source: Caselaw Access Project

author: BROWN, C. PER CURIAM.

license: Public Domain

text:
    THOMAS LANGSTAFF v. CITY OF WEBSTER GROVES, Appellant.
    Division One,
    November 30, 1912.
    1. APPEAL: Abstract: Bill of Exceptions. Matters of exception will not be reviewed on appeal unless tbe abstract of the' record proper shows that a bill of exceptions was filed, and the-fact of filing is not proved by a statement in what purports to. be, and is headed, a “Bill of Exceptions,” that “the defendant tenders this, its bill of exception's, and prays that the same maybe .. . filed, which is accordingly done,” followed by the-signature of the judge.
    2. -: -: Motion for New Trial. Matters presented oa. an appeal from an order sustaining a motion for a new trial will, not be reviewed unless it appears, from the abstract of the-record that such motion was made and passed upon.
    Appeal from St. Louis City Circuit Court. — Hon. Matt G. Reynolds, Judge.
    Affirmed.

      Samuel D. Hodgdon and Louis A. Steber for appellant.

      R. 11. Stevens and Watts, Gentry & Lee for respondent.
   BROWN, C.

This is á snit for twenty thousand dollars damages for personal injuries alleged to have been suffered by the plaintiff from falling off a defective sidewalk in defendant city. It was instituted in the circuit court for the county of St. Louis, from which it was removed to the circuit court for the city of St. Louis, in which the transcript was filed Feb-, ruary 7, 1908. The cause seems to have been tried at the June term, 1908-, of that court. The trial resulted in a verdict for defendant, which was set aside upon motion for a new trial, upon the ground that the court had erred in giving improper instructions at defendant’s request. The appeal is taken from the order sustaining the motion for a new trial, as is shown by the short transcript filed. The abstract of the record •consists of the certified transcript of the proceedings in the circuit court for St. Louis county. It contains no entry whatever from the records of the circuit coui't for the city of St. Louis.

Following the transcript is what purports to be a “bill of exceptions” beginning as follows:

“Be it remembered, that, on the twentieth day of April, 1908, at the April term, the above entitled cause came on for trial in Division No. 4 of said Court, before Hon. Matt G*. Reynolds, Judge, and a jury, and the following proceedings were had therein, to-wit. ” Then follows the evidence, the instructions of the court, the verdict, the motion for a new trial and the statement that it was sustained, and time granted to file a bill of exceptions. It then closes as follows:
“Inasmuch as the above matters and things do not appear of record, and in order that they may be preserved and made of record, and presented to the Supreme Court of Missouri for review, the defendant tenders this, its bill of exceptions, and prays that the same may be allowed, signed, sealed, filed, and made a part of the record in this canse, which is accordingly done this 20th day of November, nineteen hundred and eight, in the October term of said Court. Matt G. Reynolds, Judge of the Circuit Court, City of St. Louis, State of Missouri, Division No. 4.”

The abstract contains nothing more. If will be seen that it does not appear from it that any order was entered upon the records of the circuit court for the city of St. Louis during the progress of the case. If the statement contained in the paper entitled “bill of exceptions ’ ’ that a motion for a new trial was filed and sustained would otherwise raise a sufficient implication ■of those facts, we are still confronted with the difficulty that, although the judge’s statement at the end ■pf the bill recites that it was allowed, signed, sealed, filed and made a part of the record in term time, this has no tendency to prove that fact, but merely shows that .it was signed in proper form and ready to file in the. court whenever the appellant should think proper to do so.

Under the repeated decisions of this court that matters of exception will not be reviewed here unless it is shown in the abstract of the record proper that a hill of exceptions was actually filed as well as signed, and that matters required to be presented in a motion for a new trial will not be reviewed unless it appears from the abstract of the record entry of the court that such motion was filed and passed on, the only question involved in this appeal is not so presented that we can examine and determine it. [Noble v. Brinson, 231 Mo. 640; Wallace v. Libby, 231 Mo. 341, and cases cited.] It is seldom that our attention has been directed to a more flagrant disregard of this rule, which Las been enforced with such uniformity that there can mo longer be any reasonable excuse for its violation. It follows that the order and judgment of the circuit court granting a new trial must he affirmed.

Blair, C., concurs.

PER CURIAM.

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

All the judges concur.


author: GRAVES, P. J.

text:
    WILLIAM HEINTZ v. JOHN MOORE, Appellant.
    Division One,
    November 30, 1912.
    CONTRACT TO CONVEY LAND: No Acknowledgment by Owner? Record: Notice. A contract of sale of land, with an agreement to convey upon the payment of the stipulated purchase price, acknowledged by the purchaser, but not by the owner, is not as to such owner, entitled to record, and if recorded is not notice to a subsequent purchaser from said owner without actual’ notice; and a subsequent purchaser, in good faith, without actual notice of the existence of said prior contract, who received a deed from said owner, took the title.
    Appeal from St. Louis County Circuit Court.— Hon, JoJtn W. McElhinney, Judge.
    AfetRmed.

      R, H. Stevens and Frank H. Braden for appellant.
    (1) The trial court erred in finding that the contract offered in evidence is not an agreement by Mrs. Hiett to convey or sell to defendant Moore. In Kelly v. Thuey, 143 Mo. 422, paragraph five, the court says these are three essentials to a contract: First, parties; second, subject-matter; third, the consideration or price. The contract in the case at bar has all three of the essentials. In said agreement is found the following: “I hereby approve the above contract and agree to pay,Benjamin F. Thomas a commission of 5 per cent. Aima E. Hiett.” The foregoing quotation shows a seller. The testimony shows that the signatures of John Moore and Anna E. Hiett were genuine and signed by them, and the one hundred dollars was paid to Anna E, Hiett. The written instrument construed by all the law of contracts, is a binding contract between John Moore, purchaser, and Anna E. Hiett, seller, especially in the absence of any allegations or proof of fraud on the part of defendant Moore. (2) The trial court erred in finding that the record of the contract was not constructive notice to any person claiming under Mrs. Hiett. E. S. 1909, Secs. 2800, 2810; McClurg v. Phillips, 57 Mo. 214; Parkinson v. Oaplinger, 65 Mo. 290. If said contract was a binding contract between Moore and Mrs. Hiett, then defendant Moore had an equitable interest in the land therein described and was legally entitled to acknowledge said instrument and record same, and, when recorded, it imparted constructive notice to plaintiff herein, as provided in said section 2810.

      Stanley D. Pearce for respondent.
    (1) The contract tendered was not of the same legal effect as the contract pleaded; the variance was so material as to amount to a failure of proof by defendant. Burns v. Freling, 98 Mo. App. 271; Faulkner v. Faulkner, 73 Mo. 335; Gray v. Eace, 51 Mo. App. 553; Marcum v. Smith; 26 Mo. App. 461; Bagnell v. Eailroad, 180 Mo. 466; Baker v. Ealey, 18 Mo. App. 566 (2) The instrument in question does not contain the essentials of a contract for the sale of lands as required by the Statute of Frauds. Kelley v. Thuey, 143 Mo. 436; Carriek v. Mincke, 60 Mo. App. 140; Tombs v. Basye, 65 Mo. App. 33; McKeag v. Piednor, 74 Mo. App. 593. (3) No valid contract existing, an attempted ratification or approval by Anna E. Hiett was of no effect. Publishing House v. District, 84 Iowa, 101; Sperry v. Pittsburg, etc. Co., 48 Pac. (Colo.) 315. (4) The requirement of the statute was that the alleged grantor, Hiett, not the grantee, Moore, should haave acknowledged the instrument. R. S. 1899, Sea 90S; R. S. 19091, See. 2792; Woods v. Coch-rane, 39 ^t. 544; Bank v. Baker, 62 Ill. App. 154; 1 Am. & Eng. Ency. Law (2 Ed.) 507. The instrument, being defectively acknowledged, was not subject to record, and merely spreading it upon the record did not impart constructive- notice thereof to respondent. Stevens v. Hampton, 46 Mo. 404; Williams v. Butter-field, 182 Mo. 181; Bank v. Carondelet Co., 150 Mo. 570; Bishop v. Schneider, 46 Mo. 472; Ryan v. Carr, 46 Mo. 483.
   GRAVES, P. J.

