text:
    HUDSON v. CAHOON, Appellant.
    Division One,
    February 22, 1906.
    1. APPELLATE PRACTICE: No Motion for New Trial. Where the record discloses no motion for new trial filed and no hill of exceptions filed, the ease stands for adjudicatioi^n the appellate court on the record proper.
    2. PRACTICE: Demurrer: Answer: Waiver. Answering over after demurrer overruled waives all objections to the petition except two, namely, that the petition does not state facts sufficient to constitute a cause of action, and, second, that the court has no jurisdiction over the subject-matter; but those two objections are available to the defendant at any time in any court, while the case is pending, either in the trial or appellate court, and whether they were raised by demurrer or not.
    3. LIMITATIONS: Minerals: Easement: Principal and Agent: Profits of Sale: Fraud: Notice. Defendant was authorized by plaintiff to sell land, and secured from him a deed with the name of the grantee left blank, the expressed consideration being $180, and afterwards filled in his own name; and sold, a part of it for $764.55, and reserved to himself in the deed the mineral, marble and granite in, onor under the land together with the right of ingress or egress to or from the same, to mine and work it; and plaintiff sues for defendant’s profit in the sale, or the difference between the $764.55 and $180, and also to divest out of defendant the title which he reserved in himself to the mineral, etc., and to vest the same in plaintiff. Helé, first, that the minerals, marble and granite beneath the surface, and the right to mine the same, constitute an interest in land, and an easement, and, therefore the second object of the suit, namely, to divest the title to these things out of defendant, was not barred until ten years after the deed was filed, when the cause of action accrued; second, that part of the action which seeks to recover the profits realized by defendant from the sale of the land, was barred in five years after the recording of the deed from plaintiff to defendant and of the deed from defendant to his grantee, for those deeds, in reciting the consideration, disclosed the profits obtained by defendant, and were notice to plaintiff from the date of their record, and plaintiff did not prevent the beginning of the running of the statute by alleging that the knowledge of the fraud did not come to him until within- five years before his action was brought.
    4. -: Fraud: Constructive Notice. Constructive notice of fraud is sufficient to set the Statute of Limitations in motion, even though there is no actual notice.
    5. -; -; -: Resulting Trust: Principal and Agent. The Statute of Limitations runs against an implied or resulting trust. And where an agent sells his principal’s land and, without the knowledge of his principal, takes the title in his own name, and afterwards sells the land for a profit, the principal, at most, has only a resulting trust in the profit.
    Appeal from Madison Circuit Court. — Now. Samuel I)amis, Special Judge.
    Reversed and remanded.

      Moses Whybark, Robert A. Anthony and David M. Tesrecm for appellant.
    Plaintiff’s action, Tbe it legal or equitable, is, as to tbe Statute of Limitations, governed by tbe five-year limit, i. e., by tbe fifth subdivision of section 4273, R. S. 1899; that is tbe only statute which would entitle respondent in any event to any relief; tbe petition after alleging tbe recording of Hudson’s deed to Gaboon on August 27,1892, and Cahoon’s deed to Parks of November 24, 1892, is barred on its face because such allegations were and are a complete discovery on and from said dates to plaintiff of every fact be alleges. And, further, tbe reservation of minerals, etc., and right of way in the land had no effect on plaintiff’s action because it was not known, nor is it alleged in the petition that any minerals, etc., are in that ground now. Further, the right of plaintiff to recover for any profits Cahoon derived from his sale to Parks was and is not an express trust such as are alone cognizable in equity, to which only the third subdivision of Revised Statutes 1899, section 4277, applies. Keeton v. Keeton, 20 Mo. 530; Landis V. Saxton, 105 Mo. 490; Newton v. Rebenack, 90 Mo. App. 660. We further contend that Hunter v. Hunter, 50 Mo. 445, on which respondent relies, was attempted to he based on the ten-year-limit in the third sub-division of section 4272, Revised Statutes 1899; that that section does not apply even to that case, much less to this case, and that as an authority it is criticised and practically overruled by Rogers v. Brown, 61 Mo. 194. Hughes v. Littrell, 75 Mo. 573.

      Wm. D. Hudson and E. D. Anthony, for respondent.
    (1) An action to establish a trust growing out of lands, or to recover the proceeds of a re-sale of lands held under a constructive resulting trust, ought to he governed hv the same rules as to length of time necessary to set aside a fraudulent conveyance and recover possession of land. Hunter v. Hunter, 50 Mo. 450; Rogers v. Brown, 61 Mo. 191; Zoll v. Carnahan, 83 Mo. 41; Life Ins. Co. v. Smith, 117 Mo. 296. (2) Where one occupies a fiduciary relation towards the owner of land, all gains acquired by him by means of his position, whether through conveyance to him of an adverse interest, or otherwise, belongs to such owner, whether in land or in money. Life Ins. Co. v. Smith, 117 Mo. 294. (3) The relation of client and attorney is one of especial trust and confidence in the attorney. Davis v. Klein, 96 Mo. 401; Eoff v. Irvine, 108 Mo. 378; Aultman, Miller & Co. v. Lorring, 76 Mo. App. 66. (4) A reservation of mineral and mining rights is construed as an actual grant thereof. Coal and other minerals in place are land, and may he conveyed as such, and, when thus conveyed, constitute a separate and distinct inheritance. Wardell v. Watson, 93 Mo. 107; Kirk v. Mattier, 140 Mo. 31; Manning v. Coal Co., 181 Mo. 377. (5) The courts have cited and affirmed Hunter v. Hunter, 50 Mo. 445, in the following and other cases: Lewis v. Schwenn, 93 Mo. 31; Burdett v. May, 100 Mo. 20; Sherwood v. Baker, 105 Mo. 478; Newton v. Rebenack, 90 Mo. App. 660.
   MARSHALL, J.

— This is an action to divest out of defendant, and vest in the plaintiff, the right and title to all the mineral, marble and granite on or under a certain tract of land in Madison county, in the State of Missouri, together with a right of ingress and egress’ from the same to mine and work said land, and to recover $584.55 profits, alleged to have been received by the defendant while acting as the agent of the plaintiff in respect to said land. There was no motion for new trial or bill of exceptions filed so far as is disclosed by the record here, and therefore the case stands for adjudication, in this court, upon the record proper.

On the 20th of February, 1902, the plaintiff instituted this suit. The petition (omitting caption) is as follows:

“Now comes plaintiff, and by leave of court first had files his amended petition and for his cause of action states that on the 6th day of June, 1892, and for a long time prior thereto, he was the owner of a certain tract of land, situated in the county of Madison and State of Missouri, and described as follows, to-wit:
“All the land formerly owned by William A. Hudson in the Peter Burn’s survey numbered 3171, and in the William Dillon survey numbered 3125, which lies south and east of Mill creek and the prongs there, •which is to include. [Here follows a discription of 56.3 acres, together with a lane, 16 and one-half feet wide leading thereto.]
“That on said 6th day of June, 1892, and for several years prior thereto, defendant was the agent of plaintiff for the management and sale of said land., That during all of said periods, plaintiff was a resident of the city of St. Louis, Missouri, and defendant was a resident of said county of Madison. That on, to-wit, about the 26th day of May, 1892, defendant, while acting as said agent of plaintiff, represented to plaintiff that he thought he could sell forty acres of the aforesaid land for the sum of one hundred and fifty dollars and requested plaintiff to execute and return to defendant a blank deed to all of said land, which said blank deed was forwarded by defendant to plaintiff at said time, with the name of the grantee being left blank in said deed. That plaintiff, being wholly ignorant of the value of said land and relying wholly upon defendant, his agent, in said transaction, did on the 6th day of June, 1892, execute said blank deed to said land, the name of the grantee being left blank in said deed, and forwarded said deed to defendant.
“That thereafter, defendant, without the knowledge or consent of plaintiff, and with the fraudulent design of obtaining plaintiff’s said land at a sum far below'its value, did fraudulently cause his (defendant’s) own name to be inserted as grantee in said blank deed, and thereafter caused said deed to be recorded on the 27th day of August, 1892, in book 17, at page 475, in the office of the recorder of said Madison county, Missouri. That the consideration named in said deed was one hundred and eighty dollars and that, to-wit, on or about the 17th day of November, 1892, defendant paid to plaintiff the sum of one hundred sixty-five dollars, being the aforesaid consideration named in said deed less the sum of fifteen dollars, which said sum defendant deducted for services in making said deed and for paying the taxes on said land. That said land, during all said times, was worth much more than said sum of one hundred and eighty dollars, which fact was well known to defendant.
“That on, to-wit, about the 24th day of November, 1892, defendant, by deed, conveyed all agricultural and timber rights, interests and values with possessory rights in and to said above-described land to one William Parks of said Madison county for the sum of $764.55. Wherefore defendant became indebted to plaintiff in the sum of $584.55, as agent and trustee of plaintiff, said sum being the profit realized by defendant by the sale of said land to Parks as aforesaid. That defendant refused and still refuses to account to plaintiff for said sum.
“That in said deed from defendant to said Parks, defendant reserved to himself the right and title to all mineral of every nature and marble and granite in, on or under said above-described land, together with the right of ingress and egress from the same to mine and work said land.
“That defendant has at all times concealed from plaintiff the fact that he inserted his (defendant’s) name as grantee in said deed, as aforesaid, and has likewise concealed from plaintiff the fact that defendant sold said land to said Parks as aforesaid, and plaintiff states that these facts came to his knowledge for the first time on the — day of April, 1901.
“Wherefore, plaintiff prays judgment against the defendant for said sum of five hundred and eighty four dollars, together with interest thereon at the rate of six per cent per annum from said 24th day of Novem-. ber, 1892; that defendant be ordered to re-convey to plaintiff all the title and interest in said land reserved as aforesaid by defendant in his said deed to said Parks, and the plaintiff be granted a decree divesting all said title and interest out of defendant and vesting the same in plaintiff; that the defendant be ordered to give a full and complete accounting to plaintiff of his trust in managing and selling said land as agent of plaintiff, for his costs herein, and for such further relief as to the court may seem just- and proper.”

