author: WALKER, J.

text:
    J. H. HOHENSTREET et al. v. AUGUST SEGELHORST, Appellant.
    Division Two,
    December 20, 1920.
    1. CONVEYANCE: Testamentary Character. If the terms of a deed show that the intention of the grantor was to pass a present irrevocabl'e interest in the property to the grantee, it is not testamentary in character.
    2. -: -: Effective Upon Grantor’s Death. A deed reciting that “this deed shall not take effect until after the death of the parties of the first part” and that “it is further agreed by said parties that this deed and writing shall be placed in the Recorder’s office at Union, Missouri, for safe-keeping till after the death of the said parties of the first part” is testamentary in character and void.
    3. :-; -: -: Direction for Safe-keeping. Words in a deed designating the place where it was to be kept during the grantor’s life add force to its other words that it “shall not take effect until after the death” of the grantor. They indicate that, a present interest in the land was not intended to be conveyed.

      4. -: Non-delivery: Recording: Fraud. Where the deed said that “this deed and writing shall be placed in the Recorder’s office at Union, Missouri, for safe-keeping till after the death of the parties of the first part,” the unauthorized filing of it for record constituted no delivery, but a fraud upon the grantors.
    5. -: Mental Incapacity. Where the testimony as to the grantor’s mental status was contradictory, hut it is certain therefrom that he was for years subject to numerous absurd delusions entertained only by a weak mind, that he was completely under the domination of the grantee and that he transferred all his property without other consideration than the grantee’s promise, the finding of the trial chancellor, who saw and heard the witnesses, that the grantor was mentally incapable of making the transfer, will not be disturbed on appeal.
    Appeal from Franklin Circuit Court.—Hon. R. A. Breuer, Judge.
    Affirmed.

      Jesse H. Schaper and Jesse M. Owen for appellant.
    (1) There was no substantial evidence in the case to support the verdict and finding of the trial court on the first count of the petition, (a) The deed executed by Hohenstreet arid his wife, to defendant, on March 16, 1905, and read in evidence in this case, is a valid instrument, treated either as an executory contract, in which the grantors contracted to give their property for their future care and maintenance and the g*rantee contracted to give such care and maintenance, in exchange for the property. 8 Ruling Case Law, p. 934, par. 12; Dreisbach v. Serf ass, 126 Pa. St. 32; 3 L. R. A. 836. Or as an executed conveyance, vesting the title in the grantee, possession having been delivered under the contract and deed, and there being no evidence of intent on the part of the grantors to retain any title. 8 Ruling Case Law, p. 934, par. 12; Bortz v. Bortz, 48 Pa. St. 383, 86 Am. Dec. 603. (b) The deed executed by Hohenstreet and wife to defendant, on March 16, 1905, and delivered by the grantors to the Recorder of Deeds, and by him delivered to the grantee, constituted a good delivery, though the grantors were dead at the date of the last delivery, for the delivery took effect by relation as of the date when first made to the Recorder. Sneathen v. Sneathen, 104 Mo. 209; White v. Pollock, 117 Mo. 467; Chambers v. Chambers, 227 Mo. 262. (c) Hohenstreet and his wife, by both act and word, parted with their dominion over this deed, with the intention to make it operative and effective upon its execution and delivery; defendant also by word and act accepted the. deed. This amounted to a consummation of' the delivery of the deed. Chambers v. Chambers, 227 Mo. 262. (d) Moreover, the act of Hohenstreet, in causing this deed to be promptly recorded in the 'office of the Recorder, in accordance with the registry laws of the State, was a solemn proclamation to the world that there has been a transfer of title from Hohenstreet and wife to defendant. Perry v. Price, 1 Mo. 555; Burke v. Adams, 80 Mo. 512. (e) The parties to the deed themselves, by their acts and conduct, in the performance of their agreements, under the deed in question, in dealing with each other, and with the property conveyed by the deed, placed their own construction upon the terms of the deed, covering a period of twelve years, by which they recognized that the deed was operative and effective upon its execution and delivery, (f) The deed from Hohenstreet and wife to defendant in suit was not testamentary in character, first, because upon its execution the grantors delivered the full possession, the use and control of the property to the grantee, and the latter entered into the possession, and thereafter remained in the full possession and control of the same, raising crops, making improvements, paying taxes thereon and claiming the title thereto, under said deed, for the period of twelve years, or more, up to the time of the trial of this case. To be testamentary in character, .the disposition must be intended and made to take effect after the death of the grantors so that the possession, use and control of the property remains in and is reserved to the grantors during their lives. Second, because the deed is a conveyance, for the support and maintenance of the grantors, to be furnished for the remainder of their lives, instead of the money to be paid therefor, by the grantee; in other words, the stipulation in the deed for the support of the grantors is merely the recital of the consideration. Wing v. Ilavelik, 253 Mo. 502. (g) As against the plaintiffs, the sole heirs of the grantor, the question of consideration is immaterial.' (2) * There was no substantial evidence, introduced at the trial to support the verdict and finding of the trial court on the second count of the petition. The deed of March 2, 1917, executed by Hohenstreet to defendant, is a valid instrument. (a) As against the plaintiffs, the sole heirs at law of the grantor, the question of consideration is immaterial. Bob v. Bob, 89 Mo. 411; Weiss v. Heitkamp, 127' Mo. 23; Chambers v. Chambers, 227 Mo. 287; 8 R. C. L. p. 961, par. 35. (b) Nor is the finding of the trial court that the execution of the deed of March 2, 1917, by Hohenstreet to defendant “was procured by the fraud, covin and undue influence of defendant exercised over the mind of said deceased at said time,” supported by substantial evidence in the record. Give to the facts, circumstances and conditions stated their fullest force and significance, they do not raise even a suspicion of fraud or undue influence; much less do they afford a basis of reasonable and fair inference thereof. Brinkmann v. Rueggesick, 71 Mo. 566; Berberet v. Berberet, 131 Mo. 410; Doherty v. .Gilmore, 136 Mo. 419; McFadin v. Catron, 134 Mo. 219; Lee v. Lee, 258 Mo. 59,9. (c) In a suit to canced a deed, admitted to be a suit in equity, the finding of the chancellor is not, like a verdict of a jury in a law case, binding on the appellate court. Chambers v. Chambers, 227 Mo. 262.

      James Booth and Wm. L. Cole for respondents.
    (1) The first deed was adjudged to be void because it was testamentary in character, without sufficient consideration, and was obtained by tbe fraud and undue .influence of defendant. The grounds upon which both deeds were set aside were identical except that as to the second deed there was no question raised as to its being testamentary in character. (2) That the first deed was testamentary in character and void because it was an abortive attempt to make a will is well settled in .the law. Goodale v. Evans, 263 Mo. 219; Murphy v. Gabbert, 166 Mo. 596; Griffin v. McIntosh, 176 Mo. 392. The first deed provided by its terms that it was not to take effect until after the death of the grantors. With this limitation in the deed, its being placed of record, or even its absolute and unconditional delivery to the grantee, would constitute no waiver of the express terms of the deed by the grantor, (a) Care must be exercised in determining the sufficiency of the evidence in this, case not to fall into the error of appellant and confound it with that class of eases involving the right of one to make preference among his own children or other kindred. (b) In this case appellant was a stranger in blood to the deceased. Deceased was of unquestioned weak mind and mentality. He had no opportunity to seek or receive independent advice. The- value of the two farms was seven thousand dollars, and the inadequacy of the consideration is apparent. Under these circumstances the law presumes that the first deed was obtained by fraud, and undue influence. Martin v. Baker, 135 Mo, 495; Dingman v. Romine, 141 Mo. 466; Jones v. Belshe, 238 Mo. 524. (3) At the time the second deed was made the deceased was 93 years of age, destitute of intellect, living in the home of appellant, nursed, -supported, cared for and maintained by appellant and members of his family. There was no consideration for the making of the deed, and under the circumstances it is presumed to have been obtained by the fraud and undue influence of appellant. Mowrey v. Norman, 223 Mo. 463; Martin v. Baker, 135 Mo. 495; Dingman v. Romine, 141 Mo. 466; Jones v. Belshe, 238 Mo. 524. (4) There was no issue of ten years’ adverse possession by defendant in this case. He took under a deed giving Mm no right until after the death of the grantor, which occurred just a few weeks before the commencement of this suit. He is bound by the terms of the deed under which he would claim.
   WALKER, J.

This is a suit to set aside two deeds to different tracts of land in Franklin County. The first deed is from Herman H. Hohenstreet and wife to August Segelhorst, the defendant. It was executed March 16, 1905, and purported, for a consideration of $100, to convey 160 acres therein described and all of the personal property of the grantor. The second deed is to Segelhorst from Hohenstreet, then a widower, his wife having died in the meantime. This deed was executed March 2, 1917, and purported to convey 120 acres therein described. There, was a judgment below for plaintiffs, from which defendant has appealed. The portions of these deeds varying from the conventional forms of conveyances and necessary to an understanding and determination of the matters at issue, will appear in the abstract of the pleadings or the statement of the facts following.

The petition was in two counts. After a general allegation as to the ownership in fee by Hohenstreet of the land described in each count and that he died intestate and that the plaintiffs aré Ms sole heirs at law, the first count alleges the invalidity of the deed of March 16, 1905, in that it is' testamentary in character and is not so foamed and executed as to effect a conveyance of real estate, in that it provides that for the care to be given the grantor and his wife during their lives and the payment of their burial expenses, but is not to take effect until after the death of the grantors.; that it is to be placed in the Recorder’s office at Union for safekeeping until after the death of the grantors; that it was never , delivered to the grantee and that he, without the knowledge and consent of the grantors, cansed.it to be filed and recorded; that it was executed without consideration and was procured from the grantors by the grantee through fraud, covin and undue influence exercised by the latter upon the minds of the former; that during the years that have elapsed since the making of said deed the grantee has been collecting the rents and profits from said lands, amounting to many hundreds of dollars, and has converted the same to his own use, without in any manner accounting for same. The usual prayer follows that the deed be set aside and declared void, that defendant grantee be required to account for the rents, and for costs.

