text:
    THE STATE ex rel. COMPTON v. CHARITON DRAINAGE DISTRICT et al.
    In Banc,
    December 22, 1905.
    1. DRAINAGE DISTRICT: Public Corporations. A drainage district, organized under sec. 8251 et seq., R. S. 1899, is not a private but a public corporation. It is declared to be a public corporation by sec. 8253, R. S. 1899, and by sec. 8253 of tbe act of 1905, and is such aside from tbe statutory characterization.
    2. -: Repealing Act of 1905: Effect on District Being Organized. The drainage district act of 1905 contemplated that proceedings, in the way of organization and issuing and selling of bonds, begun under the old law but not consummated at the time the new went into effect, may be proceeded with and completed under the new law so far as the new is applicable. That act did not undo any steps taken legally and in good faith under the old law, nor require a district already organized, in order to sell its bonds, to organize and begin anew. Its manifest purpose was to provide for cases that might be initiated after it went into effect. And although the act of 1905 repealed the old law and enacted a new law in lieu thereof, yet a district which was organized, had employed surveyors to make a survey and formulate the plan and estimate the cost of doing the work, had approved the commissioners’ report recommending the issuance, of bonds in accordance with the estimates, and had done everything as the old law required except deliver the bonds, when the old law was repealed, had the right co proceed to the completion of the matter.

      Mandamus.
    PEREMPTORY WRIT AWARDED.

      H. S. Priest for relator.
    (1) To wliat extent may sections 8251 et seq., be repealed as to corporations organized under them? The resolution of this question necessarily requires a consideration of the character of such corporations and the purposes for which they are authorized to be formed. Are they private or business corporations, or are they governmental or political corporations? If the former, the Legislature may not at will alter, amend or strike down rights and benefits which have been given by the previous legislation constituting their charters. Even a municipal corporation endowed with a dual character, policical and business, is protected in its latter powers from such legislative emasculation. Lexington v. Thompson, 57 L. E. A. 775; Brown v. Hummell, 9 Pa. St. 86; Regents v. Williams, 9 Grill & J. 365. (2) Section 8263 seems to be an act to preserve to existing drainage companies all of the rights which they possessed under the old law, and in recognition of the doctrine which we have heretofore been contending for, together with such additional privileges as may be conferred by the new. This section is not happily worded, but legislation of this character must be construed with reference to the intent of the Legislature. Some words may be rejected and others substituted by construction in order to accomplish this intent.

      B. H. Kern for respondents.
   MARSHALL, J.

This is an original proceeding by mandamus to compel the respondent district and the supervisors thereof to execute and deliver to the relator $65,000 in bonds of the drainage district. An alternative writ of mandamus was issued. The respondents entered their appearance, admitted the facts stated in the petition for the alternative writ, and averred that in their judgment it would he advantageous to the district to issue and deliver the bonds to the relator if they have a legal right so to do. The petition for the alternative writ alleges that the defendant district was organized, pursuant to the provisions of section 8251 et seq., Revised Statutes 1899, on the 16th of May, 1904, for the purpose of reclaiming and protecting from water by drainage or otherwise, a contiguous body of swamp or overflowed land in Macon county, Missouri; that the other respondents are the duly elected and qualified supervisors of the district; that on the 9th of June, 1904, the board of supervisors, pursuant to the provisions of section 8259 Revised Statutes 1899, employed engineers to make a topographical survey of said district and a full and complete plan for reclaiming and draining the same, and also to estimate the cost of the work necessary to be done in connection therewith ; that the engineers made a full report on the 9th of November, 1904, showing the work necessary to be done, and estimated the cost thereof to be $65,000, which report was unanimously approved and adopted by the board; that on the 10th of April, 1905, the board as provided by section 8263, unanimously resolved to issue, under the terms of said section, $65, 000 in bonds to procure the money necessary to do the work, and called a meeting of the owners of the land, to be held on the 1st of May, 1905, to consent thereto, and that such meeting was then held and the owners of more than two-thirds of the acres of the land in the district voted to consent to ratify and approve the issuance of the bonds; that in pursuance of the provisions of the statute the board of supervisors sold said bonds to the relator at the full face value thereof, but that the board had received legal advice that the act approved April 8, 1905 (Laws 1905, p. 190), in reference to swamp and overflowed lands, repealed the law under which the proceedings aforesaid had been had, and accordingly the board declined and refused to execute and deliver the-bonds to the relator; that the refusal of the supervisors was no legal justification, “for that said act of the Legislature is not retroactive and did not annul the action taken by the said supervisors, and for that section 8263q of said act expressly reserves from the operation of said act all proceedings theretofore taken by any drainage district under the section which said act seeks to repeal.”

I.

The first contention of the relator is that the respondent district is a private and not a public corporation, and therefore the act of 1905 could not have the effect pf repealing the old law under which the respondent corporation was acting.

This contention is untenable. In Morrison v. Morey, 146 Mo. l. c. 560, and in Land & Stock Co. v. Miller, 170 Mo. l. c. 253 and 258, a like contention was held untenable, and drainage corporations were held to be public, governmahental agencies, and in no sense private corporations. The conclusions then reached are emphasized both by section 8253, Revised Statutes 1899, and by section 8253 of the act of 1905, both of which declare that the judgment of the circuit court shall duly declare and decree said drainage district “a public corporation of this State.”

Thus such corporations have been declared to be public corporations, both by this court, and by the express declaration of the acts under which they are authorized to be formed and to exist.

II.

The second contention of the relator is, that by virtue of section 8263q of the act of 1905, the defendant corporation is expressly permitted to issue the bonds in question.

Section 8263q of the act of 1905 provides as follows :

“Where proceedings have been begun under the provisions of the section hereby repealed, they may be proceeded with and completed under the provisions of this act: Provided, that all liens, remedies and processes for the collection of the taxes provided for in this act shall, so far as applicable, be available for the collection of taxes levied and bonds issued under the sections hereby repealed: Provided, further, that in all cases where drainage districts have been incorporated under the said section repealed and the work of drainage has been commenced or completed, in whole or in part, no rights or obligations incurred by district or individuals shall be nullified, invalidated or for naught held."

For the purposes of this case it is not necessary to analyze or point out the various changes that were made by the act of 1905 in respect to corporations organized for the purpose of drainage. The scheme of the law, as it existed prior to the act of 1905, was fully pointed out by this court in the cases cited in the first paragraph of this opinion. The act of 1905 expressly repealed certain of the sections of the old law and enacted new sections, with similar numbers, in lieu thereof, and in addition made other minute provisions in reference to the subject. The act of 1905 is a very elaborate, minute and detailed scheme. The difference between the old and the new act, which presents the crucial question in this case, consists in this: under the old law the expense of the improvement was paid by an assessment of a tax not exceeding fifty cents on each acre of land, situated in the district, to be benefited, for each year (sec.8262), and to enable the supervisors to proceed with the work before the assessments were collected, it was provided by section 8263 that the supervisors, with the consent of the owners of not less than two-thirds of the whole number of acres in the district, might borrow money and issue bonds therefor upon the credit of the district, in a sum not exceeding six dollars per acre upon all the land in the district, such bonds to bear six per cent interest, and to be sold for not less than ninety cents on the dollar, and to be paid for out of the proceeeds of the assessment of the tax provided for by section 8262. Under the act of 1905 the funds necessary to pay for the improvement are authorized to be raised by an assessment upon all the land in the district in the proportion that each tract of land is benefited by the improvement; and such benefits are assessed by commissioners appointed by the circuit court, whose report is subject tobe confirmed by the court and the benefit assessed charged as a lien on the land. Such benefits are payable in twenty annual installments, and the amount of each installment is determined by the board of supervisors each year. But section 8263 of the act of 1905 vests power in the supervisors to issue bonds in an amount not exceeding the tax levy, to mature at annual intervals, commencing after a period of five years, and payable out of the proceeds of the benefits assessed against the land — such bonds to be sold for not less than ninety-five cents on the dollar with accrued interest! In other words, the difference between the old and the new law is, that the old law assessed an arbitrary tax of fifty cents an acre a year, while the new law assesses the tax on each tract of land in the proportion that it is or will be benefited by the improvement. The old law authorized the issuance of bonds in a sum sufficient to pay for the whole improvement, but not to exceed six dollars per acre, whereas the new law authorizes the issuance of bonds in an amount not to exceed the amount of the tax levied by the judgment of the circuit court.

Read in its entirety, and construed according to its spirit, section 8263q of the act of 1905 contemplates that when proceedings have been begun under .the old law, they may be proceeded with and completed under the new so far as 'the new is applicable. It was not the intention of the framers of the law to undo any steps that liad been in good faith, and legally, taken prior to the enactment of that act, in accordance with the provisions of law theretofore in force, and to require the district to organize and begin anew. The manifest purpose of that act was to provide for cases that might be initiated after the act went into effect, and the intention of section 8263q was to remove any questions that might be raised in cases like the case at bar, where the proceedings had been initiated but had not ripened into fruition at the date the act of 1905 went into effect. The act of 1905 was approved on April 8, 1905. Prior to that time the defendant corporation was organized, on the 16th of May, 1904, and on the 9th of June, 1904, it employed engineers to make a topographical survey and formulate the plan and estimate the cost of doing the work, and on November 9, 1904, the commissioners made their report, which was unanimously adopted by the board. All that remained then to be done was to determine whether the work would be done in piecemeal, as rapidly as the funds could be collected out of the assessments, or to issue bonds so that the whole work might be done at once and the bondholders be paid out of the proceeds of the taxes. The board resolved to issue the bonds on the 10th of April, 1905, and a meeting of the landholders was called for May 1, 1905, to consent to or to reject the proposition to issue bonds. So that it appears that all of the statutory steps had been taken by the defendant corporation prior to the taking-effect of the act of 1905, except with reference to- issuing bonds in place of doing as much work each year as the assessments collected for that year enabled the board to do.

