the agent who made the loan. This double obligation to see that no lien was omitted rested upon him. He numbered in red ink every sheet of the abstract. That means, in abstract parlance, that he examined those sheets in order to determine their relative place in the abstract, and then numbered them accordingly. If number 16 was then among the abstract sheets, he would have seen it. Tt was an unreleased encumbrance, and to negligently pass it by would have been a great moral dereliction. Yet he knew nothing of it until his interview with Judge Silvers long after.

Judge Hall, the company’s examining attorney, failed to find it. When defendant’s attention was called to it after the foreclosure sale under it, he spoke of his liability by reason of having left it off the abstract. He examined his own abstract books, from which the abstract had been made, and it was not shown there. He had it entered at once on his books. Number 15- of the abstract being the next preceding number was evidently inserted there after the last certificate of the abstracter, because it was of a deed which was filed for record May 1, 1896, two weeks after the last certificate. It must have been substituted in place of some other sheet which was numbered 15. Number 16 could have been inserted just as easily. The difference in Kendall’s handwriting on number 16 from that in the balance of the abstract is such as nothing but the passing of the writer from youth to manhood could have made.

The original abstract was all made on form A. The additions to the abstract made by way of correction or release in closing the loan were on form B, while number 16 alone was on form C, so that by every earmark of printing and handwriting* it was made long after the remainder of the abstract.

There is nothing to show that the deed of trust was omitted from the abstract with any improper motive on the part of defendant, and his purchase under that mortgage was probably made in good faith on his part.

II. With the facts as above stated, is the defendant estopped from asserting title under the foreclosure of the Kerns deed of trust as against this plaintiff?

In the beginning of this discussion we are confronted with the case of Donaldson v. Hibner, 55 Mo. 492, in which it was held that the plaintiff, who as an attorney had procured a personal judgment on a constructive service against a defendant without personal service or appearance, and was having land sold under a general execution on that judgment, and who publicly proclaimed at the sale that such judgment and proceedings were regular and that a good title would pass by the sale, was not estopped, as against a purchaser at said sale who relied on such statement, from setting up the title thereafter acquired by him from the execution defendant. This court held that estoppel in pais operated only on rights existing* at the time of the acts' constituting the estoppel, and that the title of the execution defendant, having been acquired after the sale, was not concluded by the estoppel.

That case is unique in one particular. No authority on either side of the proposition is cited by counsel, or by the court. A lawyer used his reputation p,s such to induce the purchaser to rely on his representation and purchase the land; then that same lawyer used his skill as such in procuring* the very title which he had represented as passing at the execution sale, and thereby ousted the purchaser. In this case an abstracter, as such, certified that no such encumbrance existed; as an agent of the lender he undertook, as far as he could, to guard against loss by reason of prior encumbrances; then, after he had pocketed his fees as such abstracter and his commission as such agent, aided by the very knowledge which his connection with the business gave him, he bought up the senior title under the omitted encumbrance, and seeks thereby to destroy the rights now held under the deed of- trust to secure the loan which he had made as such agent. If the law of estoppel does not apply in both those cases, the only consolation one can feel is the thought that “thus the law is written.”

As the authorities were not cited in the former case, we give the result of our investigation as follows :

Herman on Estoppel (2 Ed.), sec. 730, says: “But the later decisions in England and America have given a much broader scope to the doctrine of estoppels in pais than they originally possessed, and the law has been established to be, that whenever an act is done or a statement made by a party, which cannot-be contravened or contradicted without fraud on his part and injury to others whose conduct has been-influenced by the act or admission, the character of estoppel will attach to what would otherwise be mere matter of evidence, and it will become binding on a jury, even in opposition to proof of a contrary nature.”

This estoppel in pais is distinguished from estoppel by deed, and yet many cases of estoppel in pais are of a nature as conclusive as those which arise by reason of the recitals or covenants in a deed.

Section 2871, Revised Statutes 1909, provides:. “Where a grantor by the terms of his deed, undertakes to convey to the grantee an indefeasible estate in fee simple absolute, and shall not, at the time of such conveyance, have the legal title to the estate sought to be conveyed, but shall afterward acquire it, the legal estate subsequently acquired by him shall immediately pass to the grantee; and such conveyance shall be as effective as though such legal estate had been in the grantor at the time of the conveyance. ’ ’

In Evans v. Labaddie, 10 Mo. l. c. 430, this court said: “Our statute is silent about any warranty; where the deed purports to convey a fee simple absolute, whether with or without warranty, the subsequently acquired legal title will pass.” That may be called a statutory estoppel by deed. The reason for it is that the grantor having assumed the position of one owning the fee, and having thereby induced the other party to buy, should be estopped from claiming under an after-acquired title.

Now, there are cases of estoppel in pais, and this is one of them, where the attitude assumed by the person estopped is even stronger in favor of an estoppel than in case of one arising by deed.

On this subject Herman on Estoppel, sec. 956, says: “There is a vast difference between standing by without taking measures to stop a sale and warning the purchaser, or even answering such questions as he may choose to put, and taking an active part in the transaction, or inducing him to punchase by advice or persuasion. Good faith, generally an excuse in the former case, is insufficient in the latter, for in the latter case the owner is nearly, if not quite, in the position of a vendor, and cannot rely on the innocence of his assurances as a reason why they- should not be made good subsequently, and in one case the court held that inducing one to buy would estop the assertion of an after-acquired title, on the principle similar to that which vests by descent or purchase in a grantor who has previously conveyed with warranty.”

In the case of Beaupland v. McKeen, 28 Pa. St. 124, the court said: “But let it be granted that they had no interest whatever in the tract, and that the title to it has been acquired since their agency ceased, the question there is whether a party who stands by and encourages two several purchases of the same land, receives a commission on the sale, surveys and adjusts lines, and performs all necessary acts for the protection of the apparent title, can afterward buy up and assert a better title to part of the land. Surely he cannot, until all distinction between fraud and fair dealing comes to be confounded. He is estopped from denying the right in whose existence he gave the purchaser reason to confide.”

In Bitting’s Appeal, 17 Pa. St. 211, it was held “that a person representing at a sheriff’s sale that a certain judgment was paid is bound by such statement though he was not then the owner of the judgment, but afterwards purchased it, since an estoppel operates not only on present interests, but on those subsequently acquired. ’ ’

It was held in Briggs v. Langford, 54 Hun, 635, 7 N. Y. Supp. 358, “that where one induces' another to purchase lands in reliance on his assertion that they are free from encumbrances, he is estopped, as against the latter, to claim under a mortgage which existed thereon at the'time, and which he subsequently purchased. ’ ’

In Gibbons v. Hoag, 95 Ill. 45, the court said, l. c. 70: “It is not to be tolerated that an attorney shall advise or encourage a client in investing in a bad title, and himself, afterwards, buy up the better title and assert it as against his former client. Such a practice would open a door to endless wrongs and villianies, and bring great and just reproach upon the profession. ’ ’

“The measure of the operation of an estoppel is the extent of the representation made by one party and acted on by the other. The estoppel is commensurate with the thing represented and operates to put the party entitled to its benefit in the same position as if the thing represented were true.” [2 Pomeroy.’s Equity, sec. 813.]

This is not a suit for damages against the defendant for negligence as such agent in making the loan without providing for the prior deed of trust, nor is it a suit for damages by reason of his having left that deed of trust off the abstract. Plonest and capable men may and do make mistakes as lawyers, as agents and as abstracters for which they may not be called to account. But it is a far different thing, when, in addition to such mistakes, they proceed to take advantage not only of their own wrong, but of their knowledge and skill and advantageous position in regard to the subject-matter, and buy up outstanding titles to destroy the rights of those who trusted in them. The defendant assumed to have the skill to protect the lender from all loss. He was employed and paid to furnish such protection and failed to do so. He then took up arms, so to speak, to annihilate those who trusted in him. Such a thing cannot be done a second time in this State “until all distinction between fraud and fair dealing comes to be confounded.”

