author: VALLIANT, J. CRAVES, J.

text:
    SNODGRASS, Appellant, v. COPPLE et al.
    In Banc,
    April 29, 1907.
    APPELLATE JURISDICTION: Title to Real Estate: Homestead. An adjudication, upon a motion to quash, that land levied upon under execution is defendant’s homestead does not involve title to real estate, and therefore the appeal from a judgment adjudging that the land levied upon was defendant’s homestead, is to the proper court of appeals. In determining whether or not homestead exists, the court begins with the necessary concessions that the title is vested in defendant; and a ¡holding that homestead does or does not exist, does not divest that title. A sequence of a judgment that there is no homestead may be to divert defendant’s title by sale under execution, but that would be an indirect, not a direct effect of the judgment. In arriving at that judgment, the court does not consider the question of title, but whether the statutory conditions are present which entitle the husband to homestead.
    Per Graves, J., with whom Lamm and Woodson, JJ., concur.
    1. APPELLATE JURISDICTION: Homestead. It is not a mere exemption, but an estate in lands, that vests in the head of a family, and it is not an exemption, but a life estate in lands, that vests in the widow at his death, as the statute declares; and as an adjudication of the existence of a homestead must necessarily determine the existence of that estate, and determine the inchoate right of the widow and children thereto, an appeal from a judgment on a motion to quash the execution on the ground ' that defendant had a homestead in the land levied upon, necessarily involves title to real estate, within the meaning of the constitutional provision governing appeals— as much so as would a suit in ejectment against the same defendant after sale of the land under execution, where the defense would be the existence of a homestead, and such suit would be appealable to this court alone.

      2. --: What is Title? “Title to real, estate” means an estate for life or for years, as well as a fee simple interest.
    3. ——-: -: Questions Involved. Not simply such questions as, is defendant the head of a family? are involved in the homestead inquiry, but the ultimate question is, does defendant have a homestead? And that means, does, defendant have a vested estate in the lands? A homestead interest, as created by the statute, is an interest in real estate; and that being the fact, title to real estate is involved in any litigation that determines the existence of a homestead.
    Appeal from Livingston Circuit Court. — Eon. J. W. Alexander, Judge.
    Transferred to Kansas City Court of Appeals.

      D. E. Adams for appellant.

      J. M. Davis S Sons for respondents.
   VALLIANT, J.

This cause comes before us at this time on a motion to transfer it to the Kansas City Court of Appeals. The appeal was taken to this court on the theory that title to real estate was involved; if that theory is not correct, then since there is no other issue in the case to bring it within the jurisdiction of this court, we have no jurisdiction of it and the motion to transfer must be sustained.

This is the case: Execution issued on a judgment in favor of plaintiff against defendant and it was by the sheriff levied on certain real estate which the defendant claimed to be exempt from execution because it was his homestead; defendant moved to quash the levy, plaintiff in opposition contended that defendant had abandoned the premises as a homestead. The court heard evidence pro and con and found the issue in favor of defendant, adjudging that the real estate in question was the homestead of defendant and therefore sustained the motion, te quash the levy. From that judgment this appeal was taken by the plaintiff.

Is title to real estate involved?

In Price v. Blankenship, 144 Mo. l. c. 208, it was said: ‘ ‘To give this court jurisdiction under section 12 of article 6 of the Constitution, because the title to real estate is involved, it must appear that the title to real estate will, in some way, be directly affected by the judgment to be rendered in the case,” and that rule we have repeated several times since and we still adhere to it. Unless, therefore, title to real estate will be directly affected by the judgment to be rendered in this case this court has no jurisdiction of the appeal.

There is no doubt but that the judgment to be rendered will be a direct adjudication of the defendant’s claim of a homestead in the real estate covered by the levy; as between him and the plaintiff it will determine whether or not he had a right to hold the property exempt from the plaintiff’s execution. If right to exemption under the Homestead Statute is title to real estate, then title to real estate is involved in this suit, otherwise not.

There have been several cases before this court in which this question has appeared but it appears in more direct form in this case than in any previous one. Perhaps it will help to elucidate the subject to make a brief reference to the former cases.

McAnaw v. Matthis, 129 Mo. 142, came up for review of an order of the circuit court sustaining a motion to set aside a sale of real estate under execution. It was a money judgment rendered by a justice of the peace, appeal to the circuit court, appeal dismissed, return of execution in justice’s office by the constable nulla bona, transcript of justice’s judgment filed in the office of the circuit clerk, execution from that office, levy and sale of the real estate by the sheriff; the motion to quash the levy and sale was on several grounds going to challenge the validity of the judgment of the justice, the lack of authority in the circuit clerk to issue the execution, and that no notice of the issuance of the execution was served on the defendant. This court decided that the judgment of the justice was valid, that the execution issued in conformity to the law and that no notice to defendant of its issuance was necessary, he being a non-resident of the county, and therefore the motion to set aside the sale should be overruled. Thus we see there was no question of title to real estate in that case at all, the questions were merely as to the validity of the justice’s judgment, the regularity of the proceedings and the necessity of notice. The defendant’s real estate was only incidentally affected as it might have been by any money judgment rendered against him. The appeal in that case had in the first instance been taken to the Kansas City Court of Appeals and that court sent it here on the idea that title to real estate was involved, and when here no question as to jurisdiction was raised by the counsel and there is no discussion of the subject in the opinion. The taking of jurisdiction of the case by this court appears to have been an oversight. That case was decided in Division No. 1 of this court.

St. Louis Brewing Association v. Howard, 150 Mo. 445, was also a case in which there was no issue which would give this court jurisdiction unless the question of homestead or no homestead was one involving title to real estate, yet this court, Division No. 1, entertained jurisdiction of the ease, citing McAnaw v. Matthis as authority for so doing. In that case there was a motion to set aside and quash a sale of over 400 acres of land under execution, on the ground that defendant was entitled to a homestead in it. The jurisdiction of the court was not challenged and there was no discussion of the subject.

Afterwards, Stinson v. Call, 163 Mo. 323, came before Division No. 2, involving only a question of homestead exemption and the court in deference to what was said in MeAnaw v. Matthis entertained jurisdiction, but there was no question .of jurisdiction raised in the case and no discussion of the subject. There was this difference, however, between the last-cited case and the one first cited; in the later case the trial court had sustained the motion to set aside the sale of the land under execution on the ground that the land was the defendant’s homestead. This court on review of the case held that the defendant did not have a homestead in the land, but affirmed the judgment setting aside the sale under execution on another ground. The motion to set aside that sale is not fully set out in the report but if it fairly tendered the issue of homestead or no homestead and if the judgment of the court was directly responsive to that issue there was a jurisdictional question in the case that distinguished it from the McAnaw-Matthis case and would bring it very close to the facts of the case at bar.

In State ex rel. Reed v. Elliott, 180 Mo. 658, the judgment was for city taxes on certain land of defendant in the sum of $76.82 and the same was declared to be a lien on the land. After execution and sale the defendant at a subsequent term moved to set aside the judgment and the sale on certain grounds specified, the motion was overruled and an appeal was taken to the Kansas City Court of Appeals, that court sent the cause here on the ground that title to real estate was involved. But this court was of the opinion that notwithstanding a lien on the land was declared yet there was no title to real estate involved and therefore returned the case to the Court of Appeals. The court in that case, Division No. 1, said: “And the reason is that in all such cases the title is necessarily conceded to be in the defendant, for otherwise the plaintiff would not be entitled to a lien against the land in that suit, and therefore no judgment that could be rendered in the case could divest the title out of the defendant.” In the course of the opinion in that case McAnaw v. Matthis is discussed and overruled.

Lawson v. Hammond, 191 Mo. 522, was certified to this court by the St. Louis Court of Appeals under the authority of McAnaw v. Matthis, on the idea that title to real estate was involved. In that case a general execution had issued on a money judgment against the defendant and the sheriff had levied the same on a tract of fifty-three acres of defendant’s land on which, according to the motion, there was an incumbrance of $800 and in which also1 the defendant claimed a homestead exemption. The defendant moved to quash the levy on-the grounds that he was entitled to a homestead in the land, and that he had requested the sheriff to appoint commissioners to set aside his homestead hut the sheriff refused. The trial court heard the evidence, found that the defendant was entitled to a homestead and sustained the motion to quash the levy. This court held that title to real estate was not involved in that case and for that reason returned it to the St. Louis Court of Appeals. In the opinion in that case McAnaw v. Matthis is again discussed and disapproved and Stinson v. Call, supra, which followed the McAnaw ease was also overruled.

The difference between Lawson v. Hammond and this ease is that there the defendant in execution claimed not that all the land levied on was his homestead hut that he was entitled to a homestead in the land, that he had requested the sheriff to appoint commissioners to set it off to him hut the sheriff had refused the request and was proceeding to sell the whole tract; the plaintiff in execution denied the alleged facts in which the claim of homestead was founded, the trial court found that issue for the defendant and quashed the levy. In that case although in the issues of fact joined on the motion there was a question of homestead or no homestead yet that motion would have been sustamed or overruled without a final adjudication that a particular piece of real estate was'or was not the defendant’s homestead.