The proceeding’s spoken of in section 8263q had, therefore, been begun under the old law before the act of 1905 took effect, and those proceedings had ripened into a formation of the district, the survey, the formulation of the plan, the estimate of the cost, the levy of a tax of fifty cents an acre a year to pay for the work when completed. Having reached that stage there can be no .question that the defendant corporation has a right to continue its organization, proceed with its work and pay for it out of the tax levied before the act of 1905 took effect. The only matter then which had not been fully completed when the act of 1905 took effect was to provide for the issuance of bonds, payable out of the tax, so as to enable the defendant corporation to have the work done at once by applying the proceeds of the sale of the bonds thereto. Under section 8263 of the old law bonds could not have been issued without the consent of the owners of not less than two-thirds of the whole number of acres in the district, and could not exceed six dollars per acre. Under section 8263h of the act of 1905 the board of supervisors is vested with full power to issue bonds, without the consent of the owners of the property, if in their judgment it seemed best, the bonds not to exceed the benefits assessed against the land by the judgment of the court.

It thus appears that so far as the interests of the property-owners are concerned the old law gave the owners a voice in the issuance of the bonds, while the new law gives them no such voice. Both the old and the new law provide that the bonds shall be paid out of the benefits or tax collected. So far as the property-owners are concerned, therefore, there can-be no possible injury accruing to them by construing section 8263q as authority for the issuance of the bonds in question. If the bonds in question were not issued, that section unquestionable would permit the board of supervisors to immediately issue bonds under section 8263h of the act of 1905, so far as that section was applicable. But in the actual performance of issuing the bonds some technical difficulties might be encountered, which might impair the negotiability of the bonds, and might make it impossible for the supervisors to obtain full face value of the bonds, as they have done in this case.

Section 8263q might have been couched in language less susceptible of doubt and less likely to produce confusion, but construed from any point of view, the purpose, meaning and spirit of that act undoubtedly was to permit public corporations, like the defendant corporation, that had progressed to the point that this corporation had gone in the proceedings to drain the district and to provide the funds for the payment thereof, to proceed to the completion of the matter and to accomplish the end intended, as the law in force at the time such proceedings were begun contemplated should be done.

The foregoing considerations necessarily lead to the conclusion that the defendant corporation has a legal right to execute and deliver the bonds in question to the relator, and no sufficient reason for not so doing appearing, the alternative writ of mandamus heretofore issued is hereby made peremptory.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    ISAAC BONSAL, Appellant, v. KATE B. RANDALL et al.
    Division Two,
    December 22, 1905.
    1. CONFIDENTIAL RELATION: Patient and Nurse: Undue Influence: Presumption. A daughter who resides with her aged father and renders him affectionate and devoted service when he is stricken with paralysis, does not bear to him the relation .of nurse in the sense that the doctrine of patient and nurse is employed by the courts, and hence her acts of kindness raise no presumption against the validity of a deed made by him to her while he was in that condition, and there is no burden upon her to overcome any such presumption.
    2. -: Parent and Child: Deed: Presumption. A deed made by an aged father, after he was paralyzed, to a daughter who lived with him and kept house for him, in accordance with an oft-expressed intention, in which he reserved a life interest to himself, and gave her the remainder, although it embraced his homestead and cut out his other children (a son and married daughter), is not such a transaction as raises a presumption ot undue influence or overpersuasion on the part of the daughter, nor is there anything in her relation to him that raises any such presumption.
    Appeal from Jasper Circuit Court . — Hon-. Hu-gli Dabbsr Judge.
    Affirmed.

      Frank L. Forlow for appellant.
    (1) Any influence, however exercised, which destroys free agency and substitutes the will of another for that of the person in whose name the act brought in judgment is done, is undue and wrongful. Dingman v. Routine, 141 Mo. 466. (2) The clause reserving the life estate in the deed does not make the conveyance a will. Likens v. Likens, 122 Mo. 279; Sneathen v. Sneathen, 104 Mo. 201; Allen v. DeGroodt, 105 Mo. 442. (3) Kate Randall and her father stood in such relation to each other that confidence was necessarily reposed by her father in her and that influence which naturally grows out of that confidence was possessed by Kate, and that is all that is necessary to establish that fiduciary and confidential relation which invites the watchful and jealous care of a court of equity and renders the transaction between them presumably invalid. 2 Pom. Eq. Jur. (2 Ed.), sec. 956; Dunn v. Dunn. 42 N. J. Eq. 431; Garvin, Admr. v. Williams, 44 Mo. 465; Cadwallader v. West, 48 Mo. 483; Tosti v. Laughfran, 49 Mo. 594; Maddox v. Maddox, 114 Mo. 35; Harvey v. Sullens, 46 Mo. 147; Garvin v. Williams, 44 Mo. 465; Street v. Gross, 62 Mo. 226; Rankin v. Patton, 65 Mo. 378; Bradshaw v. Tates, 67 Mo. 221; Bridewell v. Swank, 84 Mo. 467; Gay v. Gillilan, 92 Mo. 250’; Hegley v. Head, .126 Mo. 619; Lins v. Lenhardt, 127 Mo'. 271. (4) After proof of facts from which a relation of confidence could be legitimately inferred between Kate and her father, the grantor and grantee in the deed, and the execution of the deed during the existence of such relation for a nominal consideration (in this case nothing), the burden of proof shifts to the defendant and it then devolved upon her to show that the transaction was fair beyond the reach of suspicion; that absolute fairness, adequacy and equity characterized the transaction. 2 Pom. Eq. Jur., sec. 956; Yosti v. Laughfran, 49 Mo. 594; Street v. Gross, 62 Mo. 226; Rankin v. Patton, 65 Mo. 378; Gay v. Gillilan, 92 Mo. 250; Carl v. Gabel, 120 Mo. 283.

      Thomas Dolan for respondent.
    There is no evidence that respondent procured or suggested the mailing of the deed. It seems to have been contemplated by the father for a long time. It was not only a sane, but a laudable act to provide for his only daughter by giving her the home, as his son was in business and able to take care of himself. It is true that respondent kept house for her father and nursed him, too; that Bonsai said she would have to take care of him as no one else could, and gave this as a reason for making the deed in her favor. But, as is said in similar case (Hamilton v. Armstrong, 120 Mo. 617): ‘ ‘ The mere fact that these nieces of John Hamilton attempt to make him comfortable during the last week of his life will not raise a presumption of the invalidity of these deeds. ’ ’ Maddox v. Maddox, 114 Mo. 35; Pom. Eq. Jur. (2 Ed.), 962; Doherty v. Noble, 138 Mo. 22; McKinney v. Hensley, 74 Mo. 332; Fitzpatrick v. Webb, 168 Mo. 574; Tibbe v. Karnp, 154 Mo. 545; Carter v. Dilley, 167 Mo. 564; Riley v. Sherwood, 144 Mo. 354; Aylward v. Briggs, 145 Mo. 604; McKissock v. Groom, 148 Mo. 459.
   GANTT, J.

This is an appeal from the decree of the circuit court of Jasper county, dismissing a bill in equity brought by the plaintiff against the defendant, Kate B. Randall, to set aside a deed made by Vincent P. Bonsai to Kate Randall to tbe north half of lot number eleven, and thirty-seven and a half feet off of the south side of lot number ten, in Patton’s addition to the town of Murphyburg, now known as the city of Joplin, which said deed was executed on the 29th of April, 1899.

It is alleged in the petition that the plaintiff is a son of said Vincent P. Bonsai, deceased, and that the defendants Kate B. Randall and J. R. Randall are husband and wife, and that the said Kate Randall is a daughter of the said Vincent P. Bonsai, deceased, and that the defendant G-uy D. Randall is a son of Mae Randall, deceased, who was a daughter of the said Vincent P. Bonsai; that Mae Randall departed this life prior to the death of her father; that Vincent P. Bonsai died July 3, 1900, and at the time of his death was and for many years had been a resident of Jasper county; that the defendant Kate Randall was married to J. R. Randall, who is the father of the defendant G-uy Randall, since the death of her father; that the defendant G-uy Randall is a minor thirteen years of age. Plaintiff states that he, the said plaintiff, and the defendants, Kate Randall and Guy Randall, are the only heirs at law of the said Vincent P. Bonsai, deceased; that on the 29th day of April, 1899, the said Vincent P. Bonsai was the owner in fee simple of the above real estate and on that day made a deed of all of said property to the defendant Kate Randall, by her then maiden name, Kate Bonsai, and the said deed was duly recorded in the deed records of Jasper county on the 3rd day'of May, 1899, in book 146, page 243; that at the time of the making of the said deed, the said Kate Randall was living with her father upon the said real estate and so continued to live until the day of his death, July 3, 1900; that at the time of the making of the said deed, the said Vincent P. Bonsai was more than seventy-five years old and afflicted with disease and ailments, partially paralyzed, and by reason of his great age and infirmities completely helpless and wholly dependent on others for the common comforts of life, and was so demented and enfeebled in body and mind as to render him incapable of free, independent and rational volition; that from long residing with and from the habit of being managed and controlled by the said Kate Randall, the said Vincent Bonsai had become subject to her will and was incapable of resisting her instructions; that the relation of patient and nurse existed between them; that the said deed was without any consideration, and the consideration named therein was grossly inadequate. Wherefore, plaintiff prayed that the said conveyance be set aside and held for naught, and that the title to his portion of said real estate should be vested in plaintiff.

