author: BLAIR, C. PER CURIAM.

text:
    HARRIET B. BARNES et al. v. JACOB IMHOFF, Appellant.
    Division One,
    January 3, 1914.
    1. LOST INSTRUMENTS: Court Files: Proof. The fact that the statutes (R. S. 1909, secs. 10422 and 10428) provide a method of supplying instruments lost from court files, does not prevent the proving of the contents of such lost instruments by parol evidence in the ordinary way.
    2. LOST EXECUTION: Proof by Parol: Levy. When an execution has been destroyed -parol evidence is competent to prove its contents and the indorsements thereon, including the levy.
    3. EXECUTION: Levy: Lien: Return. Where a sheriff has levied upon real estate under an execution before the beginning of the return term, the lien of the execution remains in force until sale made during the term, despite any effort of the sheriff to return the execution after levy and before sale. [R. S. 1909, sec. 2228.]
    4. -: -:--: -: First Day of Term. The law does not require an execution to be returned on the first day of the term, and a levy upon real estate made after the term has begun and a sale during the term is effective to pass the title.

      5. -: “Unsatisfied.” The word “unsatisfied” when applied, without more, to an execution does not mean that there has been a return. It simply conveys the idea that the writ has not been paid.
    6. TRUSTS: Evidence: Buying at Execution Sale. Evidence held not to support defendant’s allegation that the attorney who bought his land at an execution sale during defendant’s absence from the State took as his trustee.
    Appeal from Madison Circuit Court. — Eon. Peter H. Euch, Judge.
    Affirmed; .

      Wilson Cramer for appellant.
    (1) On the 26th day of September the circuit court called its execution docket, a certified copy of page 15 of which, showing the issuing of an execution in the case of Depoyster v. Imhoff, was introduced by defendant, and the following notation was made by the judge with reference to this execution: “26 Sept., 1900, unsatisfied.” This was made, of course, upon information given by the sheriff. By the statute, the court shall call over the execution docket, “in order to see that proper returns have been made and entered,” and “the return, if any,” shall be entered on the execution docket. The statute uses the past tense “have been made and entered.” The officer, whose duty, it was to make return, when called upon by the court in order to see that proper return had been made and entered, do'es not report that he had levied upon land and that the sale was suspended, but informs the court that the execution remained unsatisfied. (2) The execution was thereafter functus officio and the sheriff had no authority to do any further act thereunder. (3) It is not competent to prove the contents of a lost execution by parol. When returned, the execution becomes a part of the judgment roll. While, ordinarily, the contents of a lost document may be shown by parol, the rule has been changed by statute as to some classes of documents, among them executions, and snch evidence is not competent to prove their contents. They must be supplied by legal proceedings, as provided by Secs. 4560 and 4561, R. S. 1899. The statute is without purpose, unless it is held to require more solemnity and care in the proof of the contents of the records and papers of which it speaks, and to deny the right to prove them by parol as in the case of other documents. Becker v. Denser, 169 Mo. 165; Campbell v. Greer, 197 Mo. 465; State v. Wilson, 200 Mo. 23; George v. Middough, 62 Mo. 591. (4) Having received Imhoff’s letter, Conran, the attorney, while perhaps not bound to act affirmatively for him, could not legally do anything contrary to, his interests without notice to him, and, when he purchased at the execution sale, took whatever title he obtained as trustee for Imhoff. Stacy, his partner in the transaction, stands in no better position. Aultman, Miller & Co. v. Loring, 76 Mo. App. 66; Bucher v. Ilohl, 199 Mo. 324; Guinan v. Donnell, 201 Mo. 173. This is not a secret trust created by the act of parties, but one flowing by operation of law from the theoretically high position occupied by one who was licensed to practice the profession of law.

      Bussell, Deal & Joslyn for respondents.
    (1) It is true that on the 26th day of September, 1900, Judge Riley made a notation on the execution docket, that the execution under which the land in controversy was afterwards sold was at that time unsatisfied. This was literally true, and had it not been for the mistake of the printer in getting one section of the land in the wrong range, it would have been satisfied at that time. The testimony of Mr. Conran, taken at the former trial, shows that the sheriff had levied upon the land before the first day of the September term, 1900, of the circuit court. He says: “I was shown the publication, shown the execution and he had levied the same prior to the date of the sale, in proper time and upon the proper land, and the printer had made a mistake in the description of one part of it, as I remember, and the land was incumbered, and for that reason, that the misdescription had been made on a portion of it, the sale was not had in September. This is my recollection of it.” (2) Parol evidence is admissible to prove the contents of a lost instrument. Davis v. Montgomery, 205 Mo. 271; Parry v. Walser, 57 Mo. 169; Poulk v. Colburn, 48 Mo. 225; Land & M. Co. v. Land & C. Co,, 187 Mo. 420'; Griffin v. Franklin, 224 Mo. 683.
   BLAIR, C.

This is an action in ejectment for section 9 township 24, range 15, New Madrid county. The petition is in the usual form. On a previous appeal judgment for defendant, rendered by circiIip court of Bollinger county after sustaining a demurrer to plaintiffs’ evidence, was reversed and the cause remanded. [238 Mo. 598.] Thereafter, by agreement, the. case was sent to the circuit court of Madison county, and at the September, 1912, term of that court defendant filed an amended answer consisting of a general denial and a count wherein it is averred plaintiffs claim, by mesne conveyances, under James Y. Conran and William L. Stacey, who purchased at a sheriff’s sale under an execution issued on a judgment against defendant and in favor of one Depoyster, but which execution, so it is averred, had been ¡returned previously, was no longer in force and effect and the sale was (therefore) null and void. In still another count in the answer it is averred that defendant owned sections 5 and 9, township 24, range 15, in New Madrid county, and had and was operating a sawmill thereon; that in 1900 he was called to Michigan by the illness of his wife, and, being detained there, wrote James Y. Conran, an attorney at law living at New Madrid, requesting Mm to look after Ms, defendant’s, interests; that during tMs absence of defendant the sheriff of New Madrid county undertook to sell the land mentioned and it was stricken off and sold to James Y. Conran; that defendant had no knowledge of the pendency of any action against him by Depoyster until his return from Michigan; that he was fully able to pay the judgment rendered and had personalty on the land sufficient to satisfy that judgment; that if it be held the sale was valid, as against other objections, yet Conran, by reason of the facts stated, took title as trustee and could convey no better title than he had, and plaintiffs, claiming under Conran by mesne conveyances^ took no better title than Conran acquired at the sale. The prayer of this count is that if the court shall determine that the sheriff’s sale was valid then that it be decreed Conran and Stacey, to whom the sheriff’s deed was executed, took title as trustees and that defendant’s title forever be quieted and for general relief.

In the case of Butler v. Imhoff, 238 Mo. 584, the facts stated are those of this record in so far as they relate to the issues except those raised by the last count of the answer as above set out, except that the record now shows that on September 26, 1900, at the September, 1900, term of the New Madrid Circuit Court, Judge Riley wrote on the execution docket under the head “Remarks” and opposite the entry, “J. D. Deupester v. Jacob Imhoff,” the words, “26 Sept. 1900. Unsatisfied.”

The facts in the record pertinent to the issue raised by the last count in the answer are that James Y. Conran died sometime after the first trial and before the trial which resulted in the judgment from which this appeal is taken. The answer upon which the case was first tried consisted solely of a denial of “each and every averment” of the petition “or any knowledge or information thereof sufficient to form a belief” and prayer for judgment. James Y. Conran testified at the first trial but no question asked him related in the remotest way to any letter written him by defendant nor does it appear there was, at that trial, any intimation of any kind that such a letter had been written.

Defendant testified that he had known Mr. Con-ran thirteen or fourteen years and once during that time had employed him, but' did not state the character of that employment; he testified that while in Michigan he wrote Mr. Conran in 1900, as averred in the answer, asking him “to look after his interests, if any tiling came-up” and advise him of it, though he then knew nothing of the D’epoyster suit, he said, but thought some one “might try to steal his land.” He says he mailed the,letter, addressed to Mr. Conran at New Madrid, but received no reply; that upon his return to Missouri in March or April, 1901, he heard the land had been sold and went to see Mr. Conran; that he then went to see Judge Stacey. Defendant testifies Judge Stacey told him he bought the land at Mr. Conran’s suggestion, Mr. Conran saying that he couldn’t buy it and for him, Stacey, to buy and they “would go partners in it.” Defendant says he had three conversations with Stacey and two with Con-ran; to Stacey he says he offered to repay the amount of the bid and $500, but Stacey refused to accept the proposal. Defendant also testified that Rolwing and Moore, who bought from Conran and Stacey, before buying visited him at his “office on section 9, New Madrid county,” and asked him the facts regarding Conran and Stacey’s purchase, and after he told them his story he says they declared they would not buy the land, saying to him “they are trying to steal the land from you; we won’t look it over, we will go home.”