The defendant demurred to the petition, and the demurrer being overruled, he answered over. The answer is a general denial of all allegations not expressly admitted. It then admits that on the 6th of June, 1892, the plaintiff owned the surface1, timber and agricultural rights in and to the lands described in the petition, and the right of ingress and egress; that, on said date, the plaintiff acknowledged a deed to said land, leaving the name of the grantee blank, for a consideration of one hundred and eighty dollars, and that the defendant filled in his name as grantee, and caused the deed to be filed for record in Madison county, on the 27th of August, 1892, but denies that he thereby defrauded or attempted to defraud the plaintiff; admits that the consideration named in the deed was one hundred and eighty dollars, which he alleges he paid as follows: cash to tbe plaintiff one hundred and thirty-one dollars and thirty-five cents; services to the defendant for making the deed and for payment of taxes, fifteen dollars; thirty-three dollars and sixty-five cents other charges were then made by the defendant against the plaintiff, and set forth in the account filed with the answer; admits that the defendant sent the- deed to- the plaintiff to be executed and acknowledged with the name of the grantee in blank, and that it was intended to and did include and convey the land now described in it, and that, after the 27th of August, 1892, the plaintiff had notice, and was informed by the defendant that the deed executed, delivered and recorded was to the defendant; alleges that the location, quality and character of the land was well known to the plaintiff before he made the deed; alleges that on the 8th of July, 1892, while the. deed was in the defendant’s possession, as plaintiff well knew, with the name of the grantee still in blank, the plaintiff personally visited the land, went over it and familiarized himself with it, and urged the defendant to sell the land for not less than one hundred and fifty dollars, and to make the sale as speedily as possible; that plaintiff had, for a long time, been anxious to sell the land; that defendant sought to sell the land speedily, and was unable to do so, and that to oblige the plaintiff and enable him to dispose of the land, he, on the 27th of August, 1892, concluded to take the land himself, and filled in his own name as the grantee, and paid the plaintiff the consideration named in the deed of one hundred and eighty dollars, in the -manner aforesaid; that the land was unimproved timber land, of very cheap quality, and owing to the dullness of the times and the financial stringency then existing, could, not easily be sold, and that it was not then worth more than one hundred and eighty dollars; that on the 27th of August, 1892, when he filled in his name as grantee, and recorded the deed, and remitted the payment to the plaintiff, the plaintiff was in Europe, temporarily, but returned on the 7th of November, 1892, examined the account stated and remitted to the defendant the ninety dollars shown therein to be due the defendant on general account of services rendered and that thereafter the relation of principal and agent or attorney, between the plaintiff and the defendant, ceased, and by reason of the foregoing, the defendant pleads that plaintiff is estopped to maintain this action.

The answer then avers that on the 25th of November, 1892, the defendant notified the plaintiff that said deed had been made to him, and that plaintiff acquiesced in, approved and ratified all that defendant had done in the premises, and until this suit was brought, nearly ten years thereafter, he never complained or objected, and by reason thereof, the defendant pleads a ratification by the plaintiff, and also laches on the part of the plaintiff. The answer then avers that long prior to November 17th 1892, the defendant resided at Fredericktown, Madison county, Missouri, and was the agent of the plaintiff prior to that date, but not since, for- the purpose of paying taxes on plaintiff’s land, located in Madison county, and to sell the same for plaintiff, and that plaintiff owned other lands in said county than those embraced in this suit. The answer then pleads that this action was not brought within five years from the time the cause of action accrued, and, therefore, it is barred by the five-year Statute of Limitation. It then admits that on the 24th of November, 1892, he sold the land, together with 22 other acres owned by defendant, to William and Maggie Parks, for $1,050, reserving all minerals, marble and granite in or on said land, and the right of ingress and egress over said land, to work the same, if any such there should be; but alleges that in addition to this land, he also sold to said Parks 22 acres of land belonging to him, and that the consideration of $1,050 included, both tracts, and the 22 acres belonging to defendant was an inducement to said Parks to purchase the land here in controversy; that the deed to said Parks was recorded on the 24th of November, 1892, and that the plaintiff had due notice thereof. The answer then alleges that thereafter one Edward Perringer claimed to be the owner of 15 acres of said land, and instituted an ejectment suit therefor, against said Parks; that said Parks notified defendant to defend said suit, under the warranty of his deed, and that said suit is still pending, and the defendant is defending the same.

The case was tried on the 4th of April, 1903, and -resulted in a judgment for the plaintiff, declaring that the relation of trust and confidence existed between the plaintiff and the defendant, at the date of the execution of the deed of June 6th, 1892, and that by reason thereof the defendant held the land as trustee for the plaintiff, together with all profits realized by defendant therefrom ; that defendant realized, as such profits from said lands, from the sale to Parks, the sum of $666.66, and thereby became indebted to the plaintiff in the snm of $486.66, being the amount of said profits less $180.00 paid by the defendant to the plaintiff.

The decree divested all right, title and interest in the land, reserved by the defendant under his deed to said Parks, out of the defendant, and vested the same in the plaintiff, and forever enjoined the defendant from setting up any right, title or claim to said property; and further adjudged that the defendant pay to the plaintiff $486.66, with interest thereon, aggregating $788.40. From this decree the defendant appealed.

I.

The defendant contends that notwithstanding he answered over, after his demurrer was overruled, he did not thereby waive his demurrer, and consequently he argues the case here as if he had stood on his demurrer, and he relies upon Hoffman v. McCracken, 168 Mo. l. c. 343, and Paddock v. Somes, 102 Mo. 226, as authority for his position.

The demurrer is set out in the abstract of the record, and alleges six grounds therefor, to-wit:

First. The five-year Statute of Limitation.

Second. That the reserved right to the minerals, contained in the deed from defendant to Parks, does not constitute an estate in land, and therefore, no decree divesting the title out of the defendant, and vesting it in the plaintiff, could be entered, nor does the petition allege that there are any such minerals on the land, and that the right of ingress and egress was conditional upon the existence of such mineral on the land, and consequently the reservation was not of such an estate as a court of equity could divest.

Third. That the petition does not state facts sufficient to constitute a cause of action, either at law or in equity.

Fourth. Because there is an improper joinder of two causes of action in the same count, one at law and the other in equity.

Fifth. Because there is a misjoinder of causes of action in the same count, one to recover a money judgment, and the other to divest out of defendant an interest in real estate.

Sixth. Because the petition discloses that the plaintiff has been guilty of such laches and want of diligence as will bar a relief of any kind.

Counsel are in error as to the meaning of the cases cited.

The rule of law in this State is well expresed by Sherwood, J., in Paddock v. Somes, 102 Mo. l. c. 235, as follows:

“The defendant had waived any irregularity or informality in the petition, or of its union of two causes of action in one count, by pleading to the merits. This has been determined so often in this court that the repetition of this statutory rule would seem to be but a work of supererogation. If a defendant pleads to the merits, he waives everything in the petition but two points: First, That the petition does not state facts sufficient to constitute a cause of action; second,, that the court has no jurisdiction over the subject-matter of the action. ’ [ Citing cases.]

Speaking to the same question, Burgess, J., in Hoffman v. McCracken, 163 Mo. l. c. 313, said:

'“It is said that the petition fails to state a. cause of action, but plaintiff claims that even if this be true, defendants waived the point by answering over after the demurrer to the petition upon that ground was overruled. This position is not, however, well taken, for if there is anything well settled by this court it is, that where a demurrer to a petition has been overruled the defendant, if he answers over, does not thereby waive the objection that the petition fails to state a cause of action. [Paddock v. Somes, 102 Mo. 226, and authorities cited.] And this question may he raised for the first time in this court.”

Those cases, therefore, do not support the defendant’s contention that answering over did not waive the demurrer and that the demurrer, in its entirety, is open to review here. On the contrary, those cases simply announce the well-established rule in this State, that answering over, after a demurrer is overruled, does not preclude a defendant from thereafter contending that the petition does not state a cause of action, or that the court had no jurisdiction. These two questions are always open for adjudication on the face of the record proper, whether there was ever a demurrer interposed to the petition or not, and whether or not the defendant had filed an answer to the merits, and, further, whether or not those objections had been raised in the trial court.

The cases cited and relied on by defendant hold that by answering over, the defendant waives all objections to the petition, except the two stated above, and that those two objections are available to the defendant, at any time, in any court, while the case is pending, either in the trial or appellate court, and whether they were raised by demurrer or not. Answering over does not waive those two objections to a petition, but answering over does waive all other objections to a petition.

Hence this case stands before this court for adjudication upon the record proper, and the two objections stated are open to adjudication here, not because they were or were not raised by demurrer, in the lower court, but because they are always present and subject to adjudication at every stage of the case, in any court, to which the case may be taken.

There is no question, in this case, that the court had jurisdiction, both of the subject-matter and of the parties. This leaves for consideration only the question whether or not the petition stated a cause of action, and whether the judgment entered is authorized by the petition.

The first contention of the defendant is that the action is barred by the five-year Statute of Limitation, and that the cause of action accrued when the defendant inserted his name in the deed as the grantee, and placed that deed on record, on the 27th of August, 1892.

The petition seeks to recover two separate and distinct matters: First, the profits alleged to have been made by the defendant in paying the plaintiff one hundred and eighty dollars for the land, and in shortly thereafter selling the land for $764.55, the difference between those two sums amounting to $584.55, being the profit made by the defendant, which the plaintiff claims enured to his benefit; and the second object of the suit is to divest the title, which the defendant reserved to himself to the mineral, marble and granite, in, on or under the land, together with the right of ingress and egress from the same, to mine and work the land, and to vest the same in the plaintiff.

The second object stated relates to the mineral, marble and granite beneath the surface of the land and the right to mine the same. That was an interest in real estate and also an easement. Whether there was or was not such mineral beneath the surface of the land could only be determined by mining or prospecting for the same, and the right so to do was an easement. Even regarded wholly as an easement, nevertheless, it was an interest in land, and could lie only in grant. [10 Am. and Eng. Ency. Law (2 Ed.), 409].