Plaintiff by his petition seeks to have the court ascertain and determine the title to a small tract of land in ,St. Louis county, Missouri. Petition is in approved form under old section 6150. Plaintiff is the immediate grantee by law from Annie E. Hiett, who is treated throughout as the common source of title.

By answer the defendant admits that the plaintiff was in possession of the property and that he claimed an interest therein. He further set up what he alleged to be a contract of sale between him and Mrs. Hiett, Plaintiff now claims that the contract pleaded by defendant is not the one offered in evidence, and makes the point of a variance. This will meet with disposition in the opinion. Suffice it now to say that whatever be the contract pleaded, the contract relied upon is in evidence, and although rather long had best be set out, in as much as its legal effect is strongly as-' sailed by the plaintiff. The contract reads:

Kirkwood, Mo., March 21, 1908.
Received from John Moore the sum of one hundred dollars earnest money and part purchase money for a certain parcel of improved property, lying in the county of St. Louis, State of Missouri: That tract of ground on the N. E. corner Geyer and Big Bend Roads, contains about 12 acres, more or less, on which premises is situated House No.which property is this day sold to.for the total sum of nine thousand.dollars payable as follows: $1500 cash, $1500 on or before six months, $1000 on or before 12 months, and subject to the deed of trust of $5000 now on the property, with interest on deferred payments to be secured by first deed of trust on said premises. The title to said property to be perfect and to be conveyed by warranty deed free from liens and encumbrances, except taxes, both general and special for the year 1908, and thereafter, and the here-inbefore noted deed of trust which the undersigned purchaser agrees to pay. ,
If the title be found imperfect and cannot be perfected within a reasonable time, said purchaser is to be paid the cost of examining the title, not to exceed $25 dollars, and earnest money to be refunded.
The sale under this contract to be closed within 10 days from date on or before April 1st, and if not closed by that time, owing to the failure or neglect of the purchaser to comply with terms herein, the earnest money is to be forfeited to the seller; but for this cause the buyer shall not be released from the fulfillment of his part of this contract, if so determined by the seller. This contract is subject to the approval of the owner, and also subject to restrictions now on said property. Sale under this contract, when approved by the owner, to be closed at the office of Benjamin P. Thomas, Kirkwood, Mo.
Accepted under the above terms and conditions.
JOHN H. MOORE.
I hereby approve the above contract and agree to pay Benjamin P. Thomas a commission of 5 per cent.
ANNIE E. HIETT,
This receipt to be returned to this office on closing of purchase.
State of Missouri, County of St. Louis. / s '
On this, 2nd of April, 1908, before me personally appeared John Moore to me known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his free act and deed.
In Testimony Whereof, I have hereunto set my hand and affixed my official seal at my office’in St. Louis County, the day and year first above written.
My term expires May 2, 1909.
J. G. HAWKENS,
; Notary Public.

This contract was filed for record in the recorder’s office’ of St. Lonis connty on March 3, 1908, and was duly recorded prior to the conveyance by Mrs. Hiett, to the plaintiff.

By oral proof it is made clearly to appear that Mrs. Hiett alone breached the contract, and that the defendant Moore did all that he could to comply with its terms. The cash payment was tendered. The deed of trust was prepared and tendered. In fact, it is- not seriously contended that Moore did not do everything in his power to secure the deed from Mrs. Hiett under this writing, and that she refused.

It should be further noted that the evidence fails to disclose that the plaintiff had actual knowledge of this contract at the time he took the deed.

This succinctly states the issues involved. The learned trial judge, in a written memorandum, thus disposed of the case:

“The contract offered in evidence is not an agreement by Mrs. Hiett to convey or sell to the defendant Moore. It is a receipt from Moore for money paid by himself on a sale 'of real estate; but it does not appear to whom the property is sold or by whom it is sold.
“According to the claim of the answer, defendant was a purchaser from Mrs. Hiett. The contract was recorded, after acknowledgment by the defendant, Moore. It was never acknowledged by Mrs. Hiett, and the record of it was not constructive notice to any person claiming under her. There is no evidence of actual notice.
“For this reason, at least, the defendants have failed to show any title or interest. Finding and decree for plaintiff, with costs.”

From a judgment in accordance with this memorandum opinion, the defendant appeals. Points made will be taken in this order.

I. It is urged in tlie briefs bere tbat tbe instrument relied upon by defendant is totally defective in substance and form and did not operate to give Moore any interest in the land. It is urged that it only purports to be a receipt from Moore to himself for $100, and an agreement by him to convey the land described. It is also urged that the written instrument does not .show an agreement upon the part of Mrs. Hiett to convey the land. To say the very least of it, the written instrument relied upon is very awkwardly worded, and whether it is such as to carry with it any interest or right is extremely doubtful. In view of another question we need not go'into a discussion of the force and effect of this written instrument. We have set it out in full, with the acknowledgment thereto attached for another purpose, which we discuss next.

II. The next contention of the plaintiff is that although it be conceded that the written instrument upon its face is a good contract between Mrs. Hiett and Mr. Moore for the conveyance of the land in dispute, yet such contract was never acknowledged by Mrs. Hiett, and the mere spreading it upon record did not give notice to the plaintiff. This contention is so plainly well taken that we desist from a discussion <of the real force and effect of the written instrument. It will be observed that the instrument divides itself Into three parts: (1) that which precedes the signature of John H. Moore, (2) that portion between the signature of Moore and the signature of Mrs. Hiett, and (3) a short sentence following the signature of Mrs. Hiett. But however these portions may be put together, and whatever may be its legal effect as between the parties, when they are put together, it is clear that the instrument is not acknowledged by Mrs. Hiett. If the instrument was intended to affect title to real estate it must be acknowledged by the grantor or proposed grantor before it is entitled to record. This is not a case of defective acknowledgment, but a case of no acknowledgment at all, so far as the real grantor is concerned. As to Mrs. Hiett the instrument was not entitled to record.

As the instrument was not entitled to record as one affecting the title to real estate, the next question is, does the fact that it was recorded change the situation as to notice to subsequent purchasers from Mrs. Hiett? Stated differently, does the actual record of an instrument not entitled to record make such recorded instrument constructive notice? Under the rulings in this State, we think not. In the late case of Williams v. Butterfield, 182 Mo. l. c. 184, we thus dispose of the point in hand:

“There is but one vital proposition involved in this cause, presented for our consideration. That is this: Was the record of the deed from Bohlcke and wife to Wolfenden, embracing the land in dispute, admissible in evidence in this cause for the purpose of fixing constructive notice upon plaintiff of the sale of the land prior to his (plaintiff’s) purchase?
“The record of this deed, as offered in evidence, does not show any certificate of acknowledgment by Henry Bohlcke, the grantor in said deed. Under the statute, it must be conceded that this deed was not entitled to be recorded, by reason of the absence of such acknowledgment. [Sec. 2418, R. S. 1889.]
“It follows from this, if the general rule is applicable to this deed, that in the absence of the certificate of acknowledgment, required by the statute, it had no place upon the land records of Stoddard county and if improperly recorded, would not impart constructive notice to a subsequent purchaser in good faith, for a valuable consideration. [Secs. 2419 and 2420, R. S. 1889; Bishop v. Schneider, 46 Mo. 472; Terrell v. Andrew Co., 44 Mo. 309.] ”

In that case, as in this, the owner of the land and the purposed grantor in the written instrument had not acknowledged it. So we say in the case at bar, that it appearing from the evidence that the plaintiff had no actual knowledge of this so called contract, the record thereof g’ave him no notice, and his purchase in good faith cannot he disturbed. The judgment nisi was for the right party, and it is affirmed.

All concur.


author: WOODSON, J.

text:
    WILLIAM DAMAN, Appellant, v. CHARLES T. REMME’S Executor et al.
    Division One,
    November 30, 1912.
    1. PARTITION: Interest in Land: Deed Absolute on Face: Resulting Trust: Finding of Trial Court. Where a father and son bought lots and for convenience the title was taken in the son, and thereafter they sold a one-third interest in the property to defendant and houses were built upon them, and the indebtedness became almost equal to the value of the property, and thereupon the son conveyed the lots by a deed absolute on its face to defendant, and they executed their joint note to him for $2000, and in return received certain shares of the capital stock of a corporation, and the father and son testified that the deed from the son was to pay for the shares transferred to him and their joint note was the consideration for the shares transferred to the father, and that defendant agreed that the father should continue to be the owner of a one-third interest in the lots and he would hold the title in trust for him, and the defendant testified that the note was given for the purchase of the stock and in settlement of the indebtedness, much of which was owing him, the finding of the court, without the aid of a jury, in a suit for partition brought by the father, that the deed was intended to convey the interest of the father and that he had no interest in the property, will not be disturbed on appeal, where the preponderance of the evidence supports the finding.
    EQUITY: Deference to Chancellor. Even in equity cases, where the evidence .is oral, and the record shows the testimony of appellants to be halting, hesitating, incoherent and contradictory, and that of respondent consistent, clear, positive and unequivocal, the appellate court will defer largely to the finding of facts of the chancellor, who had the witnesses before him and was in a much better position to judge of their credibility.