In Moore v. Stemmons, 192 Mo. 46, there was a motion to quash an execution on the grounds that the judgment was void, that the peculiar title of defendants as trustees was not subject to sale for plaintiff’s debt, that the title was held by defendants in trust for the Methodist Episcopal Church of the United States and not for the particular church ■ in Carthage. The trial court overruled the motion and defendants brought the cause here by appeal, but this court was of the opinion that title to real estate was not involved and, no other ground of jurisdiction appearing, the cause was transferred to the Kansas City Court of Appeals. There was really less ground for claiming that title to real estate was involved in that ease -than in Lawson v. Hammond, supra. The court could not on a motion to quash an execution try the question of whether or not the land claimed by defendants to be held by them in trust for one religious body, was liable to be sold under execution to satisfy a judgment against' what was claimed to be another religious body.

Thus it will be seen that whilst in some of the cases that have been before us on the question of jurisdiction there has been a question of homestead or no homestead, and the court has held in those cases that that question was not one of title to real estate, yet this is the first case that has come before us in which the judgment to be rendered will decide whether or not the defendant in execution is entitled to hold the particular piece of property as a homestead exemption. There is more reason for the contention that title to real estate is involved in this case than there was in any of the cases above mentioned, because in this case if the judgment is against the defendant it will be a direct adjudication that he is not entitled to hold that particular piece of real estate as .his statutory homestead and it will pass under the sheriff’s hammer, and on the other hand if the judgment is in his favor he can, so far as this plaintiff claiming under this execution is concerned, hold the property hy the right which the homestead exemption statute creates. Is that peculiar statutory right a title to real estate? The precise question we are now considering was not specifically answered in either of the cases above decided but the reasons given by the court for its rulings in State ex rel. v. Elliott, 180 Mo. 658, and Lawson v. Hammond, 191 Mo. 522, apply with full force to this case and we cannot now say the title to real estate is involved in this case without overruling the two cases just mentioned and that we are unwilling to do.

On the trial of the issues involved in this motion the court will begin with the necessary concession on the part of both parties that the title to the property is well vested in the defendant. But the defendant says, if the plaintiff is to have his way my title will be divested; that brings us to the very point of the controversy. Defendant’s title will not be divested by the judgment in the case, but the judgment will leave the defendant’s property exposed to the sheriff’s levy and the result of that levy with the sequence may be to divest the defendant of his title. But that is the indirect not the direct effect of the judgment.

On the hearing of this motion the court was required to find an answer to these questions: is the defendant the head of the family, does he live on these premises as his family home, is the property within the limit of value and area prescribed by the statute, did his title and occupancy as a homsestead exist before the debt on which the judgment -is founded was incurred, and has it so continued down to date?

We hold that in the trial of those issues and the judgment to be rendered on the findings either way the title to real estate is not involved.

The motion to transfer to the Kansas City Court of Appeals is sustained, and it is ordered that the cause be so transferred.

Gantt, G. J., Burgess and Fox, JJ., concur; Lamm, Graves and Woodson, JJ., dissent.

Dissenting Opinion.

CRAVES, J.

We cannot concur in the opinion of Judge ValliAnt in this- case. However, his statement of the case, as to the facts, is correct, even to detail, and his conclusion as to the exact question involved is correct. We differ with him as to his conclusion of law. We have no desire to curtail the jurisdiction of the appellate courts on the one hand, nor to add to our jurisdiction upon the other. Such is the spirit of the court. If the Constitution places the burden of hearing these cases upon this court, we, and each member of the court, feel that we should assume it, but if placed upon the Courts of Appeal, we feel and know that the issues will be as fully and ably- determined as we could hope to do, so that the whole issue is one of pure lavr, and of our views thereon and not otherwise.

The question in this case is, what is the character of the homestead right given by our statute? Is it an interest in real estate, amounting to, “a title to real estate,” within the meaning of section 12, article 6 of our Constitution, or is it not? In other words, is the homestead interest a “title to real estate?”

With due deference to the cases heretofore passed upon by this court, the exact question here involved has never been discussed from principle. Judge Valliant, with diligence and ability, has found and reviewed them all, but in none of these cases is the homestead right, in its character and nature, fully discussed.

If a homestead interest is “a title to real estate” then the jurisdiction of this case is in this court. If not it is in the Court of Appeals. As a lawyer we would never try a homestead right upon a motion, for the reason that, in'our judgment, a trial of that fact, if against us, was final, and as a judge, upon this point we have not been further enlightened, save by the opinion of Judge Valliant, wherein he admits that if a motion is filed, raising the question, and such question upon trial is determined against the party filing the motion, the homestead interest, whatever it be, is gone. In this he is correct, for as we understand the law of res adjudicata, where a question of fact has been determined, by a court of law having the necessary jurisdiction, such question cannot be further litigated between the parties or their privies. This court has so held. [Johnson v. Latta, 84 Mo. l. c. 142; State ex rel. Waters v. Hunter, 98 Mo. 386; Bennett’s Admr. v. Russell, 39 Mo. 152; Ridgley v. Stillwell, 27 Mo. 128.]

Now, in the case at bar, this defendant had the right to move to quash the levy upon his homestead— if he chose that method of raising the issues. He might have waited, and in practice it might be considered the better plan, until the sale was made and an action was brought in ejectment to oust him. Suppose this defendant had waited until the sale had been made before asserting that the house and lot was his homestead, and then when the purchaser at the sale brought his action in ejectment for the property, the defendant had filed his answer, alleging, as he has alleged in the motion, that the levy was void, and therefore the sale thereunder was void, because the property was his homestead. Such answer would be proper and if the facts were shown would defeat, the action. If appeal were taken by either side, in such action in ejectment, no one would question for a moment that the jurisdiction would be in this court. Now what is the difference between the fact to he determined in the supposed case, and the ease at bar? None, whatever. In either case you determine the one question as to whether or not there was a homestead interest. In the one we say there is jurisdiction in this court, and in the other we say not, when as a matter of fact the same question is involved in both, i. e., was the house and lot the homestead of the defendant, at the time of the levy thereon? And further, in this identical case, suppose the case is transferred, and the Court of Appeals says that there is no homestead, then in the view of Judge Valliant in which we think he is correct, the homestead is gone, and that question of fact so litigated, whether upon motion or otherwise, is res adjudicata, not only as to him, but as to his wife and children. By the peculiar wording of our statute, the wife and children take the homestead through the husband, and in law are his privies. [R. S. 1899, sec. 3620.] This statute reads:

“If any such housekeeper or head of a family shall die, leaving a widow or any minor children, his homestead to the value aforesaid shall pass to and vest in such widow or children, or if there be both, to such widow and children, and shall continue, for their benefit without being subject to the payment of the debts of the deceased, unless legally charged thereon in his lifetime, until the youngest child shall attain its legal majority, and until the death of such widow; that is to say, the children shall have the joint right of occupation with the widow until they shall arrive respectively at their majority, and the widow shall have the right to occupy such homestead during her life or widowhood, hud upon her death or remarriage it shall pass to the heirs of the husband; and the probate court having jurisdiction of the estate of the deceased housekeeper, or head of a family, shall, when necessary, appoint three commissioners to set out such homestead to the person or persons entitled thereto.

Now what vests, a mere exemption privilege, or an estate in lands? A# exemption privilege is personal and does not pass by the law of descent to the widow or heirs. Nor does it “vest” in them. We, as members of a court, do not talk of personal privileges or immunities vesting in our widows or heirs, nor does the Legislature mean to say that it intended to vest a mere personal privilege or immunity in the widow or heir. But further, this court has always held that the wid-. ow’s estate in a homestead is, in effect, a life estate, and how could a life estate vest in the widow from the husband, if the homestead interest of the husband .was a mere immunity from levy and sale? Again, the statute, section 3616, says: “The husband shall be debarred from and incapable of selling, mortgaging, or alienating the homestead in any manner whatever, and every such sale, mortgage or alienation is hereby declared null and void.” What does this mean? Does it mean that the husband cannot yield up a personal privilege or immunity granted to him, or does it mean that for the public welfare the State has stepped in and said to him, that in your conceded fee simple estate, or less estate, if such it be, we have created another estate for the benefit of yourself, your widow and your children, and this estate, i. e., title to' this land, you cannot sell except as we have provided, and in the event of your death this estate, which we have created, as a matter of public policy, shall vest in your widow and children, during the minority of the children, and afterwards for the life or widowhood of your widow? The statute does not undertake to create a separate immunity and privilege in the widow and children, but says the “homestead to the value aforesaid shall pass to and vest in such widow or children, until the youngest child shall attain its legal majority and until the death of such widow.” The right of the wife is limited to widowhood under the present statute, hut this still leaves in her an estate for years, which may or may not be determined prior to death, dependent upon a contingency, i. e., marriage. If she continues a widow, her estate is for life. It is, to say the least, an estate in lands, and when in controversy, her title to lands is involved. All of which passes and vests in her through her husband. Again, the same section provides for the joint occupancy of these lands by the widow and children, until such time as the youngest child becomes of age, and then the sole occupancy by the widow until her death, or her remarriage. What did the Legislature mean by joint occupancy? A joint occupancy of a mere right or immunity given to the husband or of a title to an estate or interest in lands, which the statute has created, and in the language of the law has vested in the widow and children? In our judgment immunity for the widow and children can be created by legislative power, but it is straining a point to say'that we vest an immunity heretofore created in the widow and children. Such is not the ordinary acceptation of the word “vest,” nor in our judgment is it the legal acceptation.