The defendant Mrs. Randall, in her answer, denied each and every allegation therein contained, except that she was a sister of the plaintiff, the death of her father at the time set forth in the plaintiff’s petition, and the conveyance of the property from her father to her. She alleged that said conveyance was for a valuable consideration; that said consideration was services rendered by her by keeping house for him and taking care of him as long as he lived.

The minor defendant, Guy Randall, answered by his guardian ad litem, W. J. Owen, and asserted his title to the undivided one-third in the said lot. The cause was tried at the June term, 1902, on the 25th of August, and resulted in a decree for the defendant, dismissing plaintiff’s bill.

The testimony discloses that Vincent P. Bonsai, deceased, was the father of four children, the plaintiff, Isaac Bonsai, and another son Vincent and two daughters, Kate and Mae. Vincent and Mae both died before their father. ' Mae had intermarried with J R. Randall and left one child, the defendant Guy B. Randall. Vincent P. Bonsai’s wife died sometime prior to the year 1899. The plaintiff Isaac had left home and gone in business for himself and was the proprietor of and conducting a foundry at Oronogo in Jasper county. The defendant Kate Randall, at that time Miss Kate Bonsai, taught school and kept house for her father. About the 15th day of April, 1899, Vincent P. Bonsai was stricken with paralysis, and died in the month of July, 1900. He was about seventy years of age at the time of his death, and according to all of the witnesses who knew him, he was a man of strong mind and character. He was on good terms with all of his children and grandchildren. As already said, he was the owner of the lot over which this litigation has arisen. At the time he was taken sick, he also had from three hundred and fifty to four hundred dollars in bank to his credit. It appears that for sometime before he was stricken he had expressed his intention of deeding thé homestead to his daughter Kate, saying that his son was well established in business, and his daughter would have to care for him and had done more for the family than any other of the children, and he thought she ought to have the lot, because a woman had a hard time to make a living in this world; that while she was now teaching school, he did not know how soon her health might fail. With the exception of two witnesses for the plaintiff, one who acted as a nurse for something like a month for the old gentleman after he was stricken with paralysis, and another who had very little acquaintance with him, all the testimony tended to show that Vincent P. Bonsai’s mind was just as good and strong three or four days after he had his partial stroke of paralysis on the 15th of April, 1899, as it ever had been. Both of the physicians who attended him at the time, and business men and friends who had known him for years and had been his intimate personal friends, all agree that his mind was apparently as good after the stroke as it was before. The witness Shy, who acted as nurse but had had no acquaintance with him before he was taken sick, testified that in his opinion Mr. Bonsai did not understand what he was doing when he made the deed. The only facts, however, upon which he based this conclusion were that he heard him say that he would starve to death, and on another occasion showed a great loss of memory; that Mr. Price had been in to see him, and a few minutes after Price had left, Mr. Bonsai said he did not see why Price did not come to see him, and when told that Price had just left only a few minutes before, he denied it. In striking contradiction of Shy’s evidence, however, the physician testified that he tested Mr. Bonsai’s memory especially, and that he recalled facts and circumstances of conversations of several days before with great clearness, and that he discovered no lack of memory whatever in him. But without reproducing the evidence in detail, it is sufficient to say that the testimony overwhelmingly established that Mr. Bonsai was capable of making and understanding the nature of the conveyance which he made to his daughter of this lot. When the notary public brought the deed to him to be executed, he refused positively to sign it until the clause reserving to him a life estate in the property, was inserted in the deed.

Plaintiff seeks to recover in this case on the ground that the deed was obtained by undue influence. There is not a word of testimony in the case that tends to support the charge that Mrs. Randall obtained the deed by any actual undue influence or overpersuasion, but the plaintiff relied upon a presumption of undue influence on account of the relationship of Mrs. Randall to her father of patient and nurse, and insists that the burden is upon Mrs. Randall to rebut this presumption and to show that the transaction was fair beyond the reach of suspicion. It is clear to ns that Mrs. Randall did not bear the relation of nurse to her father in the sense in which the doctrine invoked by the plaintiff has been applied by courts of equity. It is true that Mrs. Randall kept house for her father, nursed him, and ministered to his wants when he was sick, but she did this, not in the capacity of a hired nurse, but as an affectionate and dutiful daughter, and in such case her acts of kindness raise no presumption against the validity of the deed.

This court, in Hamilton v. Armstrong, 120 Mo. l. c. 615, said: “The assumption that Mrs. Bates and Mrs. McLain bofe a confidential relation to their uncle, John Hamilton, from which undue influence might be presumed, merely because they were his nieces, and the natural esteem and affection which should characterize that relation existed between him and them, unaffected by any other relationship, cannot be maintained either by reason or on authority.” And in that case, this court quoted with approval the language of Judge Maceaklane in Maddox v. Maddox, 114 Mo. 35: “We hope it will never be that the visits of a son to an aged and infirm father will be looked upon with suspicion and attributed to a selfish motive.” In Doherty v. Noble, 138 Mo. 32, it was said: “There is no presumption against a voluntary conveyance from parent to child. The burden properly rested upon the plaintiff to prove the exercise of some undue influence by defendant over plaintiff by which the deed was secured. ’ ’

We might add numerous other cases in this State to the same effect, but we deem it entirely unnecessary to cite further precedents as to the law of this State on this proposition. There was nothing in the relation of father and daughter in the circumstances of this case upon which to base any presumption of undue influence or overpersuasion of the father by the daughter. In making the deed to her, he simply carried out an intention which he had often expressed before he was afflicted. He knew that he would be unable in all probability to take care of himself the remainder of his life, and he saw fit, and it was his right, to provide for himself by deeding the lot to his daughter who had already given every evidence of her affection for him. The property was Ms and he had a perfect right to dispose of it to suit himself. The circrnt judge who saw the witnesses and heard them testify, and lived in the same city with them, found that there was no undue influence in procuring the deed, and we fully concur in the conclusion which he reached. Accordingly the-judgment of the circuit court is affirmed.

Burgess, P. J., and Fox, J., concur.


author: BURGESS, P. J.

text:
    WILLIAMS et al., Appellants, v. HUSKY.
    Division Two,
    December 22, 1905.
    1. EQUITY: Refusal to Find Facts. The refusal of the chancellor to make a finding of facts, when requested, is not reversible error on appeal. A finding of fact in an equity ease is not binding on the appellate court.
    2. REFORMING DEED: Delivery: Omission: Record: Subsequent Correction. A deed executed and recorded but defective because omitting the township and range in which the land lay, and afterwards corrected on its face, but not subsequently recorded or delivered to the grantee, is not a valid deed, because never delivered. And the bringing of a suit by the grantee to have it reformed would be unnecessary if it had been delivered after being corrected.
    3. -: -: Declaration of Law. And in such case it is immaterial whether or not the court refused a requested declaration of law to the effect that the recording of the original deed by the grantor constituted delivery thereof.
    4. DEED: Delivery Essential. The delivery of a deed is essential to the transfer of the title to the land therein described.
    5. REFORMING DEED: Consideration Must be Shown. The grantee, in order to prevail in a suit asking that a deed be reformed so as to correctly describe the land, must show by the preponderance of the evidence that he complied with its expressed terms and conditions, to-wit, paid or performed the consideration of “one dollar and maintenance of the grantors during life.”
    6. -: Res Adjudicata: Privies. A judgment against the defendants, brought by the grantee of a deed against the grantor and a subsequent vendee, to have the deed reformed so as to correctly describe the land, is res a&ju&ieata, as to the defendants and their privies, whether the privies are parties or not. So that such judgment is a bar to a subsequent suit by the same plaintiff against the grantee of the defendant vendee in that suit, to have the same deed reformed, although the defendant in the last suit was not a party to that suit.
    Appeal from Phelps Circuit Court . — Hon. L. B.' Wood-side, Judge.

    Affirmed.