Being an interest in real estate the plaintiff had a right to maintain the action at any time within ten years after the right of action accrued, under section 4262, Revised Statutes 1899. [Rogers v. Brown, 61 Mo. 187; Hughes v. Littrell, 75 Mo. 573; Dunn v. Miller, 96 Mo. 324.]

The filing of the deed on the 22nd of August, 1892, was the date when the plaintiff’s cause of action accrued, for the plaintiff was then charged with notice of the fact that the defendant had so inserted his name in the deed. [19 Am. and Eng. Ency. Law (2 Ed.), 251]. For ‘ ‘ constructive notice of fraud is generally regarded as sufficient to set the Statute of Limitations in motion, even though there is no actual notice.” [Idem.]

This action was brought on the 20th of February, 1902; and it was therefore brought within ten years from the time the cause of action accrued, so far as the interest in real estate is concerned, and the plaintiff is entitled to maintain the same, unless the defense of laches interposed by the defendant, and hereafter referred to, will prevent recovery.

As to the claim for the profits realized by the defendant, a totally different question presents itself. Conceding that the plaintiff was entitled to those profits, the question is whether or not his claim thereto was barred by limitation, when this action was brought. The petition, seemingly to avoid the operation of the statute, alleges that the facts first came to the knowledge of the plaintiff in April, 1901, and in this way it is sought to bring the case within the fifth paragraph of section 4273, Revised Statutes 1899, which provides that, “An action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud,” and it is claimed this brings the case within the exception to the five-year limitation prescribed by that section, for bringing “all actions upon contracts, obligations or liabilities, express or implied, except those mentioned in section 4272,” etc.

In support of his position, the plaintiff relies on the case of Hunter v. Hunter, 50 Mo. 445. That was an action very similar to the case at bar. Its purpose was to set aside a conveyance and to recover profits made by the defendant. It was there held that the ten year Statute of Limitations applies to all actions for the recovery of land, but, without distinguishing between the character of the two claims made, the one for money had and received, or profits made, and. the other for the recovery of land, the court discussed the fifth clause of the five-year Statute of Limitations, which was like the present Statute of Limitations, except that it did not then contain the provision that the fraud should have been discovered “at any time within ten years.” That amendment to the statute was made in the revision of 1865, and that feature of the law was overlooked by the court and counsel in that case. The court quoted the statute as it existed in the revision of 1855, and then said: “Where the case is one of fraud, the statute in no case will commence to run until the discovery of the fraud. This was always the equity doctrine, and is still the doctrine under our code.” The remark just quoted was with reference to the statute of 1855, and can have no application now, for since 1865 the statute expressly requires that the fraud should have been discovered within ten years after its commission, and that the aggrieved party should then have five years after the discovery thereof in which to bring the action. This conclusion was reached by this court in Rogers v. Brown, 61 Mo. l. c. 194, without noticing the change in the statute, for in that case the court referred to the statement above quoted from Hunter v. Hunter, and said that the rule there announced was the former rule in equity, but added, “We do not conceive it to be the rule now. ’ ’

The deed from the plaintiff to the defendant, and the deed from the defendant to Parks, were recorded in 1892.- They recited the consideration moving to the grantors. They disclosed, on their face, the profit alleged to have been received by the defendant, from the resale of the land. The plaintiff was, therefore, charged with notice of the facts as of those dates. [Bent v. Priest, 86 Mo. l. c. 489.] And the plaintiff would have been entitled to recover the same if he had brought his action at any time within five years from that date. He failed so to do, and therefore his action to recover such profits was barred at the time this suit was brought. To avoid this conclusion, the plaintiff claims that the statute does not run against a trust, and that the defendant held the profits as a trustee for the benefit of the plaintiff. The statute does not run against express trusts, but an express trust is a trust created by deed or law, and such is not the character of the trust relied on in this case. It was an implied or constructive trust, and the Statute of Limitations runs against implied or constructive trusts. [Landis v. Saxton, 105 Mo. l. c. 489; Reed v. Painter, 145 Mo. l. c. 356.]

It follows that the petition shows on its face that the plaintiff was barred of the right of recovery as to the profits, but that he was not barred of his right of recovery as to the interest in the land, unless by reason of laches, now to be considered.

H.

The defendant next contends that the petition shows on its face such laches as bars a right of recovery as to the interest in the land.

Under the code in this State the Statute of Limitations applies to equitable as well as legal actions. In equity, however, a party may be denied relief on account of laches, although the statutory period of limitation has not expired. The general rule of law is thus stated in 18 Am. and Eng. Ency. Law (2 Ed.), 100*:

“Lapse of time, when it does not operate as a statutory or positive bar, operates by way of evidence, and may create a presumption that parties have waived or abandoned their rights. But it has been laid down that this presumption, being a presumption of fact, may be repelled by proof of other incompatible facts. . . . It has been held that so long as the relative positions of the parties are not altered to the defendant’s prejudice, delay is of very little consequence.”

The rule here stated was quoted approvingly and followed in Newman v. Newman, 152 Mo. 398.

The same doctrine was announced in Weir v. Lumber Co., 186 Mo. l. c. 396, where it was said: “The defendant next contends that the plaintiff is estopped by his laches from setting up title at this late day. Estoppel means that a party has been guilty of some failure to assert a right at the time he should have done so, in consequence of which another has so acted with respect to the subject-matter that loss would result to him, if the guilty or silent party was allowed afterwards to assert his right.”

The Encyclopedia further states the rule as follows:

“And where the delay is not sufficient to bar the corresponding legal remedy, it will not deprive a party of his equitable remedy, unless the neglect has so prejudiced the other party by loss of testimony or. means of proof, or changed relations, that it would be unjust to permit the complainant to exercise his right.
“The degree of laches which is sufficient to preclude relief varies according to the nature of the transaction involved in the suit. If the property is of a speculative or fluctuating character, it is the duty of the plaintiff to press his claim at the earliest possible .time. This rule is applied with great strictness in the case of mining property, such property being of a specially precarious nature, and exposed to the utmost fluctuations in value, and a similar rule is recognized in the case of sales for trade purposes, and in the sale of a lease for lives. Where the property in question has greatly increased in value, unexplained delay on the part of the complainant will be fatal to his case, for, though time be not of the essence of the contract, a court of equity will not allow a delay which would enable the party to take' advantage of the turn in the market and have the contract performed only in case it suited him to do so.” [18 Am. and Eng. Ency. Law (2 Ed.), 101 and 102.]

So far as the petition discloses the laches of the plaintiff in this case have not operated to the injury of the defendant, and, therefore, on the face of the petition, the conditions necessary to defeat the plaintiff’s claim on the ground of laches, are not apparent in this record. What the true facts may he, or may hereafter appear upon the re-trial of the case, of course, are not now disclosed or known to the court, hut will he considered by the trial court on the trial anew.

It follows that the judgment of the circuit court must be reversed, and the cause remanded to he tried again in conformity to the principles here announced.

All concur.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    SUESS et ux. v. IMPERIAL LIFE INSURANCE COMPANY, Appellant.
    Division One,
    February 22, 1906.
    1. INSURANCE: Contract: Waiver: Course of Business: Constitutional. Under a plea of performance of an'insurance policy requiring tlie payment of premiums to be made at noon on specified dates, the insured can show that there had been such a course of dealing between the parties as amounted to a waiver by the company in that particular. And no constitutional right of the company is violated by admitting such evidence.
    2. -: -: -: —5—: Appellate Jurisdiction. However, where the suit is for a recovery of $266.65 in premiums paid, on the ground that the contract was wrongfully cancelled for failure to pay a certain premium at the' noon hour of the stipulated day, the point, presented in the trial court, in objections to the evidence, in instructions asked and in the motion for new trial, that the proof of waiver was violative of the constitutional provisions forbidding the depriving of one of his property without due process of law, involves a constitutional question, and the appeal is to the Supreme Court.

      3. -: -: -: Evidence. By the terms of the policy, the premiums were payable at the company’s home office in Detroit at noon on the 15th day of April and October. The insured lived at Miami Station, on the Wabash railroad, in Carroll county, Missouri, and mailed, by check or express money order, their semi-annual premium, on the regular east-bound train at 10:30 a. m., on April 14th and October 14th, in 1890 and 1891, and on April 14th, 1892, and this last payment, received by the company on April 16th, was rejected as having arrived too late. One letter from the company showed that defendant had received the premium on the 15th. The other letters, acknowledging receipt, were dated the 16th. Held, that this evidence was no evidence at all that the company had waived its rights to require the payment to be made according to the terms of the contract, and a finding by the trial court, sitting as a jury, that the company’s course of conduct amounted to a waiver, cannot be permitted to stand. Held, also, that the mailing of the premiums on the 14th, was not, of itself, any evidence that the company had established a rule of conduct of accepting the premiums if they arrived after noon on the 15th.
    4. WAIVER: Course of Dealing. One transaction cannot make a custom or establish a course of dealing or vary the positive terms of a written contract.
    Transferred from 'Kansas City Court of Appeals.
    Eevebsed.