The second count alleges that at the time of the execution of the deed of March 2, 1917, to Segelhorst by Hohenstreet, who was then a widower, his wife having died after the execution of the first deed, the grantor did not have sufficient mental capacity to make a deed; that same was obtained from him through fraud and undue influence exercised over his mind by the grantee; that the grantor was at the time an old and infirm man, in his dotag’e and without sufficient mind to make and execute a deed and was then under the influence, control and domination of the grantee; that there was no adequate consideration for same, and that it was without consideration and void; that for several years the grantee has collected and converted to his own use the rents and profits from said land, amounting to hundreds of dollars, and has cut and caused to be cut from said land a large amount of valuable timber, without accounting to anyone therefor. It is prayed that said deed be, set aside and for naught held, and that the grantee be required to account for the rents and profits and for the timber taken from the land, for costs and for other and proper relief.

The answer admits the execution of the deeds and avers their validity. Adverse, continuous, etc., possession of the lands described in each of the counts of the petition for more than ten years next before the commencement of this action and the consequent bar of the Statute of Limitations is pleaded, as well as the agreement for support of the grantor by the grantee as a consideration for the transfer.

Affirmative relief is asked in the answer to each count in the correction of errors in the description of the land in each deed and that the phraseology of the first deed, that “this deed and writing shall not take any effect until after the death of the said parties of the first part” be changed so as to read as follows: “And this deed and writing shall not be fully performed on the part of said party of the second part until after the death .of the said parties of the first part.” That the changes in descriptions of the land and the conditions under which the grantee was to take the property, as defined in the first deed, are alleged to be’ necessary to correctly present the true purpose and intention of the partios, and that the failure of the deeds so to do was through a mutual mistake of fact. The grantee alleges that he has fully performed his part of the agreement, risks a reformation of the deeds in the manner pleaded, and for other and further relief. The reply is á general denial. .

The court found that Hohenstreet died intestate in Franklin Count)", March 23, 1917, leaving as his sole heirs at law the plaintiffs herein. That on March 16, 1905, Hohenstreet and his wife were seized in fee as tenants by the entirety of the land described in the first deed, and that Hohenstreet was seized in fee of the land described in the second deed; that about twelve years ago the wife departed this life. After reciting the agreement pleaded by the grantee, the court further found that the first deed was testamentary in character, and that at the time it was made the grantor was an old man easily influenced and of weak mind and that the grantee at all times enjoyed, possessed, used and exercised domination and control over his mind and will; that there was no consideration for the first, deed, and that the purported consideration of $100 was wholly false, and that the grantor made said deed by and through the covin, fraud and undue influence of the grantee exercised over the mind of the grantor at the time; that the grantee has not been in the open, notorious and adverse possession of .the land for ten years next before the commencement of this action. That the rents and profits, of said land received by the grantee are equal to or greater than the value of the services mentioned in the answer as having been rendered by the grantee to the grantor. Wherefore the deed is adjudged and decreed to be -void and is set aside and for naught held.

As to the seeoud cause of action, the court found, that Hohenstreet was the owner in fee of the land described in the deed made by him to Segelhorst on March 2, 1917; that at the time of said conveyance and for many years prior thereto, the grantor was an old man, infirm, weak of mind and mentally incapable, and was under the care and custody of the grantee, who during all of said time was the trusted agent and advisor of the grantor in and concerning his business affairs, and at all times looked after or pretended to look after and guard the business interests of the. grantor; that the. latter was easily influenced and subject to the domination and control of the grantee; that the grantor received no consideration for the making of the deed, and that the consideration of $100 expressed therein was false and untrue; that the execution of the deed was procured by fraud, covin and undue influence of the grantee exercised and executed, over the mind of the grantor at the time; that the grantee has not been in the adverse, open, etc., possession of said land for more then ten years next before the commencement of this action, and that, the grantor never had any agreement concerning said land except as herein stated; that the rents and profits received by the grantee from the land, and the value of the timber removed by him from same are equal to or greater'than the.sum of all taxes paid by the grantee oil said land and the reasonable value of any services that might have been rendered by him to the grantor. Wherefore it is adjudged and decreed that said deed be and the same is declared null and void and it is set aside and for naught held.

In March, 1905, Henry H. Hohenstreet and his wife, who were elderly people, each aged about 75 years, lived on and were the owners bjr the entirety of 160 acres of land in Pranldin County in the immediate neighborhood of the appellant Segelhorst. This land they conveyed to Segelhorst March 2, 1905, by what is designated here as the first deed. Hohenstreet owned another tract of land of 120 acres, not adjacent to but- in the neighborhood of the home tract, which was conveyed to Segelhorst by the second deed, dated March 16, 1917. At the time of the making of each of the deeds Hohenstreet was frail and infirm physically and had been possessed for many years of vag'.aries and delusions—among others, that his father was or had been the king of Germany; that he himself had fabulous wealth, not only in money, but in precious metals and landed possessions ; that the governments of Germany and the United States were indebted to him in the amount of millions of dollars; that his neighbors ruined his timber by bewitching his trees; that if a tree on his land was felled it would explode and kill those nearby; that the taxes he was required to pay on his land was robbery; that he dug holes on his land and called the yellow clay which he unearthed gold, of which he claimed to have an abundance; that he had lived in Arkansas and witnessed an earthquake there, throwing up rocks pretty near as big as a house, that came down and just missed him; that iron Bibles were used in Arkansas; that there were ghosts in the air, because his mule pointed his ear skyward ; and other statements of the same character, shown, as frankly stated by counsel for appellant, to be without any foundation in fact. These are but types of the delusions stated by witnesses for the plaintiffs to have been entertained by the grantor before the execution of the deeds. In addition, it is shown by the testimony of plaintiff’s witnesses that Hohenstreet for a number of years before his death, including the period when the deeds were made, transacted little or no business requiring the exercise of discretion or judgment. That his wife died in 1905, and for a number of years before her death she paid their bills, directed the rental of their land and collected the amounts due them.

Witnesses for the defendant testified that during the years above mentioned Hohenstreet conducted himself in a normal manner, transacted the limited business devolving on one in his situation in life, and assented with seeming understanding to the making of the deeds to Segelhorst. In short, that Hohenstreet was sane at the time of the execution of each of the deeds and that “he talked all right and there was nothing the matter with him.”

Soon after the execution of the first deed, Segelhorst took possession of all of the personal property of Hohenstreet, consisting, of a few head of live stock and some farm machinery not exceeding in value the sum of $250, and converted same to his own use. He also took possession of the two tracts of land, the one described in the first deed and the other to which the deed was not made until 1917, and used and occupied both continuously up to the time of the commencement of this action. He either cultivated or rented the land and appropriated the proceeds arising therefrom to his own use. Timber for firewood and the making of railroad ties was cut by him on the 120-acre tract and either used or sold, the proceeds being converted to his own use. He paid the taxes on the land during the years succeeding the making of the deeds. His complete domination over the affairs of Hohenstreet and his conversion of the latter’s property under the assumed authority of the first deed, is illustrated, among other instances, by bis collection of a note to Hohenstreet for $200 and the appropriation of the proceeds to his own use. No evidence was offered to show that PTohenstreet had any knowledge of this transaction. Another illustration of like effect is found in the testimony of oim of the plaintiff’s witnesses, a nephew of Hohenstreet, who testified that his uncle’s relatives were not permitted to visit him after his removal to Segelhorst’s; that witness went to see his uncle several times but that “he was guarded like.a hawk; they would watch him and nobody could talk to him. ’ ’

Another one of plaintiff’s witnesses, also a nephew of Hohenstreet, testified that he called on his uncle and when he went to shake hands with him the latter eyed him curiously and ran away yelling, ‘ Go! I know you; they told me all about you. Get! ’ ’

Proof of the incorrect phraseology of the first deed pleaded in the answer, was not attempted to be made, nor was it shown that the descriptions of the land in either deed were erroneous.

After the death of Hohenstreet’s wife in July, 1905, he continued to reside on'the home tract until 1914, when he was taken by Segelhorst to the latter’s home, where he died at the age of 87, years, March 23, 1917, about three weeks after the execution of the second deed. By the terms of the first deed it was to be deposited in the Recorder’s office at Union for safe-keeping till after the death of the grantors. Instead of this being done we find that it was filed for record and recorded March 25, 1905, or a little more than a week after its execution, and then left in the manual possession of the Recorder until after Hohenstreet’s death, when its delivery was demanded by Seg;elhorst and complied with by the Recorder, who says “he wanted to get rid of it.”

There was no evidence that Hohenstreet had any knowledge of this transaction concerning the filing and recording of the deed or that he knew what became of it after its execution. The only definite evidence on this subject is that after the deed had been signed and acknowledged it was left lying on the table where llohenstreet was sitting. Its authorized disposal was that it be placed in the Recorder’s office for safe-keeping. This was' not done.

The character of the first deed; the mental status of the grantor not only as to his capacity to make the deeds but as subjecting him to undue influence in the making of- same; and the propriety of the application of the bar of the Statute of Limitations as affecting plaintiff’s right of action, are matters demanding consideration.

I. The seeming contrariety of opinion -in the adjudicated cases as to what will render a deed testamentary in character, may be removed of shown not to exist by the applicátion of the well established tes£ that if the terms of the deed show that the intent of the grantor was to pass a present irrevocable interest in the property to the grantee, then the conveyance is not testamentary.

a. Properly included in this class of cases is that of Christ v. Kuehne, 172 Mo. 118, in which the condition expressing; the intent of the grantor operated only upon the present enjoyment of the premises conveyed, and not upon the title, the transfer of which was by its terms unequivocal and hence gave validity to the deed.