We are of Hie opinion tliat tlie property should be adjudged to tlie plaintiff, but that the defendant is en-, titled to a lien on the property for the reimbursement to him of the amount paid by him for the title acquired under the foreclosure of the Kerns deed of trust. However, the defendant must account for the rents and profits after deducting all taxes, repairs and insurance and other legitimate charges paid by him about said property.

The judgment is reversed and the cause remanded for further proceedings in accordance with this opinion.

Bond, C., concurs.

PER CURIAM.

— The foregoing opinion of Rot, C., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: KENNISH, J.

license: Public Domain

text:
    THE STATE v. F. W. POTTS, Appellant.
    Division Two,
    February 6, 1912.
    1. JUROR: Used as Witness. The mere fact that the prosecuting attorney was permitted to indorse the name of one of the jurors on the information as a witness, with no showing of any prejudice resulting therefrom, is not error.
    2. EVIDENCE: Conversations With Co-conspirator. Testimony of a witness that he frequently saw the defendant and another co-indictee, to whom a severance had been granted, talking-together in the gambling room which was in charge of said coindictee, is competent in the separate trial of defendant on the charge of setting up a gaming- table and gambling device, commonly known as a “crap table.” There being substantial evidence of the conspiracy and common intent between the two, testimony of the acts and declarations of said co-indictee was competent against defendant.
    3. -: Cross-examination of Witness: Interest in Trial: Immunity from Prosecution. The defendant should be permitted to show, by cross-examination or otherwise! that a' witness for the State had an arrangement with the' prosecuting attorney’s office whereby a prosecution against him of a similar offense was to be dismissed in consideration of his turning State’s evidence against the defendant, whether such arrangement was made by the witness himself or some other person for him and whether it was an agreement or a mere understanding, belief or assurance. But in this case the right to cross-examine the witness on the point was not denied, since the witness had several times denied that any such arrangement had been made.
    4. -: Cross-examination of Witness: Extent: Guilt of Another Crime. A witness may be compelled to answer any question on cross-examination, however irrelevant it may be to the facts in issue, and however disgraceful the answer may be to him, except where the answer might expose him to a criminal charge; but it is largely within the discretion of the trial judge to determine to what extent such cross-examination will be permitted. The refusal of the court to permit the defendant, charged with setting up a gambling device, to show, upon cross-examination, that the witness had taken a woman to New Mexico for the purpose of running a bawdy house, was not, therefore, reversible error, since the keeping of a bawdy house is a criminal offense, and the court’s ruling can well be sustained on that ground, under the rule.
    5. -: Setting up Gambling Devices. Testimony as to the kind of dice used in the game, that a tag containing defendant’s name was found on one of the tables used, and that the poker table covers had the defendant’s name stamped thereon, all found in the gambling room in which defendant is charged with setting up and keeping a gaming table and gambling device, commonly known as a crap table, tended to prove the corpus delicti of the offense charged and defendant’s connection therewith, and was competent evidence for the consideration of the jury.
    6. -: Testimony on Former Trial: Impeachment. It is not error to refuse to permit defendant to read in evidence, for the purpose of impeachment, the testimony of a witness given at the trial of a co-indictee, where no foundation for the impeachment has been laid.
    7. INSTRUCTION: Accomplice. An instruction telling the jury that “the witness A. 0. Walker is known in law as an accomplice; that is, that said witness, Walker, is a party who admits he participated in the commission of the offense with which the defendant is charged in the information,” is open to criticism, since it almost assumes the defendant’s guilt.
    8. REMARKS OF COUNSEL: Defendant’s Failure to Testify. In the cross-examination of defendant, the prosecuting attorney asked him what was his business in December, 1909, and to the question defendant’s counsel objected on the ground that it ¿•elated to a matter not referred to in defendant’s examination in chief, and that objection was sustained. In their argument to the jury both attorneys for the State referred to the fact that the defendant objected to such question, and urged the jury to draw an inference of guilt from the fact that the question was not answered; and when defendant’s counsel objected to such argument, he was met with the answer from the court that the objection to the question and the court’s ruling thereon were facts in the case and therefore proper matter for comment .and argument to the jury. Held, prejudicial error, and in violation of the statute which says that the defendant’s failure to testify to certain facts shall not raise any presumption of guilt, “nor be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place.” And, aside from the statute, - it was error, because it was not evidence in the case, and the instruction should tell the jury that “before you can convict the defendant you must be satisfied of his guilt, beyond a reasonable doubt, from the evidence in the case.”
    Appeal from Jasper Circuit Court. — No,n. Joseph D, PerJtins, Judge.
    Reversed and reatanded.

      Clay S Davis and Burton for appellant.
    (1) The court committed error in permitting the prosecuting attorney to indorse the name of the juror Miller upon the information, and then excusing him from the panel of jurors. (2) It was error to permit the witness "Walker to testify to having seen defendant and Cannon talking together frequently. (3) The court committed error in refusing defendant permission to show by the witness Walker, on cross-examination, that he had an arrangement or agreement, made by his attorney with the prosecuting attorney’s office, whereby his case was to be dismissed in consideration of his turning State’s evidence against de-. fendant. 3 Wigmore on Evidence, sec. 2196; 4 Wig-more on Evidence, sec. 2321; Weinstein v. Reid, 25 Mo. App. 47; Fry v. Estes, 52 Mo. App. 45; Ehrhardt v. Stevenson, 128 Mo. App. 476. (4) The court committed error in permitting the witness Walker to testify as to what Cannon did in and about the devices in question, and also what he did in and about the room in which they were located. (6) The court committed error in refusing defendant permission to cross-examine the witness Walker about his being a fugitive from justice. O’Connor v. Transit Go., 106 Mo. App. 220. (7) The court committed error in refusing defendant permission to cross-examine and show by the witness Walker that he took a woman to Raton, New Mexico, for the purpose of running a bawdy house, and that he was supported by said woman from her earnings as a bawd. O’Connor v. Transit Co., IOC Mo. App. 220; State v. Boyd, 178 Mo. 17. (8) The court committed error in permitting the State to show by the witness Walker that Charles Cannon knew, at the time the witness Walker was employed in the gambling house over the Club saloon, about the witness having made loaded dice, and to testify as to the purpose and object of making said dice, and to testify that, on the evening of his arrest, shaped dice were furnished him by the keeper of the house and that said dice were in use, and to testify as to the kind and character of the dice. (9) The court committed error in refusing defendant permission to read in evidence, for the purpose of impeaching the witness Walker, his testimony given on the trial of Charles Cannon. Ess v. Griffith, 328 Mo. 63. (10) The cause should be reversed and remanded on account of the remarks of the prosecuting attorney and his assistant made during the argument of the case. State' v. Snyder, 182 Mo. 523; State v. Newcomb, 220 Mo. 67; State v. James and Johnson, 216 Mo. 401. Instruction 14 does not properly declare the law. This instruction tells the jury, in so many words, that the witness Walker was an accomplice of defendant. If he was an accomplice of defendant, that was a fact to be found by the jury (and not the-court) from the evidence in the case.