      Wm. P. Elmer aud Titos. M. & Gyrus II. Jones for appellants.
    (1) The court erred in refusing to make a finding of facts when requested by plaintiffs. Sec. 695, R. S. 1899; Hamill v. Talbott, 72 Mo. App. 22. (2) The court erred in not finding the facts as requested and in refusing declarations of law 2 and 3. (a) The answers of Williams and Anderson in 1895' and of defendant in this trial admitted the execution and delivery of the deed, (b) Recording deed by Williams and entering into performance of contract by plaintiffs make a delivery and acceptance. Coulson v. Coulson, 180 Mo. 715; McReynolds v. Grubb, 150 Mo. 362; Kingman v. Buggy Co., 150 Mo. 310; Peters v. Berkemeier, 184 Mo. 402. (c) The admission of delivery of the plaintiffs’ deed in defendant’s answer estops him to deny same by testimony. Call v. Mall, 89 Mo. App. 390. (d) The acts and declarations of Williams after the justice corrected the deed constituted a delivery of same after correction. Citations supra (b); Rumsey v. Otis, 133 Mo. 95. (3) Courts of equity will grant relief to parties claiming under defective conveyances against the vendor or subsequent purchasers with notice or knowledge. Pike v. Martindale, 91 Mo. 280; Atkinson v. Dixon, 70 Mo. 393. (a) Defendant’s answer admits such knowledge in setting up estoppel in pais, (b) Anderson’s answer admitted same, (c) Notice proven by witnesses and not denied by defendants. (4) Failure to perforin consideration in a deed will not defeat tbe same as a conveyance. Gains v. Anderson, 156 Mo. 670; Studdard v. Wells, 120 Mo. 29. (a) Tbe right to demand a performance of the consideration before correcting the deed was a personal defense of Morgan Williams. 6 Am. and Eng. Ency. Law (2 Ed.), 506. (b) It did not run with the land as a covenant. 8 Am. and Eng. Ency. Law (2 Ed.), 134. (c) Williams had no vendor’s lien enforcible upon a consideration to “ support and maintain” him during life. 29 Am. and'Eng. Ency. Law (2 Ed.), 743-4-5.; Winn v. Invest. Co., 125 Mo. 529. (d) Therefore, defendant had no right of subrogation as vendee. 27 Am. and Eng. Ency'. Law (2-Ed. ), 222. (e) Nor if he was warned not to purchase or was guilty of fraud. 27 Am. and Eng. Ency. Law (2 Ed.), 241. (f) Even if Williams could demand a performance of the consideration as a condition precedent to a reformation of the deed, the performance in part and offer to perform in whole and refusal to accept would be all required of plaintiffs. 26 Am. and Eng. Ency. Law (2 Ed.), 41. (g) The burden of proving a failure of consideration was upon defendants. 6 Am. and Eng. Ency. Law (2 Ed.), 765. (5) Defendant was not a party of record to the former suit; hence the judgment is not res adjudicada. ITe was under no obligation to protect Anderson. He took no part in the litigation that would bind him. He said he was not a party. State ex rel. v. St. Louis, 145 Mo. 567; Landis v. Hamilton, 77 Mo. 565; Koontz v. Kaufman, 31 Mo. App. 397; 24 Am. and Eng. Ency. Law (2 Ed.), 735. (6) Defendant was not a privy to Anderson, his interest being acquired before the institution of the suit. Freeman on Judgments, sec. 162; Henry v. Woods, 77 Mo. 281.

      J. B. Harrison for respondent.
    The deed made by Williams to appellants was void for uncertainty, and being a voluntary act of Williams, when his attention was called to the same he corrected the same, but never delivered the deed as corrected, and the evidence shows that he never intended to make a delivery of the deed, as the appellants had already refused to accept the terms of said deed, and Williams repudiated the contract, and a complete estoppel was adjudged on the rendition of the judgment between appellants and Williams, and the adjudication is a complete estoppel to appellants. Bieman v. Crecelius, 135 Mo. 386; Carmody v. Hanick, 85 Mo. App. 659; Henry v. Woods, 77 Mo. 280'; Foote v. Clark, 102 Mo. 394; Crispen v. Hannavan, 50 Mo. 415. “Privies are those who have mutual or successive relationship to the same right of property or subject-matter as voluntary grantees.” Authorities supra. “When a description in a deed is hopelessly uncertain, the conveyance is void, and no title passes under it.” Campbell v. Johnson, 44 Mo. 247; Vasques v. Richardson, 19 Mo. 96; Bell v. Dawson, 32 Mo. 79; Ford v. Unity Church, 120 Mo. 498; Boardman v. Reed, 6 Pet. (U. S.) 345; 4 Am. and Eng. Ency. Law (2 Ed.), 802. The deed after the correction by the scrivener was never delivered to grantees, (a) The evidence affirmatively shows it was never delivered, (b) The deed was retained by grantor, and no intention to deliver or acceptance by grantees is shown. Tyler v. Hall, 106 Mo. 313; Pitts v. Sheriff, 108 Mo. 110. (c) Evidence shows grantor remained in possession of premises and grantees paid him rents for said land, which rebuts any claim of delivery of deed or acceptance of same by grantees. 18 Am. and Eng. Ency. Law (2 Ed.), 411; Parker v. Raymond, 14 Mo. 535; Walker v. Harper, 14 Mo. 535; Piene v. Rollins, 60 Mo. App. 497.
   BURGESS, P. J.

The petition in this case is in two counts: one in equity, to correct a mistake in the description of a deed to certain lands attempted thereby to be conveyed by Morgan Williams and Elizabeth Williams, his wife, to plaintiff; the other is in ejectment against the defendant for the possession of the land which was intended to he conveyed.

The answer of defendant admits that Morgan Williams and wife attempted to execute a deed to plaintiffs as alleged in their petition, and then pleads a general denial. For a further defense the answer avers that the said conveyance by Morgan Williams and wife was a voluntary act and made for the purpose of defrauding the creditors of said Williams; that the terms, conditions and consideration were never accepted by the plaintiffs and that they never entered upon the performance of any part of the terms of said consideration; that the plaintiffs abandoned all rights and interests, of whatever nature, they had in and to said premises; that by reason of their said abandonment and by their acts, conduct and statements, the defendant was induced to purchase said lands from one John Anderson who had purchased the same from Morgan Williams, which sale was evidenced by a warranty deed dated April 19, 1894. It is also alleged that the deed from Anderson to Husky was dated November 13, 1894; that plaintiffs never had possession of said lands; that the creditors of Morgan Williams, after the execution of said deed by him, seized and sold, under an execution against him, all of said lands intended to be conveyed, except what was claimed by Williams as exempt from sale under execution, being the west half of the northeast quarter and the northeast quarter of the northwest quarter of section 25, township 36, north, range 8; that plaintiffs wholly abandoned and rescinded their contract as expressed in said deed, because said deed had failed to defeat the creditors of said Morgan Williams and because eighty acres of said land was sold under execution to pay the debts of Williams; that said deed was affirmed, and held to be good by the circuit court of Phelps county, Missouri; that the plaintiffs, nor either of them, since the said deed was executed, complied with the terms, stipulations or consideration expressed therein, nor did they take possession or hold said premises under said deed; that thereafter the plaintiffs represented and stated to one John Anderson that they had abandoned all right and interest and claims of every nature that they had acquired in and to said lands by virtue of the deed of conveyance thereto made by said Morgan Williams and wife; that they claimed no title whatever by reason of said conveyance and that they did not intend to take possession of said premises under said deed; that by reason of said representations and statements John Anderson was induced to believe that he was free to purchase said land from Morgan Williams and wife; that said Anderson, relying upon said statements and representations, did purchase said real estate and that said Morgan Williams and wife did make and execute to him a general warranty deed, and said Anderson did pay the sum of $--in consideration of said deed.' The answer furtlu er avers that the defendant purchased, in good faith, all the right, title and interest of the said John Anderson in and to said lands for the sum of $--, which he fully paid. It further avers that by reason of the inducements, representations and acts of plaintiffs aforesaid, of all of which he was informed, he was induced to believe and did believe that at the time he purchased said lands from said Anderson, the plaintiffs had wholly abandoned any claim, title or interest they might have had in and to said real estate by virtue of the deed mentioned in plaintiffs’ petition; that plaintiffs, by reason of their laches, representations and conduct, are estopped and barred from bringing this suit, and also because the same issues and the same nature of proceedings were commenced by plaintiffs in the circuit court of Phelps county, at the September term thereof, 1895, wherein all of these plaintiffs were parties plaintiff and Morgan Williams and John Anderson were defendants, and that this defendant was at that time and long prior thereto privy to said conveyance; that said canse of action was tried before O. C. Bland, then judge of the circuit court of Phelps county, upon the same pleadings and issues as in the present cause of action, being a bill in equity to set aside the same deed as is now set forth in plaintiffs’ petition, and the answer thereto being the same character of defense as herein set forth as to the laches and ten-year Statutes of Limitations, such answer being made by said Morgan Williams and John Anderson, and that said defendant herein was then and there in court and assisted in employing J. B. Harrison as attorney in making said defense and acted in conjunction with defendants Williams and Anderson in all of said proceedings, and that the said C. C. Bland, judge as aforesaid, sitting as chancellor in said cause, after hearing all the evidence adduced on the trial of said cause, decreed and adjudged that said cause be dismissed and that plaintiffs have and recover nothing-by their bill in equity, and that defendants have and recover of and from plaintiffs their costs in that behalf expended, and that said judgment remained in full force and effect. The answer then pleads the Statute of Limitations.

Plaintiffs made reply to said answer, denying each and every allegation therein contained.

The cause was tried by the court, who found for the defendant, dismissed the petition, and rendered judgment for the defendant and against the plaintiffs for costs. Plaintiffs appeal.

It appears from the evidence that Morgan Williams owned the land in question, and that on the 25th day of January, 1890, he and Elizabeth, his wife, intended and attempted to convey to plaintiffs, by deed of general warranty, the northeast quarter and the northeast quarter of the northwest quarter of section 25, township 36, north, range 8, in said county, and to that end executed and placed of record a warranty deed for said lands, but by mistake of the scrivener the number of the township in which the land lay was omitted from the deed. The consideration expressed in the deed was one dollar, love and affection, and maintenance of the grantcr and his wife during their lives. Thereafter Morgan Williams took the deed from the recorder’s office and went before the officer who had taken the acknowledgment and had inserted in the deed the number of the township, but the deed was never thereafter delivered to the plaintiffs. Said Elizabeth Williams died February 13,1890, and Morgan Williams thereafter married the mother of John Anderson and subsequently conveyed to said Anderson 120 acres of said land, who recently thereafter conveyed the same to the defendant. The remaining eighty acres was sold at sheriff’s sale, August 6, 1891, under a judgment against Morgan Williams, and purchased by John G-. Hutchison, and the defendant, by successive conveyances, acquired all of the right and title that said Plutchison had in and to said land. Husky and Anderson both knew of the deed to plaintiffs and of the error therein. In 1895, plaintiffs filed suit in the Phelps Circuit Court against Morgan Williams and John Anderson for a correction of the deed from Morgan Williams and wife to plaintiffs, Anderson being made a party to the suit because of his having, in the meantime, purchased the land from Morgan Williams. Upon a hearing of the case, the court rendered judgment for the defendants and plaintiffs’ bill was dismissed.