As a matter of fact Rolwing and Moore bought the land from Conran and Stacey very soon after their visit to section 9. Moore died sometime before tbe last trial of the case.

Judge Stacey testified be saw tbe notice of sale and told Mr. Conran be was thinking'of buying tbe land; tbat Mr. Conran said be would like to buy in partnership with him and Mr. Conran did buy at tbe sale for tbe two; that be'bad but one conversation with defendant and tbe substance of tbat was be told defendant, who complained bis land was sold while be was absent, to see Mr. Conran. He positively denied tbat defendant told him be bad written Mr. Conran and denied tbat defendant offered to repay tbe bid and $500 and take tbe land, or made any offer at all. Mr. Rolwing testified that when be and Moore went to inspect tbe land with a view to buying it defendant pointed out tbe boundaries and seemed out of humor with Mr. Conran but said nothing about having written him but complained tbat bis land bad been sold under judgment, bis sawmill bad been sold under chattel mortgage and bis wife bad died and be was “in a bad shape every way;” “bad been ruined.” He testified defendant said further tbat be bad never been satisfied there; tbat bis wife would never stay there with him; tbat tbe land was “nothing but a swamp and be bad cut all tbe timber off and if be just bad it a little while longer to cut some timber be bad purchased sometime before, be would be perfectly willing to give up and move and get out of tbat miserable swamp.”

Rolwing also testified tbat some two or three years later defendant complained to him of Mr. Conran, saying something about having engaged Mr. Conran to look after bis interests but be did not recall that even then defendant said anything about having written Mr. Conran or as to what arrangement be claimed to have with Mr. Conran. In bis redirect examination Red-wing said be could not recall that defendant said anything at all about Mr. Conran on tbe occasion of the visit witness and Moore made to section 9.

At the time of the execution sale sections 5 and 9 were incumbered and Rolwing and Moore paid $1936 in discharge of this incumbrance. April 10, 1901, Con-ran and Stacey sold sections 5 and 9 to Huldah F. Peter for a recited consideration of $3100, subject to a mortgage for $2000,- April 20, 1901, Huldah F. Peter conveyed the same land to Rolwing and Moore for a recited consideration of $5000; March 2, 1903, Rolwing and Moore conveyed section 9 to George C. Barnes for a recited consideration of $6400.. Subsequently Barnes died, and this, action was instituted by his heirs at law.

The testimony of Mr. Conran as given on the first trial was read in evidence, the court overruling defendant’s objection to that part of it relating to the levy, as shown by the execution, prior to the September, 1900, term of the circuit court of New Madrid county.

The judgment in the Depoyster case recites that defendant was duly summoned and the record shows that Mr. Conran personally made the successful bid at the sheriff’s sale under that judgment though the deed was executed to both him and Judge Stacey.

I. There was no error in admitting evidence of the fact the execution issued on the Depoyster judgment was levied on sections 9-24-15 prior to the September term of the New Madrid Circuit Court. The only objection made to that evidence in the trial court which is now insisted upon is that parol evidence is not competent to prove the contents of an execution and indorsements thereon when the execution has been destroyed. The argument is that the statute (Secs. 10422 and 10423, R. S. 1909) provides a method of supplying lost executions and that this statutory method must be followed in all eases in which it is .applicable to the exclusion of every other, and the contents of such lost instruments cannot be proved in the ordinary way.

This contention was declared untenable in Parry v. Walser, 57 Mo. l. c. 172; Grayson v. Weddle, 63 Mo. l. c. 536, and Davis v. Montgomery, 205 Mo. l. c. 281, and the admissibility of parol evidence of the return on a lost execution recognized in Howell v. Sherwood, 242 Mo. l. c. 531. The cases cited as supporting a contrary conclusion are not in point. One (Becher v. Deuser, 169 Mo. l. c. 164, 165) discusses the sufficiency of the stenographer’s notes as the basis of a nunc pro tunc entry and the necessity for proceeding under the statute to supply a lost memorandum before it can be used to support such an entry. Two (Campbell v. Greer, 197 Mo. 463, and State v. Wilson, 200 Mo. 23) deal with the necessity of supplying lost pleadings and orders before they are available for use in abstracts of record on appeal. The last (George v. Middough, 62 Mo. 549) treats of the necessity of notice in proceedings to supply lost records and the effect of a failure to object, at tlie first opportunity, on the ground of lack of notice.

II. The trial court might well have concluded from the evidence that the sheriff of New Madrid county levied upon section 9 prior to the beginning of the September, 1900, term of court. If the levy was so made, then the statute (Sec. 2228, R. S. 1909) to which reference was made in Butler v. Imhoff, supra, kept alive the lien of the execution until the time the sale was made, and this is true whatever effort the sheriff might have made to return the execution. [Huff v. Morton, 94 Mo. l. c. 409.] However, as held in Butler v. Imhoff, supra, and in this case on the former appeal, the law did not require the execution to be returned on the first day of the term and a levy after the term began and a sale during the term was effective to pass the title if the sale was otherwise regular unless it is true, as contended, that the entry in the execution .docket, under the head “remarks,” of the words “September, 26, 1900. Unsatisfied. Unsatisfied” shows such a return of the execution as to render it functus officio. There is no dispute that the sheriff had actually levied on section 5 prior to the convening of the court in New 'Madrid county in September, 1900, and had properly advertised it for sale. With this fact before them, it is hardly conceivable that the trial judge and sheriff, knowing that defendant had property in the county subject to sale and knowing that the levy on section 5 would be kept alive by the statute until the end of the next term thereafter, would undertake to do more than cause the execution docket to show that the judgment debt had not been paid. However that may the word “unsatisfied” when applied, without more, to an execution does not mean that there has been a return of the execution at all. It simply “conveys the idea that the writ has not been paid.” [3 Freeman on Executions, sec. 356; Langford v. Few, 146 Mo. l. c. 152, 153; Merrick v. Carter, 205 Ill. 1. c. 76; Martin v. Martin, 5 Jones’ Law, l. c. 348.]

In any view, therefore, the execution was in force and sufficient to support a sale made, as in this case, at the return term. Consequently, the instructions asked were properly refused even if instructions could be said to have a place in a case like this.

III. So far as concerns the argument that Mr. Conran took title as trustee and that subsequent purchasers took title with notice by reason of the continued possession of defendant, it will suffice to say that it depends in the first place upon the truth of defendant’s testimony that in 1900 he wrote Mr. Conran from Michigan asking him to look after his (defendant’s) interests. Defendant’s conduct has not been that of a man conscious of having been betrayed by his attorney. He began no proceedings at all to recover the land he now asserts Mr'. Conran wrongfully bought at the sheriff’s sale though his testimony shows he was financially able to do so. Not only did he fail to institute suit for the property but when sued, years after the transaction, he went to trial without any allegation in his answer which in the remotest way questioned Mr. Conran’s right to buy at the sale. Mr. Conran was a witness on that trial and his testimony as then given is in this record. He was not attacked in any way and was not questioned concerning the letter now asserted to have been written him by defendant. After this court on the first appeal had practically decided that the defense made at the first trial was no defense at all, then apparently for the first time defendant bethought himself of the letter he now claims to have written. Before the second trial Mr. Conran died. It was stated in the argument that a copy of the present answer was served upon counsel for plaintiffs before his death but this court must act upon the record before it and upon the evidence before the trial court. This record does not show the matter stated nor did the trial court have an opportunity to weigh any such fact with the rest. Just when Mr. Conran died does not appear but it is clear he died before the amended answer was filed. Besides defendant was squarely contradicted by the only two persons in whose presence he claimed to have mentioned writing Mr. Conran, and, strangely enough, Mr. Moore, whom he claimed to have told of it in Mr. Rolwing’s presence, also died before the second trial. The complaint made by defendant to Rolwing two or three years after Rolwing and Moore bought the land is explicable upon the theory that defendant thought that because Mr. Conran had represented him some years previously in some other matter he ought to have protected his property at the sheriff’s sale.

The trial court was fully justified iu finding that defendant wrote no letter to Mr. Conran. In fact this record would n'ot support a finding of any other kind.

This disposes of the errors assigned. The judgment is affirmed.

Brown, G., concurs.

PER CURIAM.