      Gonhling £ Rea for appellant.
    (1) By applying the judicial rule, manufactured exclusively for insurance cases, of permitting proof of waiver, although not pleaded, defendant was denied the equal protection of the laws as guaranteed by the Federal Constitution. The announcement of this rule by a Missouri court is always accompained by an apology. As declared by Judge Ellison, “It seems to me to be a reflection on the administration of the law, that without pretense of cause or excuse, there should be one rule of practice applied to insurance cases, and a directly opposite rule to all other cases,” Murphy v. Ins. Co., 70 Mo. App. 85. The constitutionality' of this rule is an open question. It has been suggested but never directly passed upon. James v. Life Ass’n, 148 Mo. 18. It is certain that a statute built on that plan would he held in violation of the fourteenth amendment. State v. Hayes, 81 Mo. 574. And that amendment is •also prohibitory of State action or judicial construction. Civil Rights Cases, 109 U. S. 3. This Missouri rule of waiver in insurance cases singles out a certain class and applies to them a rule not applied against'individuals or other corporations. In the suits to which they are parties they are discriminated against, and are not treated as others. They do not' stand equal before the law. They do not receive its equal protection. Paddock v. Railroad, 155 Mo. 538; In re Flukes, 157 Mo. 125; Railroad v. Ellis, 165 U. S. 155. (2) There was no evidence whatever in this case of waiver of timely payment of premiums, and hence the finding for plaintiffs was erroneous. Plaintiff says he mailed each of the three prior premiums at 10:30 a. m. of the 14th— twénty-five hours before they were due. Does that prove they were received out of time? Of course not. Counsel will hardly ask this court to assume, without evidence, that it takes more than one day and night to carry the mails even from Kansas City to Detriot. A court cannot take judicial notice of the time of the arrival or departure of trains. Bishop v. Life Ins. Co., 85 Mo. App. 302. The remaining evidence consists only of two letters by defendant acknowledging receipt of these premiums. The first is dated October 16,1890'. Nothing in this letter indicates that the premium was received one minute after noon of the 15th. The next letter is dated April 15, 1891. Surely this letter does not help to prove waiver. On the contrary, it proves absolute, literal compliance with the contract. The foregoing letters are all the evidence upon which the theory of waiver can he possibly based. One of them disproves waiver; the other does not prove anything. Now, even concede, for the sake of the argument, that the letter of October 16, 1890, shows the acceptance of a belated payment. How does that help plaintiff1? One swallow does not make a summer. Or, in the language of the Supreme-Court, ‘ ‘ One act of waiving a forfeiture is not sufficient to constitute a course of conduct.” James v. Life Ass’n, 148 Mo. 2.

      Jas. McPhetridge, Russell Kneisley and Busby é Busby for respondents.-
    (1) Appellant contends that the court, by applying the judicial rule of permitting proof of waiver, although not pleaded, denied appellant the equal protection of the laws as guaranteed by the Federal Constitution. This question has been recently passed on adversely to appellant by the Supreme Court of this State. Andrus v. Ins. Ass’n, 168 Mo. 162. (2) There Yas not only some evidence of waiver, sufficient to support the finding for respondent, but the finding and judgment of the court was amply supported upon one or both of two grounds, namely, that appellant had waived the prompt payment of premiums by the custom and course of dealing established between the parties in relation to the transmission of premiums; and also by the custom of appellant to receive over-due- premiums. It appears that appellant had its home office at Detroit, Michigan, and respondent resided at the village of Miami Station; that after paying the first premium to appellant’s agent at Kansas City, the respondent was directed by appellant to- remit all subsequent premiums to the home office at Detroit, Michigan, and that respondent pursuant to this direction afterwards remitted four premiums direct to the home office by mailing an express money order for the amount at Miami Station, at 10:30 a. m. of the day prior to due date on an east-bound passenger train, all of which premiums were received by appellant without objection to -the time or manner of remittance. - There can be no question that respondent had been led to feel perfectly se ■ cure in mailing the premium due April 15, 1892, in the same time and manner that the other premiums had been remitted. Bacon on Ben. Soc. and Life Ins. (3 Ed.), p. 1107; 16 Am. and Eng. Ency. Law (2 Ed.), 934; Andrus v. Ins. Ass’n, 168 Mo. 165; Suess v. Ins. Co.,. 86 Mo. App. 12. In relation to the other ground of waiver, that is, the custom of appellant to receive overdue premiums, the case is equally as strong, and the finding of the court was amply justified also on this ground. It is undisputed that the five premiums including the one due April 15,1892, were remitted in exactly the same time and manner. While only three of the receipts for these premiums are in evidence, yet it appears that two out of the three were not received by appellant until the day after due, and the other one dated on the 15th day of the month does not necessarily prove that the premium was received on due date, since appellant doubtless dated the receipt back according to the well-known practice in such matters. Respondent testified that he mailed all five of the premiums at exactly the same time and the presumption is, in the absence of countervailing evidence, that all the premiums reached their destination in the same length of time. And in addition appellant took the deposition of its secretary, Olliver, at the home office within reach of the records and carefully avoided any mention of the dates of receiving prior premiums, when the dates of receiving these premiums was the important issue in the case. 22 Am. and Eng. Ency. Law (2 Ed.), 1238, 1261; Baldwin v. Whitcomb, 71 Mo. 658; James v. Life Ass’n, 148 Mo. 15; Davis v. Railroad, 46 Mo. App. 180; Cohn v. Kansas City, 108 Mo. 387.
   VALLIANT, J.

— Plaintiffs who are husband and wife sue to recover premiums paid by the husband to defendant on a life insurance policy issued by defendant on the life of the husband for the benefit of the wife, on the ground, as alleged in the petition, that the defendant had wrongfully declared the policy lapsed as for non-payment of premium.

The petition states that the policy was issued on the 15th day of October, 1889, for a period of six months, renewable at the end of every six months thereafter during the life of the husband by payment of the stipulated premium; that these semi-annual premiums to renew were to be paid on or before 12 o ’clock noon, April 15th and October 15th of each year; then the petition says: “Plaintiffs further state that on the day said contract of insurance was entered into and by 12 o ’clock noon of the last day of every six months thereafter he duly paid said premium to the defendant according to the terms of said contract;” that he tendered according to the terms of the contract the premium due on April 15, 1892, but defendant refused it on the ground that it had not been paid in time and declared the policy ended.

The answer admits the terms of the policy as pleaded in the petition, sets out certain other clauses, in one of which it is stipulated that the premium is to be paid on or before 12 o ’clock noon of the last day of the expiring six months and unless paid by that hour the policy is to cease and determine, and the answer states that the plaintiffs failed to pay the premium due April 15, 1892, by the time required. Another clause in the policy is pleaded in the answer whereby the insured is given 60 days after his failure to pay the renewal premium in which to revive the insurance by furnishing a certificate of good health and payment of the past premium, and the answer avers that plaintiffs never made any offer to comply with the terms there given.

The reply was a general denial.

The cause was tried by the court — jury waived. There was a finding and judgment for the plaintiff for $226.65, from which defendant applied for an appeal to this court, but the court granted the appeal to the Kansas City Court of Appeals, which court when it came to look into the record found that there was a constitutional question involved, and for that reason sent the case here.

I. The petition states that the plaintiffs paid the former premiums according to the terms of the contract and tendered the one due 12 o ’clock m., April 15, 1892, also, in accordance with the terms of the contract and upon that statement asks judgment; defendant denied that the last-mentioned premium was tendered, within the time specified in the contract. Over the defendant’s objection plaintiffs were allowed to introduce evidence tending to prove a course of business conduct indicating a waiver by the defendant of the prompt payment by the day and hour named, and the court found from that evidence that there had been such a course of dealing between the parties as amounted to a waiver by defendant in that particular and that although the premium due April 15, 1892, was not tendered within the specified time, yet it was mailed to defendant within the time in which the former premiums had been mailed and on that finding gave judgment for the plaintiff.

Defendant contends that, whereas it is a rule of practice and pleading in this State that a party suing for a breach of a contract with which he asserts in his pleading he, on his part, has fully complied, cannot be allowed to recover as on a waiver of terms of the contract unless he has pleaded the waiver, to make an exception to that rule in a suit against an insurance company is to violate section 30 of article 2 of our State Constitution, which forbids the depriving of any one of his property without due process of law, and the 14th amendment of our Federal Constitution, which forbids the denying of any one equal protection of the law. That point was well preserved in the trial court, in objection to the evidence, in an instruction asked and in the motion for a new trial. It could not have been made in this case any sooner than it was.

The Court of Appeals, therefore, did right in sending the ease here.

The constitutional questions now presented by ap>pellant have been heretofore and so recently considered and decided by this court that we deem itunnecessary to • say anything more on the subject. Our views are fully expressed in James v. Life Association, 148 Mo. 10, and Andrus v. Ins. Ass’n, 168 Mo. 161, and in the former decisions of this court cited in those two decisions. There was no constitutional right violated by the admission of that evidence.

II. This cause has been long pending in court, it was instituted to the March term, 1893, there have been three trials, and this is the third appeal.

In the first trial in 1893 there was a judgment for defendant, and plaintiffs appealéd. The appeal went to the Kansas City Court of Appeals where the judgment was reversed and the cause remanded. [Suess v. Life Ins. Co., 64 Mo. App. 1.] There was no question of waiver in the case at that time. The court said, l. c. 5: “There was evidence in plaintiff’s behalf tending to show that he duly paid the premiums for several years at the end of each six months’ period up to and including April 15, 1892, when, on the latter date, the defendant without cause refused to receive the premium due for the then ensuing six months, but wrongfully declared said policy void and of no further effect.” And the court also said, 1. c. 10: “There was no evidence offered as to any agreement to waive any rights, nor as to defendant’s deceiving plaintiff by a course of conduct. The plaintiff made no such suggestion at the trial. ’ ’ The judgment was reversed for errors in refusing and giving instructions, chiefly those relating to the measure of damages.

On the second trial there was again a verdict for the defendant and plaintiff appealed. [Suess v. Life Ins. Co., 86 Mo. App. 10.] At the second trial the plaintiffs tried their case, not on the theory as before, that they had paid their premiums according to contract, bnt on the theory that defendant by its course of dealing had authorized plaintiffs to believe that the payment made as this was would be acceptable. The evidence on that point in that trial was substantially the same as it is in the record now before us; the judgment was reversed on account of error in refusing an instruction asked by the plaintiff covering the waiver theory.