Similar in import and of like effect in meaning are the conditions in the deed in Dozier v. Toalson, 180 Mo. 546, in which a mother conveyed a vested remainder in fee to her daughter, reserving only the uses, rents and profits during her life.

In Wimpey v. Ledford, 177 S. W. (Mo.) 302, the limitation in the deed was that the grantors should have all-controlling power of the premises during their lifetime and at their death the title was to pass to the grantees. It was held, in view of the other unequivocal terms of the deed expressing a purpose to transfer a present interest in the property conveyed, that the word “title” was not used in a technical sense, but as synonymous with ownership or the right of possession, and hence the deed was not testamentary, In the Wimpey case are reviewed and distinguished with some degree of care numerous cases on this subject.

In Priest v. McFarland, 262 Mo. 229, the deed expressly reserved a life estate in the grantor, and at the same time, by words of present import, conveyed a vested remainder in the property to the grantees. These words were held to effect a present conveyance of a vested title in fee.

In Dawson v. Taylor, 214 S. W. (Mo.) 852, the condition in the deed expressed a clear reservation of a life estate in the grantors, with a remainder over to the grantees upon the death of the former. Aside from this reservation the deed was in the usual form and imported a present conveyance. Under these facts the court held that with a life estate formally reserved the title to the fee could not fully vest in the grantees until the expiration of the precedent estate; and that the deeds there under consideration, which had been delivered to the grantees at the time of their execution, did pass a present interest and were not testamentary.

Other cases of like import are Sims v. Brown, 252 Mo. 58, and Burkey v. Burkey, 175 S. W. 623.

b. Among those cases in which the conditions in the deeds are held to classify them as testamentary is that of Goodale v. Evans, 263 Mo. 219, 214 S. W, 853, in which it was provided in the deed that the grantees were to have and hold the premises from and after the death of the grantor; this court held that these terms deferred the operative effect of the transfer until that event and rendered the deed testamentary and void.

In Terry v. Glover, 235 Mo. 544, a deed reciting that it was not to go into effect until after the death of the grantor, even though it had been, delivered, was testamentary in character, and not having been executed as required by law for a will, was invalid.

In Givens v. Ott, 222 Mo. 395, the deed contained this language: ‘ ‘ to have and to hold the same unto said second party, their successors and assigns forever; this conveyance not to take effect until our death and that of the survivor of us.” This we held did not pass a present interest, hut was to become operative alone upon the grantor’s death and was hence testamentary in character and insufficient to pass the title.

To a like effect are Griffin v. McIntosh, 176 Mo. 392; Murphy v. Gabbert, 166. Mo. 596 and cases p. 601; Miller v. Holt, 68 Mo. 581.

Mindful of these distinctions, we come to a consideration of the words in the first deed at bar defining its operative effect.- They are as follows: “And.this deed and writing shall not take eney efect untill after the death of the said parties of the first parties. And it is fother agreed by said parties that deed and writing be placed in Recorder’s office at Union, Missouri, for safe keeping till after the death of the said parties of the first parties.”

Although lame in orthography, these words are not lacking-in clearness. Not only do they definitely declare when the deed is to take effect, but they define the manner of its physical disposal in the meantime. This direction as to disposition, correctly construed, adds force, if it were necessary, to the intent of the grantors that the deed should not take effect until after their death. If it were otherwise intended, why provide for the formality of the deed being safely kept until that time by 'the Recorder? If a present interest in the land had been intended to be conveyed, either the deed would have been silent in regard to its disposition after its execution and a delivery to the grantees would have followed, as is usual in ordinary cases, or an express provision would have been made in the deed as to its delivery. It seems clear, therefore, that no other reasonable conclusion can be reached than that the deed means simply what it says; and, not being intended to be delivered until the death of the grantors, it conveyed no present interest. Thus construed, its character must he held to he testamentary, hut as it lacks the formal legal requisites necessary to make it a vfill, it is ineffectual for that purpose and hence void.

This conclusion renders it unnecessary to discuss the non-delivery of the deed and the unauthorized filing of the same for record, which constituted no delivery and was a fraud uoon the grantor. [Berkmeir v. Peters, 111 Mo. App. 717; Miller v. McCaleb, 208 Mo. 562; Terry v. Glover, 235 Mo. 544.]

Nor need we consider the mental status of the grantor so far as it may affect the ruling of the court upon the first deed. If it was not a deed, as we have held, it was not necessary to discuss the mental capacity of the grantor in the making of same.

II. The contradictory testimony of the witnesses of the respective parties as to the mental status of the grantor renders it difficult, even after a painstaking review of the testimony, to reach< a satisfactory conclusion concerning same. Of this .much, however, we are well satisfied, that for years the grantor ivas subject to numerous absurd delusions entertained only by a weak mind; that he mani.fested this condition not only in the transaction of the ordinary affairs of every day life but in the transfer of all of his property to the grantee without other consideration than the latter’s promise. That this may have been complied with may be admitted, but it does not alter the conclusion deduciblo from all the facts, that one moved by a proper regard for the grantor’s condition and influenced by no personal motive would not have been a party to the transaction in which the grantee secured the second deed. It is not improbable that the grantor may have known so far as he was capable of knowing, that he was making the transfer, but he was, as the facts warrant, under the domination and subject to the will of the grantee. Thus environed, he had no opportunity, if he had sufficient mind to desire it, to consult with others concerning the disposition of his property. A notary public and two ignorant neighbors called in by the grantee to give what he regarded as a legal formality to the deed, were the only persons present when it was executed. That evidence of this transaction shows that the grantor_ willingly made the deed need not be questioned; but his action, measured as it must be by the testimony of the grantee’s witnesses, shows nothing more than an acquiescence and not that intelligent participation in the transaction characteristic of one who acts on his own volition. In other words, it appears that he simply did what he was told to do. In thus acting, in view of all the other facts, he was either dominated by the grantee or, if a willing-participant in the transfer, was so infirm physically and mentally as to be unable to comprehend the nature of his act. Reliance upon the cold letter of the record does not constitute the sole support for this conclusion. The chancellor, who doubtless knew the parties and witnesses to this transaction, or if he did not, heard them testify and in so doing observed their manner and was thereby enabled in a most satisfactory way to weigh their credibility, found that there was ample evidence that the grantor at the time of the making of this deed was not only incapable mentally of making this transfer but that he was at the time under the domination of the grantee. This we regard as strongly persuasive and we find no reason for a different conclusion. We therefore hold the second deed to be void.

III. little need be said in regard to the bar of the Statute of limitations as applied to either cause of action. Frged in the motion for a new trial, it was not referred to in appellant’s brief and may be considered abandoned. [Shaw v. Goldman, 183 Mo. 461; Redmond v. Railroad, 225 Mo. 721; Buttron v. Bridell, 228 Mo. 622.]

The rents received and money collected, either from the sale of timber or the payment to the grantee of the note due the grantor, as well as the value of the personal property converted by the grantee, are ample to compensate him for any care given to or expense incurred by him for the grantor.

Finding no error justifying a reversal, and satisfied that the findings of the court below and its decree rendered thereon are in accord with equity and good conscience, we affirm the judgmént.

All concur.


source: Caselaw Access Project

author: WILLIAMS, P. J.

license: Public Domain

text:
    FRANK L. BLASKE v. CHRIST WEHMEYER, Appellant.
    Division Two,
    December 20, 1920.
    -1. EVIDENCE: Improper Answer: What He Thought. Where one of the contested issues in the action for “made” land was how far southward a certain island had been extended by accretion, and the question asked plaintiff was, “Does- the island extend only to where defendant claims, or to the slough, or where does it go?” his answer, “I think I bought it clear over to the slough,” should have been stricken out on motion. What he thought about the matter was not a statement of fact, but a mere opinion, and under the facts what the plaintiff thought .may have influenced .the jury in arriving at their verdict for him.
    2. -: Written Instruments: Tax Receipts: Oral Testimony of Their Contents. Unless a proper foundation is laid for the introduction of secondary evidence, oral testimony of the contents of written instruments is not proper, but the instruments themselves should be offered. Where the plaintiff sued for an island recently formed, testimony that his tax receipts showed that he had paid taxes on 200 or 260 acres on the island should not have been admitted, • the receipts themselves being the best evidence, because they might show that the land sued for was not a portion of the land on which taxes were paid, and if they did show that plaintiff had paid taxes on the jland in dispute they would be a circumstance indicating the nature 'of his possession or of his claim to the land.
    3. ACCRETIONS: Description: In Instructions, Etc. In the trial of an action for “made” lands, the description in the instructions, verdict and judgment should fall within the description set forth in the petition.

      Appeal from Gasconade Circuit Court.—Hon. William A. Davidson, Special Judge.
    Reversed and remanded.