      Elliott W. Major, Attorney-General and John M. Dawson, Assistant Attorney-General, for the State.
    (1) Appellant in his brief makes the point that 'the court committed error in refusing appellant permission to show by the witness' Walker, on cross-examination, that he had an arrangement, or agreement, made by his attornéy, with the prosecuting attorney’s office whereby the witness Walker’s case, was to be dismissed in consideration of his turning State’s evidence against appellant. The court permitted the appellant to interrogate this witness upon any communication had between the witness and the prosecuting attorney, or any of his assistants, but refused to permit the attorney for appellant to cross-examine the witness as to any communication had between the witness and his attorney. That the communication between client and attorney is privileged, cannot be gainsaid. Ehrhardt v. Stevenson, 128 Mo. App. 476; Elliott v. Kansas City, 198 Mo. 593. . (2) Instruction 14, complained of by appellant, is a cautionary instruction, and the fact that the court told the jury that Walker is known in law as an accomplice, is a more favorable declaration of law than appellant was entitled to. The instruction then proceeds to inform the jury that the matters connecting appellant with the commission of the crime as charged against him, should be received with great caution. The degree of credit which ought to be given to the testimony of an accomplice is a matter exclusively' within the province of the jury. 1 Greenleaf on Evidence, sec. 380. (3) The argument of counsel in this case was proper. In one instance the assistant prosecuting attorney remarked that “it is not much trouble to convict these fellows.” The- court excluded this from the jury and told them not to take same into consideration. This was a rebuke to the assistant prosecuting attorney, and was all the court could do. An attorney has some latitude in drawing his conclusions. The trial court heard the argument and is better qualified to hear and determine the bounds of argument. The trial court can only review and withdraw the remarks from the jury. It is impossible for the court, or any other man, to prejudge what an attorney is going to say. In this case, what the attorney did say, if the court had not withdrawn same from the jury, was not error. Appellate courts should be slow in reversing a case on account of improper argument of counsel. To constitute a reversible ground, the argument should be so poisoned and the appellate court should believe that the argument alone was conducive to the verdict of guilty, and without it the verdict would have been an acquittal, before this court should convict the. lower court for not performing its duty in this behalf.
   KENNISH, J.

— At the June term, 1910, of the circuit court of Jasper county, appellant was convicted of the offense of setting up and keeping a gaming-table and gambling device, commonly known as a crap table, was sentenced to imprisonment in the penitentiary for a term of three years, and appealed to this court.

The information was in two counts. The first count charged P. W. Potts, Charles Cannon and W. L. Smith with setting up and keeping a poker table, and the second count charged them with setting up and keeping a crap table. The defendant Potts was tried separately. The evidence for the State tended to show the following facts:

In the month of December, 1909, gambling games were carried on in a room over the Southern Club saloon in Webb City. The room was fitted up with, gambling paraphernalia, consisting of poker tables, chips, cards, crap tables and dice. Qu the night of December 11th, the room was raided by the sheriff and the gambling paraphernalia was taken, out of the room. At the time of the raid a large number of men were in the room, engaged in playing poker and craps for money. Charles Cannon was in the room. O. A. Walker, who testified as a witness for the State, was in charge of one of the crap tables. The defendant was in the saloon below.

There was evidence to the following effect, tending to connect the defendant with the setting np and keeping of the gaming tables and gambling devices: Cannon, who was generally in the room when the games were in progress, sometimes acting as. dealer at one of the tables, and who usually furnished the dealers at the different tables with money to run the games, hired the witness Walker to run one of the crap tables and otherwise assist in running the games. On one occasion a dealer at one of' the crap tables asked Walker to go to the saloon below and ask defendant to come upstairs. When the defendant arrived the dealer informed him he was about out of money, whereupon the defendant supplied him with money to use in the game. The games played on the crap tables were what'are known as “bank games,” that is, the players did not bet against each other, but against the “house.” Defendant at another time carried money from the dealers at the tables to the saloon below and placed it in a safe behind the bar. On the day the raid was made, but earlier in the evening, defendant had acted as dealer at one of the tables. When the games were in progress the defendant was usually in the gambling room or in the saloon below, and in both places had frequent conversations with Cannon. When the defendant was in the gambling room, and Cannon was absent, the dealers at the tables went to defendant for information. On one of the crap tables found in the room there was a shipping tag, showing that the table had been shipped from Parsons, Kansas, to Pittsburg, Kansas, by P. Potts. Defendant had formerly lived in Parsons. The name “Potts” was also stamped on the covers of the poker tables.

At the close of the State’s evidence, the prosecuting attorney elected to stand upon the second count, which related to the crap table.

The defendant, as a witness in his own behalf, denied that he had ever furnished any money to use in any of the games, denied that he was ever in the gambling room or ever put any money in the safe in .the saloon, and denied that he had any interest in the gambling room or in the games operated there.

One of the owners of the Southern Club saloon testified that only he and his partner had access to the safe, and that defendant had never placed any money therein.

In the cross-examination of the defendant, the prosecuting attorney asked him what his business was in December, 1909. The question was objected to by the defendant on the ground that it was a matter not referred to in the examination in chief, and the court sustained the objection. During the prosecuting attorney’s closing argument to the jury, he made the following remarks:

“What are the material facts sworn to by the witness Walker that tend to convict Potts? They are these: That Potts went behind the bar; that he went to the safe; that he placed the money there. And Potts takes the stand and denies that, and when asked, ‘What is your business’ — I want to leave it to you twelve men if that isn’t a fair question to ask any citizen in Jasper county, here, now or any time — ‘what is your business,’ and I want to say — .”

Defendant objected to the remarks of the prosecuting attorney, on the ground ’that the court had sustained an objection to the question. The court overruled the objection'and directed the prosecuting attor ney to proceed.

During the course of the remainder of the argu ment of the prosecuting attorney, the following transpired :

“Mr. Coon: Now, gentlemen, when von retire to your jury room, take into consideration the character of the offense this man is charged with. He is charged with setting up this gambling paraphernalia, .and arranging it for men to go up there and ^o against a brace game. Not even giving them a percentage of ordinary craps, but they have cut them down and increased the percentage of the house. This is the kind of business this defendant was engaged in, and do you wonder why, gentlemen, when I asked this defendant here on the witness stand, ‘During the month of December, prior to December 11,1909, what business were you engaged in?’ the counsel for the defendant, first the little one and then the big one: ‘We object;’ and they are objecting now.”
“Mr. Clay: Can’t we make an objection? We object to that.
“Tlie Court: Objection overruled to that.
“Mr. Clay: We except, and we object to his referring to matters excluded by the court.
“ The Court: That is a fact in this case he is referring to.”

And to this ruling defendant again excepted.

I. Appellant first complains that the court erred in permitting the prosecuting attorney to indorse the name of one of the jurors on the information as a witness', and then excusing said juror from the panel. As no suggestion of prejudice resulting from such ruling is made or can be perceived, further consideration need not be given to this complaint.

II. It is assigned as error that the court permitted the witness Walker to testify that he frequently saw the defendant and Cannon talking together in the gambling room. It appeared in evidence that the defendant and Cannon were jointly charged with the crime for which the defendant was then on trial, and although a severance had been granted, it was nevertheless competent for the State to prove a conspiracy or common purpose between the two in the commission of the offense charged, in order to render admissible in evidence against the defendant the acts and 'declarations of Cannon. [State v. Fields, 234 Mo. l. c. 623; State v. Roberts, 201 Mo. 702; State v. Darling, 199 Mo. 168; State v. Sykes, 191 Mo. 62.]

There was ample testimony to support the theory of the State as to the conspiracy and common intent between the defendant and Cannon, and we therefore rule against the appellant as to all of the alleged errors based upon his objections to the acts and declarations of Cannon, as incompetent testimony against the defendant.

III. A. 0. Walker was the chief witness for the State, and it was shown by the testimony that a prosecution for the same offense was then pending against this witness. Appellant complains that the court refused him permission to show by the cross-examination of Walker that he had an arrangement, made by his attorney with the prosecuting attorney’s office, whereby his case was to be dismissed, in consideration of his turning State’s evidence against the defendant.