Plaintiffs read in evidence a record of the deed from Morgan Williams and wife to them, as described in the pleadings, the consideration for said deed, as recited therein, being one dollar, love and affection, and maintenance during life. This deed was acknowledged before John M. Fleishman who testified as a witness that he lived in Phelps county, knew Morgan Williams and wife, and that he was a justice of the peace in 1890 and took the acknowledgment of the above deed, which was executed by Morgan Williams and wife; that there was a mistake in the deed; that the township and range were omitted; that Morgan Williams said the dollar he had, and the rest he was not afraid of getting; that Williams made the latter statement at the time the deed was made. Witness said, in answer to a question whether Morgan Williams ever brought the deed back and showed it to him: ' ‘ He came to my house and said there was a mistake and he wanted me to come down and correct it, and I went down to his house and corrected it. It was several days, may be a week, after the deed was drawn when he came back and said there was a mistake and he had me to come back and correct the deed. ’ ’ Witness testified that he did correct the deed by inserting the number of the township and range, and also that Morgan Williams and wife and David Williams and his wife lived on the opposite end of the farm, while John Yoss, Morgan William’s son-in-law, lived at the other end; that David Williams lived,on the farm till his mother died and his father married again; that John Yoss and David Williams tilled the farm after the deed was made, and that after Mrs. Williams died they moved into the house with Morgan Williams.

S. A. Brookshire, a witness for plaintiffs, testified in substance that he heard about the making of the deed in question; that William Husky and witness were talking about trading for the place; that witness told him he could do as he pleased, but that whenever Husky made the trade he would, in the opinion of witness, be also buying a lawsuit, as he understood the heirs had a deed to the land; that Husky remarked to him that he wanted the place, and he was going to have it even if he had to pay the heirs over and above for the land. Witness did not remember the date when this conversation took place, but said it was awhile before Husky traded for the land and after Anderson got it. He also heard Alfred Smith tell Husky that they offered the place to him, and that he was afraid to buy it; that Husky replied lie was going to risk it. Witness also stated that Voss and David Williams lived on the farm some four or five years after the deed was made and were living there when Mrs. Williams died; that Robert Williams and Nathan Riley sent their girls to take care of the old lady as long as she lived. Witness further said that Morgan Williams told him that he had no reason to complain; that he was getting as good as he deserved and probably a little better. Witness said John Voss lived on the place before the deed was made, and he supposed Voss paid rent.

James Patterson, another witness for plaintiffs, testified as follows: “I knew Morgan Williams intimately since 1888. I had a conversation with him; it was just before he married the second time. He said the children had performed their contract, and the reason he wanted to marry again was not because they did not treat him right, but that he was lonesome. He had plenty to eat and wear and was comfortably fixed in his house. He visited more than he did before his wife died. ’ ’ Witness, being asked if Morgan Williams said anything to him about making the boys quit the performance of their contract, answered: “Tes, sir; after it was over with, he said it was not the boys ’ fault at all; that he had married and had come home, and made John Voss get out of the house and paid him something for the possession of the house and part of the ground. He (Voss) went into a house on the opposite side of the farm from where he lived. He (Williams) said he wanted a home for himself in his old age and he wanted the boys to have that home and for that purpose he had made the deed. ’ ’

Thomas Huffman, witness for plaintiffs, stated that he knew William Husky and that he lived on the same farm owned by Morgan Williams; that he had had a conversation with Husky prior to the time he bought the farm, in which conversation he told Husky that the farm had been offered to him, but that he would not buy it because he did not think the title good; that Husky said it was cheap and he was not afraid of the title, and that he would just as soon go into a lawsuit on the wrong side as on the right, for if he had plenty of money he would come out winner. Witness said that Anderson had been trying to sell him the farm, and that he told Husky he would not buy it.

Charley Smith testified that he knew Morgan Williams and John Anderson; that Anderson bought the place from Williams and rented it the first year he was there; that he heard Anderson say several times that the heirs had title to the place. Witness said Anderson made this statement before he had purchased the land.

Henry Smith, another witness, testified that he knew William Husky, and that in a conversation with Husky regarding the deed held by Morgan William’s children he said that he was afraid of it, and that Husky said he was going to' Rolla to see a lawyer about it; that this conversation occurred about a week or ten days before Husky bought the place.

' W. R. Williams, one of the plaintiffs, testified that Morgan Williams lived on the land for forty years. Being asked if he ever had any conversation with Husky regarding the deed before the latter had purchased the land from John Anderson, he replied: -“Yes, sir; I talked with him several times. There was one time in particular, when he was a merchant at Lecoma and I was in the store, and he said, ‘I always wanted the place,’ and I said, ‘Whoever buys the land buys a lawsuit, as we own the place and intend to have it. ’ He said, ‘Anderson is wanting to trade me this land and I want to know if there will be any difficulty if I trade for it, ’ and I said, ‘If you trade for it, you will trade' for a lawsuit;’ and he got up and started away and said, ‘I will have nothing more to do with it. ’ ” Witness stated that his mother died February 13, 1890, and his father, on January 11, 1898; that his father, mother, brother and wife, and sister and her husband were living on the farm at the time the deed was made; that one of his daughters stayed with his mother and waited on her for about a year before and up to the time of his mother’s death; that his father was well taken care of and got all he desired for his comfort and was given part of the proceeds of the farm; that he, witness, paid his father the one dollar mentioned as part of the consideration in the deed. On cross-examination, witness stated that he did not know where the deed was; that he asked his father about it after Mr. Fleishman made the correction, and he replied that the deed was worn out. Witness further stated that he never got or had possession of the deed or the land; that his father, after having the deed recorded, took it back and kept it.

David Williams, another of the plaintiffs, testified that he lived on the farm at the time the deed was made, in 1890, and until the fall of 1892; that John Voss and wife lived thereon one year after the deed was made, and Voss left because he could not get along with the old man after his second marriage; that his father married the mother of John Anderson, the grantee in the second deed; that his father would never come to his house except when mad, and that he left the farm in 1892, leaving one-third of the corn crop in the field for his father.

Plaintiffs then offered in evidence the separate answer of John Anderson in the case of W. R. Williams and others against Morgan Williams and John Anderson, tried at the September term, 1895, of the circuit court of Phelps county, which answer, in substance, admitted that Morgan Williams and wife, Lorina P., executed and delivered the deed to him (Anderson) April 19,1894, and denied each and every other allegation in the petition; averred that at the time of the conveyance to him, plaintiffs induced him to believe they had abandoned all their rights and interests by reason of the conveyance from Morgan Williams and wife to plaintiffs, and that they had abandoned the premises and permitted Mm to take possession of the same; that he fully paid Morgan Williams---dollars in good faith for said land; that he had sold, and transferred and delivered all of his right and interest in and to said premises to Wm. Husky. The answer then asked that his deed be adjudged a lien on the premises.

The defendant, to sustain the issues on his part, read in evidence the record in the suit brought by these same plaintiffs against Morgan Williams and John Anderson in the circuit court of Phelps county at the September term, 1895, of said court, for the purpose of correcting this same deed which is sought to be corrected in this suit. The record showed that the case was thereafter heard and determined adversely to the plaintiffs, and judgment rendered in favor of the defendants and against the plaintiffs for costs, and dismissing the petition. Defendant introduced and read in evidence the record of the warranty deed from John Anderson and wife to him (Wm. Husky), dated November 13, 1894, conveying the west half of the northeast quarter and the northeast quarter of the northwest quarter of section 25, township 36, north, range 8, west, in Phelps county, the consideration expressed being sixty dollars and exchange of property; also a deed from Morgan Williams, by sheriff, to John Gr. Hutchison, dated August 6, 1891, which was issued upon a judgment rendered by the circuit court of Phelps county, and conveyed the east half of the northeast quarter of section 25, township 26, north, range 8, west, in Phelps county; also a record of a warranty deed from Ellen Packard to William Husky, dated May 29,1895, conveying the southeast quarter of the northeast quarter of section 25, township 36, north, range 8, west.

Defendant then mtroduced as a witness C. C. Bland, who testified, in substance, that he was judge of' the circuit court of Phelps county in 1895 and tried the case of W. R. Williams and others against Morgan Williams et al. Being asked if he could state the substance of the testimony of W. R. Williams as to his having paid anything in consideration of the deed that his father, Morgan Williams, executed, answered as follows: ‘ ‘ There was no testimony whatever on that point. ’ ’ He was also asked if he could remember the testimony of J. D. Williams as to his occupying part of the premises, and witness replied: ‘' The testimony of Mr. Williams and Mr. Voss, as I remember it, was substantially this: They were tenants of Morgan Williams and had been for some years. Did not know how long prior to the execution of the deed; but after the execution of the deed, or as long as they remained on the farm, the same relation continued. In other words, there was no change in the relation of .Morgan Williams and the grantees in this case in relation to the farm. The testimony was, further, that none of them had offered in any respect to perform the conditions of the deed and that none of them had set up any claim against Morgan Williams. ’ ’ Witness being asked to detail the substance of the testimony of Morgan Williams as to the deed and as to the performance or abandonment, by the heirs, of their part of the contract, stated as follows: “Morgan Williams testified in substance that he signed a note as security for one of the Meltons, a note of-$500 or $600, and he believed he would have to pay it and wanted to make a provision for the maintenance of himself and his wife through the rest of their lives, and he made this deed to his children, or undertook to make this deed, on condition they would maintain him as expressed in the deed. He made the deed with that in view and brought it to town and had it recorded. The clerk called his attention to the omission in the deed, the township and range left out, and he took the deed out of the office and took it home and never delivered it to anybody. That his son was running the place and continued to run it as he did before he made the deed. That his son-in-law did the same thing. That hoth finally moved off the place, of their own free will and accord, and he had to get another renter to cultivate the farm. Outside of the rents he received, none of children ever contributed a dollar for his support. That some of his grandchildren stayed at his house and helped to do the housework and take care of his wife before and after the execution of the deed. That he paid the doctor and grub bills himself, and bought and paid for all the supplies he ever received.”