      August Meyer and Jesse H. Schaper for appellant.
    (1) Upon tlie record the judgment is erroneous, and should be reversed on this appeal, (a) Because the verdict of the jury failed to describe any land. This was an action at law for the recovery of real estate, and the issues made by the pleadings having been submitted to the jury for their determination, it was incumbent on the jury in finding the issues for the plaintiff to describe such lands as they intend he should recover, under the pleadings in the case. In such a case it is not sufficient for the jury to simply find the issues for the plaintiff, and so state in their verdict, but, if the plaintiff was entitled to recover at all, under the evidence and the pleadings, it was imperative on the part of the jury to describe such land as plaintiff was entitled to recover. Brummell v. Harris, 148 Mo. 446; Benne v. Miller, 149 Mo. 245. (b) Because the judgment itself failed to describe definitely and with certainty any part of the lands described in the petition, in this, that it recites “ that the parcel of land located north of the middle of a certain slough, in the Missouri Eiver, next to the high bank, and located between lines running north and south, respectively, 6.25 and 26. 50 chains east of the range line on the west side of Eange 6 west, in Gasconade County, Missouri, is a part of a certain island in the Missouri Eiver, known as Eobert Miller Island, and that plaintiff is the owner thereof, etc.” 32 Cyc.1378; Brummell v. Harris, 148 'Mo. 430. (2) The trial court erred in admitting illegal and improper evidence offered by respondent, (a) The testimony and opinion of Prank L. Blaske, the plaintiff, that he thought he bought clear over to the slough. Jones on Evidence (2 Ed.), par. 434. (b) The testimony of Frank L. Blaske, the plaintiff, concerning the payment of taxes by Mm on 260 acres of land on the island. Tliis was a -substitution of parol for documentary evidence, or secondary for primary evidence, in the absence of any legal excuse shown for failing to produce the tax books of the county showing the payment of the taxes on the particular lands in suit. Jones on Evidence (2 Ed;), par. 199. '
    J. W. Hensley and Robert Walker for respondent.
    (1) The court could submit to a jury the question of fact as to what was an accretion to Robert Miller Island, and as to whether the land in dispute was an accretion to Robert Miller Island. Lee v. Conran, 213 Mo. 404. (2) And it could also submit the question of fact to a jury for trial as to whether defendant had been in the open, peaceable, notorious and adverse possession of the land in question for ten years or more before the filing of plaintiff’s petition, as claimed by defendant. Stone v. Perkins, 217 Mo. 586. (3) Under instructions based on well established principles of law, the jury found such issues for plaintiff. Benson v. Morrow, 61 Mo. 350; Buse v. Russell, 86 Mo. 209; Cooley v. Golden, 117 Mo. 33; Frank v. Goddin, 193 Mo. 390'. (4) A jury’s verdict is to 'be construed and applied reasonably in the light of all proceedings. Respondent claims to be the sole owner of all of Robert Miller Island, and its accretions. Defendant comes in and claims that for one reason or another, he is the owner of a part of the Robert Miller Island. The jury found for the plaintiff, and the verdict was sufficient for the purposes of the trial. Mueller v. Hospital Assn., 73 Mo. 242; Stout v. Calver, 6 Mo. 354; Schaabs v. Wheel Co., 56 Mo. 173; Hoyle v. Farquharson, 80 Mo. 378.
   WILLIAMS, P. J.

This is an action under Section 2535, Revised Statutes 1909, to determine title to land situated in Gasconade County, Missouri. Trial was had in the Circuit Court of Gasconade County before a jury, resulting in a verdict and judgment in favor of plaintiff. Defendant has duly appealed.

Plaintiff’s petition alleges that he is the owner of a certain island in the Missouri River known as Robert Miller Island, as surveyed and patented by the County of Gasconade, on November 28, 1903, to Ransome A. Bruer and J. W. Hensley, including all accretions to said island; that said island when surveyed and patented embraced certain portions of land in Section 31 and Section 32, all in Township 46, Range 6, west. The petition further alleges the amount of acreage in each portion of said sections wherein said island was located. It should be noted here that the petition does not allege that any’- of said island is located in Section 6, Township 45, Range 6, west (which said Section 6, as shown by the evidence, adjoins and is immediately south of said Section 31. It would appear from the evidence that the .land in dispute is in Section 6).

Defendant, Christ Wehmeyer, filed a separate answer (originally there were other defendants, but plain-tiff dismissed as to .them during the trial), in which said answer defendant denied the allegations of the petition, except to allege that he claimed title to the following described land in Gasconade County, to-wit:

“Part of the northwest quarter of Section 6, Township 45, Range 6, west, more particularly described as follows, to wit: Commencing 6.25 chains east of the northwest corner of Section 6, Township 45, Range 6, west; thence running east 20.25 chains; thence south twenty-nine chains, to the center of Shawnee Creek; thence east along said Shawnee Creek up the Bailey’s Creek, thence in southwestern direction along said bank of Bailey’s Creek to the center line of Section 6; thence west 21.25 chains along said center line of Section 6 (running east and west) to an iron rail piece; thence north 41.04 chains to the place of beginning, containing* in all eighty-nine acres, more or less.”

It will be noted that the last above described tract of land lies in Section 6, which, as above stated, lies adjoining and immediately south of Section 31 described in plaintiff’s petition.

' The jury returned the following, verdict (formal parts omitted): “We the jury find the issues in favor of the plaintiff.”

Upon this verdict the court eptered a judgment, in part, as follows: ' “It Ts adjudged and decreed by the court that the parcel of land located north of the middle of the certain slough, in the Missouri River, next to the high bank, and located between lines running north and south, respectively, 6.25 and 26.50 chains east of the range line on the west side of Range 6, west, in Uaséonade County, Missouri, is a part of a certain island in the Missouri 'River, known as Robert Miller Island, and that plaintiff is the owner thereof, and that his title thereto is a fee-simple estate, and that defendant Christ Wehmeyer has no right, title or interest in-said land.”

We have encountered much difficulty in interpreting the record before us, due in part to the fact that witnesses have not been accurate in their expression; the word “slough” has been used many times in the record, and it has been difficult at times to ascertain which particular slough was meant; furthermore, some of the witnesses were examined with reference to certain photographs marked “Exhibits A” and “B,”.but these photographs do not appear in the record and do not appear to have been introduced in the evidence. Further complications arise from the fact that defendant offered in evidence “Exhibit Number 2” which purports to be a survey of Miller Island. When witnesses were examined concerning this exhibit reference is made to certain blue, yellow and black lines. The copy of the exhibit brought here shows only black lines. We have read the record twice in an attempt to learn the material facts, and will state below the result of that labor.

It appears that the original G-ovemment survey did not show an island located in the Missouri River at the point where Robert Miller Island is located. The island formed sometime prior to 1903, and for seven or eight years prior to that time one Robert Miller lived on this is] and and cultivated about fifty acres of land. In June of 1903 there was a great flood in the Missouri River, which washed away the house in which Miller lived and a greater portion of the island. Miller then moved from the island.

In September, 1903, the County Court of Grasconade County caused Robert Miller Island to be located, surveyed and platted as lands belonging to Grasconade County, for the use of the public schools under the Act of the Legislature of Missouri of 1895. This survey was completed and by proper steps Miller Island was patented by Grasconade County and sold, and the title thereto has by mesne conveyances passed to the plaintiff.

The survey which was made by the county surveyor was offered in evidence by the plaintiff and said survey shows all of Robert Miller Island lying within Sections 31 and 32 mentioned in the petition.

At the time this island was surveyed defendant owned the land described in his answer, which land was in Section 6 adjoining and immediately south of said Section 31. At that time defendant’s land vas separated from Robert Miller Island by a large slough. Subsequently to 1903 and at different times portions of the north side of said island vashed away and accretions formed on the south side of said island. The extent-and location of these accretions on the south side of the island are not definitely given in the testimony. The nearest approach thereto is found in the testimony .of Robert Miller, wherein the following question and answer appears:

“Q. What is the formation of this island; are there any sloughs or cuts through it? A. There is no slough between the north bank of the island and the slongh next to the high bank as shown by this picture.”

One witness said: “It [the island] kept moving around, working south all the time; . . . cut the bank away; it cut away from the north and growed south.”

The following question and answer appears in the testimony of Mr.' Gillsaw:

“Q. When the river gets up high that there is. a stream of water between the island and the main land, where does the stream of water flow? A. Right around the high bank next to Wehmeyer’s.”

Mr. George Miller testified that for several years past “the only deep slough has been next to the main bank on the south side.” It further appears that there was a high bank on the south side of this slough, which slough plaintiff claims separated the island from the main land. Plaintiff’s witnesses testified that there was now no slough dividing the island; that at one time a slough did run through the island, but that it had practically filled up, and the only remaining slough was the one which now formed the southern boundary of the island.

The evidence upon the part of the defendant tends to establish the following facts:

Defendant purchased the land described in his answer and received a deed therefor in 1882. At that time there were two 40-acre tracts between his northern boundary and the river bank. Afterwards these two 40-acre tracts and 30 or 40 acres of the.northern portion of this tract were washed away by high water. Defendant testified that he had been in possession of the land described in his answer ever since the purchase thereof, and it appeárs to be his theory that the land described in the judgment came back to. him by accretion to his land which did not wash away. But the evidence on this point is not very clear. One of defendant’s witnesses testified that a new island formed in the river between Robert Miller Island and the south bank of the river. The defendant’s evidence also tended to show that Miller Island at one time completely washed away. Reference to further testimony will he made in the course of the opinion.

I. During the direct examination of plaintiff the following occurred-:

“Q. How far the Robert Miller Island extends? A. It ain’t there now no more, only the lower comer, and a little on the upper corner.
“Q. Does it go only to where ’Wehmever claims or to the slough, or where does it go? A. I think I bought it clear over the slough.
“Mb. Schafer: I move to strike out what he thought he bought, on the ground that his answer is a mere opinion.
“Mb. Walker: Does that belong to the island over to the slough? A. It ought to belong to the island.
“Mb. Schafer: I move that be stricken out on the ground it is not for the witness to determine what ought to belong to the island.
“The Court: That part may be stricken out, but the part he said he bought over to the slough may stay in.
“Mr. Meyer: If the court please, the answer was a peculiar one; he said he thought he bought all the island, to the Morrison side; that is a mere opinion and that ought to be striken out, what he thought he bought; that was his answer.
“The Court: I think that is all a man could say; let it stay in. I don’t think that makes any difference; how could a man know what he bought; he thought he bought it; whether he did or not, that is a question for the jury; the deed tells what he bought.
“To which ruling of the court the defendant, by counsel, then and there duly excepted.”

Appellant assigns the foregoing as error. We are of the opinion that the assignment is well taken.

One of the contested issues in the case was how far southward Robert Miller Island extended by accretion. What the plaintiff thought about the matter was not a statement of a fact, but a mere opinion. It was wholly incompetent for any purpose, and should have been stricken out on appellant’s motion. What the plaintiff thought maj^ have and no doubt did influence the jury in arriving at their verdict.