There is no doubt of the right of a defendant on trial to cross-examine a witness against him as to any matter that would discredit the witness, and to that end to show the interest of the witness in the result of the trial. In no way could that have been done more effectively in this case than by showing that an arrangement existed by which the witness was to escape prosecution for a felony upon condition that he gave testimony to convict the defendant. It'was not of importance who made such an arrangement with the prosecuting attorney’s office, whether the witness himself, his attorney, his wife or another, but rather wh.eth.er the witness, when testifying, had any understanding, belief or assurance that by so testifying he was to secure immunity for himself. We have examined the record upon this point and find that while the court sustained some objections upon the cross-examination of this witness which might well have been overruled, the witness had in fact been asked several times and had expressly denied that any promise had been made to him by any person, and stated that his testimony against himself and the'defendant was entirely voluntary. We therefore rule against appellant upon this complaint.

IV. It is assigned as error that the court refused defendant permission to show, upon the cross-examination of the witness Walker, that the witness had taken a woman to New Mexico for the purpose of running a bawdy house.

The rule in this State, as to the scope allowed in the cross-examination of a witness, is that “ ‘he may be compelled to answer any such question, however irrelevant it may be to the facts in issue, and however disgraceful the answer may be to himself, except’ where the answer might expose him to a criminal charge.” [State v. Long, 201 Mo. l. c. 675, and cases cited.] There is this limitation to the rule, that while such questions may be asked, it is largely within the discretion of the trial court as to the extent to which such cross-examination will be permitted. And in the case in hand it cannot be said that there was an abuse of discretion by the trial court in sustaining the objection. [State v. Long, supra.] Besides, as the keeping of a bawdy house is a criminal offense, the witness had the right to refuse to answer the question, and the ruling of the court can well be sustained upon that ground, under the rule above stated.

V. Other complaints are made by the appellant as to the admission of evidence over his objections, which, we have examined and found to be without merit. The kind of dice used in the game, that a tag containing the defendant’s name was found on one of the tables, that the poker table covers had the defendant’s name stamped thereon, these facts and circumstances tended to prove the corpus delicti of the offense charged and the defendant’s connection therewith, and were properly admitted in evidence for the ' consideration of the jury.

Neither is there any merit in appellant’s complaint that the court sustained an objection to defendant’s offer to read in evidence, for the purpose of impeachment, all of the testimony given, by the witness Walker on the trial of Charles Cannon. There is no authority, under the laws of this State, for the impeachment of a witness in that manner. Testimony of a witness on a former trial may be introduced in evidence for the purpose of impeachment when a proper foundation therefor has been laid, but as that was not done in this case the court correctly excluded such testimony.

VI. A serious question is presented in the assignment of error to the giving of instruction number 14 on behalf of the State. This instruction is as follows :

“The court instructs the jury that the witness, A. 0. Walker, is known in law as an accomplice; that is, that said witness, Walker, is a party who admits he participated in the commission of the offense or offenses with which the defendant is charged in the information. The court instructs you that the testimony of an accomplice in a crime is admissible. Yet, evidence of an accomplice in a crime, when not corroborated by some person or persons not implicated in the crime, as to matters material to the issue, that is, matters connecting the defendant with the commission of the crime as charged against him, should be received with great caution by the jury, and the jury ought to be fully satisfied of its truth before they should convict the defendant on such testimony.”

Appellant complains of this instruction that the court, in telling the jury that the witness Walker was an accomplice, necessarily assumed the defendant’s guilt, for the witness could not be an accomplice in the crime unless the defendant was also guilty.

There are many precedents of approved instructions, upon the subject of the testimony of an accomplice, in the decisions of this court, but we have failed to find therein authority for the law as stated in the first part of this instruction. . And although the instruction, when considered in connection with the other instructions, may not amount to reversible error, it is clearly open to criticism.

VII. The judgment must be reversed and the cause remanded because of the improper conduct of the counsel for the State in the closing argument to the jury.

It is plainly provided by section 5242, Revised Statutes 1909, that a person on trial in a criminal case may testify in his own behalf, and shall be liable to cross-examination only as to matters referred to in his examination in chief. The next succeeding section as construed by this court, provides that his failure to testify, or, if he does take the stand, his failure to testify to certain facts, shall not raise any presumption of guilt, “nor be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place. ’ ’

As appears in the statement of facts heretofore made, the court properly sustained an. objection to a question asked the defendant on cross-examination as to what business he was engaged in. In the argument of the case, both representatives of the State referred to the fact that the defendant objected to such question. The jury was'urged to draw an inference of guilt from the fact that the question was not answered, and when counsel for defendant objected to such argument he was met with the answer from the court that the objection to the question and the court’s ruling thereon were facts in the case and therefore proper matter for comment and argument to the jury. That this was prejudicial error is apparent. It would have been error even if the witness had not been the defendant, for the court had correctly instructed the jury that: “Before you can convict the defendant you must be satisfied of his guilt, from the evidence in the case, beyond a reasonable doubt,” etc. "And evidence attempted to be introduced, but excluded, is not in any sense evidence in the case. But as the witness was the defendant on trial, the inference sought to be drawn from the unanswered qnestion was so plainly violative of- the defendant’s rights that the court should have promptly checked counsel and administered such a rebuke as not only would have prevented, a recurrence of such unfair argument but, as far as was within the power of the court, corrected its harmful effect. While there was abundant evidence of defendant’s guilt, he was nevertheless entitled to a fair and legal trial. Whatever may be our opinion of the wisdom of the law he invokes, it is the law and should be observed until repealed. The State cannot countenance the violation of one law in order to secure a conviction for the violation of another. .

For the reasons given the judgment is reversed and the cause remanded.

Ferriss, P. J., and Brown, J., concur.


text:
    ORA WRIGHTSMAN v. JOHN C. ROGERS et al., Appellants.
    Division Two,
    February 6, 1912.
    1. RESULTING TRUST: Funds Furnished by or for One, Title Taken by Another: Accounting: Costs. Defendant was curator for plaintiff. Money advanced for the plaintiff by the .bank of which defendant was cashier, or drawn from plaintiff’s funds in his hands, was used by the plaintiff’s mother in buying and improving real estate to which the mother took title in her own name. Defendant lent the mother $1350 on the property and finally bought it in at an execution sale. Plaintiff sues to establish a trust in the said property in defendant’s hands. Held, that, jmder the evidence as set out in the opinion, the undertaking was joint between the mother and daughter and the property is impressed with a resulting trust in plaintiff’s favor., subject to be reduced by plaintiff’s proportionate share of the $1350 debt, after the mother’s (the principal debtor’s) interest has been exhausted. For full and complete’relief the property should be sold and there should be an accounting with defendant, in the manner set out in the opinion. The costs after remanding should be paid out of the fund in accounting.
    2. -: -: Time of Payment: Obligation to Pay: Evidence of. It is not necessary to the establishment of a resulting trust that the money be paid by the cestui que trust at the ' time when the trustee takes title. It is sufficient if the person supplying the money intended it as a gift or loan to the cestui que trust. It is sufficient that an obligation to pay is incurred by him, as a part of the original transaction of purchase, at or before the time of the purchase. This obligation to pay the money need not be evidenced by a note or other writing.
    3. -: -: Interest of Cestuis. Where the consideration proceeds from two or more, and the title is taken in one, a resulting trust arises in favor of the party not named in the conveyance in proportion to the relative amount of the consideration paid by each.
    Appeal from Christian Circuit Court. — -Hon. Argus Cox, Judge.
    Reversed and remanded (with directions).