And, further, this same section 3620, in speaking of the estate or interest which “shall pass to and vest” in the widow and children, further says, “And shall continue for their benefit without being subject to the payment of the debts of the deceased, unless legally charged thereon in his lifetime.” What did and what could the Legislature have meant by this language? Did it mean that a mere exemption or immunity from debt “shall continue for their benefit, without being subject to the payment of the debts of the deceased,” or did it mean that this particular estate in the land, i. e., homestead, should not be so subjected? Does it require any strained construction to determine the meaning of this language? In plain parlance, would we say or understand that a mere exemption or immunity from debt shall not be “subject to the payment of the debts of the deceased?” We must conclude that there was a property right, which might be subject to the payment of debts, and if so, it is a right or interest in real estate. This whole question must be determined largely by our statute and the terms thereof.

In our judgment the homestead right, in the husband, is au estate of freehold, i. e., for his life, unless legally disposed of during his life, and if not so disposed of such estate vests in the widow and children, as aforesaid. It is not always based upon a fee title, but may be based upon and carved out of -a title less than a fee, but out of whatever interest in lands it is carved out of or from, it nevertheless is an interest in the land and when questioned in litigation the title to real estate is involved.

We know that there is diversity of opinion among the courts respecting the exact character of this peculiar interest in lands denominated homestead, such character depending largely upon the respective statutes. [21 Cyc. 460.]

In Nebraska, McLain v. Maride, 60 Neb. 353, it is characterized: “A special or particular interest in real estate created by statute, and the character of the interest thus acquired has a marked variance in the different States.” In some States, as Georgia, Harris v. Glenn, 56 . Ga. 94; Kansas, Ellinger v. Thomas, 64 Kan. 180; Kentucky, Brame v. Craig, 12 Bush 404; North Carolina, Thomas v. Fulford, 117 N. C. 667; South Carolina, Ex parte Ray, 20 S. C. 246, the homestead right has been looked upon as a mere exemption and not an interest in lands. In others it has variously been declared an estate in lands ranging from a fee down to a freehold estate: Hirsch v. Prescott, 89 Fed. 52; Jones v. DeGraffenreid, 60 Ala. 145; Snell v. Snell, 123 Ill. 403; Browning v. Harris, 99 Ill. 456; Swan v. Stephens, 99 Mass. 7; Abbott v. Abbott, 97 Mass. 136; Helm v. Kaddatz, 107 Ill. App. 413; Sayers v. Childers, 112 Iowa 677; Chase v. Abbott, 20 Iowa 154; Fauver v. Fleenor, 13 Lea (Tenn.) 622. So it would seem that we must construe this interest according to our own statutes, and in the light of these, let us see whether this interest, i. e., homestead, is a mere exemption, or an interest in land. We had a statute formerly, which “passed to and vested in” the widow a fee. [Skouten v. Wood, 57 Mo. 380.] After this opinion, the statute was amended in 1875, and placed in its present form, except we have later made the widow’s interest terminate with her remarriage, but if she did not remarry, then to terminate with her death. Under the act of 1875, in West v. McMullen, 112 Mo. l. c. 411, Gannt, P. J., said:

“We think the statute vested in the widow and minor children, if any, an estate for her life, and during their minority, and not a mere right of occupancy. Decisions upon statutes essentially. different from ours throw no light upon the question. But our own decisions and those of the Vermont courts and of New Hampshire, under the act of 1868, determine that the homestead is a life estate in land, and not a mere exemption dependent upon occupancy, and being a vested life estate, the widow may use or rent it as she sees fit during her life. [Rockhey v. Rockhey, 97 Mo. 76; Freund v. McCall, 73 Mo. 343; Lake v. Page, 63 N. H. 318; Skouten v. Wood, 57 Mo. 380, and cases cited; Day v. Adams, 42 Vt. 516.]”

Bear in mind this classifies the right of the widow and children as an estate in land, not as a mere exemption or immunity from debt. Such a construction gives life to the statute which provides that the homestead of the husband “shall pass to and vest in” the widow and children. We can understand how an estate in lands can “pass to and vest in” a given person, but can hardly understand that the Legislature had in mind the idea of merely passing to and vesting in the widow, children, or heirs at law, a mere personal privilege or -immunity from debt given to the husband.

■Again, Black, J., in Hufschmidt v. Gross, 112 Mo. l. c. 656, in discussing the same section discussed in the case by Gantt, P. J., viz., sec. 2693, Revised Statutes 1879, says:

“This section makes the homestead, not merely a right of exemption, pass to and vest in the widow and minor children, without being subject to the payment of the debts of the deceased. The same section speaks of this interest which is to pass to the widow and minor children as an estate. This estate which passes to them is not conditional, that is to say, it is not made to depend upon occupancy by her or the children, as in the ease of the homestead exemption under the first section. Again, section 2694 provides that, on setting out homestead and dower to the widow, the homestead must be first set out, and dower in the residue of the lands of the deceased is diminished by the amount of the interest of the widow in such homestead so set out to her. [See, also, Bryan v. Rhoades, 96 Mo. 485.] It was not the intention of the Legislature to substitute a mere exemption right for the dower estate or any part thereof.”

It is true the section now in force, section 3620, is not in exact phraseology as was the original act of 1875, but we have this significant clause therein in addition to the ones above quoted: “And upon her [the widow’s] death or remarriage it [the homestead] shall pass to the heirs of the husband.” "What shall pass to the heirs of the husband? The mere exemption or immunity from debt, or some estate, title or interest in the land. "We can see no escape, under our statute, from the conclusion that the homestead is an interest in the land, and that in a case, as the one at bar, where the sole issue is, was there or was there not, a homestead, an interest or title to real estate is at stake and in issue, so much so as to give this court the jurisdiction.

West v. McMullen, 112 Mo. 405, is quoted with further approval by Gantt, J., in Spratt v. Early, 169 Mo. l. c. 369. And again, by Pox, J., in Clark v. Thias, 173 Mo. 649. True it is that the point here urged was not necessarily involved in the approval thus given to that case, in the latter two cases. But we have always held, as in the latter two cases stated, that a conveyance of a homestead although made for the purpose of defrauding creditors was not void and would convey title. Why? Because the instrument making the conveyance conveyed a mere exemption or immunity from debt, or because it conveyed some substantial interest in real estate, created by the statute? We think it the latter rather than the former.

And further, if as we hold in the cases above cited, the right when vested in the widow is a life estate, and therefore an interest in and title to lands, by what process of reasoning can we say that the interest of the husband is less than that held by the wife ? If it is an estate or interest in lands in one it must be in the other.

But beyond all this what does “title to real estate” mean? It does not mean that one must have a fee simple interest therein, but it certainly goes to the extent of an estate for life or for years, which includes the interest of a homestead. The homestead once fixed is a life interest in the husband, with the power to alienate by deed or mortgage, provided he be joined therein by the wife, and with the further power to lose it by abandonment. It is a freehold estate, which may be determined by the act of the owner. Its duration is uncertain, distinguishing it in a way from an estate less than a freehold. It may last for life or it may not. Its termination is uncertain. ‘ ‘ Title ’ ’ does not necessarily mean a fee interest, but covers all the lesser estates in land. [See vol. 8, Words and Phrases Judicially Defined, subject, Title, page 6980, et seq.]

We have no disposition to prolong this opinion further than to present the idea firmly fixed with us, and that is that a homestead interest is an estate in lands, and where, whether upon motion to quash a levy under execution, or in a suit in ejectment, such right is the one to he determined, then the title to real estate is involved.

We do not concur with Judge Valliant, when he says the only questions involved on this motion are ‘‘(1) is the defendant the head of a family? (2) does he live upon these premises as his family home? (3) is the property within the limit of value and area prescribed by the statute? (4) did his title and occupancy as a homestead exist before the debt on which the judgment was founded was incurred, and has it so continued down to date?” These questions were involved, it is true, but the ultimate question to be determined in the case, simply stated, is this: Did the defendant have a homestead? Answers to all the questions suggested by Judge Valliant simply tend to prove or disprove the ultimate fact to be found, viz., was there a homestead? Of course, all these questions would have to be answered in the affirmative before the ultimate question could be answered in the affirmative, but that does not change the proposition that the real question and the ultimate question, thus on trial, was, did this man have a homestead interest?

If you set up the claim of an estate by curtesy you have four things to prove: (1) marriage, (2) seizure during coverture, (3) issue born alive, (4) death of wife; yet none of us would say, because these four simple issues were the only ones to be passed upon by the court, title to real estate was not involved. The ultimate fact in such case would be, was there curtesy? and if so title to real estate would be involved, although it would be but a life estate. Iu the case at bar we have a life estate, which may be terminated of course by the act of the owner. All life estates may be so terminated.

The only question in the case at bar can be thus stated: Is a homestead interest, as created by our statute, an interest in real estate? If it is, then title to real estate is involved. If it is a mere exemption, then title to real estate is not involved. We think it is an interest in real estate, if we have been able to analyze our statutes, and so believing, we think the jurisdiction of this case is in this court, and the motion to transfer should be overruled.