The evidence in the record before us on that point is substantially as follows:

Suess testified that he took out the policy October 15, 1889, and paid the first premium to the agent of the defendant in Kansas City. Afterwards he received notice from the company “to send all remittances after that to Detroit, Michigan; that was the home office of the defendant company.” Plaintiffs lived at Miami, a station on the Wabash railroad in Carroll county; after receiving notice to remit to the home office at Detroit, plaintiffs mailed the premiums as follows: “I mailed them on the 14th of April and the 14th of October, 1890, and 1891; mailed them to the company, mailed all the payments at Miami station; that is, the premium payments I made in 1890 were forwarded on 14th of April and 14th of October, and in 1891 the same way. The premium that was due April 15, 1892, I mailed the same way, mailed it on the regular Wabash mail train going east at 10:30 in the day on April 14, 1892.” Plaintiff introduced in evidence three letters of defendant, all dated at Detroit, Michigan, one October 16, 1890, acknowledging receipt of plaintiff’s letter of October 14th inclosing check to pay premium due October ,15th; the next letter was dated April 15th, acknowledging receipt of letter of date not stated, enclosing express order to pay premium due that day. The third letter, dated April 16, 1892, returning the cheek offered for the premium due April 15th, declining to receive it on the ground that it came too late.

The foregoing is all the evidence adduced hy plaintiffs to support their theory that the defendant had waived its right to require the payment to be made according to contract, and when sifted to the grain it is no evidence at all of.that fact.

The only direction that the defendant gave was to make the remittances to the home office a.t Detroit. Defendant did not undertake to direct or advise hy what-means, or how or when the remittances should he made, and as long as the premiums reached the defendant in the time limited in the contract, it had no right to object to the plaintiffs choosing their own agent through which to forward the premiums and their own time for doing so. The inference might he drawn from the evidence that a letter leaving Miami station at 10:30 a. m. on the 14th would, if there was no delay, be delivered to defendant before 12 o’clock on the 15th and as long as the defendant received the premium in due time it had no right to complain that the letter was not mailed at an earlier date. If defendant had undertaken to advise the plaintiffs that it was not good business judgment for them to postpone mailing their letters to the very last day and hour after which it was possible for the delivery to he made in time, plaintiffs might with propriety have told defendant to mind its own business. It may he presumed that the. plaintiffs examined the railroad time tables and satisfied themselves that a letter mailed at Miami at 10:30 a. m. on the 14th would in due course reach Detroit on the morning of the next day in time to he delivered before 12 m., and that they adopted the 14th for that reason. But if so, the defendant was not consulted on that subject and neither expressly nor impliedly agreed that a mailing of a. letter on the 14th containing a check for the premium should be regarded the same as a payment, of the premium by 12 o ’clock on the 15th. It was no concern of defendant when the plaintiffs mailed their letters so long as the premiums reached it hy the time specified. Plaintiffs in choosing the mail chose their own agent' and in choosing the day chose their own time, and if they held the premium back until the last possible time in which the mail, without accident or delay, could deliver it, they took the risk of whatever accident or delay might occur.

The defendant’s letter of October 16, 1890, does not say that plaintiffs’ letter enclosing the check was received that day, and no such inference is to be drawn from it. The answering of a letter on the very day it is received is not such an invariable custom as to justify such an inference. Besides, if it should be conceded that the remittance mentioned in that letter did not reach the defendant until the 16th, that is only one transaction, and shows only one premium received after the time specified in the contract. One transaction cannot make a custom or establish a course of dealing to vary the positive terms of a written contract. The next letter acknowledging the receipt of the premium due April 15, 1891, is dated April 15, 1891. We have no right to infer, therefore, that any of the previous remittances which Suess testified he mailed at 10:30 a. m. on the 14th of the month were not delivered t.o defendant in due time. Indeed, if we look into the history of this case we find that at the first trial the plaintiffs asked the jury to find from this evidence that all those premiums mailed on the 14th, including the one which the defendant refused to receive, were received by defendant on the 15th before noon. The waiver theory did not come into the case until the next trial, which occurred five years after the first. Plaintiffs having gone to the jury on the first trial on the proposition that the rejected premium was received within the time specified in the contract, and the verdict having been against them on that issue, changed front at the next trial and set up the waiver theory. The evidence for the defendant was positive and uncontradicted that the rejected premium did not reach the defendant until the 16th, and so the jury in the first trial found, and so the court sitting as a jury in the last trial found. At this last trial the plaintiffs by their instructions asked a judgment only on the waiver theory.

The error into which the court fell was in charging the defendant with acquiescence in the practice of plaintiffs in mailing their remittances in Miami on the 14th of the month, a matter with which defendant had nothing to do. In mailing their remittances on the 14th plaintiffs saw fit to give them barely time to reach their destination without accident or delay, and if they chose to take that risk they had a right to do so and defendant had no right to object as long as the remittance came within the time specified in the contract, and there is no evidence that any remittance SO' mailed failed to reach defendant within the contract time except the one due April 15, 1892, which was rejected and returned to the plaintiffs.

Defendant’s action in declaring the policy terminated may be harsh treatment, but that is the contract; men have a right to make contracts of that kind and courts are not established to assist men in avoiding their contracts. According to the terms of the policy pleaded in the answer these plaintiffs had sixty days after the policy was declared terminated in which to reinstate it by furnishing a certificate of good health and paying the past premium, but the evidence shows they made no effort to do so. They waited nearly a year and brought this suit asking a judgment on the ground that they had made payments strictly in conformity to the contract, and when the verdict was against them on that issue and they had reflected on it for five years they concluded that they had been misled by defendant’s conduct into thinking that defendant had waived that feature of the contract and they asked a judgment on that theory.

The court sitting as a jury found that the plaintiffs had not paid the premium within the time required by the contract. On that finding the judgment should have been for the defendant. The judgment is reversed.

All concur.


author: MARSHALL, J.

text:
    O’REILLY et al., Appellants, v. KLUENDER et al.
    Division One,
    February 22, ,1906.
    1. MARRIED WOMAN: Legal Estate. The owner of land devised it to a married daughter for life and the remainder to another married daughter in fee. J-Ield, that the estate thus devised was a pure legal estate, and not a separate equitable estate.
    2. -: -: Contract: Essential Validity. The essential element to the validity of every contract is that it is made by persons competent to contract. Where one of the parties to a contract is unable, because of coverture, to complete a transaction, the contract is unenforcible, either at law or in equity.
    3. -: -: -: -: Legal Estate: Specific Performance. An executory contract made by a married woman in 1873 with respect to her legal estate was void and cannot now be enforced, either at law or in equity. So that where the owner of land devised a life estate therein to one daughter and the remainder in fee to another, thereby creating a pure legal es-state in the latter, and the two daughters and their husbands in 1873 entered into a written contract whereby the owner of the fee and her husband authorized the life tenant and her husband to sell their interest whenever they wished to sell theirs, and agreed to accept $6,000 for such interest, and thereafter the life tenant and her husband sold the property to plaintiffs, such purchasers cannot compel specific performance of the contract against the remainderman’s heirs, for her contract was void.
    Appeal from St. Louis County Circuit Court. — Hon. Jno. W. McElhinney, Judge.
    Affirmed.

      Robt. L. McLarcm for appellants.
    ■ (1) A contract for the sale of real estate, although unilateral, may be specifically enforced. Mastín v. Grimes, 88 Mo. 478; In re Ferguson’s Estate, 124 Mo. 574; Smith v. Wilson, 160 Mo. 657. (2) Where one party has performed all the obligations imposed upon him by the contract, the.defence of want of mutuality is not open to the other party. Bigler v. Baker, 40 Neb. 325; Sanguinett v. Webster, 127 Mo. 32; Waterman, Specific Performance, sec. 199 ; 21 Am. and Eng. Ency. Law (2 Ed.), 928. (3) Evidence offered to show valuable improvements had been made by appellants on the property in litigation was competent and material, and the court erred in excluding it. Barsolon v. Newton, 63 Cal. 225; Bigler v. Baker, 40 Neb. 325; Ingersoll v. Horton, 7 Mich. 405; Mason v. Wallace, Fed. Cases 9256, 4 McLean 77; Johnson v. Hurley, 115 Mo. 513; Merriam v. Goodlet, 36 Neb. 384; Pritchard v. Todd, 38 Conn. 413.

      Kehr & Tittmann for respondents.
    (1) The contract (if assumed to be valid) is unfair and unreasonable and without mutuality of right and remedy, and therefore should not, in the exercise of a sound judicial discretion, be specifically enforced. Taylor v. Williams, 45 Mo. 83; Veth v. Gierth, 92 Mo. 97; McElroy v. Maxwell, 101 Mo. 294; Glass v. Rowe, 103 Mo. 539; Pomeroy-v. Fullerton, 131 Mo. 592; Brown v. Massey, 138 Mo. 519; Hollman v. Conlon, 143 Mo. 369; Davis v. Petty, 147 Mo. 374; Railroad v. Curtis, 154 Mo. 22; Shinkle v. Vickery, 156 Mo. 15; Waterman on Specific Performance, secs. 196-7; Fry on Specific Performance, sec. 460, p. 215. (2) A contract made by a married woman prior to 1889, for the sale of her legal estate in land, is void and cannot be specifically enforced. Shroyer v. Nickell, 55 Mo. 267; Walker v. Owens, 79 Mo. 570; Gwin v. Smurr, 101 Mo. 552; Rush v. Brown, 101 Mo. 586; Richardson v. DeGiverville, 107 Mo.. 422; Brown v. Dressier, 125 Mo. 592; McReynolds v. Grubb, 150 Mo. 363; Clay v. Mayer, 183 Mo. 150; Davis v. Watson, 89 Mo. App. 29.
   MARSHALL, J.

— This is an action for the specific performance of a contract to convey an undivided interest in three tracts of land, aggregating one hundred and three and one-half acres, in St. Louis county, near the town of Clayton. There was a judgment for the defendants in the trial court and the plaintiffs appealed.

The case made is this:

In 1872 Marie Echivard died in St. Louis county, leaving surviving her two daughters, Maria Helen Gamier, wife of Aime D. Gamier, and Armentine Marie Kluender, wife of Frederick Kluender. She owned an undivided interest in the land in controversy, and her daughter Maria Helen Gamier owned the other undivided interest therein. By her will Marie Echivard devised her interest in said lands to her daughter Maria Helen Gamier for life, with remainder to her daughter Armentine Kluender in fee. She also devised to her daughter, Mrs.' Gamier, all of her personal property, including a leasehold on Ninth and Olive streets in the city of St. Louis, and charged the devises to Mrs. Gamier with the payment of four thousand dollars, which she required Mrs. Gamier to pay to Mrs. Kluender within one year after the death of the testatrix, the gifts and bequests being upon the express condition that she pay said four thousand dollars to Mrs. Kluender within one year after her death, and that amount was so paid within the time provided.