      Appeal from St. Louis City Circuit Court. — Hon, Virgil Rule, Judge.
    Affirmed.

      Sullivan & Wallace for appellant.
    (1) Defendant’s answer states no defense, for "besides matter that is not material, it simply pleads a legal conclusion and is not responsive to the petition. R. S.1909, Secs. 1800 and 1804. (2) The defendant’s evidence does not maintain a defense to the petition because the case which he attempts to make is within the terms of the statute requiring a deed to pass every interest in land (R. S. 1909, Sec. 2787) and, as no deed was ever made to the defendant, he could have acquired no title to the property simply by virtue of his alleged verbal understanding which he relies upon. R. S. 1909, Secs. 2787 and 2869; Cason v. Cason, 28 Mo. 47; Tapley v. Ogle, 162 Mo. 190. (3) The answer cannot possibly be held to have raised but one issue of fact, viz.: Did or did not the plaintiff own an undivided one-third of said property at the time John H. Daman’s deed was made to said defendant? And, even conceding, arguendo, that it did raise this issue, the evidence of the case clearly requires the judgment to-be for the plaintiff and not for the defendant. Where several persons agree to buy a lot and build thereon, as a joint enterprise, but title is taken in the name of one of them, a resulting trust arises in favor of the others in the proportion of the consideration paid by each. Baumgartner v. Gruessfeld, 38 Mo. 41.

      Rassieur, Kammerer & Rassieur for respondents.
    (1) Where one is in the adverse possession of land, claiming it exclusively against all others, one claiming title and out of possession cannot maintain a suit for partition; he must first try his right in an action of ejectment. Lambert v. Blumentbal, 26 Mo. 474; Hntson y. Hutson, 139 Mo. 235; Chamberlain v. Waples, 193 Mo. 109. (2) In proceedings at law for partition, the plaintiff must show in himself a legal title as distinguished from an equitable title; otherwise, he must fail. McCabe v. Hunter, 7 Mo. 355. (3) An express trust in land, unless manifested or declared by a writing signed by the party to be charged with the trust, is void, and cannot be established by parol testimony. E. S. 1909, See. 2868; Hillman v. Allen, 145 Mo. 645; Crawley v. Crafton, 193 Mo. 431; Weiss v. Heitkamp, 127 Mo. 31. (4)' The answer in this case denied the agreement and contract set forth in the petition, and therefore it was not necessary to plead the Statute of Frauds. Hillman v. Allen, 145 Mo. 643; Boyd v. Paul, 125 Mo. 14; Hurt v. Ford, 142 Mo. 301. (5) One who sells an equitable interest in land, receives the consideration and yields possession, will not be permitted to say afterwards that the assignment was not in writing. Eosenberger v. Jones, 118 Mo. 566; G-rumley v. Webb, 48 Mo. 586. (6) In an action at law, where no objections are made to any ruling during the trial, and no declarations of law are asked or given, there is nothing before the appellate court for review. Under such circumstances, it has been uniformly held by this court that it will not undertake to review the action of the trial court. Hill v. Kingsland, 131 Mo. 650; Early v. Helmaring, 170 Mo. 598; Zimmerman v. Eailroad, 156 Mo. 565.
   WOODSON, J.

This is an action at law, instituted in the circuit court of the city of St. Louis, by the plaintiff against the defendants, for the partition and sale of certain real estate situate in said city, particularly described in the pleadings.

The facts of the case are few, and all but one of .them, which will be presently noted, are undisputed.

A trial was had which resulted in a judgment for the defendants, denying partition, and after taking the proper preliminary steps therefor, the plaintiff appealed the cause to this court.

The undisputed facts are as follows:

The plaintiff and his son, John Daman, some years prior to the institution of this suit, bought the lot in controversy for the sum of $2000, paying $1000 of the purchase money in cash, the balance thereof remaining a lien thereon, and for their common convenience the title thereto was taken in the name of John; subsequently, the plaintiff and his said son sold an undivided one-third interest therein to the defendant, Charles T. Remme, the legal title still remaining in John,

After selling the first one-third interest to Chas. T. Remme, they improved the property by constructing thereon three dwelling houses, and placed all of them in the hands of said defendant, who collected the rents, paid the taxes, interest and repairs. In order to pay for the construction of the houses three loans, secured by mortgage, aggregating $750Q, were placed upon the property. The property at the date of the trial, including the improvements, was worth between $10,000 and $12,000.

Some four years thereafter, John sold his remaining interest in said lot to said defendant, and by deed in proper form conveyed to the latter the legal title to the entire property, including (without authority to so do, as is claimed by plaintiff) the one-third interest therein which plaintiff claims still belongs*to him. This claim of ownership by plaintiff is denied by defendants, they declaring that the defendant Chas. T. Remme purchased said one-third interest from the plaintiff in the manner to be presently stated. That fact is the disputed question in this case, as before mentioned.

In order to sustain the issues on behalf of the plaintiff, he testified in his own behalf, in substance as follows: That in the month of March, 1900, he and his son John purchased of the defendant, Chas. T. Rename, two hundred and fifty shares of the capital stock of the St. Louis G-asoline Motor Company for the consideration of $4000, paid for in the following maimer: John, in order to pay for his interest in said shares of stock, conveyed by the deed last mentioned, though absolute in form only, his one-third interest in said real estate to said Chas. T. Remme, and he, the plaintiff, and- his wife, in payment of his interest in said stock, executed to said Remme their promissory note for $2000. That said transaction took place in Remme’s office, and that the stock was then and there delivered to them, and that they there delivered the deed and note to Remme. That while John conveyed the fee to the entire property to Remme, it was stated at the time and understood and agreed to by all of them that the deed was to convey only the one-third interest owned by John, and that plaintiff was to retain his one-third interest therein; also that Remme verbally agreed to hold said one-third interest for the use and benefit of the plaintiff.

John Daman, the son of the plaintiff, was called as a witness for plaintiff. While his memory was poor, and he could remember but little at first as to what occurred at the time of the transaction, later, however, being recalled, his memory was better, and his testimony substantially corroborated that of the plaintiff. He also testified that he signed the $2000' note with his father, which fact was denied by both father and son on first examination.

This was all the evidence introduced by plaintiffs.

The defendant, Dr. Charles T. Remme, since deceased, in order to make out the defense, testified in substance as follows (This statement of the defendant’s evidence, after a carefnl verification of the same with the record, is taken substantially from the statement of the case made by counsel for defendants);

That he had managed the said property for about three years prior to March, 1900, and up to that time had advanced $3040 more than he had collected on account of the property; that at the time plaintiff and his son made overtures regarding the purchase of his shares in the St. Louis G-asoline Motor Company, there was an outstanding indebtedness on the property of $6750, secured by deeds of trust, $212 due on past due interest notes, and $3040 due him for advances, making a total of $10,002; that he explained this indebtedness to plaintiff, and told him that he did not think the property was worth over $12,000; that he was willing to sell his motor company shares for the interest of plaintiff and his son in the real estate, and a note for $2000, signed by plaintiff, his wife and son; that this proposition was accepted, and the papers were drawn accordingly; that the plaintiff and his son attended to the preparation and execution of the deed, and the defendant attended to the drafting of the note. That, in pursuance of this agreement, he delivered the stock to plaintiff and his son, and they executed and delivered to him their joint note for $2000', dated March 7, 1900, and plaintiff’s son and wife executed and delivered to him a warranty deed conveying to him the full fee simple title to the Shaw avenue property.