II. Appellant further contends that the court erred in permitting plaintiff, over the objection and exception of appellant, to testify that his tax receipts ¶ - - _ 4 _ showed that he had paid taxes on 200 or 260 acres of land on this island. Appellant contended at the trial and here that the tax receipts would be the best evidence, and furthermore the evidence should show upon what exact land the taxes were paid. We think this position is well taken. Unless it should appear that the land in dispute was a portion of the land upon which taxes were paid, the payment of taxes would be wholly immaterial to the' issues of this suit. If on the other hand plaintiff had paid taxes on the land in suit and desired to show that fact as a circumstance indicating the nature of his possession or of his claim in said land, the best evidence showing that fact (the written evidence) should have been offered when objection was made unless proper foundation was laid for the introduction, of’ secondary evidence.

III. Appellant further contends that the evidence does not support the judgment, and that the instructions are erroneous in that they are not based upon the land described in the petition. Since the ease must be retried we deem it inadvisable to undertake to pass upon the sufficiency of the confusing record now before us. We might be permitted to say in passing, however, that it is undoubtedly the better and safer practice that the land in dispute should be accurately described in the petition, and the description in the instructions, verdict and judgment should fall within the description thus set forth in the pleadings.

Furthermore when a survey or plat used in evidence has lines of different colors to which reference is made in the testimony, the abstract should definitely show in some manner the color of the respective lines in order that an intelligent understanding may be had-of the facts. It is to be presumed that all these matters will be obviated upon a retrial and hence we will forego further discussion now.

The judgment is reversed and the cause remanded.

All concur.


author: MOZLEY, C.

text:
    ALFRED FORD and ELIZABETH FORD, Appellants, v. L. A. LAUGHLIN et al.
    Division Two,
    December 20, 1920.
    DEFECTIVE ABSTRACT: Equity Suit: Additional Abstract: Bules 7 and 11. In a suit in equity, wherein the appellate court is required to try the case de novo and to adjudge the facts, the merits of the controversy will not be considered, unless all the evidence is embodied in a bill of exceptions, and' brought up by a proper abstract; and if no part of the evidence offered by defendants at the trial to sustain their defense of the plea of res adjudicata is set forth in the abstract of the appealing plaintiffs, an additional abstract filed by respondents, after appellants’ abstract was filed out of time, in which all such evidence is set forth, unless accepted by appellants as containing the evidence offered by respondents in support of their said plea, cannot be considered, and if respondents interpose Rule 11, as an objection to appellants’ record being corrected, the objection will be sustained, and the judgment affifmed.
    Appeal from Jackson Circuit Court.—Hon. Thomas B. Buckner, Judge.
    Affirmed.

      Frank Titus for appellants.

      L. A. Laughlin for respondents.
   MOZLEY, C.

This proceeding was commenced by plaintiffs in the Circuit Court of Jackson County. Missouri, at Kansas City, as a bill in equity to quiet title to the real estate in controversy; to set aside certain conveyances therein mentioned, etc. It also asks for other affirmative relief.

Defendant filed an equitable answer, pleading resadjudicata, etc; asked therein that said title be quie'.U and that they be granted equitable relief as- prayed for therein.

On the hearing of the case, the circuit court dismissed plaintiffs’ bill, defendants’ cross-bill, and entered a judgment in favor of defendants'for cost. Plaintiffs filed a motion for a new trial, which was overruled, and the cause was duly appealed by them to this court.

On December 17, 1919, plaintiffs filed herein an abstract of the record which, at the conclusion of plaintiffs’ evidence, recites the following:

“Thereupon the defendants, to sustain the issues on their behalf, introduced evidence, oral and documentary, as follows, to wit:
“Mr, Laughlin: The defendants offer in evidence the files, including the bill of exceptions, and the mandate of the Supreme Court and the record entries, in cause No. 48,368.”

Plaintiff’s objection to the introduction of this evidence was overruled.

Appellants’ abstract, at page 93, recites that:

“The papers above offered in evidence by counsel for plaintiffs [defendants] are in words and figures as follows, to wit:”

No part of the above proceedings offered in evidence is set out in the abstract before us.

Appellants ’ motion for a new trial, set out on pages 109-10, contains the following:

“2. Because the plea of res adjudicata presented by defendants in this cause, is not sustained or sustainable under the testimony produced in this cause by plaintiffs.”

Respondents, on' January 10, 1920, filed herein an additional abstract of the record, setting out the proceedings, records, bill of exceptions, etc., offered in evidence, and -which plaintiffs failed- to put in their abstract of record, because it was not served and filed in proper time. The objections and reasons for delay, stated by defendants, were ordered taken with the case.

According; to our conception of the law, it is not necessary to go into the merits of this controversy.

I. As this is a proceeding in equity wherein we are required to pass upon the facts and try the case de novo, we cannot consider the merits of the controversy, unless the additional abstract of record is accepted as containing the matters offered ev^ence by defendants relating to their plea of res adjudicatei.

Rule Seven (7) of this court, reads as follows:

“In equity cases the entire evidence shall be embodiéd in the bill of exceptions; provided, that it shall be sufficient to state the legal effects of documentary evidence where there is no dispute as to the admissibility or legal effect thereof; and provided further that parol evidence shall be reduced to a narrative form where this can be done and its full force and effect preserved.”

If counsel for appellants was not desirous of having his record encumbered by the proceedings offered as res adjudicata, he should at least have made an honest effort to set forth the substance of same, as was done in Crews v. Lombard, 216 S. W. (Mo.) 512, recently determined by our Court in Banc. We are of the opinion that, where counsel, in an equity case, purposely leaves out a part of the main defense relied on by defendants, as here, and asks a court of equity to reject the evidence which his adversary has been compelled to bring here to supply an intentional defect in his own record, the court should enforce Rule Seven, supra, and affirm the judgment. [Huggins v. Davidson, 202 S. W. l. c. 399; Short v. Kidd, 197 S. W. (Mo.) l. c. 66-7; Stevenson v. Smith, 177 S. W. (Mo.) l. c. 615-16; Nickey v. Leader, 235 Mo. l. c. 42; Gibbs v. Haughowout, 207 Mo. l. c. 391; State ex rel. v. Jarrott, 183 Mo. l. c. 217-18; Courtney v. Blackwell, 150 Mo. l. c. 267-8; Parker v. Vanhoozer, 142 Mo. 621; Blout v. Spratt, 113 Mo. l. c. 54; McElroy v. Maxwell, 101 Mo. 294; Benne v. Schnecko, 100 Mo. 250.]

In State ex rel. v. Jarrott, supra, at pages 217-18, Gantt, J., speaking for Court in Banc, in which all the court concurred, said:

“But in equity cases appellate courts will review the testimony and are not bound by the finding of the chancellor, either as to the ultimate facts or his conclusions of law, and, hence, it has been uniformly ruled, by this court in equity cases that the whole of the evidence must be brought up on appeal- and a rule of this court to that effect has long been in force. ’ ’

■II. Rule Seven, heretofore mentioned, has been printed in the backs of our Missouri Reports for more than a quarter of a century, and no excuse has been offered by appellants’ counsel for its violation in this case. It was his duty to abstract the matters offered as res adjudicaba. On account of his own dereliction of. duty, his adversary has been compelled, by supplemental abstract, to bring before this court matters which should have been presented in appellants’ abstract. As plaintiffs’ counsel has seen fit to interpose Rule 11 of this court, as an objection to the records before us being corrected so as to have them set out the evidence presented in the court below, we are of opinion that his objection should be sustained, and that the judgment of the trial court affirmed, on account of his failure to incorporate in his abstract of record defendants’ evidence relating to the defense of res adjudicaba.

Let the judgment be affirmed.

Railey and White, CC., concur.

PER CURIAM:—The foregoing opinion of Mozkey, O., is hereby adoptéd as the opinion of the court.

All of the judges concur.


author: BLAIR, J.

text:
    MONARCH VINEGAR WORKS v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant.
    In Banc,
    December 20, 1920.
    1. FREIGHT OVERCHARGES: Recovery: Stating Cause of Action. In a suit by a shipper to recover freight overcharges exacted by a railroad, a petition which, in each separate count, alleges the date, place of origin, destination and weight forming the basis of the count, the maximum freight permitted to be charged by the Act of 1907, the charges actually exacted, the - difference between the two rates, and the defendant’s refusal to pay said difference, states a cause of action for the overcharges, and not one for the' penalty under Section 3248, Revised Statutes 1909.
    2. ■———■: -: -: Penalties: Separable^ The general rule is that penalties provided for the violation of rate acts are not a necessary or inseparable part of the acts, without which they would not have been passed, and that overcharges in excess of legal freight rates may he recovered if the act, stripped of its penalty features, leaves a cause of action. The right to recover the actual overcharges was not affected by the injunction in State v. C. B. & Q. Railroad, 241 U. S. 553.
    3. -: -: -: Prayer for Penalty. The fact that the petition asks judgment for the penalty does not affect the plaintiff shipper’s right to judgment for overcharges in excess of the legal maximum rate. If a petition states facts sufficient to warrant the relief granted, the efficacy of these allegations is not destroyed by a prayer for more than the stated facts justify.
    4. -: Defense of Confiscation: Settled by U. S. Supreme Court. In view of the ruling of the Supreme Court of the United States in the Missouri Rate Cases, to which the defendant railroad was a party, the trial court, in this suit by a shipper to recover the excess of freight charges above the legal rate provided by the Act of 1907, did not err in refusing to permit defendant to introduce evidence to show that the rate prescribed by the statute was confiscatory at the time the shipments were made in 1911; for the subsequent decision of that court (241 U. S. 533) was expressly to the effect that its previous decision in the Rate Cases (230 U. S. 474) that the statutory rate was not confiscatory applied to shipments made in 1911, 1912 and 1913.