Lamm and Woodson, JJ., concur in this opinion.


source: Caselaw Access Project

author: WOODSON, J. PEE CURIAM.

license: Public Domain

text:
    PATRICK F. KELERHER and WILLIAM C. LITTLE, Appellants, v. JOHN B. HENDERSON, Appellant.
    In Banc,
    April 29, 1907.
    1. PLEADING: New Matter: General Denial. Under the statute, when new matter is relied upon, in defense or in evidence, it must he set up in the answer. A general denial is not sufficient. If defendant intends to rely upon new matter which goes to defeat or avoid plaintiff’s action, he must set forth in clear and concise terms each substantial fact intended to he so relied upon.
    2. -: -: -: Champertous Contract. Where plaintiff sues on a contract which contains no allegation in reference to champerty, defendant will not he permitted to interpose the defense of champerty unless -he pleads it in his answer. That is “new matter” within the meaning of the Practice Act

      3. -: -: -: -: On Face. The rule that when a contract is offered in evidence and its immorality and illegality appear on its face a recovery will he denied even though the answer is a general denial, does not apply where the client agrees to pay one-half of any and all reasonable expenses or sums of money that may be necessary and proper to insure the successful prosecution of the suit, for such a contract is not champertous on its face. It cannot be said to be an agreement to pay costs of the suit.
    4. ATTORNEY: Champertous Contract: Expenses. There are many necessary and proper expenses an attorney may contract to pay in connection with the prosecution of a lawsuit.
    5. -■: -: Costs. In one contract the clients (plaintiffs) agreed to pay one-half of all reasonable expenses that may be necessary and proper to expend for a successful prosecution of suits on county bonds, and that contract referred to another beween the attorneys (defendants) and the bondholders in which the attorneys agreed to pay all costs of whatever nature in ease of the loss of any suit. Eeld, in a suit by the clients against the attorneys for their proportion of the moneys realized from the suits, that even if the agreement as a whole be construed to mean that the attorneys would pay one-half of the costs of the suits, that was their fault, and it should not be visited on the plaintiffs in the face of their express agree-men to pay one half of all proper and reasonable expenses.
    6. CHAMPERTY. The law of champerty exists in this State.
    7. -: Contract Must Be Champertous. The law does not impress its condemnation upon the subject-matter of the contract, but upon the contract itself. If the contract itself is not champertous, the court will not, when suit is brought on the contract, refused to enforce it simply because certain collateral portions of the contract or of the transaction are tainted with illegality.
    8. COUNTERCLAIM: Practice. Affirmative defenses and counterclaims stand on the same footing that the petition does, and if no evidence is introduced in support thereof, they should be dismissed.
    Appeal from St. Louis City Circuit Court.— Hon. Warwick Hough, Judge.
    Reversed and remanded.

      Collins & Chappell and Joseph E. Zumbalen for plaintiffs-appellants.
    (1) The contract sued on is not of a champertous nature. 4 Blackstone’s Commentaries, p. 135; Duke v. Harper, 66 Mo. 56. (2) The contract between Henderson & Shields and the bondholders is no part of the contract between Henderson & Shields and Kelerher & Co. (3) It is incompetent for defendant to set up the alleged illegality of the contract with the bondholders as a defense to this case. Vette v. Geist, 155 Mo. 27; Crane v. Whittemore, 4 Mo. App. 510. (4) The de- ■ fense of champerty is a personal privilege and can not be made use of by a person other than a defendant when sued on the champertous contract. Bick v. Over-felt, 88 Mo. App. 139. (5) The defense of champerty is an affirmative defense and must be pleaded. Moore v. Ringo, 82 Mo. 473; McDearmott v. Sedgwick, 140 Mo. 182. (6) Even if defendant could avail himself of the defense of champerty in this case, it was error on the part of the referee to refuse to hear further testimony and to recommend a finding and judgment against plaintiffs. 5 Am. and Eng. Ency. Law (2 Ed.), 820. (7) The doctrine of champerty does not obtain in the State of Missouri.

      E. P. Johnson and Barclay; Shields <& Fauntleroy for defendant-appellant.
    (1) The clause in the contract which is set forth in the petition “that said P. P. Kelerher & Company shall pay one-half of any and all reasonable expenses or sums of money that may be necessary and proper for us to expend to insure the successful prosecution of said suit,” is a condition precedent to the right of plaintiff to recover, and a compliance with it must have been alleged in the petition either specially or generally, or an excuse for not having so alleged, or it failed to state any cause of action. Bays v. Ambrose, 32 Mo. 486; Denny v. Kile, 16 Mo. 454; Turner v. Mellier, 59 Mo. 535; Dinsmore v. Livingston County, 60 Mo. 244; Laclede Construction Co. v. Tudor Iron Works, 169 Mo. 155; St. Louis v. Cruikshank, 16 Mo. App. 496; Roy v. Boteler, 40 Mo. App. 222; Price v. Protection Co., 77 Mo. App. 240; Way v. Miller, 80 Mo. App. 385; Fairbanks, Morse & Co. v. Mining & Mfg. Co., 105 Mo. App. 652. And tbe objection of defendant to permitting plaintiffs to introduce any evidence on account of sucb failure to plead performance of said terms of said contract on tbeir part should have been sustained. Murphy v. Ins. Co., 70 Mo. App. 83; Pier v. Heinriehoffen, 52 Mo. 335; Fairbanks, Morse ■ & Co. v. Mining & Mfg. Co., 105 Mo. App. 652; Roy v. Boteler, 40 Mo. App. 222; Price v. Protection Co., 77 Mo. App. 240; Stout v. St. Louis Tribune Co., 52 Mo. 346; Garner v. McCullough, 48 Mo. 318. (2) A contract may be contained in several instruments, all of which may be read as one, and it is not necessary that they, in terms, refer to each other, or that the parties to them be the same. Parlin & Orendorf Co. v. Boatman, 84 Mo. App. 67; Sexton v. Anderson, 95 Mo. 373; Houch v. Frisbee, 66 Mo. App. 16; Jennings v. Todd, 118 Mo. 296; McDonald v. Wolff, 40' Mo. App. 302. (3) The bondholders’ contract with Henderson & Shields is illegal, this suit is an attempt by them to speculate on their principals for their own private gain and, therefore, this action cannot be maintained by them. Rea v. Copelin, 47 Mo. 46; Grumley v. Webb, 44 Mo. 444; Bent v. Priest, 86 Mo. 475; Exter v. Sawyer, 146 Mo. 302; Newman v. Newman, 152 Mo. 398; 15 Am. and Eng. Ency. Law (2 Ed.), 945; Atlee v. Fink, 75 Mo. 100; Green v. Corrigan, 87 Mo. 359; Forsyth v. Woods, 11 Wall. (78 U. S.), 484; Megwire v. Corwine, 101 U. S. 108; Goodrich v. Tenny, 144 111. 422; Byrd v. Hughes, 84 111. 174; Carpenter v. Taylor, 164 N. Y. 178; Ridenbaugh v. Young, 145 Mo. 274; Tyler v. Larimore, 19 Mo. App. 445; Brick v. Seal, 45 Mo. App. 475; Gwinn v. Simes, 61 Mo. 339; Wolf v. Duncan, 80 Mo. App. 421; Sprague v. Rooney, 104 Mo. 349; St. Louis Fair Association v. Carmody, 151 Mo. 566. (4) An agreement to pay costs and receive a portion of the proceeds is champerty. - 5 Am. and Eng. Ency. Law (2 Ed.), 815 and 816; Euneau v. Rieger, 105 Mo. 680; Duke v. Harper, 66 Mo. 51; Bent v. Priest, 10 Mo. App. 543, 86 Mo. 475; Million v. Olmsorg, 10 Mo. App. 432; Bent v. Lewis, 15 Mo. App. 40; Moore v. Ringe, 82 Mo. 468; Pike v. Martindale, 91 Mo. 268; Comstock v. Flower, 109 Mo. App. 275; Railroad v. Johnson, 29 Kan. 218; Quigley v. Thompson, 53 Ind. 317; Hyatt v. Railroad, 68 Iowa 662; Low v. Hutchinson, 37 Maine 196; Belding v. Smythe, 138 Mass. 530.
   In Division One.

WOODSON, J.

This is a suit which was instituted in the circuit court of the city of St. Louis, and based upon a written contract which is set out in the petition.

The petition, in substance, alleges that at all times therein mentioned the plaintiffs were copartners in business under the firm name of P. F. Kelerher & Co.; that defendant and one George H. Shields were co-partners in business under the firm name and style of Henderson & Shields, engaged in the practice of law; that at the city of St. Louis, on or about the 20th day of February, 1878, the said firm of Henderson & Shields, of which defendant was a member, entered into the following written agreement with the plaintiffs, to-wit:

“It is hereby agreed by the undersigned that for and in consideration of the services rendered by P. F. Kelerher & Co. in procuring from the bondholders of Knox county, Missouri, a certain lot of bonds and past due coupons as described in a receipt given to said P. F. Kelerher & Co., as trustees, this day and to he sued upon in accordance with a contract appended to said receipt to pay said P. P. Kelerher & Co. 50%— one-half of the fee accruing to us in accordance to the terms of said contract. It being understood that said P. F. Kelerher & Co. shall pay one-half of any and all reasonable expenses or sums of money that may be necessary and proper for us to expend to insure the successful prosecution of said suit. In other words,. said P. P. Kelerher & Co. to share equally with us in the expenses and profits accruing from said suit,” and dated at St. Louis, February 20, 1878; that said contract appended to said receipt provided that Henderson & Shields weré to receive as a fee for the legal services to be rendered by them twenty-five per cent of the total amount of bonds and coupons involved in the suit or suits which they might bring; that plaintiffs did procure from various bondholders of Knox county, Missouri, a large number of bonds and turned them over to the firm of Henderson & Shields to be sued upon according to the contract appended to said receipt; and that in pursuance of said agreements Henderson & Shields did institute suits upon said bonds and coupons and prosecuted same to final judgment and received as their fee in said matter, on or about the 1st day of October, 1894, the sum of twenty thousand dollars, and that by reason of the premises the defendant became indebted to the plaintiffs in the sum of ten thousand dollars, which sum plaintiff demanded of defendant, on or about October 17, 1894, which was refused and is still due and unpaid.