On the 3rd of December, 1873, Aúne D. Gamier and Maria Gamier, his wife, entered into an agreement with Frederick Kluender and Armentine Kluender, his wife, as follows:

■ “ WhereasMarie Echivard of the city and county of St. Louis, and State of Missouri, hy her last will and testament, dated the 23rd day of May, 1872, and duly proved on the 26th day of October, 1872, and now on file in the office of the clerk of the probate court of the county of St. Louis, among other bequests, gave and devised unto one of her daughters, Maria Gamier, wife of Aime D. Gamier, all and every messuages, lands, tenements and hereditaments, with appurtenances, whereof she was seized in fee, situated, lying and being in said county of St. Louis, and State of Missouri, and then occupied by said Marie Echivard, said Aime D. Gamier, and one Eugene Porcher, for the term of the natural life of said Maria Gamier, and after her decease to another daughter of testatrix, Armentine Marie Kluender, and to her heirs and assigns forever, and with the express condition that said Maria Gamier should pay to said Armentine Marie Kluender, within one year after the death of testatrix, the sum of four thousand dollars, all of which will more fully appear' from said will and testament, to which reference is here made:
“And whereas said Maria Gamier has accepted the terms of said will and testament, and has paid said four thousand dollars to said Armentine Marie Kluender:
“And whereas said Maria Gamier is seized in fee of undivided interests in all said messuages, lands, tenements and hereditaments, with the appurtenances thereto belonging, and hereinafter more fully described, and she may hereafter be desirous of selling her said interests in all said messuages, lands, tenements and hereditaments, with the appurtenances thereto belonging, and said Armentine Marie Kluender is desirous of facilitating such sale, so that said Maria Gamier may realize as large a sum as possible;
• “Now, therefore, this agreement, made and entered into this third day of December, 1873, by and between Aime D. Gamier and said Maria Gamier, wife of said Aime D., and Frederick Klnender and said Armentine Marie Kluender, wife of said Frederick, as follows, viz.;
“That in consideration of the premises and the further consideration of the sum of one dollar paid to said Frederick and Armentine Marie Kluender hy said Aime D. and Maria Gamier, the receipt whereof is hereby acknowledged, they, the said Frederick and Armentine Marie Kluender for themselves and for each of them and their respective heirs, assigns, executors and administrators and said Frederick Kluender especially for and on behalf of his said wife Armentine Marie, do agree, bargain and covenant with said Aime D. and Maria Gamier and with each of them and their respective heirs, assigns, executors and administrators and said Aime D. Gamier especially for and on behalf of his said wife Maria that whenever said Maria Garnier shall sell all the interests she has or may have by virtue of the bequest made to her in said last will and testament of said Marie Echivard as herein above stated and all the interests she has or may have in fee or otherwise in all said, messuages, lands, tenements and hereditaments with the appurtenances thereto belonging and more fully hereinafter described to any person or persons whatsoever, and said Armentine Marie and her husband, Frederick Kluender, shall also join in such sale and shall execute, sign, seal, acknowledge and deliver any and all necessary deeds and instruments with a covenant of special warranty, for the sale of all the interest they and each one of them have or may have acquired in said messuages, lands, tenements and hereditaments with the appurtenances thereto belonging by virtue of said last will and testament of said Marie Echivard as aforesaid to any such person or persons buying the said interests of said Maria and Aime D. Gamier and said Armentine Marie and Frederick Kluender — whereupon said Maria Gamier or her husband, Aime D. Gamier, shall place and invest the sum of six thousand dollars in United States bonds or in ■good and sufficient real estate for the benefit and be-hoof of said Maria Garnier during her lifetime and for her during her lifetime to enjoy the use, possession, profits, interests and rents derived and coming from such investment, and at her death to revert to and become the property and interest of said Armentine Marie Kluender, her .heirs and assigns forever.
“The said six thousand dollars is the value agreed upon by all the parties hereto of the messuages, lands, tenements and hereditaments, with the appurtenances thereto belonging which the said Marie Echivard gave and devised by will as aforesaid to said Maria Garnier for her life with remainder in fee to said Armentine Marie Kluender and are described as follows to-wit:.....
“In witness whereof all the parties hereunto have set their hands and seals on this third day of December, 1873, at the city and county of St. Louis and State of Missouri.
“Aime D. Garnier, (Seal.)
Maria Garnier, (Seal.)
Frederick Kluender, (Seal.)
Armentine M. Kluender, (Seal.) ”

Said agreement was acknowledged on the 4th day of December, 1873, and recorded in the recorder’s office of St. Louis county on the 19th of December, 1873.

Armentine Marie Kluender died on January 9, 1874, leaving surviving her her husband Frederick Kluender and seven children. On the 29th of September, 1899, Frederick Kluender died, and this action is against the children of Marie Kluender. On the 8th of July, 1889, Aime D. Garnier and his wife Maria conveyed to Michael B. 0 ’Reilly and Mary C. 0 ’Reilly, his wife, the land aforesaid, and at the same time assigned to them the contract aforesaid between Garnier and wife and Kluender and wife, the assignment being as follows:

“For and in consideration of an annuity of three hundred dollars per annum secured to Maria Gamier, we, the undersigned, Aime D. Gamier and Maria his wife, do hereby assign and set over to M. B. O’Reilly and Mary C., his wife, all rights, interests and benefits and all advantages accruing under the within contract.”

The conveyance from Gamier and wife to 0 ’Reilly and wife recited a consideration of $10,000. The plaintiff Michael B. O’Reilly testified, however, that he retained, and has ever since retained, of that purchase price, the sum of $6,000, being the amount specified in the contract as the amount which should be invested for the benefit of Mrs. Kluender, and that he was to apply that amount to said claim “whenever I wish to apply it. ’ ’ He further testified that he had paid Mrs. Garnier the annuity of three hundred dollars per annum, being 5 per cent of six thousand dollars specified in the assignment of the contract to him.

The petition charged that the plaintiff had made improvements on the property, of the value of one thousand dollars, and that Mrs. Gamier, while in possession and after the execution of the contract, made improvements thereon of the value of five thousand dollars.

Upon the trial the court, on the objection of the defendants, excluded the evidence offered tending to prove the making of such improvements and the plaintiff excepted to the ruling, and now assigns it as error.

The witness testified further that no demand had been made upon him to invest the six thousand dollars as provided by the contract. This was all the evidence in the case.

I.

At the outset the validity of the contract here sought to be specifically enforced presents itself for adjudication. Upon the death of Mrs. Echivard her undivided interest in the land passed, under her will, to her daughter, Mrs. Gamier, for life, with remainder , in fee to her other daughter, Mrs. Kluender. Both were married women at that time. The estate thus devised was a pure legal estate and not a separate equitable estate. At the date of the contract set out, on the 3rd of December, 1873, between Mr. and Mrs. Gamier and Mr. and Mrs. Kluender, Mrs. Gamier and Mrs. Kluender were both under coverture. Without analyzing the true meaning of that contract or stopping to consider whether or not it was based upon a valuable consideration, moving to Mrs. Kluender, and treating the contract as otherwise a valid contract, the question here is whether it was binding upon Mrs. Kluender, by reason of the fact that she was at that time under coverture and that it related to an estate the legal title to which was in her, and acquired by her between 1866 and 1889.

One of the essential elements to the validity of every contract is, that it is made by persons competent to contract. The general rule of law is that where one of the parties to a contract is unable, because of coverture, to complete a transaction, the contract is invalid and unenforcible, either at law or in equity. [21 Am. and Eng. Ency. Law (2 Ed.), 925.]

The rule has long obtained in this State that prior to 1889 a contract made by a woman under coverture with respect to her mere legal estate is void and cannot be enforced either at law or in equity.

Gwin v. Smurr, 101 Mo. l. c. 552, was a bill for the specific performance of an alleged contract for the conveyance of land held by a wife, in fee, and other relief. The trial court dismissed the bill, and upon appeal the judgment was affirmed by this court. Sherwood, J., speaking for the court, said: “The title of the wife was under the Married Woman’s act (R. S. 1879, sec. 3295), having been derived after 1866, and there being no words employed either in her father’s will, or in the decree of partition, which created in her an equitable, separate estate. In consequence of which., her executory contract to convey the land, though executed and acknowledged jointly with her husband, was wholly worthless; as a court of equity would not compel specific performance of such an instrument. [State v. Clay, 100 Mo. 571.] The only way the land of the wife held by the tenure of the act aforesaid can be charged, affected or conveyed, is by the joint deed of the husband and wife. [Craig v. Van Bebber, 100 Mo. 584, and cases cited.] The court did right, therefore, in dismissing the petition when the above facts appeared in evidence; because in contemplation of law there was no contract in existence on which to base a decree for specific performance. ” There is no difference between that case and the ease at bar.