      Appeal from Jackson Circuit Court.—Hon. T. J. Seehorn, Judge.
    Affirmed.

      H. J. Nelson and Warner, Dean, McLeod & Langworthy for appellant; O. M. Spencer of counsel.
    (1) Judgment should have been entered for the defendant, for the reason that under the pleadings and the evidence the plaintiff was not entitled to recover upon the alleged cause of action sued on. The plaintiff in its petition alleges the pendency of the proceedings to test the validity of the Maximum Freight Rate Laws, at the- time of the shipments in question, and then asks for judgment for three times the amount of the alleged overcharge pursuant to the penal provisions of Sec. 3248, R. S. 1909. It is settled that there can be no recovery for such penalties. White v. Delano, 270 Mo. 33. (2) Plaintiff was allowed to recover, however, the actual difference between the old rate and the new rate, that is, it was allowed to recover on a different cause of action than that sued on. Its right to do so was challenged at all times. Plaintiff has no cause of action for penalties, although that is the ground upon which it sued. White v. Delano, 270 Mo. 33. In that case the court explicitly held that the penal section of the rate statute was suspended, but that the rate statute was not suspended. The court did not define the ground upon which recovery was permitted, hut it was presumably upon common law principles. (3) That the plaintiff construes its suit to be one to recover under the penal section of the State statute and not otherwise, is apparent from the body of the petition, wherein it sets up facts in an effort to show that the three year limitation statute which applies to penalties was stayed, This is also apparent from the prayer to the petition, the- evidence introduced, and the opinion of the referee. The prayer of the petition is an'index to the construction placed upon the petition by the pleader. State ex ihf. Barker v. Ry. Co., 265 Mo. 678. (4) Since plaintiff sued to recover penalties under the statute, it should not have been permitted to recover at common law, because that was a different cause of action from that upon which it sued. Ensworth v. Barton, 60 Mo. 511; Eyerman v. Cemetery Assn., 61 Mo. 489; Huston v. Ale Works, 56 Mo. 416; Robinson v. Rice, 20 Mo. 229; Chitty v. Railroad, 148 Mo. 64; Banning v. Met. St. Ry. Co., 157 Mo. 477; Harrison v. Railroad, 37 Mo. 307; Cole v. Armour, 154 Mo. 333; Hite v. Raliroad, 130 Mo. 132; 21 R. C. L. p. 608, sec. 152. Error is presumptively prejudicial. Davharsh v. Ry. Co., 103 Mo. 578; Hatch v. Bayless, 164 Mo. App. 223; Contracting Co. v. Storage Co., 186 Mo. App. 671; Morton v. ITeidorn, 135 Mo. 618. (5) The court committed error in refusing to permit defendant to introduce evidence to show that the rate prescribed by the Maximum Freight Rate Law 1907, was confiscatory, and offered proof in support of were made in 1911. The defendant pleaded that the rate provided by the Maximum Freight Rate Law of 1907, was confiscatory, and offered proof in support of the plea. The question as to the reasonableness of the rate in 1911, was not adjudicated in the Missouri Rate Case, 230 U. S. 474, because the final decree in that case, which was entered in April, 1909, dealt with the situation prior to that time, and the shipments in question were all made in 1911. Defendant has the right to challenge the validity of the rate in a suit between a single shipper and the carrier. State of Missouri v. C. B. & Q. Railroad, 241 TJ. S. 538. The Missouri Rate Case did not deal with the question as to the validity of the rate under conditions as they existed almost three years after the entry of the final decree. Missouri v. C. B. & Q. Railroad, 241 H. S. 539. (6) A denial of the right to investigate the validity of the rate in 1911, which was long after the period with which the decree 'dealt in the Missouri Rate Case, and permitting the plaintiff to recover the difference between the old rate and the new rate, would constitute the taking of property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States. Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U. S. 418. The record in the case of Missouri v. Chicago, Burlington & Quincy Railroad Co., 241 U. S. '536, shows that the Supreme Court did not pass and could not have passed upon the question involved in this case. Furthermore, the decree in the Missouri Rate. Case did not and could not hare prevented the defendant from showing the unreasonableness of the rate as applied to a particular shipper or a particular commodity. Arkadelphia Milling Co. v. St. Louis Southwestern Ry. Co., 39 Sup. Ct. Rep. 237, 243; Northern Pacific Ry. Co. v. North Dakota, 236 U. S. 585. (7) There was obviously very substantial merit in the defendant’s contention that the rate on apples was confiscatory in 1911. State ex rel. v. Public Service Comm., 270 Mo. 565; 19 New International Encyclopaedia, p. 574; State ex rel. v. Public Service Comm., 270 Mo. 555.

      McCune, Caldwell & Downing for respondent.
    (1) The judgment was consistent with the case and within the issues found by the pleadings. White v. Delano, 270 Mo. 16; Sec. 2100, R. S. 1909; Hewitt v. Harvey, 46 Mo. 368; O’Bannon v. Railroad 111 Mo. 'App. 202; Conley v. C. B. & Q. and Wabash Rys., 192 Mo. App. 534; M. K. & T. v. Wnlf, 226 U. S. 570, 57 L. Ed. 355; Liese v. Meyer, 143 Mo. 547; Saline County v. Sappington, 64 Mo. 72; Sharkey v. McDermott, 91 Mo. 657; Northcraft v. Martin, 28 Mo. 471; Iba v. Railway, 45 Mo. 469; McGrew v. Mo. Pac. Ry., 87 Mo. App-. 250; Calvert v. Railroad, 34 Mo. 243; State ex rel. v. Sale, 153 Mo. App. 282; Plynell v. Meadows, 170 Mo. App. 37; State ex rel. v. Chicago & Alton Ry., 265 Mo. 646; Hartwig v. Ins. Co., 167 Mo. App. 128. (2) The decision in the Missouri Rate Case, 230 U. S. 474, to which appellant was a party, is res adjudicata that the Maximum Freight Rate Laws of 1907 were not confiscatory as to all shipments made in 1911, and the court properly refused to relitigate that matter. Missouri Rate Cases, 230 U. S. 474, 57 L. Ed. 1571; State of Missouri v. C. B. & Q. Ry., 241 U. S. 533, 60 L. Ed. 1143; Milling Co. v. Southwestern Rv., 39 Sup. Ct. Rep. 237, 63 L. Ed. 517; 1 Ry. Co. v. McKnight, 244 TJ. S. 368, 61 L. Ed. 1200; Knoxville v. Knoxville Water Co., 212 U. S. 1, 53 L. Ed. 371; Darnell v. Edwards, 244 U. S. 564, 61 L. Ed. 1317; In re Louisville, 231 U. S. 639, 58 L. Ed. 413; Williams v. Hayti, 184 S. W. (Mo.) 470; Ex parte Young, 209 U. S. 123, 52 L. Ed. 714; In re Englehard & Sons Co., 231 TJ. S. 646, 58 L. Ed. 416; Railway v. Grill, 156 IT. S. 649, 39 L. Ed. 567; Railway v. Minnesota, 134 U. S. 418, 33 L. Ed. 970; Railway Co. v. Railroad Commission of Alabama, 161 Fed. 972. (3) Defendant railroad elected to test, once and for ail, the validity of all the rates in one proceeding by the remedy of injunction and is bound by the result of that election. Authorities above. (4) Defendant railroad, by the proceedings it instituted to enjoin the enforcement of each and every statutory rate, is estopped to deny that their validity was adjudicated. ' Same authorities.
   BLAIR, J.

This action was begun to recover freight overcharges alleged to have been exacted by appellant on various shipments of apples in October and November, 1911. The petition contains thirty-nine counts. These are alike except as to date, place and amount, and the questions presented under the several counts are identical. The cause was referred, judgment recommended and entered for the several overcharges alleged to have been exacted, and this appeal was duly perfected therefrom.

The contentions of appellant are (1) that the action was for the penalty under Section 3248, Revised Statutes 1909, and that since no judgment for the penalty was warranted the judgment should have been for defendant; and (2) that the court erred in refusing to permit appellant to introduce evidence to show that the rate prescribed by the Maximum Freight Rate Law of 1907 was confisóatory at the time the shipments were made in 1911.

I.' Each count of the petition alleges the date, place of origin, destination knd weight of the shipment forming the basis of the count and also alleges the maximum of freight permitted to be charged by the terms of the statute (Acts of 1907), sets forth the freight actually exacted by appellant and points out the difference between the two rates. It is further alleged that appellant, in 1907, obtained an order in the Federal court enjoining the Railroad Commission, the Attorney General and three representative shippers from putting in force the maximum rates under the Act of 1907; and that this injunction remained in force until February 6, 1914, at which time the injunction was dissolved; and that appellant refused and still refuses to pay-to respondent the excess over the legal rate.

The prayer in each count is for judgment for the difference between the statutory maximum rate and the sum exacted by appellant and “that the same be trebled as provided by Section 3248, Revised Statutes 1909,” and for interest and costs and other proper relief.

It is argued that the action is under the penalty section of the statute; that the section superseded the common law remedy; that the pendency of the injunction in the rate cases in the Federal court superseded the penalty section as' a whole and that respondent neither stated nor had any cause of action. In White v. Delano, 270 Mo. 16, substantially the same contentions made in this case were considered. It was held in that case that the penalties under Section 3248, supra, were superseded, but that the right to recover the actual overcharges was not affected by the injunction; that the overcharges were not damnum absque injuria and that a judgment must be directed for the amount of the overcharge. This was in accord, also, with the decision in State ex rel. Barker v. C. & A. R. R. Co., 265 Mo. 646.