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

All the judges concur.


source: Caselaw Access Project

author: BROWN, C. PER CURIAM.

license: Public Domain

text:
    E. W. SKINNER v. ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Appellant.
    Division One,
    January 3, 1914.
    1. CONSTITUTIONAL QUESTION: Appeal: Penalties. Whether or not the penalty prescribed by Sec. 1110, R. S. 1899, for the failure of a railroad company to clear its right of way twice a year, is recoverable by a person whose property has been damaged by fire as a result of such failure, or must be recovered by the State for the use of the county school fund (Constitution, sec. 8, art. 11) involves a constitutional question such as, properly raised and preserved, will vest in the Supreme Court jurisdiction of' an appeal from a judgment awarding the penalty to the person damaged.
    2. CLEARING RAILROAD RIGHT OF WAY: Sec. 1110, R. S. 1899: Penalty: Collectible by State Only. The penalty prescribed by Sec. 1110, R. S. 1899, for the failure of a railroad company to clear its right of way twice a year, is not recoverable at the suit of one whose property has been damaged by fire as a result of such failure, but can only be recovered by the State for the use of the county school fund. [Overruling Scott v. Railroad, 38 Mo. App. 523, and McFarland v. Railroad, 175 Mo. 422.]
    Appeal from Butler Circuit Court. — Hon. J. G. Sheppard, Judge.
    Reversed and remanded {with directions).

      R. T. Railey, J. F. Green and N. A. Mosley for appellant.

      Abington £ Phillips for respondent.
   BROWN, C.

The plaintiff was the owner of a rail fence upon a tract of land belonging to another which adjoined the right of way upon which the defendant’s railroad was constructed and operated. On November 9, 1908, a fire, which had found lodgment in the dead and dry vegetation on the right of way, spread through this material to the land on which the fence stood and destroyed it. The defendant had not caused this kind of material to he cleaned off and removed from the right of way during that year up to the time of the fire, and this suit was instituted under the provisions of section 1110, Revised Statutes 1899, requiring such work to he done between the first and fifteenth days of August, and between the fifth and twenty-fifth days of October of each year. The petition contained a count for damages for the burning of the fence and a count for the penalty of five hundred dollars imposed by the section referred to. There was a verdict and judgment for plaintiff on each count-^-twenty-eight dollars for damages on the first count, and eighty-five dollars for penalty on the second count.

The appellant assigns specially as error that there is no substantial proof that the fire was started by a passing engine; and also that the court erred in holding that the provisions of section 8 of article 11 of the State Constitution, and of section 1144, Revised Statutes 1899', do not require that the penalty sued for shall go to the school fund of the county. It also generally assigned that the court erred in refusing, at its request, to instruct peremptorily for the defendant.

In its brief the appellant waives the assignment relating to the absence of evidence that the fire was set by one of defendant’s engines, as follows: “We predicate this appeal squarely on the proposition that respondent has absolutely nothing to do with the penalty provided m said section 1110', but that the recovery of such penalty and its ultimate disposition are controlled expressly and entirely by said constitutional and statutory provisions above cited.”

Onr jurisdiction is founded upon the constitutional question so stated. It has been insisted upon as a defense at every opportunity during the progress of the case. It is evidently presented in good faith, and even should its decision be unnecessary to the final disposition of this appeal the jurisdiction will not be defeated. [Dorrance v. Dorrance, 242 Mo. 625; Holder v. Aultman, 169 U. S. 81.]

The provision of the statute upon which both counts of this petition are framed was enacted March 21, 1883-, as an amendment to section 810* of the Revised Statutes of 1879' and was in force as a part of section 1110 of the revision of 1899 at the time of the fire complained of.

It is as follows-: “It shall be the duty of every corporation, company or person owning or operating any railroad or branch thereof in this State, to cause all dead or dry vegetation and undergrowth upon the right of way occupied by such railroad company to be cleared off and burned up or removed twice in each year, for the purpose of preventing the- spread of fire, and the destruction of property, to-wit: Between the 1st and 15th day of August, and between the 5th and 25th day of October, in each year, and any corporation, company or person failing to comply with the provisions of this section, shall incur a penalty not to exceed five hundred dollars, and be liable for all damages done by said neglect of duty.” [Laws 1883, p. 51.] Its object is plainly stated to be tbe preventing of the spread of fire and tbe destruction of property. Its benefits are not limited to tbe owners of adjoining lands or of any lands. Its protection is admitted to extend to tbe plaintiff, whose fence was severed from tbe ownership of tbe real estate upon which it was situated and was therefore his personal property. Its purpose was not primarily to give redress to tbe person injured but to prevent tbe spread of fire that might cause injury. Tbe penalty imposed by its terms is not for any injury it may do, but to punish tbe owner of tbe railroad for failing to comply with tbe act by causing dead or dry vegetation and undergrowth upon its right of way to be cleared off or burned or removed twice each year at tbe particular times it requires it to be done. It contains no bint of a purpose on tbe part of tbe Legislature to impair its preventive character by permitting it to be disobeyed with impunity until such disobedience should actually result in tbe destruction it was designed to prevent, but words could not have been more fitly chosen to express tbe idea that tbe moment tbe railroad company fails comply with its provisions by making its semiannual cleanings it incurs tbe penalty. We cannot avoid this conclusion without disregarding tbe common and obvious meaning of tbe simple words employed, and substituting an object of our own for tbe one so unequivocally expressed. Nor do tbe concluding words of this amendment — “and be liable for all damages done by said neglect of duty” —change or tend in tbe remotest degree to change tbe plain meaning of tbe words already used. They express tbe meaning which tbe law would imply without them — no more, no less. They only serve to emphasize tbe intention of tbe Legislature to impose a penalty distinct from any liability for private injury, for which tbe recovery is liquidated as compensation for ‘ damages done. ’ ’ In considering tbe question our first thought is to ask: Does this statute impose the penalty for the failure of the owner of the railroad to clear its right of way? If the answer is in the affirmative, and we cannot see how it could he otherwise, then it is impossible that it should have been its intention to vest the action to recover it in the injured party, because at the time the offense is completed and the penalty accrues there is no injured party.

We would experience no hesitation in deciding as we have indicated without any discussion other than to call attention to the terms of the statute, were it not that the Kansas City Court of Appeals in Scott v. Railroad, 38 Mo. App. 523, and this court in McFarland v. Railroad, 175 Mo. 422;, have each arrived at a different conclusion. In the Scott case the court argued as follows: “The damages indisputably are recoverable by the aggrieved, and why not the penalty as well? There is nothing in the language we have just quoted, that justifies the conclusion that the damages are to be recovered by the aggrieved party and the penalty by the State or county for the use of the county school fund. If the Legislature had so intended, it would have been so expressed in the statute itself.” In that case there had been a general demurrer to the petition counting on the penalty, which was overruled. The defendant declined to plead further and the court, without inquiry of damages, and acting upon the situation as if there had been a plea of guilty in a criminal case, assessed one-half the maximum penalty ($250) for which it entered judgment. In the McFarland case we cited and followed the reasoning of the Kansas City Court of Appeals in the Scott case. The learned judge- who wrote our opinion in that case, to whose work upon this bench our State is indebted for much of the best in its jurisprudence, naturally realized that many persons and much property might be involved in the destruction wrought by a single fire. Valuable forests that had' escaped the dangers of centuries of contact with the methods of primitive men, had been dissipated in smoke in the breath of the modern locomotive. Civilization produced nothing too good to feed the insatiable flames. Even a paltry penalty of five hundred dollars hanging over the careless or shiftless might induce them to take care to prevent the conflagration, but when it had occurred and passed beyond control it might not amount to a drop in the bucket of destruction. Under the stress of these difficulties and dangers this simple but plastic statute was molded into an elaborate scheme, so that when one should suffer loss by a fire communicated through a disregard of its provisions, he should not only have the right to recover from the wrongdoer the amount of his damages, but should become entitled to the penalty, or so much of it as the court should see fit to give him. If he did not get it all then the next comer might repeat the process, and so on in the order of their coming until the penalty should be exhausted, when the proverbial fate of the hindmost would befall the remaining sufferers, should any be left.