Warren v. Castello, 109 Mo. 338, is stated in the opinion to have been a proceeding commenced in the probate court of St. Louis county, seeking specific performance of an agreement alleged to have been made between the plaintiff, Mary- J. Warren, a married woman, and William Mreen. The alleged agreement was contained in a lease from Mreen to Mrs. Warren, and expressly stipulated that she was not obligated to make the purchase, but had the option so to do within a specified time. It was held that Mrs. Warren could not maintain an action, for the reason that the contract lacked mutuality of obligation and of remedy, in that, as Mrs. Warren was a married woman, she was incompetent to contract for the purchase of .land. Speaking to the validity of the contract the -court quoted the rule laid down in Bishop on Married Women, vol. 2, sec. 250, as follows: ‘ ‘ But if an agreement rests merely in mutual promises, then in principle, as the promise of a married woman is a nullity, it cannot constitute a consideration for the promise of the other party; therefore, it is void also as to him. This is the true ground on which proceeds a North Carolina case of mutual promises, followed by a tender on the part of the married woman, wherein it was held that upon the facts she conld not have a decree of specific performance against the defendant who had agreed to convey some property to her separate nse. ’ ’

The question came before this court in Brown v. Dressler, 125 Mo. 589. That was a bill in equity by a married woman and her husband for the cancellation of a mortgage upon the wife’s legal estate" executed by the wife without the husband joining therein. After pointing out that the land was a pure legal estate and that it did not belong to her before her marriage, had not come to her by purchase with her separate money, or by gift, bequest or inheritance during coverture, after the taking effect of the Married 'Woman’s act of 1889, and treating it as simply a common law, legal estate in the wife, this court, per Brace, J., said: ‘ ‘ The power of a married woman to convey her real estate held as at common law is conferred by statute. It is not conferred upon the wife alone, but upon the husband and wife jointly, and then only by a deed executed by them and acknowledged and certified in the manner required by the statute. [R. S. 18891, sec. 2396.] The law in this respect is substantially the same now as it has always been. No material change has been made in that law since the organization of the State. It is heyond question that prior to 1889 a married woman in this State could not convey her legal estate in lands, except by deed in'which her husband joined, executed and acknowledged in accordance with the requirements of the statute, nor could she make a valid contract for the sale of such estate, or bind the same in law or in equity by any contract of hers.” [Citing cases.] The court then pointed out the changes made in the Married Woman’s act of 1889, which are not involved here.

The statute in force at the date of the execution of the contract here sought to be enforced was section 2, page 444 of the General Statutes of 1865, which was as follows: “A husband and wife may convey the real estate of the wife, and the wife may relinquish her dower in the real estate of her husband, by their joint deed, acknowledged and certified as herein provided; but no covenant expressed or implied in such deed shall bind the wife or the heirs, except so far as may be necessary effectually to convey from her and her heirs, all her right, title and interest expressed to be conveyed therein. ’ ’

Though the instrument here sought to be enforced was in writing and executed and acknowledged by the married woman and her husband, nevertheless it was not a deed, but simply an executory contract, and as such was absolutely void as to the married woman and was not binding upon her or her heirs, and cannot be enforced in either a court of law or a court of equity. The distinction between the power of a married woman to contract with reference to her legal estate before and after the Married Woman’s act of 1889, was further pointed out by this court in McReynolds v. Grubb, 150 Mo. l. c. 363, and Clay v. Mayer, 183 Mo. l. c. 156.

It follows that the contract here sought to be specifically enforced was void as to Mrs. Kluender and as to her heirs.

This conclusion makes it unnecessary to consider the other points so learnedly discussed by counsel.

The judgment of the circuit court was right and is affirmed.

All concur.


author: YALLIANT, J.

text:
    MORGAN, Appellant, v. OWEN et al.
    Division One,
    February 22, 1906.
    1. COUNTY COURT RECORDS: Right to Possession: Trespass: Nominal Damages. The county court is entitled toa free and unconditional access to and use of its records, and to treat as a trespasser anyone who, without official authority, obstructs such access or use. And if in obtaining such use, it by order directs the sheriff to go into the room occupied by one who has formerly been county clerk but whose term has expired, and to whose office another has been elected, and to put him out of the room and to take possession of the books and records, and this order the sheriff executes without violence and with the use of no more force than is • necessary, neither the judges of the court nor the sheriff is liable even for nominal damages.
    ■2. -: -: -: Pleading: Right of Office. The plaintiff had been county clerk for four years but at the preceding election, at which he was a candidate for re-election, another whose name was printed on the ballot as Henry O. Borchers, who was commissioned as Henry C. Borchers, who usually signed his name C. H. Borchers, who was commonly known as Henry Borchers, and whose real name was Claus Henry Borchers, received a majority of the votes cast for county clerk, and plaintiff refused to surrender the records to him. Thereupon the county court by order directed the sheriff to go into the room occupied by plaintiff, put him out, and take possession of the county court records. Plaintiff sued for damages for forcible trespass, but in his petition made no claim that he was lawfully or peaceably in possession of the records, but alleged that he was forcibly ejected from a room he was lawfully occupying. Held, that his petition contains no basis for claim that he was the county clerk, or for a decision between him and Borchers as to which was the lawful clerk.
    Appeal from Cass Circuit Court. — Now. W. L. Jarrott. Judge.
    Affirmed.

      Francisco & Clark, W. D. Summers and W. W. Graves for appellant.
    (1) The county court had no right to determine who was legally clerk for the county court. Its powers are purely statutory. It does not possess the powers' of a court of general jurisdiction and has not the powers of such either by statute or common law. Const., art. 6, sec. 36; State ex rel. v. Elkin, 130 Mo. 107; State ex rel. v. Harris, 96 Mo. 37; Sears v. Stone County, 105 Mo. 236; Coil v. Hitman’s Admr., 46 Mo. 51. (2) (a) The right of Morgan to hold possession of the books as county clerk and to hold possession of the office assigned to county clerk, could not be determined by the county court, and its order to the sheriff was absolutely void. The right to the custody of the books as county clerk and the title to the office could only be determined by a quo- warranto proceeding in the circuit court, or one of the appellate courts, or some court having the necessary common law jurisdiction. McCrary on Elections, secs. 394, 393, 369, 404; State ex rel. v. Yallins, 110 Mo. 523. (b) Even the circuit court or the Supreme Court would be powerless. The action to remove Morgan could only be instituted by the proper prosecuting officer, and it was a matter of discretion with such officer. State ex rel. v. Talty, 166 Mo. 5291. (c) The order under which defendant McDade acted, being void, as the court issuing it had no jurisdiction, would be no protection to him or justify him in ejecting Morgan from the room or assaulting him. Campbell v. Sherman, 35 Yris. 103; Cooley on Torts, 464; Town of Warrensburg v. Miller, 77 Mo. 56; Howard v. Clark, 43 Mo. 344; Howell', Jewett Co. v. Caryl, 50 Mo...455; Mayes v. Opel, 49 Mo. 190. (d) The clerk is the custodian of the records of his office, not the court. R. S. 1899, secs. 522, 524, 525, 526, 529, 537. (3) (a) The order of the county court was to eject plaintiff and others from the rooms, and the return of the officer was to the effect that he did eject them. It was not the books that they wanted, but it was a high-handed method of trying to determine and of determining the disputed right of Claus Borchers to hold the office of county clerk under the name of Henry Borchers as against W. L. Morgan, county clerk, who held over until his successor was duly elected and qualified. Such order was void, (b) The middle name is no part of the name, and Claus H. Borchers cannot legally be Henry Borchers or Henry C. Borchers.

      B. T. Baüey for respondents.
    (1) This court in 1847 in the case of Sparks v. Purdy, 11 Mo. 224, having defined the rights and duties of county courts, and no change having been made in the law since said decision, and no criticism ever having been made by this court in respect to said decision of Sparks v. Purdy, it not only stands as the law of this State as declared by the Legislature, but likewise as construed by this court. Endlich on Interpretation of Statutes, secs. 368-9; Sutherland on Statutory Construction, secs. 255-6, 333; Ruckert v. Railroad, 163 Mo. 261; McKay v. Minner, 154 Mo. 612; Handlin v. Morgan Co., 57 Mo. 116; Camp v. Railroad, 94 Mo. App. 281; Gray v. Tel. Co., 85 Mo. App. 130'; Willis v. Trust Co., 169 U. S. 295; McDonald v. Hoyey, 110 IT. S. 619. It is therefore respectfully submitted that: “Public convenience requires that a summary power to prevent illegal occupation of, and to eject trespassers from, the places designed for the transaction of the business of the county should exist in somebody. It could never have been the intention of the Legislature that the county courts in this State should proceed by ordinary suits at law to obtain possession of the public buildings or parts of them.” Sparks v. Purdy, 11 Mo. 224. If, therefore, the. county court had the right — as herein contended — to summarily eject the plaintiff from said office as an intruder and to take possession of said office and the records therein, then the plaintiff is not entitled to recover, regardless of all other facts in the case, as there was confessedly no unnecessary force in ejecting him. (2) Defendant Claus Henry Borchers was duly nominated, placed upon the ticket, voted for, elected, received his certificate of election, received his commission as county clerk, took the oath of office and duly qualified as such. He was, therefore, on January 12th and 13th, 1903, the clerk of said county court, and occupied the same position in respect to said office and records, which the plaintiff himself had formerly occupied in reference thereto. State ex rel. v. Draper, 48 Mo. 215; Bowen v. Hixon, 45 Mo. 344; Winston v. Moseley, 35 Mo. 146; State ex rel. v. Auditor, 34 Mo. 383; 2 Dillon’s Mun. Corp. (3 Ed.), sec. 892; People ex rel. v. Thacher, 55 N. Y. 530; State ex rel. v. Kersten, 95 N. W. 121; State ex rel. v. Oates, 57 N. W. 296; Merrill, Mand., secs. 142-3; High’s Ex. Legal Remedies (1 Ed.), secs. 74-5; State ex rel. v. Jaynes, 26 N. W. 712; State ex rel. v. Churchill, 15 Minn. 459; State ex rel. v. Sherwood, 15 Minn. 221; Crowell v. Lambert, 10 Minn. 369; McCrary on Elections (4 Ed.), secs. 302 to 319; Kerr v. Trego, 46 Pa. St. 292; Ewing v. Filley, 43 Pa. St. 384; State v. Johnson, 17 Ark. 407. On the admitted facts, plaintiff had no more right, title or interest in the county clerk’s office of Benton county than an absolute stranger. Sec. 7030, R. S. 1899; State ex rel. v. John, 81 Mo. 17; State ex rel. v. Clark, 52 Mo. 512. Under the foregoing facts as well as the authorities, supra., the plaintiff was an absolute intruder or usurper and was attempting to hold the office, without even a color of right. The county court, therefore, had the right to summarily eject him from the county clerk’s office, as though he were a stranger and intruder. Under the law, the county court and Henry C. Borchers were alone entitled to said office, as well as the records contained therein. The plaintiff, confessedly, on the dates last aforesaid, was an intruder or usurper, on his own admission, was there without authority of law, was guilty of contempt of court in refusing to turn over said office and records, and was likewise guilty of a misdemeanor in office, in refusing to vacate and turn over the same, with the contents thereof. The court, it is therefore insisted, did not exceed its authority in summarily having him ejected from the office. The records of the county being in said office and in the vault of same, the court could only take exclusive possession of said records and said office by ejecting him from the possession of same. The county court has the control and management of all county property. E. S. 1899, sec. 1777. This includes the county clerk’s office. The clerk is subject to all lawful orders of the county court, and is guilty of a misdemeanor if he willfully and wrongfully refuses to obey such orders. State ex rel. v. Bowen, 41 Mo. 217. (3) Henry C. Borchers and defendant Claus Henry Borchers were shown by the uncontradieted testimony to be one and the same person. Defendant Borchers was known throughout Benton county by the name of Henry Borchers. He was known to both plaintiff and his deputy by this name. He made a canvass of Benton county for said office against the plaintiff, and there is not a syllable of evidence in the record, which either proves, or tends to prove, that any voter or any other person was misled on account of his initials. Corrigan v. Schmidt, 126 Mo. 310; Beckner. v. McLinn, 107 Mo. 288; Gfumm v. Hubbard, 97 Mo. 319; Elting v. Gould, 96 Mo. 541; State ex rel. v. Williams, 95 Mo. 161; Skelton v: Sackett, 91 Mo. 377; Orme v. Shephard, 7 Mo. 606; Smith v. Boss, 7 Mo. 463; Steinmann v. Strimple, 29 Mo. App. 484; Kreitz v. Behrensmeyer, 17 N. E. 249; Wimmer v. Eaton, 72 Iowa 374; McKinnon v. People, 110 111. 305; State ex rel. v. Eagan, 91 N. W. 986; Newton v. Newell, 26 Minn. 530; State ex rel. v. Foster, 38 Ohio St. 599; State v. Loser, 104 N. W. 339; McCrary on Elections (4 Ed.), secs. 528 to 531; 10 Am. and Eng. Ency. of Law (2 Ed.), 723-4. In order to carry out and effectuate the intention of the voter, the rule of law is well settled that extrinsic evidence may be introduced for the purpose of showing that Henry C. Borchers and C. Henry Borchers are one and the same person. Nolan v. Taylor, 131 Mo. 228; State ex rel. v. Williams, 95 Mo. 162; Gumm v. Hubbard, 97 Mo. 319*; Bowers v. Smith, 111 Mo. 64; Cooley’s Const. Lim. (6 Ed.), pp. 768-9-70; McCrary on Elections (4 Ed.), secs. 528 to 531; 1 Beach, Public Corp., sec. 391.