The general rule is that penalties.provided for the violation of rate acts are “not a necessary or inseparable part of the acts, without which they would not have been passed” and a recovery can be had if the act, stripped of its penalty features, leaves a cause of action. [Wilcox v. Gas Co., 212 U. S. l. c. 53, 54; Grenada Lumber Co. v. Mississippi, 217 U. S. l. c. 443; Oklahoma Operating Co. v. Love, 251 U. S. l. c. 331.] The cases cited do not, in our opinion, decide anything contrary to the holding in the case of White v. Delano. Further, the petition states facts sufficient to bring it within the doctrine of the right of restitution of that of which one has been deprived by a judgment or decree which is subsequently reversed, as applied to excessive rate charges by the Supreme Court of the United States in Arkadelphia Co. v. Ry. Co., 249 U. S. l. c. 145, 146. That the petition asks judgment for the penalty is not an answer. It states facts sufficient to warrant the relief granted, and the efficacy of these allegations is not destroyed because the prayer is for more than the stated facts justify.

II. Appellant also contends that the trial court erred in refusing to permit it “to introduce evidénce to show that the rate prescribed by the Maximum Freight Rate Law of 1907 was confiscatory at the time the shipments were made in 1911.”

Appellant offered to show that the rate upon the particular commodity involved was confiscatory, and. that conditions had changed between 1909 and 1911 by reason of increased cost of labor and material and other expenses. The referee and trial court excluded the offered evidence because of their view that appellant was precluded from raising the question of the' eonfiscatory character of the rate for the reason that the shipments involved here were, in their opinion, covered and included by the decision in the Missouri Rate Cases, 230 U. S. 474.

Appellant was one of the plaintiffs in the Missouri Rate Cases which were instituted to enjoin the enforcement of the rate statutes of 1905 and (by supplemental bill) of 1907. The taking of the evidence in these cases was finished in 1908 and the decree in the circuit court was rendered April 1, 3909. That decree enjoined the enforcement of the acts mentioned in so far as they affected freight rates. On appeal to the Supreme Court of the United States the decree of the lower court was reversed in June, 3913, and the lower court entered its dismissal of the-bills in February, 1914. In this case appellant contends it has the right to litigate the validity of the rate which it charged and collected on applet in October and November, 1911, after the decree of the circuit court in the Missouri Rate Cases and prior to the decision of the Supreme Court of the United States on appeal therein. Respondent contends to the contrary, and the trial court held with it. The mandate of the Supreme Court ordered the dismissal of this appellant’s bill in the Rate Cases “without prejudice” (230 U. S. l. c. 509) and the order of dismissal in the circuit court followed the mandate. Respondent contends the decision in Missouri v. C., B. & Q. Railroad, 243. U. S. 533, determines the question in this case in its favor, and appellant takes the contrary view. Counsel differ concerning what was actually decided in that ease, and this difference arises from conflicting constructions of the language of the' opinion. It..is therefore necessary to present what the court said and the facts then held in judgment. The court outlined the case as follows:

“ By original action here brought the State sues to recover a sum of money for passenger fares in excess of the rate established by law paid by its officers when traveling within the .State on state business. . Answering, the railroad alleges among other defenses that the' rates fixed by law were so low as to be confiscatory .and hence repugnant to the Constitution of the United States. The matter for decision arises on a motion on behalf of the State to strike out this defense on the ground that, the right to assert it is barred by a decree of this court establishing that the rates fixed by the state law were lawful and not confiscatory—a decree the conclusive effect of which, it is asserted, the railroad company is estopped from 'denying.
The ease as made by the pleadings and by the record in which the decree relied on was rendered, of which we take judicial notice, is this: in April, 1905, by law Missouri established certain -freight rates. Almost at once the defendant company and others filed their bills in the Circuit Court, of the United States for the Western District of Missouri against the State Board of Warehouse Commissioners, the Attorney-General of the State and certain shippers alleged to be representative, to enjoin the carrying out rof the rate-fixing law on the ground that to enforce the rates which it fixed would result in confiscation and a taking of the property of the railroads in violation of the Constitution. . An injunction was granted prohibting the carrying into effect of the rate law. While these suits were pending the State by law fixed a passenger rate and, repealing the freight law which had been enjoined, enacted another, and by supplemental bills both these laws were assailed on the grounds upon which the other law had been attacked and injunctions were awarded restraining their.enforcement. After much testimony offered on the issue of confiscation, the court permanently enjoined the enforcement of the state statutes. On review in this court, as to the railroad now before us and others, this conclusion was held to be erroneous and the decree which was entered here reversed and remanded the case with directions to dismiss the hill without prejudice. [Missouri Rate Cases, 230 U. S. 474, 509,]

The .applicable principles were, in substance, stated to be these: (1) That statutory rates must not be confiscatory. (2) That, though the State may not be sued, an individual may be enjoined from, for instance, taking property unlawfully, even though such individual be a state officer. (3) That the power to fix rates is accompanied by a duty to provide an opportunity to test their validity. (4) That any officer of a State having any power to enforce a rate statute may be made defendant in a proceeding to test the validity of the rates as a unit. The court then proceeds:

“ 2. While it is true that the comprehensive right thus recognized was broader and more efficacious than would be the right of a railroad merely to resist in each particular case an individual effort to enforce a single rate fixed by law (see Ex parte Young, 209 U. S. 123), it is true also that the recognized broader right was not, unless it was availed of, exclusive of the latter and narrower one, that is, the right to resist separate attempts to enforce a rate. [St. Louis & San Francisco Ry. v. Grill, 156 U. S. 649.] This principle was.but a recognition of the fact that the broader right to invoke a complete remedy to enjoin the law and thus prevent the enforcement of the rates, did not take away the narrower right of a railroad to stand upon the defensive and merely resist the attempt to enforce the rate in each particular case because of its confiscatory character. One right, was not destructive of the other, because there was freedom to elect which of the two would be pursued.
“3. Resulting from the principles just stated, recognizing that the operation of a decree enjoining the giving effect to a rate law because of its alleged confiscatory character differed materially, both as to the public interest and that of the railroad, from the consequences which would arise from a mere decree rejecting the complaint of a person as to an individual and consummated grievance based on the claim that an illegal rate had been charged, it came to pass that a form of decree came to be applied in rate eases to meet and provide for this difference. In other words, in a' rate case where >an assertion of confiscation was not upheld because of the weakness of the facts supporting it, the practice came to be that the decree rejecting the claim and giving effect to the statute was, where it was deemed the situation justified it, qualified as ‘without prejudice,’ not to leave open the controversy as to the period with which the decree dealt and which it concluded, but in ordermot to prejudice rights of property in the future, if from future operation and changed conditions arising in such future it resulted that there was confiscation. And the same limitation arising from a solicitude not to unduly restrain in the future the operation of the law came to be applied where the asserted confiscation was held to he established. In other words, the decree enjoining the enforcement, of the-statute in that case was also qualified as without prejudice to the enforcement of the statute in the future if a change in conditions arose. The doctrine in the first aspect nowhere finds a more lucid statement than the one made on behalf of the court by Mr. Justice Moody in Knoxville v. Knoxville Water Co., 212 U. S. 1. It has since been repeatedly applied in language which in the completest way makes the meaning of the limitation without prejudice in such a case clear, and leaves no ground for any dispute whatever on the subject. [Willcox v. Consolidated Gas Co., 212 U. S. 19;, Northern Pacific Ry. v. North Dakota, 216 U. S. 579; Louisville v. Cumberland Tel. & Tel. Co., 225 U. S. 430; Missouri Rate Cases, 230 U. S. 474; Des Moines Gas Co. v. Des Moines, 238 U. S. 153.] A complete illustration of the operation of the qualification is afforded by the North Dakota case, just cited, since in that ease as a result of the qualification ‘without prejudice’ the case was subsequently reopened and upon a consideration of new conditions arising in such future period a different result followed from that which had been previously reached. [Nor. Pac. Ry. v. North Dakota, 236 U. S. 585.] As to the second aspect, that, is the significance of the limitation without prejudice as applied to a decree which enjoined the rates as confiscatory, the meaning of the reservation as we have stated it was in express terms, through an ahundance of precaution, defined and stated in the opinion in the Missouri Rate Oases, 230 U. S. 474, 508.
“Let ns test the merit of the,respective contentions by these propositions.
“(a) It is insisted that the right obtains to assert as against the individual suit of the State the existence of the confiscation for the very period covered by the previous finding that there was a failure to establish the confiscation, because the reservation without prejtidice which was made in that decree leaves the whole subject open for a renewed attack as to individuals and indeed by general complaint as to the unconstitutionality of the law as a whole. But this proposition simply disregards the foundation upon which such a reservation came to be applied, as we have just pointed out, in cases involving an assault upon tire present and future operation of a law fixing rates. In other words, the contention but accepts the -doctrine previously announced and vet. repudiates the cases by which that doctrine was established by affixing a meaning to the reservation ‘without prejudice’ as used in the cases wholly’ destructive of the sole object and purpose for which in those cases the reservation came to be applied. Again it is said, conceding that the limitation ‘without prejudice’ when applied to a rate case under the authorities has the significance which we have affixed to it, that meaning should only prevent the re-opening of the inquiry as to the period embraced by the testimony in the case and therefore should not be extended so as to'prevent the re-opening from the time at least of the close of the testimony. This, it is said, must be the case since there might well be a change in conditions between the time when the proof in a case was taken and the entry of the final decree. But this contention again disregards the doctrine upon which, as we have pointed out, the reservation in rate-making cases came to be applied. In other words, it treats the reservation 'without prejudice’ as looking backward and overthrowing that which-was concluded by the decree, instead of considering it in its true light, that is, as looking’ forward to the future and providing for conditions which might then arise.
“(b) Conceding for the argument’s sake the controlling influence of what we have said, nevertheless the contention is that the previous decree is here inapplicable since the State was not a party to the litigation in which the decree was entered, indeed, could not have been made a party -without its consent. But once more the argument proceeds upon a disregard of the previous cases upon the authority of which the right was exercised to obtain on the charge of confiscation, the exertion of judicial authority to stay or suspend every vestige of power asserted by the state statute fixing rates until the controversy was determined. In other words, the proposition ignores the doctrine settled by the previous- cases that there inhered in, and went along with, the rate-making power a duty on the party of the State to afford means for judicially deciding a question of confiscation when asserted. It is true, as we have previously pointed out, that because there was a right on the part of a railroad to sue to prevent the execution of the state power manifested in the rate-making law, it did not follow that the railroad was deprived of its right to resist the enforcement of the law by way of defense when an attempt was made to enforce the law against it. But it is true also as we have seen, -that the right to elect between the two was undoubted—an election the potency of which was pointed out in the Grill case, supra, and was moreover in the clearest way fully expounded in the Young Case, supra, page 166. This being true, it is obvious that the question here is not how far the decree relied upon was binding upon parties who were not technical defendants, but how far is it binding upon the railroad. In other words, it is whether when there has been an election to obtain a remedy by proceedings against particular defendants comprehensive enough to restrain the giving effect of every vestige of state power which was embraced in the authority exerted by the State in passing, the rate-making law, it can now be said by the railroad, in order to frustrate or limit the decree rendered in the case, that the restraint did not operate as against the rate-making power so far as the interest of the State is concerned, because the State was not a party. The right to restrain the whole power having-been enjoyed for the purpose of the complaint as to confiscation which was made, the contrary cannot be asserted in order to escape the effect of the decree holding that such complaint was erroneously made. In last analysis the contention comes simply to asserting that the settled, rule of Ex parte Young, 209 U. S. 123, and the cases which preceded it, was wrong and there was no right to restrain the complete enforcement of the rate law without the presence of the State as a technical party. And the cogency of this consideration is made-quite clear by bearing in mind as expressly pointed out in the Young Case, supra, page 166 that the power which the court possessed, by virtue of the bringing of the suit at the instance of the railroad, to enjoin and suspend the whole rate-making law comprehensively included the right to stay proceedings brought in other courts which would have tended to set aside or frustrate the authority to completely exercise the jurisdiction acquired.
“As it results from what we have said that in our opinion by the application* of the most elementary principles of- estoppel the railroad may not be heard to disavow what it asserted in order to secure the "suspension of the rate law during the suit, it follows that it was without right in this case to .assert the defense of confiscation, and the motion to strike out the same must therefore prevail.
“As the view which we have taken of the controversy has not rendered it necessary to consider whether in any event the suit was not a class suit binding upon all, into that subject we have not entered. Additionally, we have not considered and express no opinion upon the arguments dealing with questions of the ultimate right to recover, in the absence of a condition to that effect imposed when the injunction was issued, in view of the terms of the injunction, bond, etc. etc.
“The motion to strike out the defense of confiscation from the answer is granted.”