Another reason why it was assumed that this penalty was given to the person injured in addition to his damages was because the law gives it to no one else. It is true that the Constitution (section 8, article 11) provides that the clear proceeds of all penalties and forfeitures collected in the several counties for any breach of the penal or military laws of the State, shall belong to and be securely invested and sacredly preserved in the several counties as a county public school fund. Thus, we see the sovereign people of the State have in the most s'olemn and conclusive form in which they can speak, set aside all penalties and forfeitures collected in the several counties as a fund sacred to and to be faithfully appropriated for establishing and maintaining free public schools. The title is expressly vested in the county, and it is expressly made the duty of the prosecuting attorneys to prosecute actions for the recovery of debts, fines, penalties and forfeitures accruing to the State or county. [R. S. 1899, sec. 4950.] In addition to this it is provided that “whenever a fine, penalty or forfeiture is or may be inflicted by' any statute, of this State for any offense the same may be recovered by indictment or information, notwithstanding another or different remedy for the recovery of the same may be specified in the law imposing the fine, penalty or forfeiture.” [ R. S. 1899, sec. 2391.] The remedy is ample to cover every kind of fine, penalty or forfeiture accruing to the county under this provision of the Constitution for the benefit of the school fund.

It was argued by the court in the McFarland case that the clause of the Constitution we have quoted only applies to the clear proceeds of the penalties and forfeiture's to which it refers, meaning only such money as, by the law imposing them, accrues to the public, and that notwithstanding that provision, the Legislature may give a part of it to the informer, or to the party injured; and in such case the clear proceeds will only represent the amount not so disposed of. This is probably correct, within the limits of the legislative power, which, however, does not extend to the arbitrary redistribution of the property of individuals. We assume in this case that had the act provided that the entire penalty go to some person or persons damaged by a fire communicated to his property in violation of its terms there would have been nothing to which the constitutional appropriation could apply; but this does not affect the rule that springs from the very nature of our constitutional government, that when the legislature, in the exercise of the police powers by virtue of which it protects the persons and property of those within its jurisdiction, imposes a penalty for violation of the rule it prescribes, that penalty inures to the State unless either directly or by necessary implication a different disposition is directed. The appropriation to the purposes of the State is made by its laws — in this case by the fundamental law to which the State government owes its existence. The unique argument that it belongs to the plaintiff because it is not, by the terms of the act, given to the State, and that it does not inure to the State because it belongs to the plaintiff finds no place for its operation.

In the McFarland case the court, overlooking the fact that any other way existed by which penalties and forfeitures accruing under this act could be recovered than by indictment or information under the provisions of section 2391, called attention to the fact that the word “offense” used in that section applied only to the “breach of laws established for the protection of the public, as distinguished from an infringement of mere private rights; a public violation of law; a crime; also, sometimes, a crime of the lesser grade; a misdemeanor.” The distinction is a shadowy one, for the reason that the criminal laws are largely devoted to the protection of the persons and property— the “private rights” — of individuals, and that to prevent the starting and spread of fires in our fields, prairies and forests is a matter of great public concern, and when the Legislature has acted through penal laws for that purpose it is not for the courts to stand in the way of their enforcement. The legislative idea of the effect of such preventive laws is instructive as well as interesting, and is illustrated in sections 1123, 1124 and 1125, Revised Statutes 1899. Section 1123 is as follows: “All companies or corporations, lessees or other persons, owning or operating any railroad or part of railroad in this State, are hereby required on or before the first day of November, eighteen hundred and ninety-one (1891), to adopt, put in use and maintain the best known appliances or inventions to fill or block all switches, frogs and guardrails on their .roads, in all yards, divisional and terminal stations, and where trains are made np, to prevent as far as possible the feet of employees or other persons from being caught therein. Any company or corporation, lessees or other person, owning or operating any railroad or part of railroad in this State, who shall fail to do any act or thing in this section required to be done, or shall canse any act or thing not to be done, or shall aid or abet any such omission, shall be deemed gnilty of a violation of this law, and shall forfeit and pay the sum of ten dollars for every such offense, and each day shall constitute a separate and distinct offense.” In section 1124 no remedy is created for the recovery of the penalty, but it is taken for granted that it is collectible by indictment under section 2391, and provides that the law imposing it be given in charge to the grand juries. Section 1125’ gives no remedy by suit on account of the maiming or killing’ of any person by reason of noncompliance with the law, but assumes that such an action lies, and provides that contributory negligence or carelessness shall not be a defense.

It is with great reluctance that we disregard the doctrine of the Scott and McFarland cases, but the Legislature has expressed itself so plainly and unmistakably in the law under consideration that we are constrained to agree with the learned editors of The Lawyers’ Reports Annotated (New Series, book 9, page 374, note) where, in referring to the two cases mentioned, they say: “The superiority of the claim of this individual (the -injured owner) over that of the state is not convincingly demonstrated by the reasoning of the court.” There is, therefore, no other course open to us than to hold that the statute in question was not intended to and did not give to the plaintiff any interest in, nor right of action for the penalty sued for in the second count of the petition. The judgment of the circuit court is therefore reversed, and the cause remanded with directions to enter judgment upon the verdict rendered upon the first count of the petition as of the date of the judgment appealed from.

Blair, G. concurs.

PER CURIAM.

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

All concur — Bond, J., in result.


text:
    A. J. STANLEY v. ST. LOUIS, IRON MOUNTAIN AND SOUTHERN RAILWAY COMPANY, Appellant.
    Division One,
    January 3, 1914.
    This cause is decided upon the authority of Skinner v. St. Louis, Iron Mountain and Southern Railway Company, ante, p. 228.
    Appeal from Butler Circuit Court. — Hon. J. C. Sheppard, Judge.
    Reversed and remanded (loith directions).

      B. T. Bailey, J. F. Green and N. A. Mosley for appellant.

      Abington £ Phillips for respondent.
   BROWN, C.

The appellant in this' case was the owner of a mowing machine which was, September 17, 1908, destroyed on the land of another adjoining the defendant’s right of way, by a fire which had found lodgment in the dead and dry vegetation on the right of way and spread through that material to the land on which the mowing machine had been left, and destroyed it. The defendant had not at any time during the month of August, nor up to the time of the fire, caused all or any part of the dead and dry vegetation and undergrowth upon its right of way at that place to be cleaned off, burned up or removed. The petition is in two counts, both founded on section 1110, Revised Statutes 1899; the first for damages for the destruction of the machine, and the second for the penalty -of $500 imposed by that section. There was a verdict!or plaintiff on each count, thirty dollars on the first count and fifty dollars on the second count, on which the judgment was entered from which this appeal is tahen.

The point involved in this case is the same in all respects as that involved in the case of Skinner against the same defendant, decided at this term, and is submitted on practically the same brief and argument, so that its disposition necessarily follows that of the Skinner case; and for the reasons' given in the opinion in that case the judgment of the circuit court is reversed and this cause remanded with directions to enter judgment upon the verdict rendered upon the first count of the petition as of the date of the judgment appealed from.

Blair, G., concurs.

PER CURIAM.

The foregoing opinion by •Brown, C., is adopted as the opinion of the court.

All concur — Bond, J., in result.