      Francisco é Clark, W. D. Summers and W. W. Graves for appellant in reply.
    As we had anticipated, respondents base their whole case upon the old case of Sparks v. Purdy, 11 Mo. 224. Counsel, however, fails to call the court’s attention to the differences between that case and the one at bar. (1) In the Sparks case, Sparks was an appointee of the county court, and had been displaced by them April 15,1844. Not so here. The people elect the clerks of the county court and that court, has no more right to- determine who is their clerk than an entire stranger. In the Sparks ease the county court had the right to determine who was collector, because the power of appointment was with that body. Not so here. (2) The county court has control over the public buildings and can designate the rooms in which the county recorder, the circuit clerk, the county treasurer and other officers shall have their respective offices. These officers are elected by the people. Does it follow that the county court can say to one of these officers, We recognized some other party as recorder, or circuit clerk, or treasurer, and then direct its sheriff to dispossess them1? That is this ease. In other words, if the county court can determine who it will recognize as clerk and dispossess the other party who is holding the office, claiming title thereto, bn the ground that it has control of the county property, it can likewise dispossess the county clerk, the recorder, the treasurer and all other elective officers. Under respondent’s law a political county court would be the whole source of power. The clerk has the right to determine in the first instance as to whether a successor has been elected, to whom he is required to turn over the office and its belongings. If he determine wrong, a quo warranto proceeding in the Supreme Court will determine it within sixty days. State ex rel. v. Hostetter, 137 Mo. 636.
   YALLIANT, J.

— Plaintiff sues for damages for .an alleged trespass vi et armis. He says in his petition that on January 13, 1903, he was peaceably and lawfully occupying a certain ‘ ‘ room or office in the northwest part of the court house in Benton county” when and where the defendants assaulted, struck and wounded plaintiff and forcibly put him out of the room, whereby he suffered $3,000 actual damages, for which he asks judgment, and asks, also, for $2,000 punitive damages.

The answers of the defendants are substantially to the effect that the plaintiff was in the room in the court house where were the records appertaining to the county court and that he was withholding the same from the county court so as to obstruct the court in the performance of its business, whereupon the court made an order directing the sheriff of the county to put the plaintiff out of the room and take possession of its records, and that the sheriff in obedience to that order, first demanding of plaintiff that he withdraw himself from the room and yield up the records which the plaintiff refused to do, gently laid his hand on the plaintiff and led him out of the' room without violence or injury. The answers also assert that the plaintiff had no right to the custody of the records, hut that one Claus H. Borchers was the county clerk and entitled to hold the records of the office.

The evidence on the part of the plaintiff tended to show as follows:

For the term next previous to January 1, 1903, the plaintiff had held the office of county clerk; he was a candidate for re-election at the election in November, 1902, and one Borcbers was bis opponent. Borcbers’ name was printed on tbe official ticket as Henry O. Borcbers; be received tbe majority of tbe votes cast and was elected. A certificate of election was duly issued to him and forwarded to tbe Secretary of State. Borcbers, as in compliance with tbe statute, filed in tbe office of tbe Secretary of State a list of bis election expenses, with bis affidavit that it was correct; this affidavit was signed C. H. Borcbers. Tbe commission, however, issued to Henry C. Borcbers, and be gave bond and qualified accordingly. Tbe man’s real name was Claus Henry Borcbers, be was commonly known in tbe county as Henry Borcbers, and usually signed bis name C. H. Borcbers. After receiving bis commission and qualifying be demanded possession of tbe office and plaintiff refused to give it up to him, on the ground of tbe discrepancy in tbe name in tbe commission.

On January 12,1903, there was a special session of the county court held. That court usually held its sessions in tbe court room upstairs, though sometimes it bad held sessions in tbe room down stairs where these records were, and which was the apartment in tbe court house occupied by tbe county clerk. On this occasion tbe judges of tbe county court, with Borcbers and tbe sheriff, assembled in tbe county clerk’s office and opened court. Then tbe presiding judge called on tbe brother of tbe plaintiff, who was present and who bad been when tbe plaintiff was clerk tbe active deputy in tbe office, to produce tbe books needed for tbe court’s business. This brother of tbe plaintiff informed tbe court that be would furnish them all tbe books and records they needed provided they would allow him as deputy for bis brother to perform tbe duties of clerk and recognize tbe plaintiff as tbe county clerk, to which tbe court would not agree. On tbe next day, January 13th, after some further discussion, tbe plaintiff’s brother offered to deliver the necessary books of record, etc., to the presiding judge to be taken upstairs for the use of the court, provided the presiding judge w mid promise to return them to him as soon as the court had finished using them. To this the presiding judge agreed and taking the books and records, all the members of the court went out of the office. In a short while they all came back, bringing the books and records back and saying they would not accept the use of them on those terms.

Afterwards on that day the county court made an order directing the sheriff to go into the room occupied by the plaintiff containing the county court records and put him and his brother out, and take possession of the books and records. This order the sheriff executed without violence; he laid his hand on the plaintiff and led him out into the hall, then returned and led the brother out; neither offered any resistance and the sheriff used no force.

The sheriff and his deputies who were present, the judges of the county court, and the prosecuting attorney, who advised the proceeding, were all joined as defendants in this suit.

The verdict and judgment were for the defendants and the plaintiff appealed.

The main point presented in the briefs for appellant is that the county court had no jurisdiction to try and determine between the plaintiff and Borchers who was the lawful county clerk, nor to adjudge the effect of the mistake in Borchers ’ Christian name in his commission.

But under the cause of action stated in the plaintiff’s petition there was no question as to who was the lawful county clerk or who was the lawful custodian of the records of the county court. Plaintiff in his petition makes no claim to such official character, and has no right to assert it now, and therefore he has no right to say that in ordering him to be put out of the room the county court was assuming to decide between him and Borchers which was the lawful county clerk. Prom reading his petition one would never learn that the grievance of which he was complaining was that of the taking out of his possession the records of the county court or despoiling him of his official prerogatives. His complaint is that he was forcibly ejected from a room which he was lawfully occupying “in the peace of the State.” The word “office” is used, but in the connection used it signifies room or apartment; the language is “room or office in the northwest part of the court house.” There is no claim that he was lawfully or peaceably in possession of the records of the county court, nor is there any claim of damages for being forcibly dispossessed of such records. The action of the sheriff, therefore, under orders from the county court, in separating the plaintiff from the records of the county court was not a violation of that right which the plaintiff asserts in his petition.

On the trial it turned out that the thing really in dispute was not the right to occupy the room, but the right to hold the records; the occupation of the room was only incident to the right to hold the records. The room is significant under the facts of this case only as being the repository of the records. The holding of the roonl was the holding of the records and nothing more. Under the plaintiff’s own evidence if he had no right to hold the records he had no right to hold the room. Yet he sues for damages for dispossessing him of the room without asserting any claim to the right to hold the records. If he had intended to sue the sheriff and the judges for damages for forcibly dispossessing him of the official custody of the records belonging to him as county clerk he should in his petition have asserted a right to that office and tendered that issue.

The county court was entitled to the free and unconditional access to and use of its records and it was entitled to treat any one as a trespasser who, without official authority, obstructed its access to or use of the same. [Sparks v. Purdy, 11 Mo. 219.] And since the plaintiff’s own evidence shows that what the sheriff and the judges of the county court did was nothing more than what was necessary for them to do in order to take possession of their records they are not liable for even nominal damages.

The judgment is affirmed.

All concur.