The prayer of the petition is for a judgment for the ten thousand dollars and six per cent interest from October 17, 1894.

The answer of defendant admits the copartnership of plaintiffs, the copartnership of defendant and said Shields, and that the firm of Henderson & Shields executed the contract of February 20, 1878, set out in the petition, and denies all other allegations in the petition.

The answer further, substantially, states that plaintiffs procured from various persons certain bonds and coupons and coupons of other bonds, of Knox county, Missouri, and turned them over to Henderson & Shields, to be sued upon by said firm, in the name of Samuel C. Davis, and that said firm, with the consent and at the request of plaintiffs, instituted a suit thereon in the name of said Davis, in the circuit court of the United States, against Knox county, and recovered judgment thereon, on March 22, 1878, for the sum of $16,975.35; that in the prosecution of said suit it became necessary and proper for defendant to expend, and he did expend divers and large sums of money, aggregating the sum of $5,911.06, the items of which appear in an attached account, a sum in excess of the sum received or contracted to have been received by said Henderson & Shields from the owners of bonds; that plaintiffs were fully advised of the making of said expenditures and admitted the reasonableness and necessity of making same; the defendant demanded of plaintiffs one-half of said sum so paid by him, which they refused to pay, and asks judgment for said sum and interest.

Defendant for further answer and counterclaim states, that there were placed in the hands of plaintiffs, by the owners thereof, two other bonds for the sum of five hundred dollars each with coupons attached, of said Knox county, Missouri, which, under the provisions of the contract set out in the petition, should have been turned over to Henderson & Shields, to be sued upon by them, but that plaintiffs, in violation of their duty, failed and refused to turn same over to said Henderson & Shields, and wrongfully converted them to their own use, to defendant’s damage in the sum of five hundred dollars. That said firm of Henderson & Shields was dissolved January 1, 1883, and its affairs have been fully settled, and said George H. Shields has assigned to defendant his interest in said claim for damages, and, for which with interest, defendant asks judgment.

Defendant for further answer and counterclaim states, that on June 27, 1887, plaintiffs sold said last two bonds and coupons to L. A. Coquard, with all interest accrued thereon, with the amount of judgment obtained on coupons formally attached to them, aggregating the sum of $2,203.58, in consideration and for which said Coquard paid the sum of $743.75. That plaintiffs delivered to said Coquard only one of said bonds, and refused to deliver to him the other one, by which Coquard was damaged in the sum of $1,600. That said Coquard for value received assigned said claim to defendant, for which he asks, judgment, with interest.

Defendant for further answer says, that on the 8th day of April, 1889, plaintiff William C. Little, for value received, assigned to defendant all of his right, title and interest that he might be or become entitled to under .the contract set out in the petition, wherefore defendant says said Little is not a necessary or proper party to this suit.

To this answer plaintiffs file separate replies, Kelerher’s being a general denial of every allegation in the answer.

Little denies all the allegations in the answer excepting the fifth paragraph thereof, and in reply to that says that he made the assignment stated therein, not absolutely, but as collateral security for an indebtedness owing by him to defendant, which was much smaller than the value of the said security.

On the pleadings the case was, by agreement of parties, referred to John F. Dryden, as referee, to try all of the issues of the case. Upon the trial before the referee the plaintiffs introduced the following evidence:

First, the contract, dated February 20,1878, signed by Henderson & Shields, and set out in the petition:

Second. A receipt from Henderson & Shields to P. F. Kelerher & Co., and in connection therewith á printed form of letter from Henderson & Shields to bondholders, the printed letter not being signed in any other manner than having the name of Henderson & Shields printed upon it. The said receipt is in the following.language:

“St. Louis, February 20, 1878. Received of P. F. Kelerher & Co., trustees, for the purpose of bringing suit in the U. S. Federal Courts the following described bonds and coupons of Knox county, Missouri, issued in behalf of the Mississippi and Missouri R. R. Company, to-wit: [then are enumerated a large number of bonds and past due coupons; $13,504 in face value thereof belonged to Samuel O. Davis & Co., $1,400 to C. R. Walther, $1,120 to Catherine A. Thornbury, executrix, and $280 to Stover]; said suit to be brought according to the terms of'agreement herewith printed.
“Henderson & Shields.'”

The letter or agreement appended to said receipt is printed, and is as follows:

“St. Louis ’ 187
“To the bondholders,
“Of................ Í C
“It is hereby proposed by the undersigned to institute and prosecute to final judgment a suit or suits in the circuit and supreme courts of the United States at own proper cost, charge and expense on the matured coupons from bonds of the county of........State of Missouri, issued in behalf of.......... Township to ............and dated ........day of............. 18....
“And upon obtaining final judgment in favor of the bondholders, to receive for services rendered therein, twenty-five per cent of the total amount of bonds and coupons involved in such suit, which shall constitute the full and entire fee to be paid us. In case of loss of any such suit, we hereby obligate and bind ourselves to pay all costs thereon, of whatever nature, and to be entitled to no fee whatever, or other claim upon said bondholders. Provided, however, that we shall not be required to institute any suit until the amount of coupons suable against any one county in one proceeding, shall reach the sum of $5,000. And provided further, that not less than twenty-five per cent of the bends — the coupons of which are to be sued upon, shall be deposited with P. F. Kelerher & Co., of St. Louis, to be held by them, in trust, fo.r the fulfillment of the terms and conditions of this proposition.
“All communications to be addressed to P.. F. Kelerher & Co., 307 North Third street, St. Louis.
“Henderson & Shields.
“Messrs. P. F. Kelerher & Co., St. Louis:
“In accordance with the above proposition I hand you herewith the following matured coupons.:........ at $........each $........, also $........in bonds, as described in said proposition, to be held by you in trust for the just and correct fulfillment of above proposal which is agreed to by the undersigned.
“Witness:
ii 99

Third. A contract between Henderson & Shields and Samuel C. Davis & Co., dated St. Louis, December 6, 1877, which is as follows:

“To the Bondholders of Knox County, State of Missouri:
“It is hereby proposed by the undersigned to institute and prosecute to final judgment a suit or suits, in the circuit and supreme courts of the United States, at own proper costs, charges and expense, of the matured coupons of the county of Knox, State of Missouri, issued in behalf of and to the Missouri & Mississippi R. R. Co., and dated first day of February, 1868. And upon obtaining final judgment in favor of the bondholders, to receive for services rendered therein twenty-five per cent of the total amount of bonds and coupons involved in such suits, which shall constitute the full and entire -fee to be paid to us. In case of loss of any such suit, we hereby obligate and bind ourselves to pay all costs thereof, of whatever nature, and to be entitled to no fee whatever, or other claim upon said bondholders.
“Provided, however, that we shall not be required to institute any suit until the amount of coupons suable against any one county in one proceeding, shall reach the sum of $5,000.
“And provided further that not less than twenty-five per cent of the bonds — the coupons of which are to be sued upon, shall be deposited with P. F. Kelerher & Co., of St. Louis, to be held by them, in trust, for the fulfillment of the terms and conditions of this proposition.
“All communications to be addressed to P. F. Kelerher & Co., 307 North Third street, St. Louis.
“Henderson & Shields.
“Messrs. P. F. Kelerher & Co., St. Louis:
“In accordance with the above proposition, we hand you herewith the following matured coupons :
“84 at $35.60 each $2,954.
“Also $10,550, in bonds, as described in said proposition to be held by you. in trust for tbe just and correct fulfillment of the above proposition, which is agreed to by tbe undersigned.
“ Samuel C. Davis & Co.
“Witness:
“Wm. H. Grant.”

Plaintiff also introduced three other contracts, all similar to tbe above and signed by Henderson & Shields, and varying only in the dates, and tbe numbers and amounts of tbe bonds and coupons deposited. One of tbe deposits was signed by Charles F. Walther, one by Catherine A. Thornbury, Executrix, and tbe other by Emanuel Stover.

Fifth. Tbe plaintiffs offered tbe record of tbe ease of Samuel C. Davis against Knox county, Missouri, in tbe circuit court of tbe United States, for tbe Eastern District of Missouri.

At this point defendant objected, not only to tbe admission of that record, but to tbe reception of any further evidence in tbe ease, for tbe reason that tbe documents put in evidence by tbe plaintiffs show that tbe cause of action is void on two grounds — first, because they show that tbe plaintiffs were speculating on their principals; and, second, that tbe contract between plaintiffs and defendant is champertous; and suggested that no further proceedings be bad in tbe case.