      G. A. Watson for appellants.
    (1) The evidence shows conclusively that no part of respondent’s money was used in the purchase of the lot on which the hotel was afterward erected and no trust could arise by operation of law in favor of respondent. Kelly v. Johnson, 28 Mo. 249; Sell v. West, 125 Mo. 631; Weiss v. Heitkamp, 127 Mo. 31; Richardson v. Champion, 145 Mo. 544. (2) Before a trust can result or arise by implication of law in real estate the relation of trustee and cestui que trust must result from the facts which occur at the time of or prior to the purchase and can not be created by subsequent occurrences. Kelly v. Johnson, 28 Mo. 249; Weiss v. Heitkamp, 127 Mo. 31; Richardson v. Champion, 143 Mo. 544. (3) The evidence all showed conclusively that the property was bought by Mrs. Wrightsman; title taken in her name; paid for by Maude Wrightsman and no money of respondent used in the purchase nor on the building for months afterward. No trust could arise or result under these facts. Kelly v. Johnson, 28 Mo. 249; Weiss v. Heitkamp, 127 Mo. 23; Richardson v. Champion, 143- Mo. 538; Garrett v. Garrett, 171 Mo. 155'. If, as the evidence of respondent tended strongly to prove, the consent of respondent to have her money used in the erection of the hotel after she became sui juris, by the promise of her mother that she would subsequently deed to her a fourth interest in the property, this would create an express trust, at most, and resting entirely in parol, would be within the Statute of Frauds; not enforcible; not creating an interest in the property and not binding on subsequent purchasers with notice. Weiss v. Heitkamp, 127 Mo. 32; Hillman v. Allen, 145 Mo. 638; Mulock v. Mulock, 156 Mo. 431; Hail v. Heil, 184 Mo. 665; R. S. 1889, sec. 5184; R. S. 1899, sec. 3416.. The evidence to establish a resulting trust must be so clear, cogent and convincing as to leave no reasonable doubt in tbe mind of tbe chancellor. Such evidence is not in this record. Curd v. Brown, 148 Mo. 82; Mulock v. Mulock, 156 Mo. 431; Brinkman v. Sunken, 174 Mo. 709; McMurray v. McMurray, 180 Mo. 533; Reed v. Spery; 193 Mo. 167.

      J. P. McCammon for respondent.
    (1) The authorities cited by appellants have no application here because the lot was paid for by all., The evidence showed that plaintiff’s money with that of her mother and sisters was kept by defendant Rogers in one fund — under his charge and control — known and carried on the books of the bank of which defendant was cashier as “The Wrightsman Fund” and that the payment for the lot was made out of this fund in pursuance to and execution of a previous agreement and plan to buy a lot and build a hotel. While in general a trust does not arise unless the purchase price is paid before the conveyance, yet where a fund is created or set apart for the purchase and improvement of real estate, in the hands and control of one person, who takes title to the land in the name of a third person and makes and pays for the improvements, the entire transaction relates back to the original raising and payment of the fund, and the holder of the title is a trustee for each contributor to the fund. Pearce v. Dyess, 101 S. W. 551; Baumgartner v. (luessfeld, 38 Mo. 36; Bradley v. Insurance Co., 90 Mo. App. 369; Lumber Co. v. Harris, 110 S. W. 609'. None of the cases cited by appellant apply to the case at bar because of the difference in the facts'. In this case the trust is acknowledged by every one connected with the transaction except the guardian whose business it was to protect the interest of his infant wards. He held the money in one fund — that of plaintiff, her sisters and her mother and, as the court found the fact to be, agreed with them to buy the lot and build the hotel. He was depended upon by all the others to have the deed drawn so that each would have a one-fourth interest in the property. (2) The title to the property was held in trust for respondent. Where money of a minor is invested by the guardian in real estate without the order of the proper court, and where the guardian acts in good faith to protect the interest of. the ward, and the title is taken in the name of the guardian’s mother, the grandmother of the infant, it was held that the ward is presumed not to have known or consented to the transaction and the title to the premises is held in trust for such minor. Manahan v. Holmes, 110 N. Y. S. 300'. The guardian-invests the money of his ward in the building of a hotel. He does it without authority of law- — but the ward on arriving at her majority gives the guardian a receipt for the amount so invested — thinking she has an interest in the property. That the guardian can then defeat her right to a resulting trust is too revolting to the moral sense to be upheld in equity. Thompson v. Hartline, 16 So. 711.
   ROY, C.

— This suit was brought in the circuit court of Christian county, to declare a trust -in real estate. A decree, was rendered for plaintiff on December 18, 1906-, and the defendant has appealed.

On March 23-, 1895', the defendant John O. Rogers was appointed curator of Maude, Ora and Jessie Wrightsman by the probate-court of Christian county. He received at that time about $27-00 belonging to his three wards equally. He was then and continued to be cashier of the Christian County Bank. The funds belonging to the three wards and such money as their mother had at times were all kept together in one account at the-bank as one fund, known on the bank books as-the “Wrightsman Fund.” And when loans were made of any part of the fund the notes were, for convenience, made payable to a Mr. Taylor.

The children were all living with their mother, Mrs. B. A. Wrightsman, a widow, a hotel-keeper, who was desirous of building a hotel in the town of Ozark.

The plaintiff contends that it was agreed between the mother and the three daughters and the defendant, Rogers, that the mother and children should all put their money in a lot and the building to be erected thereon, and each was to have an interest therein. "

The mother testified: “Maude and I and Mr. Rogers talked it over that way and we intended to make the deed to them all, and Ora and Jessie consented to let their money go in the house, they each to own an interest in the home. I did not have a home nor any of them. I was turned out of a hotel and we concluded to get a home, and I did it all through Mr. Rogers. ’ ’'

Maude testified:

“Q. I will ask you to state the circumstances connected with the buying of the lot on which the hotel, was built, and the building of the hotel, and what agreement was made, if any. A. Well, it was agreed that we all had an equal interest in it, and when the lot was bought I signed the check that was paid to Mr. Woody for the lot.
“Q. How much was that? A. Eight hundred dollars, and we supposed that we all had a one-fourth interest in the hotel; that is the way it was supposed to be.
“ Q. I will ask you if you heard the matter talked with Mr. Rogers? A. Well, we were to have a deed made to the house, mamá and myself, and Ora and Jessie; they were under age.
“Q. Your understanding was that you should each hold a' one-fourth interest, and your mother would have charge; you were of age at the time the lot was purchased? A. I think'I was, yes, sir.
“Q. How did it come that the deed was taken in the name of Mrs. Wrightsman? A. I don’t know
‘•‘Q. Who drew up the deed, do you know?- A. I do not; Mr. Rogers went to have it made up.
“Q. You were looking to him? A. Yes, sir.
“Q. He would fix yours? A. Well, we all talked together; we all made it home. ’ ’

Ora testified:

“Q. I will ask you to- state the facts concerning the purchase of this lot, as it was talked about before the lot was purchased and the hotel was built, between you and your sister and Mrs. Wrightsman. A. It was talked about, but I was too small to realize how it was, but I know they bought the lot and it was to go to us children.
“Q. Now, you say that it was talked about in the family there? A. Yes, sir; I can remember of hearing them talk about it, but I don’t remember what was said.
“Q. It was talked to Mr. Rogers in your presence? A. Yes, sir; I can remember that they talked about buying the lot.”