text:
    ADAM BURGER and CLARA BURGER v. J. H. BOARDMAN et al., Appellants.
    Division One,
    January 3, 1914.
    1. SUIT TO RESCIND: Fraud: False Representations: Evidence. Evidence in a suit to rescind an exchange of lands for fraud held to show sufficient false representations to constitute fraud if believed and relied upon by the plaintiffs.
    2. -: -: -: Made by Third Party to Whom Wrongdoer Referred Plaintiff. One who, preparatory to trading to another lands which the other has never seen, refers that other to a third person for information concerning the lands, is liable for false representations made by the third person, if by their aid the other party is defrauded in the exchange.
    S. -: -: Representations Made by Innocent Third Party, Their Falsity Induced by Defendant’s Deception. One who trades to another lands which the other party to the trade has never seen, is liable for representations made by a third person to the other party, where it appears that, some time before the negotiation, the owner had shown to the third person other and much better lands in the same vicinity, describing and naming them as the lands afterward sought to be traded, and by aid of the third person’s representations, resulting from the owner’s deception, the other party is defrauded in the ensuing exchange.
    4. FRAUD: Liability for Passive Aid Afforded the Perpetrator. One who knowingly allows himself to be used to consummate the fraud of another, must abide the consequence of such complicity.
    5. -: -: Innocent Purchaser. Owners of a half interest in lands, who trade it to another, the co-owner also trading his interest and conducting the trade so as to defraud the party with whom they trade, cannot defend as innocent purchasers, when facts of which they had notice pointed to the co-owner’s fraud.
    6. TITLE TO LAND TAKEN WITHOUT PAYMENT OF CONSIDERATION: Subject to Equities. One who takes title to land without payment of any consideration holds it subject to all equities.
    7. SUIT TO RESCIND: Evidence: Laches. Evidence in a suit to rescind an exchange of lands held not to show laches, there having been no substantial change in the situation of the parties or in conditions, and the suit having been brought in about five months after the fraud was discovered:
    8. APPEAL: Equity Suit: Evidence. The Supreme Court weighs the evidence on appeal in an equity suit, and when the decree is amply supported by other evidence it does not consider the admissibility of certain testimony to which objections are made.
    9. SUIT TO RESCIND: Improvements: Rents: Evidence. Where in a decree for the rescission of an exchange of lands, the defendants are allowed $2100 for completing a house on the lands on the theory that the evidence showed the house complete to be worth that much more than when they took it, although $1000 or $1200 was all that was required for the work, and when the rents charged them for the lands while in their possession are shown to be reasonable, there is no basis for their contention, in their appeal, that they were erroneously charged with “profits and permanent improvements.”
    10. PROCEDURE: Insane Defendant. Even though a defendant be insane when a suit is begun it is the insane person who is sued, though service upon the guardian is required in order that he may perform his statutory duty to defend all actions instituted against his ward.
    11. -: Defendant Adjudged Insane After Trial but Before Referee’s Hearing. ^Evidence was heard in a suit to rescind an exchange of lands in 'May, 1909, and the cause was continued to July, 1909, when it was taken under advisement. Defendant Boardman was adjudged insane in the probate court October 6, 1909. October 28, 1909, the trial court appointed a referee to take an accounting. The parties were duly notified and appeared before the referee December 29, 1909, defendant Boardman appearing both in person and by counsel. Due notice was served upon Boardman’s guardian but he did not appear. The matter was continued to January 10, 1910, and on that date Boardman appeared in person and by his guardian, was offered as a witness in his own behalf and testified. The referee filed his report February 14, 1910, and defendants filed their exceptions thereto on the same date. A copy of the record showing the judicial determination of Boardman’s insanity and the appointment of his guardian was then filed and defendants objected to the rendition of judgment, but in vain. Motions for new trial and in arrest were filed and overruled, but the record does not show who signed them. Held, that the decree must be sustained although rendered after defendant Boardman was adjudged insane. His absence when the referee was appointed was not fatal, and, in view of the presumpUon that the trial court followed the law, the record sufficiently shows that his guardian acted for him, after he was declared insane, in all matters in which such action was necessary.
    12. -: -: Title of Cause. Where a defendant became insane after the trial of a cause, but prior to the hearing before a referee and before the final decree, his guardian appearing and acting for him after he was adjudged insane, an objection that the guardian’s name was not written into the title of the cause is highly technical and not material.
    Appeal from Butler Circuit Court. — Eon. J. C. Sheppard, Judge.
    Affirmed.

      J. B. Young, A. B. Garrett, James A. Finch, Charles E. Hannauer, Marshall Arnold, G. B. Daugherty and Marion C. Early for appellants.
    (1) J. H. Boardman was adjudged insane, and the management of his business affairs and his estate were placed in the hands of a guardian and curator long before the final decision and decree of the trial court was rendered. Yet, with full knowledge of this fact, the decision and decree were rendered against said Boardman without his guardian and curator being made a party to this suit. This is reversible error. Ashby v. Winton, 26 Mo. 210; Lumber Co. v. Oliver, 65 Mo. App. 435; Berkin v. March, 18 Mont. 152; Jones v. Steele, 36 Mo. 324. (2) The finding that appellant Boardman was the agent of Leo Dohogne is not sustained by the evidence, and is reversible error. Gris-wold v. Hass., 145 Mo. App. 578; Mitchell v. Sanford, 149 Mo. App. 418; Pallman v. Schaper, 158 Mo. App. 615. (3) There were no confidential relations shown to exist between the parties calculated to give appellant, J. H. Boardman, unusual or undue influence over the respondents, whereby he would be able to overreach them in their business dealings. They were in every way on equal footing with said Boardman. If, by the exercise of inferior judgment merely, in making a trade, persons enter into dealings, which after-wards prove to be unsatisfactory, equity will not afford them relief from such error. This principle is elementary. Dillman v. Nadlehoffer, 119' 111. 567. (4) Where a person to whom representations are made does not rely thereon, but makes independent investigations, he cannot subsequently avail himself of the falsity of such representations, even if they were false and made with evil intent. He must be able to show that he relied solely upon the statements made by the person charged with fraud. Pauntleroy v. Wilcox, 80 111. 477; Douglas v. Littler, 58 111. 342; Hanna v. Bay-burn, 84 111. 533; Sbram v. O’Connor, 98 111. 539; Crocker v. Manly, 164 111. 282. (5) The doctrine of caveat emptor applies to an exchange of real estate as in any'other purchase or sale of property. There was ' nothing to prevent respondents from going to the counties of Wright and Texas, and inspecting the lands before purchasing or exchanging. If they counted the distance too great to go and inspect, they could have declined to trade. There was certainly no compulsion or undue influence brought to bear upon them. They were free to act as. they chose. Equity will not relieve persons from the consequences, of mere lack of discretion or of unsound judgment in their dealings. (6) Respondents are guilty of laches in waiting’ six months after seeing the Wright and Texas county lands before complaining or bringing their action. The evidence indicates that they were satisfied at first, their dissatisfaction being an afterthought, produced by a change of conditions occurring after the deal had been consummated. (7) The court erred in sustaining the finding of the referee charging Dohogne with profits^ and permanent improvements to the Scott county lands. Dohogne had paid amounts in cash. Under the referee’s finding Burger is to have these benefits and still Dohogne is called upon to pay over again the same moneys. This was error. (8) Even if called upon to account Dohogne was only liable for cash received and nothing more. He should not be required to pay rentals on vacant property.

      M. E. Morrow, Leiv R. Thomason and Robert Lamar for respondents.
    (1) Even if vendee was induced to make the trade by the combined false representations of defendant and certain information received from some other sources, he is entitled to recover. Beeraft v. Grist, 52 Mo. App. 586; Chan v. Reid, 18 Mo. App. 115; Saunders v. MeClintock, 46 Mo. App. 223; Bruce v. Burr, 67 N. Y. 237. (2) The subject-matter of the contract being at a distance from respondents, and to go see it involved trouble and expense, they had a right to rely on the representations of appellants. Bishop v. Seals, 87 Mo. App. 256; Dunn v. White, 63 Mo. 181. (3) Defendants Boardman and Leo Dohogne were jointly interested in the lands in question for their mutual profit; and the declarations and representations of one touching the subject-matter of their joint ownership bind the other. Henslee v. Cannefax, 49‘ Mo. 295; McKnight v. Ratcliff, 44 Pa. St. 586; Yreeland v. Stone Co., 29 N. J. Eq. 188. Nor need the Dohognes have known the falsity or fraud of his representations, or that he in fact made any, in order to be charged with its civil liabilities, if they have undertaken to receive and retain the benefits of the contract made under such fraud. “All who get gain by fraud must bear the legal consequences of the wrong.” Yreeland v. Stone Co., 29 N. J. Eq. 195; Castle v. Bullard, 23 Howe, 189; Simmons v. Oil Co., 61 Pa. St. 202; Chester v. Dickerson, 54 N. Y. 1; Miller v. Barber, 66 N. Y. 558'; Harnblower v. Crandall, 7 Mo. App. 220, 78 Mo. 581; Stanhope v. Swafford, 80 Iowa, 45; Durant v. Rogers, 87 111. 508. (4) When a party takes advantage of another’s distressed condition to gain an unconscionable advantage, court of equity will assist the injured party and set aside contracts so entered into. Lappen v. Crawford, 186 Mo. 462; Turley v. Edwards, 18 Mo. App. 676; Fout v. Giraldin, 64 Mo. App. 165. (51) Dohognes were not -innocent purchasers of their interests in the Burger lands. Fitzsimmons v. Joslin, 21 Vt. 129; Garrett v. Horton, 16 N. Y. 469'. (6) Respondents had a right to rely upon the representations as to value, ' location and improvements of the Ozark lands, as they did not see them. Warner v. Winfrey, 142 Mo. App. 303; Kendrick v. Ryus, 225 Mo. 150; Clinkenbeard v. Weatherman, 157 Mo. 105; Morris v. Rathbum, 49 Mo. 91. (7) It is not even necessary for respondents to show that they have sustained pecuniary damages to entitle them to rescind in equity. 14 Am. & Eng. Ency. Law (2 Ed.), 140; MacLaren v. Cochran, 44 Minn. 255; Valton v. Assurance Co., 20 N. T. 32; Smith v. Countryman, 30 N. T. 670. (8) Appellants were not even entitled to allowance the trial court gave them for improvements put on the Scott county land while in possession as fraudulent grantees. Sayer v. Devore, 99 Mo. 455. (9) Boardman’s agency for Dohognes, if not clearly established by the latter’s words and acts: prior to the closing of the trade with the Burgers, is established beyond the possibility of a doubt, by the fact of the Dohognes’ subsequent ratification of Board-man’s trade, accepting the fruits and benefits- of his acts and retaining the same. They must, therefore, assume the burdens of his acts. Turner v. Railroad, 51 Mo. 501; Bank v. Gay, 63 Mo. 33; Beagles v. Robertson, 135 Mo. App. 306-; Grover v. Hawthorne, 121 Pac. 808; Bodine v. Berg,’ 82 Atl. (N. J.) 901; Kurtz v. Payne Inv. Co., 135 N. W. 1075. (10) Any fraud perpetrated by an agent on a third person in the course of his employment, and for the benefit of the principal, is imputed to the principal, whether he had actual knowledge of it or1 not. Darks- v. Gro. Co., 146 Mo. App. 246 ; Keyser v. Kinkle, 127 Mo. App. 6-2; Judd v. Walker, 215 Mo. 312.
   BLAIR, C.