Tbe referee sustained tbe objection, and plaintiffs duly excepted.

Plaintiffs then offered to prove that Henderson & Shields instituted suits upon all tbe bonds and coupons mentioned or referred to in tbe receipt from Henderson & Shields to Kelerher & Co., dated February 20, 1878; that they prosecuted those suits to final judgment, collected tbe judgments and received from Samuel C. Davis & Co., Charles F. Walther, C. A. Thorn-bury, Executrix, and Emanuel Stover, a fee of twenty-five per cent of the amount received in each instance, aggregating the sum of $10,000, and that after the collection of the fees, Kelerher & Co., as early as October 17, 1894, demanded of Henderson & Shields the payment of one-half of said fees; that accountings have been had between the plaintiffs and defendant with reference to the amount owing by Henderson & Shields to Kelerher & Co., under the terms of the contract sued on, dated February 20,1878, and that the only disputes with reference thereto were, first, as to whether or not under the terms of said contract Kelerher & Go. were entitled to a share in the fees arising from a suit by Henderson & Shields on the bonds in the case of Walther, Thornbury and Stover, or simply on the coupons in the three cases; and, second, as to the amount of the expenses which Henderson & Shields were entitled to charge against these plaintiffs.

To this offer defendant objected on the ground that if plaintiffs were making an offer to prove an account stated they have not pleaded anything of the kind, and, also, because it was incompetent, irrelevant and immaterial, and because the proof offered is insufficient to meet the ruling of the court.

The referee sustained the objection on the ground that it already appeared from the evidence introduced by the plaintiffs that the contract on which they are seeking to maintain their action is tainted with the illegality of the other contracts offered in evidence. To this ruling the plaintiffs duly excepted.

There was no other evidence introduced or offered by plaintiffs or defendant, and both parties thereupon submitted the cause to the referee for decision.

The referee filed his report, recommending the judgment in favor of the defendant on the cause of action stated in the petition, and in favor of the plaintiffs on the causes of action or counterclaims stated in the answer, to which report both plaintiffs and defendant in dne time filed their exceptions. The court overruled all of said exceptions, and rendered judgments against the plaintiffs and defendant, in accordance to the recommendations of the referee. Then, in due time, both the plaintiffs and defendant filed their motions for new trial, which were overruled by the court, and both parties to the suit duly excepted, and bring this case here on their joint' appeal.

FIRST.

I. Plaintiffs contend that the referee and trial court erred in excluding proper evidence offered by them and in finding for the defendant upon the ground that the contract sued on, and set out in the petition, was champertous, and as a basis for this contention state that the defendant did not plead champerty and for that reason it was not a proper defense in this case.

The statute provides that the answer of the defendant shall contain, first, a special denial of each material allegation of the petition controverted by the defendant . . .; second, a statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition. [R. S. 1899, sec. 604.]

When new matter is relied upon in defense or in evidence, it must be set up in the answer. Under the old system, by pleading the general issue, everything was open to proof which went to show a valid defense. But the Practice Act, which has substituted an answer for the general issue, and requires a statement of any new matter constituting a defense, in addition to a special denial of the material allegations of the petition intended to be controverted, has worked a complete and total change in the principles of pleadings. The defendant, by merely answering the allegations in the plaintiff’s petition, can try only such questions of fact as are necessary to sustain the plaintiff’s case. If he intends to rely upon new matter which goes to defeat or avoid the plaintiff’s action, he must set forth in clear and precise terms each substantial fact intended to be so relied on. It follows that whenever a defendant intends to rest his defense upon any fact which is not included in the allegations necessary to the support of the plaintiff’s case, he must set it up according to the statute, in ordinary and concise language, else he will be precluded from giving evidence of it upon the trial. [Northrup v. Mississippi Valley Ins. Co., 47 Mo. 443.]

This court, in the case of Musser v. Adler, 86 Mo. l. c. 449, in discussing this question, said: “The character of the defense thus interposed at the close of the trial by prayers for instructions, was to admit that the services were rendered, but to avoid a recovery on the ground that they were illegal and contrary to public policy. Such a defense should be pleaded, and an intelligent issue made thereon. Here it is very clear that the question was raised incidentally, and that, too, at the close of the trial. It is not enough that evidence may appear tending to establish facts which, if pleaded, would defeat a recovery. The general denial puts in issue the facts pleaded in the petition, not the liability. The facts, from which the law draws the conclusion of non-liability, must be pleaded in the answer when they are not stated in the petition.” This same case says: ‘‘ This defense, SO' far as pleading is concerned, is not unlike that of champerty, gaming, usury and the like.”

Therefore, it follows that the referee and trial court erred in permitting defendant to interpose the defense of champerty, when it was not set forth in the petition or answer. [Moore v. Ringo, 82 Mo. 473.]

The defendant does not seriously controvert the correctness of the above rule, but seeks to escape the effects thereof by invoking another equally well established rule, which declares that when the contract is offered in evidence and its immorality and illegality appear on its face, a recovery should be denied even though the answer is a general denial. [McDearmott v. Sedgwick, 140 Mo. 172.]

The rule last stated does not apply to the facts of this case, because the contract between the plaintiffs and defendant provides that P. F. Kelerher & Co. shall pay one-half of any and all reasonable expenses or sums of money that may be necessary cmd proper for them to expend to insure the successful prosecution of the suits. There are many necessary and proper expenses an attorney may contract to pay in connection with the prosecution of a law suit. Even “relatives and friends of the party may often with great propriety interfere, and not only advise litigation, but also furnish the means to carry it on.” [Euneau v. Rieger, 105 Mo. l. c. 681.]

In the face of the express terms of the contract, we cannot say the plaintiffs agreed to pay any part of the, costs of the suit which might be instituted by Henderson & Shields against Knox county. Said contract on its face is not champertous. But the defendant contends that even though that be true, yet as the contract sued on refers to the contract between Henderson & Shields and the bondholders and provides that the suits are to be instituted and prosecuted according to the terms of the last-mentioned contract, they should be read together, as one entire contract, as if the latter had been literally copied into the former. For the argument’s sake concede that to be true, which we believe correct, in construing the contract then we have one contract which contains two provisions regarding the payment of the costs and expenses of the contemplated litigation. One states that the plaintiffs shall pay one-half of any and all reasonable expenses or sums of money that may be necessary and proper for them to expend to insure the successful prosecution of said suits, and the other that in case of loss of any such suit, Henderson & Shields obligated and bound themselves to pay all costs of whatever nature. If it was the intention of the parties that Kelerher & Co. and Henderson & Shields should each pay one-half of all costs of whatever nature, which might accrue in the prosecution of the suits, why did the same contract specifically state that Kelerher & Co. should pay one-half of all reasonable expenses or sums of money that might be necessary and proper¶

It is a well-settled rule that, in construing a contract, if possible it should be construed so as to give all of its words and provisions full force and effect. Applying this rule to the facts of this case, it seems clear to us that it was the intention of all parties to the contract that Kelerher & Co. were to pay one-half of all legitimate expenses Henderson & Shields might lawfully pay or incur. If Henderson & Shields went further and contracted with the bondholders to pay all costs of whatever nature, which might be incurred in the prosecution of the suits, that is their fault, and should not by construction or implication be visited upon the plaintiffs in the face of their express contract to pay one-half of all proper and reasonable expenses.. We are clearly of the opinion that the mere reference made by the contract sued on to the contract of Henderson & Shields did not have the legal effect of obligating Kelerher & Co. to pay any of the costs of the litigation. Even though the law of champerty was not in force in this State, it could not be seriously contended that Kelerher & Co. would in any manner be bound by the contracts in evidence to the bondholders to pay any costs which might have accrued in said litigation.

All their rights, duties and obligations were fully stated in the contract sued on. The reference to the other contract and receipt was made simply for the purpose of furnishing written evidence of the amount of the bonds and coupons deposited by the bondholders with Kelerher & Co., and to show that the bondholders had accepted the Henderson & Shields proposition. For this reason it was not absolutely necessary for plaintiffs to plead the contract with the bondholders, because it is more in the nature of evidence in so far as Kelerher & Co. are concerned than a contract. Under the facts of this case we believe it would have been proper to have pleaded it, yet we do not think it necessary to do- so. •

II. Counsel for plaintiffs next contends that the law of champerty does not exist in this State. We are unable to concur with the learned counsel upon that proposition. [Duke v. Harper, 66 Mo. 51.]

III. Counsel for defendant in his oral argument before this'court contended that even though the contract sued on was not champertous, yet as it obligated defendant to pay fees which were earned and collected-under and in pursuance of a contract which was clearly champertous, the courts should not lend their aid to the enforcement of that obligation. To that proposition we cannot assent. In order to reach that conclusion we would be compelled to hold that the fees so collected are tainted with champerty and illegality. The law does not impress upon the subject-matter of the contract its stamp of condemnation, but upon the contract itself. Unless the plaintiffs’ contract, by which they seek to enforce their right, is infected with champerty, we see no reason why this suit may not be maintained, though such a contract exists between the defendant and the bondholders. It is time enough to turn a party out of court when he asks the-aid of a court to enforce such- a contract. [Euneau v. Rieger, 105 Mo. 682; Roselle v. Beckemeir, 134 Mo. 380.]