Jessie testified:

“Q. State what the agreement was between you and your sister and Mrs. Wrightsman at the time of the purchase of this lot as to its ownership' and the hotel that was afterwards built on it. A. Well, it was all left with my mother and Mr. Rogers. I took it for granted that I was to have an interest in the property, a fourth interest. It was talked of there, I never thought of lending my money to mother or letting her put it in there and taking a mortgage on it or anything of that kind. ’ ’

The defendant testified: “I had nothing to do with the purchase of the lot. I did not invest any of plaintiff’s money in the lot. It was paid out of that fund. I had nothing- to do with the money only to pay it off. ’ ’

By the Court. “Q. At the time you were making these payments to the contractors, did you understand, or not, at that time that Mrs. "Wrightsman’s three girls, Mande, Ora. and Jessie, had it understood between themselves that this house should be built and they should own it together? What do you know about that? A. I don’t suppose they did; Maude was of age at the time they bought that property; she paid for the lot.

“Q. Did you know the deed was made to her mother? A. No, sir, I didn’t; well, I know Mrs. Wrightsman bought the property; I didn’t see the deed. ’ ’

By Mr. McCammon: “Q. You say that you don’t know that these girls had an understanding that they would own the property? A. No, sir, I didn’t.

“Q. When did you first learn that? A. Only in a way that it is sometimes talked; I have heard more since the suit begun than before.

“Q, Hadn’t you heard them talk it before? A. No, sir, I never did; I talked to Mrs. Wrightsman, and she said those children, I have taken care of them and fed them and clothed them and schooled them, and two of them got married, and she paid out four or five hundred dollars.

“Q. That was from Mrs. Wrightsman herself? A. Yes, sir, and as far as my being requested to write a deed, I never heard anything about that. She kept the children and they were sent to school and she took care of them.

“Q. She sent them to school' after the hotel was built? A. I don’t know; I took two to Springfield myself and put them in school and paid for some books for them; I don’t know whether they remember the circumstance, but I know I went with them and attended to it; I don’t remember what year, and I took the two little girls up there, and put them in school.”

By the Court: Q. You did understand that the money was being put in the building? A. Yes, sir; I understood their mother was getting their money, and we paid for that building and other debts; they told me what they had was mama’s, and they turned that money over and it was hers.”

Defendant also testified: “It was my understanding that they had loaned their money to their mother. ’ ’

A deposition of defendant was used in evidence in which the following occurred: “But you heard her discuss the question of investing the money of the other girls in property and you advised her not to do so but to loan the money? A. -I can answer that in this way: Mrs. Wrightsman often came to the bank and consulted with myself and Mr.'Taylor about her business affairs. She told me she was going to buy a lot and build a hotel. She wanted to know where a good lot could be bought, and I told her she had better wait and go slow. I heard her discuss the question of building a hotel with hers and the money that was in the family with Mr. Taylor.”

Maude became of age in November, 1895, but no final settlement of her estate was made until February, 1898. She then gave her curator a receipt for the amount due her, $899.33, but it was not paid to her. It remained in the “Wrightsman Fund” as before.

Sometime in February, 1898, the lot was bought oh which to build the hotel. Maude drew a check on the “Wrightsman Fund” for $800 to pay for the lot, and the title was made to Mrs. Wrightsman.

Ora became of age April 20, 1898, and receipted on final settlement _ón May 14, 1898, for $902.18, none of which was paid to her, but it remained in the “fund.”

Jessie became of age in 1900, and the final settlement of her estate on February 13, 1900; showed due her $1000.20, no*ne of which was paid to her at the time of the final settlement nor afterward, except as will appear in other portions of this statement.

The defendant testified that the mother had some money in the fund, and she says the amount she had in it was $500, bnt that she did not know whether she pnt it in the house or not. She further testified that the total cost of the house and lot was $4057. When the building of the hotel was begun, most of the fund was loaned out, and payments on account of the building were made by the bank, relying on being repaid out of the fund when the notes thereof should be paid. The building was completed in August, 1898, and on the twenty-seventh of that month Mrs. Wrightsman gave the bank a note for $1650 at 8 per cent to cover those payments by the bank. There was no security on this note, except the bank relied on being repaid out of the fund as the money came in. On January 24, 1900, Mrs. Wrightsman gave defendant a deed, of trust on the property to secure a note for $1350 at 8 per cent, in which James F. Adams is trustee.

Speaking of those two notes, the defendant testified: “You see this $1650; note was paid out of these children’s money,-out of the children’s fund, and this money she borrowed from me time and again, and there was a $500 deed of trust that she gave C.. J. Stewart and never paid and that was afterward included in that $1350, and other bills that she had borrowed to make $1350’, and this $1650 note she borrowed from the bank.” 7

Defendant further testified:

“Q. Has that $1300 note ever been paid to you at all? A. No, sir, that note is still due me, and I told her if she would pay me I would deed the prop7 erty to her.'
“Q. On the payment of the $1300? A. No, sir; on the payment of what they owe me. In ’94 she came down from St. Louis, and still owes me that money, I bought this property in at the sale; it was sold at the courthouse door, and they owed me that.
“Q. Your judgment was prior to the mortgage? A. I think so; I didn’t want somebody else to come in and bny it under the sheriff’s sale, and if they pay me what they owe me I am willing to deed it to them.
“Q. How much do you claim that they owe you? A. About $3000. I think I have a $1350' note made January 24, 1900, and then I took up the Stewart note. When I took it up it amounted to $688, and about August 25, 1903, sometime along about that time, she made a new note to secure me in the matter. I have a memorandum of it here, the first note she gave me. the $1350', up to the time I was trying to settle with her, about the time she went to St. Louis. That note amounted to $1900', and the other amounted to $778; that is the Stewart note.
“Q. In 1903? A. Yes, sir; sometime in 1903 that amounted to $1890.
“Q. Are there any other amounts due you besides that? A. Yes, sir; the one that was given 1903, August 25; the amount due is $778; it had increased.
“Q. I thought you said it was $688, given in place of the Stewart note? A. It was.
“Q. And the interest and all amounted to $778? A. Yes, sir; I have a $355 note.
“Q. What note is that? A. Here it is here, April 9, 1904, and the Fisher debt was $514.
“Q. Who was that to? A. That was the debt it sold out under.
“Q. How much was it? A. Five hundred and fourteen dollars.
“Q. What did you pay for it? A. Five hundred and fourteen dollars.
“Q. That was the debt against Maude Fisher and Mrs. Wrightsman? A. Yes, sir.”

On August 25, 1903, Mrs. Wrightsman executed a deed of trust to James F. Adams as trustee to secure defendant in the payment of a note for $688 at 8 per cent. On May 2, 1904, the property was sold under execution on judgment against Maude and the mother, and in favor of a jewelry firm, and defendant became the purchaser for $514.

Adams is made a defendant, but made default, and has no interest in the suit, and wherever the word “defendant” occurs it has reference to the defendant Rogers.

We encounter no difficulty in reaching the conclusion that it was agreed between the mother and three daughters prior to the purchase of the lot, that they would buy the lot and build the hotel as a joint enterprise, and that the “Wrightsman Fund” should be used for that purpose. Neither is there any doubt that the defendant so understood the matter from the beginning. True that in one place he said that he thought the children were lending their money to their mother. But on the other hand he testified that she often consulted him and Mr. Taylor about her business and that she wanted to know where a good lot could be bought, and that he heard her discuss the subject of building a hotel with her money and the money that was in the family. The defendant did not proceed on the theory that the money of the children was being loaned to the mother. He had been their curator, was still the curator of two of them when the building was begun, and continued to be such curator of one of them until in February, 1900. He did not take any security or even a note from the mother for his wards’ money, as he should have done if it was a loan by the children to the mother. On January 24, 1900, he took a note and deed of trust on the property Jo secure $1350' that he had furnished the mother for the building, and afterward, in February, took Jessie’s receipt in full for $100'.20 and paid her no money and did not get any note or security from the mother for Jessie’s benefit. All of which conduct was perfectly consistent with honesty on the theory that the girls were interested in the property and had invested their money in it, but inconsistent with the theory of a loan made to the mother.