From a decree for plaintiffs in the Butler Circuit Court rescinding, on the ground of fraud, an exchange of lands, canceling certain deeds upon condition and stating an account, defendants have appealed.

At the time (1908) of the occurrences which gave rise to this suit Adam Burger, who was sixty-six years old, owned and, with his wife and coplaintiff, occupied as his home about 119 acres of land in Scott county. This land adjoined the towns of Edna and Ancell, and the evidence justifies the conclusion that it was worth about $100 per acre. It was subject to two deeds of trust securing an aggregate of $1750.

Plaintiffs, are Germans and not fully conversant with English though their testimony indicates they have a very fair vocabulary of ordinary English words.

Defendant Boardman moved from Wright county to Scott county about March, 1907, locating in a town very near the Burger farm. Boardman had formerly lived in Webster and Wright counties. He had had considerable experience in dealing and trading in Wright county lands, and about the time he removed to Scott county he and defendant Leo Dohogne had jointly acquired 480 acres of land in Wright county and 200 acres in Texas county, Missouri. The first mentioned tract was known as the Garrett place. It was twenty miles from the railroad, rocky, hilly and unimproved except, perhaps, for a small log cabin which was little more than a ruin. A portion of the Garrett place previously had been cultivated but some fifteen years before the exchange now sought to be rescinded it had been abandoned and the improvements, including fences, burned. Subsequently brush and trees grew up on the previously cultivated portion, many of the trees having grown to a diameter of four inches or more. About eighty or 100 acres of the 480 in this tract could have been cleared and cultivated as before but the soil was thin and worn out. This tract was. about two miles from Manes, a village of about 150 souls. This description and history, in essential particulars, sufficiently applies to the Texas county tract that it need not be separately described. For these two tracts defendants Boardman and Leo Dohogne paid three dollars per acre in March, 1907, and took title by the same deed, share and share alike. According to the evidence they paid more than the lands were worth either then or at the time of the exchange with the Burgers, in February, 1908: The Burger land in Scott county was crossed by a railroad and had on it a very good dwelling house and barn, several small houses or shanties and one uncompleted eight or nine room concrete house, finished “up to the roof.” Boardman and the Dohognes knew the Burgers and the Burger land very well. Defendant Leo Dohogne was born and raised almost or quite in sight of the place and all his life had known Adam Burger. He (Leo Dehogne) was cashier of a bank in the town of Kelso in which, his father, defendant Constantine Dohogne, seems to have been interested, and both of them were perfectly familiar with the Burger land and, before the exchange was consummated, knew to what extent it wasi encumbered. Leo Dohogne had never seen the Wright and Texas county lands but his father, Constantine Dohogne, had and had been over part of it. From the testimony of the two Dohognes, father and son, it appears that the father, Constantine, bought the half interest in these-tracts in March, 1907, but that he and his son, defendant Leo, owned it jointly, the legal title, however,'being put in Leo Dohogne’s name.

In 1907, as a result of an expensive illness and obligations contracted in connection with the erection of the concrete house, Adam Burger became indebted to the extent of several hundred dollars and this indebtedness with the encumbrances upon his land and the so-called panic of 1907 seems .to have agitated him considerably and he began to take measures looking to a readjustment of his affairs to the end that he might rid himself of all indebtedness. Sometime in the fall of 1907, or the early part of the following winter, he visited Boardman at his store in Kelso and disclosed his desire to dispose of his Scott county farm and home in such way as to rid himself of debt and secure other unencumbered property for Ms equity. Board-man thereupon called to his aid an old acquaintance named Short, who lived in Wright county and was also in the real estate business, and Short came to Scott county-and he and Burger entered into an arrangement whereby Short agreed to pay Burger $1800 and convey to him 160 aeres of land in Wright county in consideration of the conveyance to him by Burger of twenty-five or twenty-six acres of the 119 acre tract. This seems to have been a very fair arrangement. Very soon thereafter, February 11, 1908, Boardman visited the Burger home and a contract was dictated by Boardman, drawn by one of his clerks and signed by plaintiffs and Boardman, whereby Boardman agreed to convey to plaintiffs his one-half interest in the Wright and Texas county tracts in exchange for 214 acres of the Burger farm, including the improvements. At the same time another contract was drawn, concerning which defendants’ witness Donnenmueller, the draftsman and Boardman’s employee, says: “Well, it was a short form of a contract for Mr. Leo Dohogne. Mr. Leo Dohogne hadn’t made up his mind that evening to come in a half interest, and we drew up a contract that if Mr. Leo Dohogne wanted to come in that he could later on. ’ ’ Leo Dohogne was not present then, but witness Donnenmueller testified he thought he (Dohogne) “was implicated in it” at that time. On this occasion Boardman called for and took away plaintiffs ’ copy of the contract with Short, and it is heard of no. more. Short’s contract eliminated Boardman and the latter did not relish this. Plaintiffs say Board-man told them Short would not deal further with them because he objected to- their religion. Boardman says' plaintiff said they preferred to deal with him. Board-man, in the first instance, had, he says, approached the Dohognes but they raised an objection to the title to Burger’s land — an objection subsequently discovered to have no foundation. Boardman says the Dohognes had been “working with” him “to some extent” theretofore. After D'ohogne objected to the title, Board-man, so he testifies, then took the matter up with Short, who agreed to go in with him. Subsequently Boardman went to see Short and discovered he “didn’t have any money and couldn’t furnish the stuff,” and then he says, he “came back and got Leo Dohogne to go in with” him “and his (Leo’s) father furnished the money to raise the mortgage.”

Plaintiffs never saw the Wright and Texas county lands until they moved to Wright county after the trade was made. They testified that Boardman represented that the lands were about five miles from Mountain Grove, a flourishing town on the St. L. & S. F. R. R., were fertile and well improved; that there were practically no rocks; that the expense of hauling them off would be twenty or twenty-five dollars; that the land was worth twenty-five dollars per acre and the Texas county tract was particularly fine, “just as level” as one of plaintiffs’ fields, having good fences, houses sufficient for tenant houses and a “big red bam” and orchards and strawberry beds.

There is evidence that plaintiff Adam Burger desired to visit Wright and Texas counties and examine the lands offered but Boardman discouraged this', saying it would be “wasting money.” Boardman himself testified he told Burger that about 260 acres of the land were cleared but a “few saplings that had growed up on it” would have to be cut down and that he told the Burgers that the land had “laid out” about eight years and. if fenced would “grow most anything, such as clover, timothy, or anything that would grow in that latitude;” that it would “grow reasonable com, for the altitude. ’ ’ He asserted he also told them that there were no improvements •; that the land was twenty miles from the railroad and that the timber consisted of small white oaks, chiefly available, in the circumstances, for cordwood only but some might be used for telephone poles.

Otto Donnenmueller testified that while he was drawing the contract above referred to Boardman said to plaintiffs: “You don’t need to take my word about this land. Ask Otto. He has seen the land.” Witness says he then “explained the land” known as the Garrett farm — the Wright county tract. Witness told plaintiff he had been on that tract and that to his “knowledge it is pretty nice tract of land.” Plaintiffs asked him how many acres- were cleared and he told them that “to the best of his knowledge and judgment” there “must be about eighty acres of it in cultivation — ■ that is, cleared. ’ ’ He says he told them there was some good timber but not much, but that there was a great deal of “wood timber.” Plaintiffs asked about fences, and witness says- he told them he saw a little rail fence as he passed along the road and a small log cabin near a corn patch in the bottom. Boardman then told plaintiffs that “that scope down in the bottom of (near) that little log cabin belongs to this 480 acre tract.” Witness says that on this occasion Boardman, referring to this- same land, said to plaintiff: ■ “It is three miles from town,” and witness s-aid: “No, it is two miles and a half from town and twenty miles from the railroad town.’.’ He says he “didn’t mention no town, but said twenty miles from the railroad town.”