John Anderson, witness for defendant, testified that he was co-defendant with Morgan Williams in the suit instituted in 1895 by the plaintiffs; that he bought the 120 acres of land described in the petition, paying $50 in cash and giving his note for $125 at eight percent interest for seven years, but paid note before it became due; paid note he owed Burt Long, and paid two store bills to Husky and Comstock. Had a conversation with Robert Williams before he bought the place. Witness further said: “I was thinking that the claim against the place spoilt the old man’s right to it, and I says to him: ‘ Robert, the place is worth more money than that, and why don’t you go to work and lift the judgment against it and take the place?’ and he says, ‘I am done with the place. I put David and Yoss on the place to help the old man, and he had to help them, and I am not going to have anything to do with it;’ and he said, ‘You go ahead and do that yourself, as you are as much interested in the place as I am, and you can go ahead and buy the land yourself and let them move to town if you want to.’ ” Witness said he told Robert Williams that he (witness) had taken the old man to take care of him for his land, and that he agreed to pay him so much; that at the time witness was sued he had sold the land to Wm. Husky, who was in possession of it; that he (witness) bought the land in the spring of 1894 and sold it to Husky in November, 1894; that he paid Morgan Williams $875 for the farm, and got in place of it from Huusky 160 acres and about $64 in money, and that the value of the farm he got from Husky was $1,600; that he paid the note' Husky signed with him.

William Husky testified in substance that he bought the land from John Anderson and that he learned before he bought the land that Hutchison had a claim against it; had a conversation with the heirs before he bought it, and was in possession at the time suit was brought against John Anderson and Morgan Williams; that Morgan Williams and Anderson were in possession of the land until he bought it, and that Voss and David Williams were in possession of part of it from 1891 to 1893.

S. A. Null testified in substance that he was present at the trial in 1895; that at said trial Judge Bland asked W. R. Williams if he had contracted for this land and Williams stated that he had not paid any money, but witness could not remember all of the statements. Witness thought Taylor Williams was on the witness stand and that the latter said he had not paid the dollar, but that he had the dollar to pay when the deed was rectified.

Albert Anderson, in substance, testified that he had a conversation with Robert Williams about a year before John Anderson bought the farm. Witness was there on a visit, and Robert Williams said the old folks would have to be cared for in some way, and witness then said, “Why don’t you go in there and buy the place and take care of them?”

At the conclusion of the testimony plaintiffs asked the court to make a finding of facts, which the court declined to do, and plaintiffs saved an exception. Plaintiffs then asked the court to make a number of declarations of law, which were, in substance, that the finding and decree must be for plaintiffs in accordance with the prayer of their petition, which the court refused to do, and plaintiffs excepted.

It is insisted by plaintiffs that the court committed reversible error in refusing to make a finding of facts when requested to do so by them. By section 695, Revised Statutes 1899, it is provided that, “upon the trial of a fact by the court, it shall not be necessary for the court to state its finding, except generally, unless one of the parties thereto request it with the view of excepting to the decision of the court upon the question of law or equity arising in the case, in which case the court shall state in writing the conclusions of fact found separately from the conclusions of law.” Under the practice in this State, equity cases are practically tried ele novo in the appellate courts and the evidence reviewed, and the question is, should a judgment be reversed because of the failure of the trial court to make a finding of fact when requested to do so by one of the parties? “This court, while deferring somewhat to the conclusions of fact reached by the trial courts, has not been bound by its findings of fact nor its conclusions of law thereon, but has ever exercised a supervisory control over both. In order that the evidence in cases of equitable jurisdiction may be reviewed on appeal, the rules of this court require that the whole of the evidence shall be embodied in the bill of exceptions. ’ ’ [Blount v. Spratt, 113 Mo. l. c. 54.] If, as has been said, an equity ease will be heard de novo in this court, it is clear that, while deferring somewhat to the findings of fact made by the trial court, this court is not bound thereby, but has the right to review the facts and form its own conclusions respecting the same. It does not necessarily follow that the trial court committed reversible error in refusing to find in writing the facts disclosed by the evidence ; for if such findings be not binding upon the appellate court, it must logically follow that the trial court did not commit reversible error in declining to make such findings of fact.

The evidence tended to show that the deed from Morgan Williams and wife to plaintiffs was never delivered to them, or to any person for them, after it was corrected so as to embrace the land in question. Plaintiffs brought a former suit against Morgan ‘Williams and John Anderson, his grantee, to have this same deed corrected so as to embrace the land in controversy, which resulted adversely to plaintiffs; and, now, for the same purpose, they prosecute this suit, which would have been entirely unnecessary if the original deed had been delivered after it was changed by inserting the township and range. It is, therefore, immaterial whether the court made a finding of facts or not, or refused the second declaration of law, asked by the plaintiffs, to the effect that the recording of the original deed by Morgan Williams constituted a delivery thereof, .since that deed passed no legal title.to the land. Nor is it true, as contended by plaintiffs, and as stated in the third declaration of law asked by them, that the acts and statements of Morgan Williams, at the time he had the deed corrected, show such an intent on his part of delivery as to constitute a good and sufficient delivery of said deed after it was corrected. Whatever may have been the intent of the grantor with respect to the delivery of the corrected deed, it is clear that he never did deliver it, and it could only have taken effect from the time of its delivery. [Fontaine v. Boatmen’s Savings Institution, 57 Mo. 552; Saunders v. Blythe, 112 Mo. 1.] The delivery of the deed was essential to the transfer of the title of the land therein described. It was the final act, without which all other formalities were ineffectual. [Ebersole v. Rankin, 102 Mo. 488; Crowder v. Searcy, 103 Mo. 97; Allen v. DeGroodt, 105 Mo. 442; Hall v. Hall, 107 Mo. 101; Cravens v. Rossiter, 116 Mo. 338; Rumsey v. Otis, 133 Mo. 85.] And if the deed was not delivered, it was of no more effect than if not signed. [Turner v. Carpenter, 83 Mo. 333; Hammerslough v. Cheatham, 84 Mo. 13.]

In order to entitle plaintiffs, to a decree correcting the deed from Morgan Williams and wife to them, it devolved upon them to show by a preponderance of the evidence a compliance upon their part with the terms and conditions of the deed as expressed therein, the payment of,the snm of “one dollar . . . and maintenance during life” of the grantor and his wife. The evidence upon this question was conflicting, but preponderated in favor of the defendant. This conclusion is in accord with that of the trial court, which we think was fully justified by the evidence.

There is one other point made by the defendant which we think precludes plaintiffs ’ recovery in this action, and that is, that they are bound by the judgment of the court in favor of the defendants in the action brought by them against Morgan "Williams and John Anderson for the purpose of having the same mistake in the deed in question corrected. While defendant Husky was not a party to that suit, he acquired title to the land from John Anderson, who held under Morgan Williams, and was, therefore, their privy; hence, the judgment as to him, as well as to Williams and Anderson, was res adjudicada. In the case of the State ex rel. Subway Company v. St. Louis, 145 Mo. l. c. 567, it is said: “Parties are ‘all persons having a right to control the proceedings, to make defense, to adduce or examine witnesses, and to appeal from the decision, if an appeal lies.’ Privies are those who have mutual or successive relationship to the same right of property or subject-matter, such as ‘personal representatives, heirs, devisees, legatees, assignees, or judgment creditors or purchasers from them with notice of the fact.’ ” The defense of res adjudicata is therefore, available to the defendant.

The judgment should be affirmed. It is so ordered.

All concur.


text:
    BOARD OF TRUSTEES OF WESTMINSTER COLLEGE v. EDWARD J. FRY and P. G. WOODS, Appellants.
    Division Two,
    December 22, 1905.
    . 1. MORTGAGE: Refusal to Foreclose: Effect on Lien. A judgment for defendants in a suit to foreclose a mortgage, which does not attempt to cancel or set aside the mortgage or grant other affirmative relief, does not destroy the mortgage as a lion on the property.
    2. -: -: -: Writ of Error: Subsequent Mortgage. And where the case was taken by writ of error to the appellate court, and that judgment was reversed, and the causo remanded with directions to foreclose the mortgage, the fact that after the bill of exceptions was filed within time, and before the writ of error was issued, another mortgage was placed upon the property, did not affect the first mortgage as a lien, or make it subject to the later mortgage.
    3. -: -: -: New Suit: Purchaser Pendente Lite. A suit is pending until the time for filing a bill of exceptions has expired. And if within that time the bill is filed, another mortgage, given within that time on the land embraced within the mortgage to foreclose which the unsuccessful suit was brought, on the reversal of the judgment in that suit, was given pendente lite. A writ of error is not a new suit if the bill of exceptions was filed within the time permitted by the court.
    4. -: -: -: Bona Fide Purchaser. A party to an erroneous judgment, which is subsequently reversed, cannot, after the reversal, claim any protection or receive any benefit from it. Neither can his attorney. So that an attorney who obtained an erroneous judgment for defendants in a suit to foreclose a mortgage, and examined and approved a bill of exceptions filed in time, and subsequently obtained a mortgage for his fee from the defendants or their assigns, and that judgment is reversed on writ of error, is not a bona-fide mortgagee, nor is he a bona-fide purchaser at the foreclosure sale, nor is his subsequent vendee with notice. The plaintiff in the original foreclosure proceeding, on reversal of the judgment refusing foreclosure, was entitled, on reversal, to be restored to the condition which existed before the judgment was rendered, so far as the interests of defendants, their agents and attorneys, and all purchasers from them with notice, were concerned.