It is conceded that a resulting trust must arise on the facts existing at the time of the acquisition of the title by the trustee. But it is not necessary that the money should be paid by the cestui que trust at that time. It is sufficient if the person supplying the money intended it as a gift or loan to the cestui que trust. [Kelly v. Johnson, 28 Mo, 249.]

It is sufficient that an obligation to pay is incurred by him, as a part of the' original transaction of purchase, at or before the time of the purchase. [Weiss v. Heitkamp, 127 Mo. l. c. 31.]

This obligation to pay the money need not be evidenced by a note or other writing. [Clowser v. Noland, 133 Mo. 221.]

Where the consideration proceeds from two or more, and-the title is taken in one, a resulting trust arises in favor of the parties not named in the conveyance in proportion to the relative amount of the consideration paid by each. [Baumgartner v. Guessfeld, 38 Mo. l. c. 41.]

When the agreement was made between the mother and her daughters to buy the lot and build the house,. that agreement characterized every act done in its execution, and the payment for the lot was a payment by all in proportion to the amount furnished by each towards the completed enterprise.

We find that in the purchase of the lot and building the hotel thereon, Maude, Ora and Jessie Wrightsman each paid nine, hundred dollars, or twenty-seven hundred dollars altogether, while Mrs. B. 'A. Wrightsman paid thirteen hundred and* fifty dollars, making a total of four thousand and fifty dollars. And that the mother was at that time entitled to three-ninths and each of her said three daughters was entitled to two-ninths of the property.

The plaintiff, seeking equity, must meet the defendant on equitable terms. From the facts in evidence, the loan made by defendant to Mrs. Wrights-man for $1350 secured by deed of trust on the property was made to Mrs. Wrightsman for the purpose of finishing the hotel. Without it, the building would have remained unfinished, and perhaps unhabitable; and the plaintiff’s investment would have been a great loss. The defendant would not have made that loan on the security of Mrs. Wrightsman’s interest alone. The interests of' the three daughters should he regarded as covered by that deed of trust. But as to that deed of trust the interest of Mrs. Wrightsman was primarily liable, as the property of the principal debtor, while the interests of the daughters were only secondarily liable' as surety. The defendant took the deed of trust with a knowledge of all the facts necessary to constitute such relation. In order that there may he full and complete relief, the property should he sold, an accounting should he had with the defendant in which he should he charged with the net amount of rents and profits received by him for the property after allowing him credit for all taxes, insurance and repairs, and other -legitimate charges. Said net amount of rents should then be added to the proceeds of the sale of the property. The costs of the proceeding from the time the cause is remanded to the trial court should he paid out of the fund. Then the three-ninths of that fund representing the interest formerly owned by Mrs. B. A. Wrightsman should be applied to the payment of the $1350 deed of trust and interest. If that three-ninths is insufficient to pay the deed of trust, then the balance remaining due on said deed of trust shall he paid in equal parts out of the interests of Ora and Jessie Wrightsman and the interests formerly owned by Maude Wrightsman now held by the defendant. The remainder of the fund shall be distributed among the parties in proportion to their respective interests as above determined.

The. judgment is reversed and the cause remanded, with directions to proceed in accordance with this opinion.

Bond, G. (sitting in Division Two when this case was argued), concurs.

PER CURIAM.

— The foregoing opinion of Roy, C., is adopted as the opinion of the court.

AH the judges concur.


author: ROT, C. PER CURIAM.

text:
    JESSIE WRIGHTSMAN HOVERSTOCK v. JOHN C. ROGERS et al., Appellants.
    Division Two,
    February 6, 1912.
    The facts in this case are the same as those in the case of Wrights-man v. Rogers, ante, p. 417, and this case is decided upon tn« authority of that.
    Appeal from Christian Circuit Court. — Ron. Argun Cox, Judge.
    Reversed and remanded (with directions).

      G. A. Watson for appellants.

      Addison Brown for respondent.
   ROT, C.

— The facts in this case are in all respects the same as in the case of Ora "Wrightsman v. John 0. Rogers, the same defendant (ante, p. 417).

Our opinion in this case is the same as in than

The judgment is reversed and the cause remanded with directions to proceed with the cause in accord-' anee with the opinion in that case.

Bond, G. (sitting in Division Two when this case was argned), concurs.

PER CURIAM.

— The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All the judges concur.


author: FERRISS, P. J.

text:
    THE STATE v. JOHN BOWERS, Appellant.
    Division Two,
    February 6, 1912.
    CARNAL KNOWLEDGE: Attempt to Ravish: Intent: Instruction. Where defendant took a girl thirteen years of age to a rooming house, and while she was on a bed, got on top of her, with his private parts exposed, her drawers being down, but made no attempt at penetration, and there was no dampness or wetness on her legs, and after two or three minutes he got up, buttoned up his trousers and went away, the court should have instructed the jury that if the acts were done by defendant without the intention of having carnal knowledge of her, then they did not constitute an assault to commit a rape. Under the circumstances the jury should have been permitted to say whether or not the defendant had the intent to ravish the girl.
    Appeal from St. Louis City Circuit Court. — Ho». George G. Hitchcock, Judge.
    Reversed and remanded.

      Chas. P. Johnson and Silver & Dumrn for appellant.
    (1) The trial court committed error in permitting the prosecutrix to testify, over defendant’s objection, that Irene Hennessey told her (prosecutrix) that defendant had intercourse with her (Irene Hennessey) on the occasion of the first visit of the two girls to Allison’s room. This testimony was pure hearsay, and was of a character extremely prejudicial to defendant. And the error in admitting it was not cured by the court’s subsequent direction to the jury to disregard it. State v. Mix, 15 Mo. 153; State v. Marshall, 36 Mo. 400; State v. Fredericks, 85’ Mo. 145; State v. Kuehner, 93 Mo. 193; State v. Thomas, 99 Mo. 235; State v. Minor, 193 Mo. 597; People v. Zimmerman, 4 1ST. Y. Orim. 272. (2) It was error to admit testimony that defendant had sexual intercourse with Irene Hennessey a week before the commission of the alleged offense. People v. O’Sullivan, 104 N. Y, 484; McAllister v. State, 112 Wis. 496; Wharton’s Orim. Ev. (9 Ed.), sec. 46; People v. Bowen, 49 Oal. 654; State v. Walters, 45 Iowa, 389; Barton v. Bruley, 96 N. W. (Wis.) 815; State V. Lapage, 57 N. H. 245. (3) The court erred in refusing to give instruction 1 requested by defendant. State v. Dalton, 106 Mo. 469.