Defendant Leo Dohogne was a notary. He drafted one of the deeds plaintiffs executed and took their acknowledgment thereto. He delivered his deed to plaintiffs for one-half interest in the Wright and Texas county lands on February 25-, 1908-. Plaintiffs testify he then told them they were getting “nice land.” He says he “merely wished them success.” The deed from plaintiffs to Boardman for the larger part of their farm and the deed from Boardman and wife to Leo Dohogne for his share of the Burger farm were executed and delivered the same day. These last two deeds and that from plaintiffs to Boardman conveying the 21-1,- acres covered by the contract of February 11, 1908, were all filed for record February 26, 1908.

Somehow in the course of affairs Short, who has been previously mentioned, became again involved in the negotiations and acquired a small portion of the Burger land.

In March, 1908, plaintiffs sold their personal property at public auction and moved to Wright county. Visiting their newly acquired property they found they had been fleeced and appealed to Short, who brought an attorney to them and advised them to keep the matter quiet for a while. Subsequently, plaintiffs employed their present attorneys-, who instituted this .suit.

There was evidence that the general reputation of defendant J. H. Boardman and plaintiff Clara Burger for truth and veracity was bad. The evidence as to Boardman’s reputation covered every community in which it was shown he ever lived. There was also evidence of statements by Adam Burger to the effect that he was relying upon information from others than Boardman, and statements tending to show that he knew the facts concerning the Wright and Texas county lands before the exchange was consummated. There was also evidence of statements by Boardman to third persons after the consummation of the trade like those plaintiffs say he made to them during the negotiations.

Plaintiffs never recorded their deeds but commenced this suit August 13, 1908. Short was one of the original defendants but upon being summoned he immediately contracted to reconvey to plaintiffs all the land he had received in the transaction, and was omitted from the amended petition.

The taking of evidence was concluded July 8,1909, and the court took the matter under advisement.

' On October 28,190-9, the court appointed a referee to take evidence and state an account for its informartion.

The referee took evidence and filed his. report in February, 1910. Exceptions thereto were overruled, and thereafter a decree was entered for plaintiffs, and various deeds executed by plaintiffs were decreed to be canceled upon plaintiffs’ reconveying the lands conveyed to them and paying the amount the court found they owed defendants, $2246.92.

Other facts necessary to a decision of the questions presented will be stated in the course of the opinion.

I. It is contended that (1) the evidence is insufficient to warrant the conclusion that Boardman misrepresented the Wright and Texas county lands, and (2) plaintiffs did not rely upon the representations Boardman made, if any.

1. There is a conflict of evidence upon the question of the value of the Wright and Texas county lands. Plaintiffs called witnesses who had been bom and raised in the vicinity and who had known the lands from boyhood and who owned near-by property and were perfectly familiar with land values in that neighborhood. Of defendants’ witnesses some live in Scott county and had visited Wright county a time or two and had seen part of the lands in question as they drove along the road, and some lived in Wright county, but eighteen or twenty miles away, and had never been over the land carefully, and several had not seen it at all for years. Boardman and Dohogne paid three dollars per acre for these lands in March, 1907. In view of all the evidence we are convinced this was a large price and that the 680 acres were actually worth no more than $1500. Just how a fair return on even this sum could be got from them does not appear. Boardman admits he told plaintiffs 260 acres of the 680 acres were cleared and could be put in cultivation by cutting a few saplings, and the evidence malees it clear this statement was absolutely false. Not over 100 acres of the 480 in Wright county and not over thirty acres of the 200 in Texas county had ever been cleared, and the former had been abandoned fifteen years and the latter ten years before and had grown up in brush and trees, numbers of the latter being four inches or more in diameter. No such acreage as Board-man stated was cleared was at all susceptible of cultivation if cleared. The statement he admits he made that all crops grown in that latitude could be grown on this farm was false. The soil, where there was any, was thin, and the land was broken, hilly and rocky— rocks “as Mg as a house ”'on parts of it. The statement he made that the land would grow “reasonable com for the altitude” was also false, as clearly appears from the comparison of these lands with other farms in the immediate neighborhood and the crops they produced. The statement made by Donnenmueller to plaintiffs while the contract was. being drawn, on February 11, 1908, and when Boardman referred plaintiffs to him, was also very well calculated to deceive. He says he told plaintiffs in Boardman’s presence that “to his knowledge it was a pretty nice tract of land” and that “to the best of his knowledge and judgment there must be about eighty acres of it in cultivation — that is, cleared.” This statement referred to the Wright county tract.

That these representations were made is admitted. That they were false is indisputably established, and that, if they were relied upon and induced the exchange, they constituted a fraud upon plaintiffs is clearly the law. [Clinkenbeard v. Weatherman, 157 Mo. 105; Stonemets v. Head, 248 Mo. l. c. 262.]

2. But it is. argued that plaintiff's did not rely upon the representations Boardman made, whatever they were, but sought other counsel.

Boardman testified he told Adam Burger he would not trade unless he, Burger, went first to see the land and that Burger told him he would take the word of Joe Blattel, Frank Blattel and Otto Donnehmueller for it; that he had seen them and “knew what he was doing.” Boardman further swears he then told Burger he wouldn’t trade at all unless Burger would take the word of others and rely solely on what they said. Bnrger denies this and testifies he relied on what Boardman told him abont the land.

Prank Blattel was dead at the time of the trial, .and Otto Donnenmueller was Boardman’s clerk and drew the first contract between Boardman and plaintiffs, and it was at this time he told plaintiffs of the land, at Boardman’s instance and in his presence, and misdescribed it, as appears from the statement.

Joe Blattel was called as a witness and testified he had visited Wright connty in 1907 with Boardman and Boardman had shown him a place he said was the Garrett place. Witness said he talked with Bnrger abont this tract before the trade was made and described the part of it he saw. He testified this land was abont five or six miles, from Manes and it took two hours to drive ont there from that village. The land he saw had not been “turned out long” for he saw com rows on it; there was fine pasture and some fine white oak on it. Boardman saw witness two or three weeks before the trade with Burger was closed and asked if witness had talked with Burger about the land and witness told him he had and had told Burger he ought to go and see it, and Boardman said: ‘ ‘Yes, that is right; just tell him the truth.”

Por his own representations and those of Donnenmueller, having referred plaintiffs to him, Boardman is certainly responsible, and the evidence makes it reasonably clear that Joseph Blattel, who seems to be an honest and straightforward man, had never seen the Garrett place but that Boardman had shown him another tract under that name. Blattel’s description 'of the place he was shown by Boardman does not fit the Garrett place either as to location, character or condition of the land, and it is a reasonable conclusion that Boardman had deceived him by showing him, in 1907, a different tract and thus prepared for himself a disinterested witness who would, with the best of intentions, mislead a prospective purchaser, and whom he could, with perfect safety to his plans, urge to “tell the truth” when he found a buyer. His approaching Blattel on the subject before the trade was consummated is not out of harmony with this theory, and Blattel’s evident honesty and his palpable misdescription of the Garrett place cannot be explained on any other.

In these circumstances Boardman must be held responsible, legally and morally, for the misdescription Blattel gave Burger of the Garrett place.

Boardman says Burger told him he was relying upon what Blattel told him about these lands. He must have known Blattel was describing to Burger the tract he, Boardman, showed him under the name of the Garrett place. Blattel’s description shows conclusively he had never seen the Garrett place and Boardman must have.known he did not show it to him. Board-man, therefore, knew Burger was relying upon the false description of the land he had implanted in Blat-tel’s mind by showing him a better tract under the name of the Garrett place. The misdescription Blat-tel gave Burger was as much Boardman’s own as if he had himself voiced it.

There was no evidence as to what Frank Blattel, who had died, had told Burger. Frank was shown the same land shown Joseph Blattel and at the same time.

Burger testified the Blattels told him generally about the country in Wright and Texas counties but did not give him any particular description of the tracts for which he was trading-.

If it be conceded, however, that he relied upon Donnenmueller and the Blattels, yet their representations, in law and morals, were Boardman’s for all the purposes of this case, and he must be held responsible for the fraud those representations aided him to effect.