      5. -: -: -: Mortgage for Pre-existent Debt. A mortgage given as security for a pre-existing debt, no new consideration passing at tbe time, does not constitute the mortgagee at its foreclosure a purchaser for value, and the vendee of such purchaser, with notice of the facts, is in no better condition.
    Appeal from Morgan Circuit Court. — No». Jas. E. Hazell, Judge.
    Affirmed.

      Win. Forman and Gibbs & Knipmeyer for appellants.
    (1) At the time Randolph Pry executed the deed of trust under which defendant Woods claims, there was no suit pending that could affect his title. The writ of error subsequently issued was a new suit, and not a continuation of the foreclosure suit to reverse the judgment in which it was sued out. Macklin v. Allenberg, 100 Mo. 337; Macklin v. Smidt, 104 Mo. 361; Pierce v. Stinde, 11 Mo. App. 364. (2) The writ of error was not lis pendens until the writ had been issued and notice thereof served on the adverse party. Pierce v. Stinde, supra; Taylor v. Boyd, 3 Ohio 338, 17 Am. Dee. 603; 21 Am. and Eng. Ency. Law (2 Ed.), 611. (3) The only issue in the suit to foreclose plaintiff’s deed of trust was its validity as to Randolph Pry. That issue was determined by the court in favor of Pry. “The decree was valid and binding on the parties to the suit. It fixed and settled the rights of the parties thereto. The litigation was at an end, and persons dealing with the property had a right to rely upon the validity of the decree, and they may invoke it to protect rights acquired whilst it remained in full force and not questioned by any pending litigation. Judicial sales made under judgments and decrees, afterwards reversed, to strangers are upheld, it is often said, to encourage bidders, and on grounds of public policy; but the true reason is, that such purchasers, as well as purchasers from parties to the suit, have a right to rely upon the validity of the judgment or decree, execution not having been stayed. ’ ’ Macklin v. Allenberg, 100 Mo. 345. (4) The. fact that the circuit court failed, by its judgment in the foreclosure suit, to expressly annul plaintiff’s deed of trust is of no consequence. It appears from the petition and Randolph Fry’s answer in that cause that the validity of that deed of trust was the sole issue presented. The petition, answer and judgment constituted, to say the least, prima-facie evidence that the plaintiff’s deed of trust was adjudged invalid as to Fry. Hull v. Lyon, 27 Mo. 570; Hickerson v. Mexico, 58 Mo. 65; 24 Am. and Eng. Ency. Law (2 Ed.), 833. Forman and Woods had a right to rely upon the correctness of the circuit court’s adjudication of that issue, after the term had elapsed without an appeal and until a writ of error had been sued out. Macklin v. Allenberg, supra. (5) Forman’s claim against Randolph Fry was due at the time he accepted the note, due two years after date and secured by the deed of trust, in settlement. He was, therefore, a purchaser for value. Martin v. Nixon, 92 Mo. 34, citing Cass County v. Oldham, 75 Mo. 50, and 1 Jones on Mort., sec. 459. (6) Forman’s good faith not being-questioned, and the property not being subject to any equities in his hands, his quitclaim deed passed the title to Woods. Craig v. Zimmerman, 87 Mo. 475. (7) Woods, as assignee of the Bank of Versailles deed of trust, having paid a valuable consideration therefor, is entitled to protection as a bona-fide purchaser for value. 23 Am. and Eng. Ency. Law (2 Ed.), 476. (8) The Bank of Versailles made a part of the loan to Randolph Fry in consideration of his promise to give a deed of trust upon the land in suit, upon the termination of the litigation of the foreclosure suit. (9) Plaintiff’s remedy is against Randolph Fry. Macklin v. Kinealy, 141 Mo. 113. (10) Even though Forman was Fry’s attorney at the time he took the deed of trust, plaintiff is in no position to set up that fact as against the security so taken. Leach v. Fowler, 22 Ark. 143.

      A. L. Boss and W. M. Williams for respondent.
    (1) The judgment rendered for defendants in the foreclosure suit which was subsequently reversed by this court, did not undertake to cancel, set aside, vacate, or in anywise interfere with the lien of the mortgage. It simply refused to enter a decree of foreclosure as prayed by the plaintiff. The lien of the mortgage was not affected by this judgment. It remained in full force and effect. The lien of the mortgage is independent of, and is not merged in, a judgment obtained in a proceeding under the statute to foreclose. The mortgage itself remained a lien upon the land at the time the deeds 'of trust were given' under which defendant Woods claims title. Riley’s Adm. v. McCord, 21 Mo. 285; Thornton v. Pigg, 24 Mo. 249; Boyd v. Ellis, 107 Mo. 394. (2). The deeds of trust, under which defendant Woods claims the land, were executed before the expiration of the time for filing the bill of exceptions, and hence while the suit was pending. “Souther purchased the land and received his deed before the time had expired for filing the bill of exceptions, and we think the suit must be regarded as pending until that time expired. He was, therefore, a purchaser pending the litigation, and took his deed subject to the result of the suit. It is true that suing out a writ of error is for some purposes considered the commencement of a new action.” Macklin v. Allenberg, 100 Mo. 337; Bailey v. Winn, 113 Mo. 165. (3) The rule, which protects innocent purchasers for a valuable consideration, who buy property in reliance upon the judgment of a trial court, before a writ of error has been sued out to reverse such judgment, has no application to this case. The rights of innocent third parties are not involved here, (a) One of the deeds of trust was given to the attorney for a defendant in the foreclosure suit, and in large part for his fee in obtaining the erroneous judgment therein. The day before this deed of trust was executed, the bill of exceptions was filed, which the attorney had examined and approved. When the judgment, improperly-entered by the circuit court, was reversed by this court, the plaintiff therein was entitled to be restored, so far as concerned the defendants in said suit, their agents, and attorneys, to the condition, in which it stood previous to said judgment. Neither the defendants nor their attorneys can claim any advantage or protection from such erroneous judgment. The attorney stands in the same position as the parties in this respect. Railroad v. Brown, 43 Mo. 297. A party to an erroneous judgment, which is subsequently reversed, cannot after the reversal claim any protection or receive any benefit from it. Neither can his attorney. It stands as to both of them as if it had never been rendered, and neither can rely upon it nor upon any rights growing out of it. Gott v. Powell, 41 Mo. 416; Shaw v. Padley, 63 Mo. 519; Harness v. Cravens, 126 Mo. 258; Pierce v. Stinde, 11 Mo. App. 371; Galpin v. Page, 85 U. S. 350. (b) The deed of trust to the Bank of Versailles was given as security for a pre-existing indebtedness. No new consideration passed at the time. The bank parted with nothing in reliance upon said deed of trust. It was taken merely as security for a debt then owing to said bank. The bank did not therefore become a purchaser for value. Loewen v. Forsee, 137 Mo. 29; Napa Valley Wine Co. v. Rinehart, 42 Mo. App. 171; Dry Goods Co. v. Bank, 81 Mo. App. 280; Bank v. Bates, 120 IT. S. 556. (c) Defendant Woods had full notice at the time of his purchase under the deeds of trust of all the facts, and hence stood in no better position than the beneficiaries in said trust deeds. (4) “The claim of being an innocent purchaser is, in an answer, an affirmative defense” and must be pleaded and proved by the party setting it up. Young v. Schofield, 132 Mo. 650.
   GANTT, J.

This is an action of ejectment, in which both parties claim title to the land in controversy-under John C. Peirsol.

The plaintiff purchased the land at a sale under a decree of the circuit court of Morgan county, rendered in obedience to the mandate of this court in the case of Westminster College v. Peirsol, 161 Mo. 270, foreclosing a mortgage executed on the first day of April, 1893, by said Peirsol and wife.

Ouster is laid as of October 16, 1901. Edward J. Fry was originally the only defendant. On December 9, 1901, Fry filed his answer admitting that he was in possession of said lands as tenant of Peter George Woods and denied the other allegations of the petition. Upon the same day, by consent, Woods was made a party defendant and filed his answer. Randolph R. Fry was in possession of the land at the time the above-mentioned foreclosure suit was begun and was made a desaid Peirsol, dated on the first day of February, 1893. It fendant in said action. He defended on the ground that he had a prior right to the land under a contract with appeared, however, in said suit, that the deed made to him by Peirsol recited upon its face that it was subject to the deed of trust under which plaintiff in this suit purchased the land, and while he denied that he had ever accepted this deed, it was shown that he had executed a deed of trust upon the land in which he stated that said deed of trust was subject to the lien of the deed of trust executed by Peirsol on the first day of April, 1893, and he made payments on the debt secured by the latter instrument. The facts developed in the foreclosure suit are fully set out in the opinion of this court in Westminster College v. Peirsol, 161 Mo. 270.