Defendant also testified that he had been in the. exclusive possession and control of the property, claiming it as his own, since March 7, 1900, the time when the above transaction was closed. That after that date he did not consult with plaintiff regarding the management or repairing of the property, nor render to him any statement o.r account; that from March 7, 1900, until February, 1908, plaintiff did not make any inquiry regarding 'the property, nor ask for a statement or accounting, or claim any interest therein; that in the month of February, 1908, plaintiff called upon defendant, and demanded that he áccount to plaintiff for his alleged share of the property, and that he convey to plaintiff such share; that he thereupon stated to plaintiff that he (plaintiff) had no interest in the property; that it was owned exclusively by defendant, and that he would not recognize plaintiff’s claim.

Mr. Charles N. Noble, an attorney practising at the St, Louis bar, testified that he had represented Dr. Demme in this transaction, and had prepared the note for $2000 and attended to its execution; that William Daman, his wife, Maggie Daman, and his son, John H. Daman, called at his office and signed it. That plaintiff and his son said, in substance, at that time, that this note for $2000 was given in settlement of a balance then due to Dr. Bern me, after plaintiff and his ■son had given to defendant a deed.

There are a number of legal propositions stated and discussed by counsel in their briefs for the respective parties to this action, most of which are questions •of procedure, but the view we have taken of the case renders it unnecessary for us to consider any question of procedure.

As previously stated, there is but one disputed fact in this case, and that one is, was it the intention and agreement of the parties to the transaction in question, that the warranty deed from John Daman, dated March 7, 1900, purporting on its face to convey to Charles B. Bemme a fee simple title to the entire property described therein, the property in controversy, should convey to him only the undivided one-third interest therein which belonged to grantor therein? That question was fairly and squarely presented to the trial court, without the aid of a jury, and after hearing the evidence introduced by the respective parties to the action, it decided that question against the plaintiff. After a careful reading of all the evidence presented by the record upon that question, we are fully-satisfied that the finding of the court is sustained by a clear preponderance of the evidence, and that the finding and judgment of the trial court was correct.

The memory of both the plaintiff and that of his son John was poor, and their testimony was hesitating, doubting, incoherent, and contradictory, wanting in weight and destitute of conviction; while that for the defendants was clear, positive and unequivocal, carrying conviction of its truthfulness to all who heard or read it.

In addition to that, the judge who tried the case had the witnesses before him, observed their demeanor upon the witness stand, and heard their testimony as it fell from their lips and consequently was in a much better position to weigh their evidence and pass upon the credibility thereof than this court is.

Under those circumstances, even though this court should doubt the correctness of the finding of the trial court, we would not feel justified in disturbing that action of the court unless a stronger showing was made than is here presented by this record.

Under such circumstances, even in equity cases, we defer largely to the findings of the chancellor, and rarely disturb his findings except where the findings are against the great weight of the evidence. [Huffman v. Huffman, 217 Mo. 182.]

Finding no error in the record, the judgment is affirmed.

All concur.


author: LAMM, J.

text:
    LOUIS A. STROTHER et al. v. FRANKLIN M. BARROW, Appellant.
    Division One,
    November 30, 1912.
    1. CHARITABLE USE: Religious Purposes. Property deeded to the trustees of a church to he used and occupied “for the worship of God” is devoted to a charitable use, and a pious use as well. The law favors a charitable use, and the idea of perpetuity is of the very essence of such a grant.
    2. -: -: Abandonment: Necessary Elements. Abandonment of a pious use involves two elements: first, the intent to abandon permanently; and, second, the physical fact of nonuser for religious purposes. They must conjoin and both must be operative at the same time, or there can be no abandonment. And the fact that religious services at times languished, or were discontinued for short periods and were then resumed, does not establish either intent to abandon or nonuser. Nor does, the fact that defendant made a garden of the churchyard for a season or two and stored His potatoes in the church house. Nor does the fact that one denomination sold the property to-another and moved its Bible, organ, pulpit, bell and pews to another edifice, and in its deed declared that “said premises were conveyed in trust and shall be used, kept and maintained and disposed of as a place for divine worship,” indicate an abandonment, either by intention or nonuser. The law looks with disfavor upon the abandonment of a pious or charitable-use.
    3.-: -: -: Limitations. There being no abandonment of the charitable use or religious purpose to which the-property had been originally granted, an intermittent adverse possession for eighteen years will not avail defendant, since the-statute (Sec. 1886, R. S. 1909) declares that “nothing contained in any Statute of Limitations shall extend to lands given, granted, sequestered or appropriated to any public, pious or charitable use.”
    4. -: -: -: Taken over by Another. Property granted to the trustees of one denomination for religious uses is not required to be used forever by that congregation or lose-its character of a pious use. It is not an abandonment of a pious use to have one religious denomination take over by purchase the church edifice of another. Property granted to one Christian church for its religious uses may he transferred to another by sale without constituting a break in the pious or charitable use.
    6. --: -: -: Who May Raise the Question. In this case it is assumed, hut not decided, but questionably allowed, that a defendant in ejectment, who is a stranger to plaintiffs’ chain of title, may raise the point of the abandonment of a charitable or pious use in aid of his claim by adverse possession and limitations.
    6. -: Break: Deed from Presbyterians to New York Corporation. There was no break in the pious use to which the property had been devoted by the deed to the Presbyterians, by a deed from them to “The Universalist General Convention, a corporation existing under the laws of the State of New York.” Though the deed is silent on the business character of that corporation and there is no reference in it whereby it can be seen on its face that it was a grant to a religious use, except the one word “Universalist,” yet 'since the proof is that the Universalist denomination did use the property for religious purposes after this deed was made, and that this convention, when it conveyed to the Methodist trustees, described itself as a religious corporation, and there is no countervailing testimony, the holding will be that this corporation was an instrumentality of the Universalist church for holding property, that it was seized of the title for the use of the Universalist denomination, and that the pious use was not broken by the deed to it.
    7. CONVEYANCE: Acknowledgment: By Corporation: Sufficiency. A certificate of acknowledgment to a deed may be good though it does not conform to the form given in the statute. That statute is not mandatory, but permissive, and the statutory form is not necessary to a good acknowledgment. Where the corporation’s seal is attached to the deed and it is signed by the proper officers of the company, a certificate of acknowledgment stating those facts, though it does not state that they were authorized by the board of directors to execute the deed, is prima facie sufficient, and it devolves on the person assailing the deed • to show that they did not have authority to execute it.
    Appeal from Pike Circuit Court . — Hon. David 11. Ebyr Judge.
    Appiemed.

      J. O. Barroiv and Hostetler & Haley for appellant.
    (1) ’Where a common source of title was admitted or proven, then adverse possession will constitute a defense. Emstring v. G-leason, 137 Mo. 594. (2) The trial court refused to give effect to the adverse possession which it affirmatively found to have been enjoyed by the defendant Barrow, by reason of the provision of Sec. 1886, B. S. 1909, which provides in substance that nothing contained in any Statute of limitation shall extend to any land given, granted, sequestered or appropriated to a pious use. While it might be conceded that if the Old School Presbyterian Church body had remained in control of the property up to the date of the institution of the suit, and had at all times used it for religious purposes as such properties are used, then there might be some grotmd to support the trial court’s ruling in the matter, but it will be noticed that according to the testimony even the Old School Presbyterian Church, the original grantee from Boyd ceased to use it for religious purposes long before it attempted to part with the title to the TJniversalist General Convention. (3) A proper construction of the deed from Boyd to the elders of the Old School Presbyterian Church would be that the property should be used for the use of that particular congregation of said Old School Presbyterian Church and that any use of the premises by some other congregation, even though a religious body, would be a violation of the trust imposed by said deed. It is questionable whether the Old School P'resbyterian Church or its elders had any authority whatever to convey the property, as under the terms of the deed the property was required to be used for the benefit of that particular church and none other. (4) Then in the conveyance made by the parties attempting to act for the Old School Presbyterian Church to the TJniversalist General Convention, it will be noted that the grantee was described merely as a New York corporation and there was no recital in thé deed that it is a religious body or that it should use the premises conveyed for pious purposes. There is no proof that the Universalist General Convention was a religions body unless the recital in the deed which it undertook to make to the Methodists should he taken as such proof. (5) The trial court found affirmatively that the defendant’s adverse possession began in 1890’ and continued down to the date of the institution of the suit. Now, assuming there was a time in the early part of defendant’s adverse possession when the disputed strip in controversy was used for pious purposes, thereby making the Statute of Limitation unavailable, still if there was any break in such pious use, the Statute of Limitation would immediately begin to run, and, under well-settled authority, where a Statute of limitation once begins to run it continues to run. (6) The acknowledgment of the deed from the Universalist General Convention to the trustees of the Methodist Episcopal Church, South, is fatally defective: First, it does not conform to the requirements of Sec. 2799, R. S. 1909; second the acknowledgment does not recite that the alleged chairman and secretary of* the board of trustees of the corporation were sworn; third, there is no recital in the acknowledgment that the seal affixed to the instrument is the corporate seal of said corporation; fourth, there is no recital in the acknowledgment or in the deed itself that the instrument was made by authority of the board of directors or by authority of the board of trustees of the said corporation, the Universalist General Convention.