It may be that the language quoted leaves room for the conflicting views entertained by counsel in the case at bar concerning its meaning. An understanding of the issue actually made in that case clarifies the language and seems to leave no room for doubt. In the case before the Supreme Court of the United States the bill of complaint sought the recovery of overcharges during the years 1909, 1910, 1911, 1912 and 1913. The plea that the rate statute was confiscatory was general and was applicable to all the overcharges the recovery of which was sought. The motion to strike out this plea was general, and the opinion shows that it was stricken from the answer, not qualifiedly, but entirely. With these facts in view, it is clear the Supreme Court was dealing with the plea, not only as against overcharges (if any) antedating the decree of the circuit court, but also those during the period succeeding that decree and preceding the decree in the Supreme Court on appeal. The plea was, as in this case, directed to overcharges in 1911, as well as in other years. When the opinion is read in the light of these facts the asserted doubt concerning its meaning is dispelled and it becomes full authority for the action of the trial court in sustaining the ruling of the referee excluding the evidence tendered to show that the statutory rates were confiscatory in character in 1911. It also answers other questions raised by appellant which depend upon a different construction of the opinion. The judgment is affirmed.

All concur, except Woodson, J., not sitting.


author: GOODE, J.

text:
    CITY OF KIRKWOOD to use of FARMERS & MERCHANTS TRUST COMPANY v. HILLCREST REALTY COMPANY, Appellant.
    Division One,
    December 30, 1920.
    APPELLATE JURISDICTION: Joint Sewer District: Constitutional Question. In a suit on special tax bills amounting to $307.24, issued under a contract for the' construction of a joint district sewer, in a district formed under an ordinance which purported to unite two of four existing sewer districts, wherein tlie defense is that the supposed joint district sewer is in fact a public sewer and ought to be paid for out of the city revenue, averments that to issue special tax bills against defendant’s property in payment for the sewer, would violate the Fourteenth Amendment and Section 30 of Article II of the Missouri Constitution, in that it would deprive him of his property without due process of law, and that such assessment is in violation of Section 3 of Article X of the Missouri Constitution, in that it is an attempt to tax only a part of the property within the city for a public sewer and therefore the tax is not uniform, do not so raise a constitutional question as to give the Supreme Court, jurisdiction of an appeal from a judgment against defendant. Those averments do not allege a violation of constitutional provisions, hut simply raise the question whether the supposed joint district sewer is a public sewer, and that question is to be determined by the character of the sewer and a construction of the statutes, and does not involve the'validity of such statutes.
    Appeal from St. Louis Circuit Court.—Hon. John W. McElhinney, Judge.
    Transferred to St. Louis Court of Appeals.

      Albert Chandler for appellant.

      Frank J. Wiget for respondent.
   GOODE, J.

This action was filed by the plaintiff as the assignee of sixteen special tax bills, dated February 23, 1911, amounting to $307.24, and issued by the City of Kirkwood to E. J. Welsch, who, under a contract with the city,' had laid what is called in the petition a joint district sewer in Leffingwell Avenue Joint Sewer District. This joint sewer district was formed by an ordinance of the city, number 932, approved August 20, 1910, which purported to unite sewer districts 1 and 4 <pf the city into said joint sewer district. The lots against which the tax bills in controversy were issued lie in district number 4 and belong to the defendant, Hillcrest Realty Company.

The trial in the circuit court resulted in a judgment against the defendant’s property for the full amount of the sixteen tax bills and an appeal was taken to this court.

In our opinion we are without jurisdiction of the appeal; the amount of the judgment was not sufficient to give this court jurisdiction, nor is it relied on for that purpose.

In the answer the defendant alleged that the supposed joint district sewer was in fact a public sewer, ought to be paid for out of the revenue of the city, and that to issue special tax bills against defendant’s lots to pay for it would violate the Fourteenth Amendment of the Federal Constitution, and also Section 30, Article II, of the Constitution of the State, in that it would deprive defendant of his property without due process of law; further, that, the assessment is a violation of Section 3, Article X, of the State Constitution, besause it is an attempt to tax only a part of the property within the city for a public sewer, which tax would not be uniform upon the.same class of subjects within the territorial limits of the city; also that the assessment is in violation of Section 7 of Article X of the Constitution of Missouri in that pioperty is exempted outside of sewer districts numbers 1 and 4 and the ivhole cost of the "improvement thrown upon the property in those districts. No declarations of law were requested, nor was there any finding of the facts in the lower court, the assignments of error being made upon the evidence as a whole.

The contention that the cited clauses of the Federal and State Constitutions would be violated by the onforcement of these tax bills, is made principally, if not entirely, upon the proposition that the sewer in question was a public sewer which, as stated, under the law, must be paid for by the city out of its treasury instead of by special tax bills. "Whether that proposition is sound or not depends, entirely, upon the determination of the character of the sewer in question, and this is to be ascertained by a construction of the statutes of the State and from pertinent decisions of its courts. The different classes of sewers, public, private, district and joint district sewers, are mentioned in the statutes and, if not defined in express words, are, at any rate, so far distinguished that whether any given sewer is of one class or another can be judicially ascertained without reference to any of the constitutional provisions invoked.

Another defense is that most of the natural drainage. of sewer district number 4 was away from the valley or watercourse in which the Leffingwell Joint District Sewer was laid, and the inclusion of sewer district number 4 in the joint sewer district was therefore illegal, as the statutes provide that in the formation of joint sewer districts in cities of the fourth class, no sewer district- shall be included ‘ ‘ which is not contained in the natural drainage area of the valley or watercourse in which the'joint district sewer is proposed to be constructed.” [R. S. 1909, sec. 9390.] It is obvious that the decision of whether the tax bills were rendered unlawful by the inclusion of district number 4 in the joint sewer district, when it should not have been because of the course of its natural drainage, calls for the interpretation of the cited section of the statute's and does not call for a decision of any constitutional clause. •

Another 'error assigned is that the joint district sewer, which discharges inside the city boundary, flows on over private lands, and that for the defendant to connect with it would be to participate in causing a nuisance; therefore the defendant’s lots are not benefited by the joint district sewer and cannot be taxed for it. Whether or not this circumstance would defeat the tax bills involves no substantial constitutional question. It is true the “Due Process” clause of the State and Federal Constitutions protects property and property owners from a purely arbitrary exercise of the power to impose either general or special taxes. But this assignment is not based on any fact in evidence tending to prove the city acted in that way. The proposition is that the improvement might turn out to be useless to defendant in consequence of the flow of the sewage over private lands. We fail to perceive how the city’s omission thus far, to make terms with the owners of the lands, can render said constitutional provisions relevant to the. decision of the present case. It appears the sewage is being carried away and there is nothing in the record to prove the owners of the land have complained of it as a nuisance or have objected to the flow. What bearing upon the validity of the tax bills the particular circumstance may have is to be determined by the statutes and rules of law governing special assessments.

Still another error assigned is that the petition is fatally defective in not alleging the defendant’s lots are in the taxed district, or tributary to the sewer; and also because the joint sewer is designated in the petition by a different name from the one used in the tax bills. Of course, this assignment involves no constitutional question.

It is ordered that the cause be transferred to the St. Louis Court of Appeals.

All concur.