The St. Louis Court of Appeals has held that the assignee of a promissory note could sue the maker and recover thereon, even though the contract of assignment was champertous. While this may be carrying the rule a little far, yet it shows to what great length the courts will go in order to protect the rights of the parties. [Bick v. Overfelt, 88 Mo. App. 140.]

The fact that certain collateral portions of the contract or transaction which is before the court is tainted with illegality will not defeat a recovery upon the other provisions of the contract, which in themselves give a complete cause of action, without the assistance of the infected portions. [Vette v. Geist, 155 Mo. 27.]

SECOND.

I. - We will now consider the defendant’s appeal.

The answer set up several affirmative defenses and counterclaims. Under our code such defenses and counterclaims stand precisely upon the same footing as the petition does. [R. S. 1899, sec. 4499.]

When there is no evidence introduced, the proper practice is to dismiss the proceedings. [Clowser v. Noland, 72 Mo. App. 217; Nordmanser v. Hitchcock, 40 Mo. 179; Wright v. Salisbury, 46 Mo. 26.]

, n. The defendant also contends that there was not sufficient proof of the identification and execution of the contracts read in evidence. 'We have carefully gone over the evidence upon these points and are satisfied there was sufficient evidence for the jury’s consideration.

III. Defendant also makes the point that the appeal of the plaintiffs should be dismissed because the abstract of tbeir record filed in- this court is fatally defective. After a careful consideration of this point we find that there is no substantial merit in it.

For the errors hereinbefore stated, the judgment against the plaintiffs, and the judgment against the defendant, are reversed and remanded. '

All concur, except Lamm, J., who dissents.

In Banc.

PEE CURIAM.

Upon a rehearing of this cause hy the Court in Banc, the opinion of Woodson, J., in Division No. 1, is adopted, and the judgment for plaintiffs and the judgment for defendant are reversed and remanded for new trial.


author: BURGESS, J.

text:
    THE STATE v. J. L. SWAGERTY, Appellant.
    Division Two,
    May 14, 1907.
    1. AUTOMOBILES: Rights on Highway. Automobiles, operated and propelled in a manner not incompatible with tbe safety of the travelling public, have equal rights with other vehicles upon the public highways, subject to such rules and regulations as are prescribed by law. ,
    2. CONSTITUTIONAL LAW: Special Legislation. While an act which refers to particular persons or things of a class is a special law, when the conditions reasonably justify the distinguishing of a class, and the act affects equally all who come within that class, such act is not within the constitutional inhibition against the enactment of special legislation.
    3. -: -: Automobile Act of 1903. The Automobile Act of 1903, regulating the operation and speed of automobiles on the public streets, roads and highways, is not unconstitutional as special legislation merely because it does not apply to all vehicles using the public highways. It applies to and affects alike all persons, corporations, etc., engaged in operating automobiles, and it is, therefore, a general and not a special law.

      4. AUTOMOBILE ACT: Police Power. The Automobile Act of .1903 is a police regulation, and its enactment was clearly within the power of the Legislature.
    6. -, — : Independent Sections: Speed. In a prosecution for a violation of section 2 of the Automobile Act of 1903, prohibiting the running of automobiles at a greater rate of speed than nine miles per hour, the validity of- section 4 of said act, requiring operators of automobiles to obtain licenses, is not involved.
    6. -: Speed Limit: Reasonableness. The courts have nothing to do with the reasonableness or unreasonableness of an act of the Legislature which it was within its power to enact, and this court will not declare that a speed limit of nine miles per hour for automobiles is unreasonable.
    Appeal from St. Louis County Circuit Court. — Row. Jno. W. McElhinney, Judge.
    Affirmed.

      R. R. Stevens and Kehr & Tittmcmn for appellant.
    (1) The general purpose of streets and highways is that of travel, either on foot by a pedestrian or in a vehicle propelled by power. The use to which the public thoroughfares may be put comprehends all modern means of conveyance. The motor vehicle has an equal right with other vehicles in common use, to occupy and use the public highways and streets. Indiana Springs Co. v. Brown, 74 N. E. 615; Maeomber v. Nichols, 34 Mich. 217; Moses v. Railroad, 21 111. 515; Upton v. Windham, 75 Coun. 288; Christie v. Elliott, 216 111. 31; Shinlde v. McCullough, 116 Ky. 965; Chicago v. Banker, 112 111. App-. 94; Thompson v. Dodge, 58 Minn. 555; Holland v. Bartsch, 120 Ind. 46. (2) Such being the law, and it having been decided in this State that the right and power to license, tax and regulate the use of vehicles upon the public roads or highways is solely based upon the common law maxim “that those who mainly wear out the streets should mainly pay for keeping them in repair and that there should he such graduated scales that the kind of carriage which most wears out the streets should pay most and those which are less destructive, should pay less” (City v. Green, 7 Mo. App. 477, 70 Mo. 562; Kansas City v. Richardson, 90 Mo. App. 458), the Automobile Act of 1903 is a special law, and, therefore, violates section 53, article 4 of the Constitution of Missouri, which prohibits the enactment of a special law where a general law may be made applicable and which makes the question whether a general law could be made applicable a judicial one. State ex rel. v. Herman, 75 Mo. 346; State ex rel. v. Tolle, 71 Mo. 650; Sams v. Railroad, 174 Mo. 53; State v. Granneman, 132 Mo. 326. (3) The act violates the 14th amendment to the Constitution of the United States. Every person in the United States is entitled to the equal protection of the laws. That amendment is a guaranty of protection against State action. Virginia v. Rives, 100 U. S., 313; U. S. v. Cruikshank, 92 U. S. 542; Ex parte Virginia, 100 U. S. 339; Railroad Tax Cases, 13 Fed. 722.

      Herbert 8. Hadley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.
    The Automobile Law is not unconstitutional, but is a reasonable exercise of the police power of the State. "When such dangerous machines are allowed the use of our public highways, it is certainly right as well as reasonable to require thqt those in charge of them shall operate them at a reasonable rate of speed. In addition to the dangers attendant upon the use of them, such as collisions with other vehicles and the injury to pedestrians, automobiles are calculated to frighten horses and mules. It is a fact well known to all that our domestic animals do not frighten as readily at a bicycle, steam roller, automobile or threshing machine that is moving slowly as at one that is moving fast. Hence, .for the safety of pedestrians as well as those riding and driving, this law was enacted. Christy v. Elliott, 216 HI. 39; McIntyre v. Orner, 76 N. E. 752; ShinMe v. McCullough, 77 S. W. 197; Gifford v. Jennings, 190 Mass. 154; Com. v. Sherman, 78 N. E. 98; Eichmann v. Buchheit, 107 N. W. 325; In re Berry, 147 Cal. 523; Radnor Twp. v. Bell, 27 Pa. Sup. Ct.; Crittenden v. Columbus, 26 O. C. C. 531; People v. Ellis, 88 N. Y. App. Div. 471.
   BURGESS, J.

On the 29th day of October, 1905, there was filed by the prosecuting attorney of St. Louis county, before R. F. Stevens, a justice of the peace of said county, an information charging that defendant J. L. Swagerty did wilfully and unlawfully, at said county, on said 29th day of October, 1905, operate and run a certain automobile, propelled by steam, gasoline, electricity or other motive power, at a greater rate of speed than nine miles per hour, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State.

Thereafter, on November 16, 1905, said justice heard said cause, and found the defendant guilty, and assessed his punishment at a fine of one hundred dollars and costs. Defendant appealed from this judgment to the circuit court of St. Louis county, where, on the 23rd day of May, 1906, the cause was again tried by the court, a jury being waived, and the defendant again convicted, and his- punishment fixed at a fine of one hundred dollars and costs. In due time defendant filed motions for a new trial and in arrest, which were overruled, and defendant appealed to' this court.

The evidence showed very conclusively that on Sunday, the 29th day of October, 1905, the defendant, on the Clayton road, one of the public highways of St. Louis county, operated an automobile at a speed of twenty miles per hour, and that the automobile was propelled by gasoline. The State asked for no declarations of law. The defendant asked the court to declare the law to be that the act in question was unconstitutional and-void, which the court refused to do, and the defendant duly excepted.