      T. B. McGinnis and Tapley & Fitzgerrell for respondents.
    (1) The demurrer to the evidence was properly overruled. R. S. 1909', Sec. 1886. (2) There was no abandonment of the property by any of the religious organizations; in fact the opposite was clearly shown by the acts of each of them. Abandonment is a question of intention. Nonnser is not of itself sufficient. Tracy v. Bittle, 213 Mo. 302; Cravens v. Moore, 61 Mo. 178; Jndson v. Malloy, 40: Cal. 299; Hummell v. Railroad, 175 Pa. St. 537; Academy v. Academy, 47 S. W. (Ky.) 617. The entire testimony shows that the appellant is precluded from benefit of any Statute of Limitations. R. S. 1909', Sec. 1886. (3) The case being tried before the court sitting as a jury the parties. are concluded by the findings on controverted questions of fact. Waddell v. Williams, 50 Mo. 216. (5) The deeds complained of were regular on their face and were prima facie executed by authority. Fire Clay Whs. v. Ellison, 30 Mo. App. 71. (6) Under the pleadings and evidence the appellant cannot raise the objection that deeds are defective. Hunt v. Searcy 167 Mo. 159.
   LAMM, J.

Ejectment. Defendant appeals from a judgment in favor of plaintiffs for an undivided two-sixths interest in a tract situate in the hamlet of Ashley, Pike county.

Ashley was not laid out true to the cardinal points of the compass. Its subdivisions run from the northeast to the southwest. Among them is a square acre once belonging to Boyd, the common source of title. Boyd deeded seventy feet in rectangular shape off the southwest end of his acre to the Old School Presbyterian Church, putting the title in named trustees. The residue he deeded to his daughter, Mrs. Dorsey, and she conveyed to defendant. The church seventy feet passed by mesne conveyances (so plaintiffs, claimed) to plaintiffs as trustees of the Ashley Church of the Methodist Episcopal Church, South. It will he observed that plaintiffs, who sued for all, were awarded possession of an undivided two-sixths interest only, and abided the judgment. One phase of the dispute is over the boundary line between the church’s seventy feet- and Barrow’s residue; another is adverse possession. The parcel in controversy is a strip eleven feet wide at one end, six feet ten inches at the other, and three and sixteen-hnndredths chains long.

A map, furnished by appellant is, so far as it goes, accurate enough to aid in grasping the situation, viz.:

The petition was conventional; the answer was a general denial, coupled with two affirmative pleas (one the ten-year and the other the thirty-year Statute of Limitations); the reply was conventional.

At the close of plaintiffs’ case and again at the close of the whole case, defendant interposed a demurrer to plaintiffs’ evidence, which was overruled and he saved the point. No other instructions were, asked on either side. The trial Was to the court without the aid of a jury and, at defendant’s request, the court made a finding of facts.

Facts essential to the determination of questions raised will appear in connection with rulings thereon.

The assignments of error are:

“1. The court erred in refusing defendant’s instructions in the nature of a demurrer to the evidence offered at the close of plaintiffs’ testimony and at the close of all the testimony.
“2. The court erred in refusing to give effect to defendant’s adverse possession, which he affirmatively found to have continued from 1890 down to the date of the institution of the suit.
“3. The court erred in finding that the strip' of ground in controversy was not conveyed by the deed from Cary A. Boyd to Elizabeth Dorsey and by the deed from Elizabeth Dorsey to the defendant Barrow.
“4. The court erred in interpreting the deed from the alleged officers of the Old School Presbyterian Church to the Universalist General Convention, a New York corporation.
“5. The deed purporting to be from the Univer-salist General Convention, a corporation, to the trustees of the Methodist Episcopal Church, South, dated October 25, 1905, was ineffective to convey any title and the acknowledgment thereto was fatally defective. ”

Of these in their order.

1. Of the demurrers.

In effect, the demurrers search, under guise of a general form, errors specified in assignments 2, 3, 4, ■and 5. Hence a disposition of those specifications will be tantamount to an appellate ruling on the demurrers. Accordingly we pass by that assignment eo nomine, as filling no separate function on appeal.

II. Of adverse possession.

The court found that defendant had been in possession under claim of title uninterruptedly and adversely since the year 1890 up to the date of the suit, 1908. To break the force of that finding, it also found that the Statute of Limitations could not be invoked as a bar to plaintiffs’ claim or to create title in defendant. Contra, that Sec. 1886, R. S. 1909, applied to the facts—that section reading :

“Nothing- contained in any Statute of Limitations shall extend to any lands, given, granted, sequestered or appropriated to any public, pious or charitable use, or to any lands belonging to this State.”

To break the force of that ruling, defendant contends that, assuming the original grant to the trustees of the Old School Presbyterian Church to be for a “pious and charitable use,” yet on the' facts here, that use was abandoned; whereat (on such abandonment) the statute began to run and continued to run, although a pious use of the property was subsequently resumed. In outline such is the controversy under this head.

We are of opinion the ruling, nisi, was correct. This because:

(a) For present purposes it will be assumed that the strip in dispute passed by the deeds in plaintiffs’ chain of title, and not by the deeds in defendant’s. Whether that assumption be correct will be looked into presently. On that assumption, out of abundant caution, we reserve the question whether a stranger to conveyances creating a pious or charitable use can, in aid of his claim of adverse possession by limitation, raise the point of its abandonment. Whether the grantor who conveyed to the use, or his descendants, under the notion of a reverter, may make the point, or whether some proper party suing in equity to regulate the use may assert rights under a nonuser or abandonment, we need in no wise consider. In this discussion, we take the point as we find it and shall assume, without deciding, that defendant can make it.

(b) From ancient times a pious use has been considered a charitable use. The quoted statute speaks of both, but in a broad sense the one includes the other. The principles of law governing one govern the other. Under the old English act, known as the Statute of Charitable Uses (43 Elizabeth, ch. 4), money and lands granted for the repair of churches created a charitable use. That act is part of our common law, but it has been held that its enumeration of charities is not pre-clusive. There are other objects deemed charitable in a legal sense (Buchanan v. Kennard, 234 Mo. 117), and a grant for the building of a church has always been considered as raising a charitable use — religion being but part and parcel of charity for purposes of jurisprudence. Indeed defendant’s counsel concede, impliedly, that the original grant from Boyd was to a pious use within the meaning of section 1886, supra. The deed from the common source of title, Boyd, passed the title in 1870 to named trustees, elders of the Old School Presbyterian Church in the town of Ashley in consideration of one dollar and the further consideration of grantor’s “love, regard, reverence, attachment and affection for said Old School Presbyterian Church.” The grant ran to said elders and their legal successors in office. In ordinary warranty form, its habendum clause reads:

“To have and to hold the premises aforesaid with all and singular the rights, privileges, immunities and appurtenances thereto belonging or in any wise appertaining unto the said parties of the second part and untó their legal successors to be elected as aforesaid forever, in trust, for the use of the congregation of said Old School Presbyterian Church, and in trust, that the said parties of the second part and their successors to be elected, as aforesaid, shall have the control and direction of the use and occupancy of the building now being erected on said described lot, wben erected, for tbe worship of G-od and tbe transaction of any business tbat bas for its object tbe promotion of tbe Redeemed Kingdom. ’ ’

Now, it is hornbook doctrine tbat grants for a pious or charitable use (as this evidently was) .are favored by tbe law. Tbe legal maxim is: Tbe law ,favoretb charity. [Wing. 144.] Another is: Tbe church is to be more favored than a person. (Ecclesiae magis favendum est quam personae.) So, too, tbe idea of perpetuity is of tbe very essence of such grant. “If tbe court considered tbat it was for tbe public benefit tbat tbe property in question should be devoted forever to fulfilling the purpose named, it held that purpose good. Thus it held good all trusts for promoting tbe established religion, also all trusts for keeping up-schools and hospitals, and many other trusts. These trusts, for purposes which tbe law considers it for tbe public benefit to perpetuate forever are called charitable trusts. This is tbe only general definition which can be given of tbe word charity.” [Tyssen on Charitable Bequests, p. 5.]