      Elliott W. Major, Attorney-General, and John M. Atkinson, Assistant Attorney-General, for the State.
    (1) Appellant contends that the court erred in permitting the prosecutrix to testify that Irene Hennessey told her that appellant had intercourse with her (Hennessey) on the first visit to the Allison room. The court ruled that the prosecutrix could not testify to what Irene told her about appellant’s relations on the first visit. The court so instructed the jury as Governor Johnson requested. After so instructing the jury the court said: “Now, is there anything further you wish me to tell the jury on that question?” Governor Johnson: “No, sir; not at present.” Thus appellant waived any right to. further complain at the court’s ruling. He did not so much as ask for a written instruction on this point. Furthermore, no exception' was properly saved at the time. The only objection went to the evidence as being “incompetent and not relevant in this case.” This court has.often held that this amounts to no objection at all. Furthermore, appellant admitted on cross-examinaition that he had intercourse with the Hennessey girl, and, for the reasons given under the second point of this brief, such evidence was perfectly competent and cured any error here complained of, if error it be. (2) It is next contended by appellant that the court committed prejudicial error in admitting in evidence the fact that appellant had intercourse with the Hennessey girl on the first visit of the two girls to the Allison room. This evidence was competent for at least' three reasons: (a) It showed the motive and intent which appellant had in inducing these two small girls to visit the Allison room — the motive to have intercourse with them. 1 Bishop’s Crim. Proc., secs. 1120, 1127, 1128, 1129; State v. Spaugh, 200 Mo. 504; State v. Bailey, 190 Mo. 279; People v. Molineux, 160 N. Y. 293. (b) The evidence further identified appellant as the one who. committed the assault on the prosecutrix. (c) ■ Appellant testified on cross-examination that it was the Hennessey girl that he had intercourse with on the second visit of the two girls and not- with the Steinmetz girl on the second visit as she testified. By this testimony of appellant it became competent to show that on the first visit of these girls appellant' had intercourse with the Hennessey girl, and on the second visit the assault on the Steinmetz girl. (3) The court did not err in refusing defendant’s instruction 1. There was no evidence to warrant its giving. According to the State’s evidence, appellant was guilty of an assault on the Steinmetz girl. According to defendant’s own testimony, he was not guilty of any assault or any lewd and lascivious conduct. Appellant testified, ‘‘I had nothing to do with her at all, whatever.”
   FERRISS, P. J.

— The defendant was convicted iu the circuit court of the city of St. Louis of assault with intent to ravish one Clara Steinmetz, a girl Under the age of fourteen years.

The testimony for the State tended to show that defendant, a man of fifty-eight years of age, went to a room belonging to a friend of his on Franklin avenue, in St. Louis, with two girls, the prosecuting witness and one Irene Hennessey, a girl of fifteen years, the prosecuting witness being at the time thirteen years of age.

The prosecuting witness testified that Irene Hennessey, the defendant and herself were in this room and that she was on the bed, when the following occurred :

"Q. N,ow, with respect to you, when you were on the bed, where was he ? When you were on the bed, Clara, how close to you was he? A. He got on top of me. Q. He got on top of you — were his private parts exposed at that time? A. Yes, sir. Q. And how long did he lie on top of you?
“Gov. Johnson: I object to that. I haven’t heard her say that he lay on top of her.
“Mr. Harvey: She stated that.
“Mr. Griffin: She has just stated that.
“Gov. Johnson: Go ahead.
“By Mr. Griffin: Q. How long did, he lie on top of you? A.. About three minutes. Q. About three minutes? A. Yes, sir. Q. And then what did he do? A. Then he got up. Q. And what did he do then? A. He didn’t do nothing. Q. Were his private parts exposed when he got up? A. Yes, sir. Q. Tell us what he did after he got up; what did he do — explain to us? A. He didn’t do nothing’. ' Q. Well, were his clothes unbuttoned at the time he got up? A. Yes, sir. Q. Well, did he button them up, or what did he do? A. He buttoned them up.”

The prosecuting witness, upon being- recalled on behalf of the defendant, testified as follows:

“ Q. At the time that you charged that you were on the bed with the defendant here, did you feel his privates against your body? A. No, sir. Q. At any time during that time did you find any dampness or wetness upon'your legs? A. No, sir. Q. At the time when you were on the bed did you take down your drawers — unbotton your drawers? A. I told you that this morning. Q. That is what I believe you said that you. did. Did you go right home after that? A. Yes, sir.’’

There was evidence tending to show that the prosecuting witness was examined by a physician subsequently to this transaction, that she was unusually small for her age, and that there was no evidence of penetration. The evidence further tended to show that this defendant had met these two girls about a week before in this same room, at which time he took improper liberties of some kind with the Hennessey girl. Just how far he went it is hard to tell from the record. Whatever he did was done in the presence of the prosecuting witness, but he did nothing to her at that time.

Defendant denies having had intercourse with either girl at either time, but admits that he did some “fooling” with the Hennessey girl.

It is insisted by defendant that the court should have given the following instruction offered by him:

“The court instructs the jury that if the acts as testified to by the witness were done by the defendánt without the intention of having carnal knowledge of her, the prosecuting witness, then they only amounted to indecent and lascivious conduct, and, however reprehensible morally, did not constitute an assault to commit a rape. ’ ’

We think, under the peculiar circumstances of this case, that this instruction should have been given. The rule adopted by the trial court iu instructing in this case is the one approved in State v. Dalton, 106 Mo. 463, namely, that preparation and acts towards the accomplishment of his purpose, with the present means of carrying it into effect, would constitute an assault with intent to ravish. This statement of the law was taken from State v. Shroyer, 104 Mo. 441. In that case the prosecuting witness, with her brother and sister, was asleep on the floor in a bedroom. An older sister was lying in the bed. The defendant crawled over to the prosecuting witness, put his hand on her arm, and then was seen to lie close to her, with his face close to her face. He then rose up and looked around the room, and then began to unfasten his pants. The older sister hallooed, and the defendant crawled towards the door and left. Upon this state of facts, the court said that to sustain an indictment for an assault to commit a rape, it was not necessary that any violence should have been used; that “if the intent, with the present means of carrying it into effect, exists, and preparations therefor have been made, the assault is complete;” citing several cases. The court further says, “It was the evident intention of defendant to have connection with the girl without her consent, and whether it was to be by actual physical force, or during the unconsciousness of sleep, is wholly immaterial.”

This proposition of law contains two essential elements of fact. There must be an intent to commit the offense, and the means must be present to carry this intent into effect. The intent, however, can only be discovered by the facts and circumstances in the case, and when the actions of a person indicate that he is animated by a certain intent, it is fair to presume that such intent exists. Therefore, if the defendant placed this girl upon the bed, exposing her person, got on top of her, exposing his person, nothing further appearing, the offense would be complete because the law would presume that he intended to commit the act. But if all the acts of the defendant, and the circumstances surrounding, reasonably show the absence of the intent, then an essential element of the crime is wanting.

In the Dalton ease, above referred to, tbe facts were quite similar to those under discussion. Speaking of them, the court says: “If these acts were done by defendant without the intention of having carnal knowledge of the girl, while asleep, they only amounted to indecent and lascivious conduct to a child under his care and protection, and whose purity he should have guarded, which, however reprehensible morally, did not constitute rape, or an attempt to commit that crime. ’ ’

In the case at' bar the prosecuting witness, although legally incapable of consent on account of her age, was in fact a willing victim. She made no resistance, and contemplated none. The defendant had full opportunity to at least attempt a penetration. Considering the position he was in, and the want of opposition, no reason can be perceived why he should not have carried out his intent if he entertained it. He voluntarily left the girl without attempting intercourse. The fact that he voluntarily left the girl can be explained according to the ordinary laws of human conduct upon one of two grounds — either he had no criminal intent, or he lacked the means of carrying it into effect.

The prosecuting witness testifies that the privates of defendant, although 'exposed, did not touch her person. It is clear, therefore, that no attempt was made by him to consummate the act. It does not follow, because the defendant was guilty of abominable and lecherous conduct, violating one of the most sacred obligations resting upon men, that is, to protect the purity of young girls, that he was guilty of an attempt to rape! Too much cannot be said in reprobation of a man who would deliberately aid a young girl on the downward path, even though she showed herself quite willing to pursue it; but it is our duty to see that a man accused of crime be accorded all the rights which the law allows him, no matter how heinous the charge upon which he is tried.

We think the jury should have been allowed to say whether or not the defendant had the intent to ravish this girl, and that therefore the court erred in refusing the instruction offered by defendant. For this error the judgment is reversed and the cause remanded for new trial.

Kennish and Brown, JJ., concur.