This prosecution is based upon the Act of 1903, entitled, “An Act regulating the operation and speed of automobiles on the public streets, roads and highways of this State, fixing the amount of license, and prescribing a penalty for violating same,” approved March 23, 1903. It is as follows:

‘ ‘ Section 1. Every person, corporation, company or co-partnership engaged in operating any automobile by steam, gasoline or electricity or other motive power upon any of the public streets, roads or highways of this State, shall keep a vigilant watch for vehicles, carriages or wagons drawn by animals, and especially vehicles, carriages or wagons driven by women or children, and shall when approaching any such vehicle, carriage or wagon so drawn by animal or animals, stop such automobile for such a time, as to enable such person in charge of any such vehicle, carriage or wagon to pass, or if going in the same direction, shall before attempting to pass give said driver or person in charge of any such vehicle, carriage or wagon drawn by ani-' mal or animals sufficient notice of his or their intention to pass, by the sounding of a bell or whistle, and if necessary to prevent the frightening of such animal or animals bring said automobile to- a stop in order to give such driver or-person an opportunity to alight from such vehicle, carriage or wagon.
‘ ‘ Section 2. All persons, corporation, company or co-partnership engaged in operating any,automobile as aforesaid, shall, when required by the driver or person in charge of any vehicle, carriage or wagon drawn by any animal or animals, give the right of way to such driver of such vehicle, carriage or wagon and shall not run such automobile at a greater rate of speed than nine miles per hour.
“Section 3. All automobiles operated or run upon any of the public streets, roads or highways of 'any city or county in this State shall bear a number corresponding to the number of the license, placed at a conspicuous place; and if run or operated in the night, shall have two lighted lamps on the front part of said automobile, and on said lamps shall be painted in legible figures, at least three inches long, the number thereof.
“Section 4. Every person, corporation, company or co-partnership, desiring to operate any automobile propelled by steam, gasoline or electricity or any other motive power, shall obtain a license from the license commissioner, if in a city having such commissioner, or if desired to operate same in any county outside the corporate limits of any such city or any of the-public highways, streets or roads of this State, shall obtain a license from the county clerk of such county authorizing the operating of such automobile, and shall pay to the. license commissioner, if in a city having such commissioner, or if in any county to the county clerk of such county, the sum of two dollars per annum for each automobile, so operated and run on the streets, roads and highways, which said sum shall be paid into and become a part of the general road fund.
“Section 5. Any person, corporation, company or co-partnership violating any of the provisions of this act shall upon conviction be adjudged guilty of a misdemeanor and punished by a fine of not less than one hundred dollars nor more than one thousand dollars or by imprisonment in the county jail not less than thirty days nor more than six months or by both such fine and imprisonment.” [Laws 1903, p. 162.]

Automobiles, operated and propelled in a manner not incompatible with tbe safety of the traveling public, have equal rights with other vehicles upon the public highway, subject to such rules and regulations as are prescribed by law.

While it is conceded by defendant that the right to license or tax vehicles or the use of vehicles on the public streets, and to regulate such use, is acknowledged by the courts of this State (St. Louis v. Green, 7 Mo. App. 468, 70 Mo. 562; Kansas City v. Richardson, 90 Mo. App. 450), it is insisted that an analysis of those cases shows that the legislative acts construed applied to all vehicles using the streets, and demonstrates that when the reason of the rule on which these decisions are based is considered, the act in question is special legislation, and, therefore, unconstitutional and void.

There can be no question but that an act which relates to persons or things as a class is a general law, while an act which refers to particular persons or things of a class is a special law. [State ex rel. Lionberger v. Tolle, 71 Mo. 650.] It is well settled, however, in this State that, when the conditions reasonably justify the distinguishing of a class, and the law affects equally all who come within that class, such law is not within the constitutional inhibition. [State v. Loomis, 115 Mo. 307; State ex rel. v. Miller, 100 Mo. 439; State v. Granneman, 132 Mo. 326; State ex inf. v. Washburn, 167 Mo. 680; Ex parte Loving, 178 Mo. 194.]

The principal. objection urged against the act is that it is a special law because it legislates only upon automobiles, and does not attempt to legislate upon all vehicles using the public highways. We are unable to concur with the defendant in this view. The act applies to and affects alike all members of the same class; that is, every person, corporation, company or co-partnership engaged in operating any automobile by steam, gasoline, electricity or other motive power, upon any of the public roads or highways of this State. It does not refer to particular persons or things of a class, and is, therefore, a general and not a special law. The act is a police regulation, and its passage was clearly within the power of the Legislature. It is the province of the Legislature to exercise the police power whenever the public health, comfort or safety seems to require it. In passing upon the constitutionality of a similar act passed by the Legislature of Illinois, the Supreme Court of that State, in Christy v. Elliott, 216 Ill. l. c. 40, said:

“The act in question was designed to secure the safety of travelers upon the public highway. It is a matter of common knowledge that. an automobile is likely to frighten horses. It is propelled by a power within itself, is of unusual shape and form, is capable of a high rate of speed, and produces a puffing noise' when in motion. All this makes such a horseless vehicle a source of danger to persons traveling upon, the highway in vehicles drawn by horses. Such laws as the act here in question have never been regarded as class legislation, simply because they affect one class and not another, inasmuch as they affect all members of the same class alike, and the classification involved in the law is founded upon a reasonable basis. ‘If these laws be otherwise unobjectionable, all that can be required in these cases, is that they be general in their application to the class or locality to which they apply; and they are then public in character, and of their propriety and policy the Legislature must judge. ’ [Cooley’s Const. Lim. (6 Ed.), pp. 479-481.] In Barbier v. Connolly, 113 U. S. 32, the Supreme Court of the United States said: 1 Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment,’ which amendment referred to' by the court is the fourteenth amendment to the Constitution of the United States, which provides that ‘no State shall . . . deny to any person within its jurisdiction the equal protection of the laws. ’
“ ‘Laws public in their objects may be confined to a particular class of persons, if they be general in their application to the class to. which they apply, provided the distinction is not arbitrary, but rests upon some reason of public policy growing out of the condition of business of such class.’ [Allen v. Pioneer Press Co., 40 Minn. 120.] In Railroad v. Beckwith, 129 U. S. 29, it was said: ‘The concluding clause of the first section of the fourteenth amendment simply requires that such legislation shall treat alike all persons brought under subjection to it. The equal protection of the law is afforded when this is accomplished. . . . The discriminations which are open to objection . . . are those where persons engaged in the same business are subjected to different restrictions, or are held entitled to different privileges, under the same conditions. It is only then that the discrimination can be said to impair that equal right which all can claim in the enforcement of the law.’ The statute in controversy in the case at bar certainly applies to all drivers of automobiles without distinction,, and is, therefore, general as to that class, and, for the reason that such horseless vehicles constitute a source of danger to travelers upon the highway, it cannot be said that the classification is not a reasonable one. . . . In Sanitary District v. Bernstein, 175 Ill. 215, this court held that discrimination between different classes of litigants, which was merely arbitrary in its nature, is a denial of the right of litigants to equal protection of the law, but that, if there is a reasonable-ground of distinction, the Legislature has discretion to impose reasonable conditions or restrictions, which it deems in furtherance of justice-. In Lasher v. People, 183 Ill. 226, it was said by this court: ‘ The Legislature have power to form classes for the purpose of police regulation, if they do not arbitrarily discriminate between -persons in substantially the same situation. The discrimination must rest upon some reasonable ground of difference. ’ In Railroad v. Beckwith, supra, the Supreme Court of the United States said: ‘When the calling or profession or business is attended with danger, or requires a certain degree of scientific knowledge upon which others must rely, then legislation properly steps in to impose conditions upon its exercise-. ’ It is certainly true that the business of the man who operates and propels an automobile along the public highway, called a chauffeur, is such a business as is above alluded to. It is attended with danger and requires a degree of scientific knowledge upon which others must rely. These horseless vehicles are certainly capable of being propelled at a greater rate of speed than any ordinary vehicles known to the traveling public prior to their invention, and if they may travel at any rate of speed of which they are capable, persons injured would have no remedy, except such negligence as the common law gives a remedy for.”

This prosecution is for the violation of section two of said act, which prohibits the running of automobiles at a greater rate of speed than nine miles an hour upon any public road or highway in this State, and has nothing whatever to do with section four of said act, which requires every person, corporation, company or co-partnership, desiring to operate any automobile propelled by steam, gasoline or electricity, or any other motive power, to obtain a license from the proper authority for that purpose, and to pay a license fee of two dollars therefor. The validity of section two of the act does not depend upon the validity of section four. St. Louis v. Green, 7 Mo. App. 468, and Kansas City v. Richardson, 90 Mo. App. 450, were both actions against the operators of vehicles in said respective cities, in disregard of ordinances of said cities which required all such persons to pay a license tax for the privilege of so doing, and are not in point in this case. Numerous criticisms are passed upon the different sections of the act, none of which, however, have any bearing in this case excepting such as have reference to that provision of section two which limits the rate of speed at which automobiles may be run to nine miles per hour. It is claimed by defendant that this speed limit is unreasonable because it applies only to automobiles and not to any other kind of vehicle, - and because a limit of nine miles an hour is a rate of speed less than that at which vehicles as well as persons on horseback frequently go.

It is of common knowledge that automobiles are frequently run at a very high rate of speed on the public highways,, and because of this, and théir peculiar shape, appearance and noise, they frequently frighten horses and cause them to become unmanageable, and do much injury to both persons and property. To prevent such occurrences the act in question was passed. With the reasonableness or unreasonableness of the act this court has nothing to do. That was for the determination of the Legislature, whose power as a lawmaking body is prescribed and limited only by the State and Federal Constitutions. In Flint River Steamboat Co. v. Foster, 5 Ga. 194, Judge Lumpkin, in a very able and exhaustive opinion in which he discussed the authority of the Supreme Court to declare invalid an act of the Legislature because of unreasonableness, said: “ ‘I should conceive that in no case whatever can a judge oppose his own opinion and authority to the clear will and declaration of the Legislature, so long as it acts within the pale of its constitutional competency. ’ The province of the court is to interpret and obey tbe mandates of tbe supreme power of tbe State, however absurd and unreasonable they may appear.”

Tbe law in question is plain, and was witbin tbe power of tbe Legislature to- enact. It is as binding upon tbe courts as upon tbe citizen. If tbe law is barsb, tbe remedy is by repeal or amendment.

Finding no reversible error in tbe record, tbe judgment is affirmed.

All concur.