In judicially approaching, then, the question of abandonment, tbe right doctrine needs must be tbat tbe law looks with disfavor on tbe abandonment of a pious or charitable use. Therefore, on a priori principles tbe evidence required to establish abandonment should be of a stringent and conclusive character, leaving no reasonable loophole for escape from the conclusion.

Abandonment of a pious use involves two elements, to-wit, (1) the intent to abandon permanently and (2) the physical fact of nonuser for religious purposes. These two elements must conjoin and both be operative at the same time or there can be, in the very nature of things, no abandonment. After a careful study of the record we are of opinion the evidence did not satisfactorily show the presence of either element. The most that can he said for that evidence was that religions services at times languished, at spells was discontinued and was then resumed. The fact of resumption itself suffocates the idea of an intent to abandon. There was some testimony that defendant used the hack yard of the church premises to garden for a season or so, and one season stored potatoes in the-, church. He was janitor while the Universalists were in control, had the key and what he did on his own initiative in making a wareroom of the edifice may tend to show desecration hy him, hut does not show abandonment of the pious use hy owners. Shortly before the Universalists sold to the Methodists, they moved the Bible, organ, pulpit, hell and most of the benches to a church they controlled in a neighboring village. On the heels of that denuding act, they conveyed to the Methodists hy a deed couched in terms not only precluding the idea of abandonment hut reconsecrated the church to religious services. Witness the following clause: “In trust that said premises shall he used, kept and maintained and disposed of as •a place for divine worship,” etc.

The trial-court found against defendant on the question of abandonment; there was testimony sustaining that finding. With a law case in that fix, we are hound hy his finding on the fact. (Donaldson Bond and Stock Company v. Houck, 213 Mo. l. c. 426-7.] With abandonment eliminated, there can he no question hut what section 1886, supra, avoids the applies tion of any Statute of Limitations.

The trial court rightly so ruled.

(c) It is faintly argued (or suggested) that the Boyd deed to the Presbyterians should he construed to mean that the property must always he used hy that particular congregation of the Old School Presbyterian Church and that any use of the premises hy some other congregation would he a violation of the trust imposed hy the deed. But is not that an exceedingly narrow and sour view? No authority is cited to sustain it, and if.there had been we would hesitate long before following it. In what just sense would it be an abandonment of a pious use to have one religious denomination take over by purchase the church edifice of another? Are not all Christian churches, whatever their peculiar tenets of mere creed, at bottom devoted to the same pious use — the cure of souls? Mr. BiNNey's definition of a charitable use which courts are fond of using, used by him in his argument in Vidal v. Philadelphia (43 U. S. 127) is: “And whatever is given for the love of G-od or for the love of a neighbor in the catholic and universal sense, given from those motives and to these ends, free from the stain and taint of every condition that is personal, private or selfish, is a gift for charitable uses.” There are cases in which that definition has been held too restrictive, but we know of none holding that a grant coming within that definition would not raise a charitable use. This court has given a broader definition (Missouri Historical Society v. Academy of Science, 94 Mo. l. c. 466) viz.: “Any gift not inconsistent with existing laws,which is promotive of science or tends to the education, enlightenment, benefit, or amelioration of the condition of mankind, or the diffusion of useful knowledge, or is a public convenience, is a charity.”

In the light of the scope and intendment of such definitions, how could it be justly ruled that the mere transfer of title and the custody of a church of one Christian denomination to another is an abandonment of a pious use? Any Christian church is but a hospital for souls. A curate is but a physician to souls (a cure). So far as this court can see all churches have that end in view as their raison d’etre.

Finally, we recur to the question whether this defendant can make the point at all. Mark, those who made the grant do not complain'; those who received it are standing on it and rest content (vide, St. Louis Public Schools v. Risley, 28 Mo. l. c. 419, arguendo); this is not a proceeding in equity to regulate the misuse of a charity, and by what right does a stranger to the- grant suggest its invalidity? Is that question not res inter alios acta as to him? So, under the proof, as a member of the Universalist Church he enjoyed the charitable benefits of the grant and it comes with ill gTace from him to now impugn it. None of these suggested questions are argued in briefs and consequently they are reserved.

III. Bid the court err in finding that the strip in dispute was not conveyed by, nor ivas it within the calls of, the •deeds in defendaoit’s chain of titlef

We think not. In the first place the conveyances under which defendant .holds are junior conveyances to the original grant to the P'resbyterians. Defendant purchased what remained of the Boyd acre after the seventy feet were conveyed off of the southwest end, and the conveyances in his chain refer to the Presbyterian deed and, in terms, excepted the church tract therefrom. In the next place, the chief (if not the whole) force of defendant’s claim rests on the Statute of limitations and not on a grant by deed. Moreover, on defendant’s theory the side of the church building is on the division line between the seventy feet and the residue of the acre. On plaintiffs ’ theory the little strip in dispute lies between the church building and defendant’s grant. In this condition of things, the surveyor of Pike county, Beauchamp, made a survey. 'The deeds in both chains of title call for corner stones, courses, distances, etc. He testified he found those stones and ran his lines in accordance with the calls of the deeds. He testified his survey was correct and based on plats, conveyances, corner stones of former ■surveys, etc. He found, and so testified, that the disputed strip lies within the description in plaintiffs’ •chain of title and not within that in defendant’s. He was examined in connection with a plat which is not reproduced in this record. His testimony relates to a lettering on that plat indicating the distances,, courses, corner stones, beginnings, endings, etc., mentioned by him. It is now insisted that his cross-examination established the inaccuracy of his survey. The laboring oar was on defendant to impugn the official survey. [Carter v. Spracklin, 246 Mo. 116.] But absent the plat concerning which he testified and the lettering to which he referred, it is impossible to say that defendant’s contention is correct, for much of the testimony is meaningless without the plat and letters. As the impossible excuses persons, so it excuses judges. Some of the precepts of the law (of its very bones and framework) are: No one is bound to do what is impossible. [2 Bou. 116.] Impossibility is an excuse in law. (Impotentia excusat legem — Coke, Litt. 29a.) We have enough to do, to do what we can, not what we can’t.

The point is ruled against defendant.

IV. Of error in interpreting the deed from the Presbyterians to the Universalists.

As developed in appellant’s brief and argument error in this assignment hinges on the proposition that under that deed there was a break in the pious use. The idea seems to be that the grant in the Presbyterian deed was to “The Universalist General Convention, a corporation existing under the laws of the State of New York.”

The deed being silent on the business character of that corporation and there being no reference in it whereby it can be seen on its face that the grant was for a pious use, we are asked to hold, as a matter of law, that it was a grant to a use not pious. The inference being that with such a break in the use, the title itself fails and plaintiffs must be cast in a strictly legal action of ejectment. But we shall not so hold. "When the Universalist General Convention subsequently conveyed title to the Methodists, it, at the first chance it had to speak on the point, described itself as a religions corporation. We take its word for it, absent countervailing proof. • So, the proof is that the Universalists when they acquired title actually used the edifice for church purposes and that defendant had charge of it on behalf of that denomination of Christians. Do not acts interpret words? Not only so, but, absent proof to the contrary, as here, we would not be willing to hold (against the indications in the name of the corporation) that it was not an instrumentality of the Universalist Church and was seized of the property to the use of that denomination. The presumption would be, in the first instance, that the Presbyterians would not intend to break the pious use by their conveyance. Surely defendant does not want us to rule (as a matter of law and without any proof) that the faith of that branch of the Christian Church is not a Christian o,r pious faith, or that their churches are not dedicated to a pious use. Learned counsel, taking us into their confidence, assure us that the Universalist faith “is a beautiful faith.” If necessary, we would be willing to rule that it was a comfortable faith, and, if we were permitted to express a judicial hope, it would be the hope that it may turn out to be a true one in the great Day of Final Accounts; for does not a very good book say we are all miserable sinners?