The circuit court heard the suit to foreclose the Peirsol mortgage on the 17th of December, 1897, and took the case under advisement until the 21st of April, 1898, at which time judgment was entered for the defendants. The Peirsol mortgage of April 1, 1893, was not set aside or vacated by this judgment, nor was there any affirmative relief granted to said Randolph R. Fry. There is nothing in the judgment declaring that his. right to the land was superior to the Peirsol mortgage under which plaintiff claims, nor does it in any way attempt to interfere with the lien of said mortgage. It simply recites that the court found the issues for the defendants, “and against the petition of the plaintiff,” and ordered that plaintiff take nothing by its writ and that defendants recover their costs, etc. That judgment, as above stated, was rendered April 21, 1898. The plaintiff filed a motion for new trial which was overruled and the court by an order of record gave plaintiff leave to file its bill of exceptions on or before the 10th of August, 1898. The hill of exceptions was filed on the 21st of June, and on the 29th of June, 1898, a writ of error was sued out from this court, returnable to the October term, 1898, and notice of its issuance was served upon the defendants on the following day. On the 22nd day of June, 1898, Randolph R. Fry and wife executed to Joel E. Hubbard, trustee, their deed of trust on the lands in suit to- secure William Forman the payment of Randolph Fry’s promissory note to said' Forman for $1,100 payable two years thereafter. This-deed of trust was filed for record June 22,1898, at 4:32 o’clock p. m. Randolph Fry and wife also executed a deed of trust on the same lands to James McNair, trustee, to secure the payment of Fry’s several promissory notes payable to the Bank of Versailles, which aggregated the sum of $6,143.40. This deed of trust, which was subject to Forman’s deed of trust, was filed for record on the same day at 4:35 o’clock, p. m. On March 26, 1901, this court rendered its judgment in the case of Westminster College v. Peirsol, reversing the judgment of the Morgan Circuit Court, and remanded the cause with directions to the Morgan Circuit Court to enter up a decree in favor of the plaintiff therein, foreclosing the equity of the redemption of the mortgagors and those claiming under them in the land in question. On April 20, 1901, the circuit court of Morgan county in pursuance of said mandate rendered judgment for Westminster College for the sum of $12,047.65, and de-, creed that said deed of trust he foreclosed and the equity of redemption of John C. Peirsol and his wife, Randolph Fly and W. B. A. McNutt, defendants therein, should he foreclosed and said lands sold by the sheriff of Morgan county, Missouri, to satisfy said indebtedness, together with the interest thereon from the date of judgment, and with judgment over against said Peirsol for any remaining deficit. On July 22, 1901, the lands in controversy were sold under a deed of trust in favor of William Forman, and Forman became the purchaser and received the deed of the acting trustee. This deed was filed for record July 22,1901, at five o ’clock p. m. On July 22, 1901, the same land was also sold under the deed of trust to the Bank of Versailles, and Peter George Woods became the purchaser and received the deed of the trustee to said lands. This deed was filed for record August 14,1901. On August 8,1901, William Forman and wife quitclaimed said lands to Peter George Woods, which deed was recorded August 14, 1901. The note for $1,100 given by Fry to Forman was for Mr. Forman’s fee in the first foreclosure suit, and $100 for other services. Prior to the acceptance of this note and deed of trust to secure the same, Mr. Forman had examined and approved the bill of exceptions filed on the day previous in the foreclosure suit and knew that said bill had been filed. The deed of trust to the bank of date June 22, 1898, was for past indebtedness of Fry to the bank. No new consideration was received by Fry at the time. These notes were subsequently assigned by the bank to the defendant Peter George Woods, but he was notified before this assignment that the writ of error had been issued by this court in the foreclosure suit. The sales under both of these deeds of trust were made after the decision of this court reversing the judgment of the Morgan Circuit Court in the foreclosure suit above mentioned and the notice of the proceedings was given by plaintiff’s attorney at the sale.

The defense in this case stands upon the proposition that as the deed of trust for Mr. Forman’s fee and the other deed of trust as security for the pre-existing indebtedness of Fry to the Bank of Versailles were executed on the 22nd of June, 1898, and the writ of error was not sued out in the action to foreclose the Peirsol mortgage until the 29th of June, 1898, the purchaser under such deeds of trust obtained a better title than the plaintiff acquired by this purchase at the sale under the decree foreclosing said Peirsol’s mortgage, notwithstanding there was no new consideration for the bank’s deed of trust, and the other was to the defendants’ attorney for his fee in the foreclosure suit, and both of them were executed before the time for filing the bill of exceptions had expired, and although the circuit court in the first judgment in the foreclosure suit did not undertake to cancel or affect the lien of the Peirsol mortgage, but simply entered a judgment for the defendant) in that action. The circuit court gave judgment for the plaintiff for the possession of the land in suit and for rents and profits since its purchase, and rendered judgment accordingly. The case is here on appeal by the defendants from this judgment.

I. The mortgage under which plaintiff purchased was executed by John C. Peirsol and wife on the first day of April, 1893, and was duly filed for record in the office of the recorder of Morgan county, Missouri, May 10,1893. The circuit court of Morgan county in the judgment rendered for the defendants in the foreclosure suit on the 21st day of April, 1898, which was subsequently reversed by this court, did not undertake to cancel, set aside, vacate or in anywise interfere with the lien of this mortgage. It simply refused to enter a decree of foreclosure as prayed by tbe plaintiff. While this court was unable to conceive upon what theory the circuit court refused a judgment of foreclosure in that case, it is'certain that it in no manner attempted to destroy the lien of the mortgage in favor of the plaintiff, nor did it give any affirmative relief to the defendants in that case.

The lien of the mortgage was entirely unaffected by the judgment in that case; it remained in full force and effect. Had the circuit court by its decree attempted to interfere with the lien of the mortgage, or had decreed affirmatively that defendant Fry had taken the land discharged of that lien, and a sale had been made to a bona-fide purchaser for value after the rendition of that judgment and before the writ of error had been sued out, a different question would be presented to this court; but as no such judgment was rendered by the circuit court, the lien of the mortgage was entirely unaffected and was in full force and of record at the time the deeds of trust were given to Forman and the bank. [Riley’s Admr. v. McCord’s Admr., 21 Mo. 285; Thornton v. Pigg, 24 Mo. 249; Boyd v. Ellis, 107 Mo. 394.]

II. But it is insisted by the learned counsel for the defendants that at the time Randolph Fry executed the deeds of trust under which defendant Dr. Woods claims, there was no suit pending that could affect his title; and the writ of error subsequently issued was a new suit within the principle of Macklin v. Allenberg, 100 Mo. 337. But it is to be noted that the time for filing the bill of exceptions in the foreclosure suit did not expire until August 10, 1898, and the writ of error was sued out on the 29th of June, 1898. The deeds of trust under which Dr. Woods claims the land were executed before the expiration of the time for the filing of the bill of exceptions, and this court, in Bailey v. Winn, 113 Mo. l. c. 165, said: "Souther purchased the land and received his deed before the time had expired for filing the bill of exceptions, and we think the suit must he regarded as pending until that time expired. He was, therefore, a purchaser pending the litigation, and took his deed subject to the result of the suit. It is true that suing out a writ of error is for some purposes considered the commencement of a new action. [Macklin v. Allenberg, 100 Mo. 337.] But Sparrow and his grantee, Souther, are in no condition to invoke the rule, for Souther purchased the land while the suit was pending.” We think the law was correctly ruled in that case, and as Ur. Woods purchased under deeds of trust taken pendente lite he took subject to the result of the foreclosure suit.

III. The claim is made that Ur. Woods is entitled to protection as a bona-fide purchaser for value, but it is to be observed that one of the deeds of trust under which he claims title was given to the attorney for Fry in the foreclosure suit and a large part for his fee in obtaining the erroneous judgment therein. The day before this deed of trust was executed, the bill of exceptions in that, ease had been examined and approved by Mr. Forman and had been filed, and that judgment was afterwards reversed by this court. The plaintiff therein was entitled to be restored to the condition in which it stood previous to said judgment so far as concerned the defendants in said suit, their agents and attorneys. This court, in Railroad v. Brown, 43 Mo. l. c. 297, said: ‘ ‘ But when the judgment in the case of Brown v. The Hannibal & St. Joe R. R. Co., 37 Mo. 298, was reversed in this court, all of the proceedings had in pursuance of that judgment were vacated, and the defendant was entitled to be restored to the condition in which, it stood previous to the judgment, and to restitution of everything that it had lost and which remained in the hands of the adverse party, his agents, attorneys, or privies. Lander was the attorney who gave direction to the whole matter; he was cognizant of all the facts, and is therefore chargeable in the same manner as Brown himself. ’ ’

A party to an erroneous judgment, which is subsequently reversed, cannot after the reversal claim any protection or receive any benefit from it. Neither cam, his attorney. [Gott v. Powell, 41 Mo. 416; Harness v. Cravens, 126 Mo. l. c. 258, 259; 2 Freeman on Executions (2 Ed.), sec. 340; Shaw v. Padley, 64 Mo. 519.]

The other deed of trust to the Bank of Versailles was given as security for a pre-existing indebtedness. No new consideration passed at the time. The bank parted with nothing in reliance upon said deed of trust, and did not therefore become a purchaser for value. [Loewen v. Forsee, 137 Mo. 29; People’s Savings Bank v. Bates, 120 U. S. 556.]

The defendant Woods had full notice at the time of his purchase under the deeds of trust of all the facts, and hence he is in no better position than the beneficiaries in said trust deeds.

Having reached the above conclusions upon the foregoing propositions it is obvious that the judgment was for the right party and that plaintiff was entitled to enforce the lien of Ms mortgage against Fry and the other defendants who claim under Mm. And the decree of the circuit court is affirmed.

Burgess, P. J., and Fox, J., concur.