We pause to ask: May a mere earthly court (the which we admit we are) go out of its way to repudiate the sunny theological dogma, much doubted by some stout polemics, viz., that every man will be finally-saved and dwell forever with the felicitous? No! Emphatically, no! Angels and Ministers of Grace defend us! So the melancholy Dane exclaimed (when startled by a well-known apparition) and so say we. We say it in the form of a pious exclamation, because sometimes an exclamation is as good ás a discourse, and let it go at that. Why should we decide the point when we have no jurisdiction of the subject-matter? Says Coke soberly (Coke, Litt. 232b): “There be three kind of unhappy men. He that hath knowledge, and teacheth not. He that teach eth, and liveth not thereafter. He that knoweth not, and doth not enquire to understand.” But that pronouncement is too broad as a rule regulating judicial discourse. Indeed, getting unanimity of opinion In questions of religious faith in the decision of cases, has not been so easy as to invite a wide play of unnecessary exposition in ghostly matters. Agreeable thereto the inquisitive scholar may find abundant grounds in Boyles v. Roberts, 222 Mo. 613, and State v. Railroad, 239- Mo. 196. [q v.]

Y. Of the deed from the Universalists to the Methodists.

The substance of the objection made to that deed (split into specifications in appellant’s brief) is that its acknowledgment is bad, reading:-

State of Minnesota, County of Hennepin, ss.
On this 25th day of October, 1905, personally came before me, a notary public in and for the county and State aforesaid, the above named Henry W. Rugg and G. L. Dem-arest, personally known to me to be respectively the chairman of the Board of Trustees of the TJniversalist General Convention, and the secretary thereof, and the officers they represent themselves to be, and acknowledge to me that they signed the foregoing instrument in behalf of the TJni-versalist General Convention and as chairman of the Board of Trustees and secretary for the uses and purposes therein mentioned.
In witness whereof I have hereunto set my hand and seal, this day and year written.

The testimonium clause of the deed and the signatures thereto run thus:

In witness whereof the chairman of the Board of Trustees of the said Universalist General Convention and the secretary thereof, have hereunto set their hands, and seal of said corporation, the 25th day of October, 1905.
Henry W. Rugg,
Chairman of Board of Trustee's.
(Corporate Seal.)
G. L. Demarest, Secretary.

To that deed the corporation seal was affixed, as indicated. A mere glance shqws that the certificate of acknowledgment does not conform to the form the statutes say “may be used” in acknowledging corporate deeds. [R. S. 1909, Sec. 2799.] But he'has read that statute to little purpose who concludes that the statutory form is necessary to a good acknowledge ment. The language of the section in that particular is not mandatory hut permissive. It does not say the form must or shall be used, hut that it “may he used.” In the exposition of that statute it has been held that the acknowledgment to a corporate deed, if good before the statute was passed, would be good after it was passed. [Huse v. Ames, 104 Mo. l. c. 102-3.] We look, then, to all related statutes and to the exposition given them by appellate courts. There are cognate sections prescribing how a corporation may hold and can convey real estate, and what the certificate of acknowledgment must show. Comparing the mandatory requirements of section 2799 with sections 2790' and 3001 — all strictly in pari materia — it will be seen that the' certificate of acknowledgment complies substantially with the requirements of those sections.

In St. Louis Public Schools v. Risley, 28 Mo. l. c. 419, it was ruled that when the common seal of a, corporation appears to be affixed to an instrument and the signatures of the proper officers are proved, courts are to presume that the officers did not exceed their authority and that when an act is within the powers of a‘ corporation, and its existence is witnessed" by an instrument clothed with the formalities requisite to hind it, there is no hardship in the rule-which imposes on one objecting to its validity the necessity of showing that it was without the assent necessary to its existence. The logic of that holding precludes the necessity of showing corporate assent, or the order of a hoard of directors, in the first instance.

In Perry v. Price, 1 Mo. l. c. 649, it is ruled that a corporation being an.invisible body, it cannot manifest its intention in its deed by any personal act or oral discourse and speaks only by its common seal. The logic of that ruling stresses the use of the corporate seal. Though private seals are abolished, yet the use of a Corporate seal on a corpoiate deed remains an essential. [R. S. 1909, Sec. 2773.]

In City of Kansas v. Railroad, 77 Mo. l. c. 185, a doctrine of the Risley case, supra, was reaffirmed to the effect that in aid of a certificate of acknowledgment, reference may be had to the instrument itself or any part of it; and thait it was the policy of the law to uphold certificates when substance is found and not to suffer conveyances, o.r the proof of them, to he defeated by technical or unsubstantial objections.

In Eppright v. Nickerson, 78 Mo. l. c. 485, et seq., will be found an acknowledgment of a corporate deed, less substantial than the one in this case, which was held good.

In Railroad v. City of St. Louis, 66 Mo. l. c. 247, may be found an apposite pronouncement, viz.: “As the'one company'had the right to sell, and the other to purchase, it follows that the deed, under the seal of the corporation and signed by the proper officers of the company, is prima facie evidence that the officers'did not exceed their authority, and if the assent of the stockholders to such conveyance was not had, it-devolved upon the defendants to show that fact.’* The logic of that ruling is to simply invoke the car-dihal maxim that things are presumed to be rightly-done. [Parks v. Hartwell, 240 Mo. l. c. 546.]

So, Thompson, J., in Missouri Fire Clay Works v. Ellison, 30 Mo. App. l. c. 72, lays down this proposition: “Authority on the part of the president and secretary to execute a deed for the corporation need not be affirmatively shown by a party claiming under the deed, but, in the absence of evidence to the contrary, such authority is presumed.” [See Musser v. Johnson, 42 Mo. 74, and Shewalter v. Pirner, 55 Mo. 218, arguendo.]

. The signatures of the officers are sufficiently attested by the certificate in question; the assent of the directors will be assumed under the doctrine of the cases cited, and a corporate seal attached to the deed is of substance in determining the sufficiency of the acknowledgment as to corporate intent.

We have not undertaken to state the specifications of,the objections to this acknowledgment seriatim. It is sufficient to say that all of them are disposed of against appellant in the foregoing discussion.

The point is ruled against defendant.

With this ruling, the cause is determined in favor of plaintiffs. Let the judgment be affirmed.

All concur, Graves, P. J., in result.


text:
    THE STATE ex rel. JOHN W. MILLION v. E. D. GRAHAM et al., Appellants.
    Division One,
    November 30, 1912.
    1. LOCAL OPTION LAW: Title: City Election, etc., Germane. Thé title to the Local Option Law is not in conflict with the ’ coristitutional provision declaring that no hill shall contain more than one subject, “which shall he clearly expressed in its title.” The title provides for “submitting the question of prohibiting -the sale of intoxicating liquors to the qualified voters” of thé county and certain cities, and the provisions in the body of the act for a petition for such an election to he signed by one-tenth of the qualified voters, that such petition shall be addressed to the city council of the city, that the city shall order the election, that the city shall conduct the election, that it shall record the result, pay the expenses and may take a census, are all germane to that title, and are all necessary details of a fair election.
    2. -: Election: Within Sixty Days of a State Primary. The Local Option Law does not prohibit an election thereunder within sixty days of a state primary for the nomination of candidates for office. The words of that statute that “no such election, held under the provisions of this act, shall take place on any general election day, or within sixty days of any general election held under the Constitution and laws of this State, so that elections as are held under this act shall be special elections, and shall be separate and distinct from any other election whatever,” are explained by Sec. 6570, R. S. 1889, which declared that “the term ‘general election’ refers to the election required to be held on the Tuesday succeeding the first Monday of November, biennially,” and by many other statutes and the, Constitution itself, in which the words “general election” are used to designate the regular biennial election for the election of the officers of the State and its political sub- - divisions; and the further provision of that statute to the effect that such local option election in a city shall not be held “within sixty days of any municipal or state election held in such city” was simply intended to add the words “municipal election” to the words “general election” used in the provision in reference to counties.
    Appeal from Audrain Circuit Court. — Eon. J. D. Barnett, Judge.
    AFFIRMED.

      Robertson & Robertson for appellants.
    (1) . The local option election shall he held within forty days after the receipt of such petition, hut not within sixty days of any municipal or State election held within such city. R. S. 1909, Sec. 7239. Notice of such election shall he given hy publication in the county and such notice shall he published for four consecutive weeks, the last insertion to be within ten days nest before snob election. R. S. 1909, Sec. 7240: A local option election held within sixty days of a municipal election to fill a vacancy in a city council is held invalid in law. In re Wooldridge, 30 Mo. App. 612; State ex rel. v. Ruark, 34 Mo. App. 328; Dooley v. Jackson, 104 Mo. App. 21; State ex rel. v. Bower-man, 40 Mo. App. 576; State v. Search, 391 Mo. App. 393; 23 Cyc. 100; Louchran v. Hickory, 129 N. C. 281; State v. Hirch, 25 Ind. 257; Strasberg v. Burk, 13 Am. L. R.eg. (N. S.) 607 ; 3 Words & Phrases, p. 2335. (2) Primary elections are provided for by Art. 4, Ch. 43, R. S. 1909 (Laws 1909, p. 481). The date is the first Tuesday of August. R. S. 1909, Sec. 5856. The law in force in May and June, 1908, is found under the head of “Elections,” primary, Laws 1907, p. 263. The date of that election is the first Tuesday of August, 1908. The committee to be elected, one for each of the four wards of the city of Mexico, is provided for in Sec. 28, p. 268, Laws 1907. The statutes in relation to elections control, Sec. 32, Laws 1907, p. 270. The primary election is an election held under state law. Dooley v. Jackson, 104 Mo. App. 21; State ex rel. v. Miles, 210 Mo. 127; State v. Buchfelder, 231 Mo. 55; State ex rel. v. Taylor, 220 Mo. 618; State v. Peyton, 137 S. W. 979; State v. Cox, 137 S. W. 981.

      S. D. Stocks, F. B. Jesse, E. A. Shannon and Barclay, Fauntleroy & Cullen for respondent.
    The State primary is not a general election or State election within the meaning of the Local Option Law. Dooley v. Jackson, 104 Mo. App. 21; Ledger-wood v. Pitts, 122 Tenn. 1036; Hanna v. Young, 84 Md. 179, 34 L. R. A. 55; Montgomery v. Chelf, 118 Ey. 766; State v. Felton, 77 Ohio St. 554, 12 Am. & Eng. Ann. 65; Riter v. Douglass, 109 Pac. (Nev.) 444; Lansdon v. Board, 18 Idaho, 596.
   BROWN, C.

This is an. appeal from the judgment of the Audrain Circuit Court awarding a per-, emptory writ of mandamus against the mayor and members of the city council of the city of Mexico, a city of the third class having more than twenty-five hundred inhabitants, commanding them to call a meeting of the council and order an election under the, Local Option Law (Ch. 22, Art. 3, R. S. 1899), upon a. sufficient petition presented May 11, 1908. The council had denied the petition on the ground that an election ordered in pursuance of the terms of that law must necessarily be held within the sixty days next preceding the August primary to be held on the fourth day of the succeeding August. Whether this is á State election within the meaning of that term as it is used in Sec. 3028, R. S. 1899, is the principal question in the case. It was also insisted in the return of the appellants to the alternative writ that the Local Option Statute conflicts with Sec. 28, Art. 4 of the State Constitution, because it contains various subjects- vitally necessary to sustain any proceeding under its authority, which are not expressed in its title.

I. The constitutional provision, in so far as it relates to the questions raised in this case, is as follows: “No bill . . . shall contain more than one subject, which shall be clearly expressed in its title.” The title of the Local Option Law (Laws 188?, p. 179) is as follows: “An act to provide for the preventing of the evils of intemperance by local option in any county in this State, and in cities of twenty-five hundred inhabitants or more, by submitting the question of prohibiting the sale of intoxicating liquors to the qualified voters of such county or city; to provide penalties for its violation, and for other’ purposes.” In support to their position the appellants, in their brief, make the following points:

“Lying outside of the purview of the title, the net provides for the petition to he signed by one-tenth of the qualified voters of the eonnty or city; second; such petition shall be addressed to the city council of .the-city; third, such city shall order such election; fourth, the city shall conduct such election; fifth, it shall record such election and the result .thereof; sixth, it shall pay the expenses of such election; sevénth, it shall take the census of such city.' In another ‘section it'provides for the giving of notice of such elections; etc. All of these things lie outside of the submission of the question" of prohibiting the sale óf intoxicating liquors to the qualified'voters of any city or county.” -

The provisions are not only germane to the title, but are all of its'very essence. The subject is the submission of the question to the qualified voters of the county or city. This implies'the permission to elect by vote what course they will pursue in the matter, and includes every detail which, in the legislative discretion, is proper to take a fair vote and to ascertain and express the result. There is nothing in this act not designed for this purpose, and clearly expressed in its title.

II. Section one of the act the title to which we have alrealy quoted, and the interpretation of which presents the real question raised in this appeal, provides for the submission to the qualified voters of any county who shall reside outside the corporate' limits of any city or town having a population of twenty-five húndréd inhabitants or more, the question whether or not spirituous and intoxicating liquors, including wine and beer, shall be sold in such county outside such city or town. This section contains the following pro: vis'o : “Provided, that no such election, held undér the provisions of this act, shall take place bn any general éleetion day, or within sixty days' of any general election held under the Constitution and laws of this State, so that elections as are held under this act shall be special elections," and shall be separate and distinct from, any other election whatever.” At the time these words were used there existed in this State, as there has ever since, a statutory rule of construction (R. S. 1889, Sec. 6570) as follows: “The term ‘general election’ refers to the election required to be held on the Tuesday succeeding the first Monday of November, biennially,” which should control “unless such construction be plainly repugnant to the intent of the Legislature, or of the context of the same statute.” This name had been conferred by the Constitution of the State upon .the regular biennial election for officers of the State and its political subdivisions had been accepted and used by the Legislature in many, enactments, and was expressly defined in the statute last quoted, and there is nothing in its use in this act repugnant to the definition so established; and we have no doubt it was used deliberately for the purpose of expressing that meaning. It made it impossible to submit the question of local option during the period of political excitement preceding and succeeding the important event that determines the political complexion of the State and country at large, and it used the words which follow to impress more strongly upon the act that, in addition to the exclusion of this considerable portion of the year from the period during which it might be held, the election is to be a special one, devoted to the submission of that proposition separate arid distinct from all others.

The second section of the act provides for the submission of the same question in cities and towns having twenty-five hundred inhabitants or more. It provides that such election shall not be held “within sixty .days of any municipal or State election held in such city.” This clause was evidently intended to add to the description used in the proviso of the first section, the municipal election, and for no other purpose. The general election is the one in which the officers of the State and its political subdivisions are chosen — the State election; the municipal election is the one in which municipal officers are elected. Although the word has many meanings, in the connection in which it is here used, it implies a vote for the choice of public officers.

The idea of a “primary” or primary election was not in the mind of the Legislature, because at the time of the passage of the act there was no such thing authorized by the laws of the State. In 1885 (R. S. 1889, Ch. 60, Art. 4) the arm of the State was extended for the protection of political parties who might choose this method of selecting persons to be presented as the candidates of such parties for the suffrages of the qualified voters, or for delegates to their nominating conventions. This statute simply provided for the prevention and punishment of fraud, as the public laws frequently provide for the protection of purely private property and private rights and contracts. The primary was only made a feature of the public election system by the Act of March 18, 1907, which is the law now invoked by the appellants for the purpose of avoiding this election.' Its title (Laws 1907, p. 263) is: “An Act to provide for party nominations by direct vote. ’ ’ One is struck by the care with which the word “election” is excluded from this act and its title, as a designation of the plan or method of nomination for which it provides. It gets in, however, by an amendment to section 31, to which it is attached as “section 31a, ’ ’ and its incongruity seems to emphasize the general plan of exclusion which pervades the act. It does not apply to special elections to fill vacancies, nor to county superintendents of schools, to city officers not elected at a general State election, nor to town, village or school district officers. Instead of being an election within the ordinaiy political meaning of that term, it is a part of the machinery provided by the Legislature for holding the general State election, its office being the qualification of the candidates from whom officers are to be selected in that final function.

It follows that the August primary of 1908' was not a State election within the meaning of section 2 of the Local Option Act of 1887, and that the judgment of the circuit court should be affirmed, and it is so ordered.

PER CURIAM.

The foregoing opinion of BrowN, 0., is adopted as the opinion of the court.

All the judges concur.