II. It is insisted that the Dohognes made no representations to plaintiffs . concerning the lands and therefore the ¿ecree erroneous. as to them.

The legal title to one half interest in the Wright and Texas county tracts was in Leo Dohogne. He had never seen the lands but his father, defendant Constantine, had and had advised the purchase of them in 1907. It is morally certain Leo Dohogne was told by his father the location, character and condition of the lands,’ and it is absolutely certain they both knew that three dollars per acre was the price they paid for it less than a year before. Both knew the Burger farm and knew its value and both knew Boardman was trading for it. They also knew the half interest in the Texas and Wright county tracts in Leo’s name, which cost them $1020.in 1907, was to be delivered to the Burgers for about one-half the equity in their farm. If the Burger place was worth $100 per acre, and the weight of the evidence is that it was, the Dohognes knew it and therefore knew that the interest which cost them approximately $1000 less than a year before was being used to secure from the Burgers an interest worth nearly $5000. They knew the Burgers had never seen the lands for which they were trading and they knew these lands were unoccupied and produced no income. Leo Dohogne drafted one or both the deeds executed by plaintiffs and had this additional means of knowledge of the particulars-, besides what Boárdr man told him. That plaintiffs would be practically pauperized by the exchange the Dohognes, being men of affairs and acumen, must have known.

As a matter of fact they did not say anything to plaintiffs calculated to deceive them. It is also doubtless true that Boardman pointed out that he proposed to trade his half interest to the Burgers in any event and thus place them in partnership' with Dohogne — a situation the Dohognes seemed to have thought undesirable. That they actively and openly participated in Boardman’s fraud is not shown by this record. It was not necessary for them to do so for them to be .affected by the consequences.

The circumstances of the transaction of which the Dohognes were appi'ised, as above stated, were such that they could not ignore them and then set up want of notice of Boardman’s fraud. Those -facts were .sufficient to put them on notice. They were enough to have shocked them into attention to the fact that their neighbors were in the hands of an unprincipled swindler. As pointed out in a like case (Eck v. Hatcher, 58 Mo. l. c. 240, 241) many years ago: Whén •one knowingly allows himself to be used to consummate the schemes of another, he must abide the consequences of such complicity. If he is really ignorant of these schemes, and ignorantly allows himself to be used in this way, he must he charged with gross inr attention to his own interests, and a disregard of all the ordinary rules of prudence. Facts of which the Dohognes had knowledge pointed with certainty to Boardman’s fraud and duplicity, and they cannot defend as purchasers without notice. [Massey v. Young, 73 Mo. l. c. 271, 272; Conn. Mut. Life Ins. Co. v. Smith, 117 Mo. l. c. 292, 293; Taaffe v. Kelley, 110 Mo. l. c. 136, 137; Sensenderfer v. Kemp, 83 Mo. l. c. 588, 589.]

Whether or not Constantine Dohogne was in equity part owner of the interest the legal title, to which was in Leo Dohogne’s name, he was his son’s adviser in the matter of the trade whereby the son acquired the legal title to part of the Burger lands., and it is-inconceivable that he could have been ignorant of the facts known by his son when both the son and Boardman discussed the proposed trade with him or in his presence. He furnished the money to take up the mortgage on Boardman’s interest in the lands traded to the ¡Burgers and counseled his. son, defendant Leo,throughout the matter. He is in no better • position than the son — nor by his answer does he plead good faith and want of notice.

III. It is suggested that Mrs. Boardman did not participate in her husband’s fraud and the decree is therefore erroneous in so far as it deves-ts her of title to the portion of the Burger farm deeded to her. She paid nothing for the land she got and consequently it is subject to all equities in her hands.

IY. It is argued that plaintiffs were guilty of laches. There is no evidence of any such substantial change in the situation of the parties, or in conditions as to warrant the application of that doctrine. The suit was. brought in about five months after plaintiffs moved to Wright county.

Y. Evidence of certain statements made by Boardman after the trade was objected to but admitted. These statements were substantially aecor<^ ’with some of the representations plaintiffs testify Boardman previously made to them to induce them to trade. Their competence as evidence in chief need not be discussed since all this evidence has been ignored by us. In addition, the representations admitted by Boardman on the witness stand and those proved by his. witnesses Donnenmueller and Blattel, as above pointed out, are fully sufficient to sustain the finding below, and it is upon these the affirmance of the judgment in that respect is grounded.

YI. It is said, in the brief for appellant that Dobogne was erroneously charged with “profits and permanent improvements to the Scott county lands” and that in no event should Dohogne be charged with rentals of that property.

As a matter of fact the trial court allowed defendants a credit of $2100 for completing the concrete house, whereas the evidence was that $1000 to $1200 was all that was required for that purpose. This allowance was made on the theory that the evidence showed that the completed structure was worth $3000 and that Burger had expended only $900 upon it before conveying the land. To put it mildly, this allowance was, in the circumstances, liberal. Defendants cannot complain of it and plaintiffs are not appealing. As to the rentals charged, the evidence is that the sum allowed was- the reasonable rental value of the land for the period it was in defendants’ possession. There is nothing in this assignment.

VII. It is insisted that the decree must be reversed because of the ’ fact that Boardman was adjudged insane prior to the rendition of final decree. In this connection the facts are that the evidence was- heard in the Butler County Circuit Court in May, 1909, and the cause continued to July, 1909', when it was taken under advisement. Boardman was adjudged insane in the probate court of Scott county October 6, 1909.

On October 28, 1909, in this cause, the trial court appointed a referee to take an accounting. The parties plaintiff and defendant were duly notified, and on December 29, 1909, appeared before Hon. Nat C. Whaley, the referee, either in person or by counsel, defendant Boardman appearing both in person and by counsel, Hon. J. R. Young. Due and formal notice of this hearing was served upon Peter Welter as the guardian of defendant Boardman but he did not appear. No evidence was taken on December 29th but the matter was continued until January 10, 1910. On this date, the record recites, “defendant J. H. Board-man appeared in person and by his guardian, Peter Welter.” Boardman was offered as a witness in Ms own behalf and testified before the referee.

February 14, 1910, the referee filed his report and the record recites that “defendants filed their exceptions ’ ’ thereto on the same date. One of the exceptions was sustained and the rest overruled.

A certified copy of the record of the Scott county court showing Boardman had been adjudged insane October 6, 1909, and Peter Welter appointed his guardian, was then filed. On the ground of this showing defendants objected to the rendition of judgment. This objection was overruled and judgment rendered.

Motions for new trial and in arrest were filed and overruled but the record does not show who signed them.

Even in case a defendant is insane at the time a suit is begun it is the insane person who is sued (Collins v. Trotter, 81 Mo. l. c. 280) though service upon the guardian is required (Sec. 514, R. S. 1909) in order' that he may perform his statutory duty to defend “all actions instituted . . . against his ward.” [Sec. 497, R. S. 1909.] That it is the better procedure to make the guardian a formal party to the record is beyond question, but does it follow that the failure to do so in this particular case necessitates the reversal of this decree?

Judgments for insane plaintiffs, suing in their own names, have been upheld by this court (Koening v. Railroad, 194 Mo. 564; Allen v. Ranson, 44 Mo. l. c. 265) and the decisions and the statutes make it clear that the chief end of both is the protection of the rights of the incompetent.

In this_ case Boardman was sane when sued and sane during the actual trial of the vital issues. There can be no question Mat the suit proceeded properly against him in his own name during this time. The appointment of the referee was made in the exercise of the court’s statutory power and to that appointment no objection is now or has ever been suggested. It resulted in a saving of costs and in securing allowances to Boardman which he could not possibly have obtained had the court entered the decree on the evidence originally offered. The real ground, however, for holding that the guardian’s presence at the time the referee was appointed was not so essential that his absence renders the whole. decree erroneous, is, as stated, that the situation at the time fell clearly within the statute (Sec. 1996, R. S. 1909) and the court’s power to refer on its own motion was. neither conditioned upon the guardian’s consent nor to be affected by his objection. Even were this not true, the guardian’s subsequent appearance before the referee and his failure to object to the report when it came in, on the ground be was not in court when the referee- was appointed, would preclude the objection on that ground now. [Collins v. Trotter, 81 Mo. l. c. 283, 284.]

The guardian, responding to his statutory duty (Sec. 497, R. S. 1909) and a formal notice, duly served, appeared for his ward before the referee. That he conducted his ward’s case during that hearing must now be conclusively presumed since that was his duty, and the record gives no hint to the contrary. It was also his duty to follow the case in its subsequent course. The statute required this and the bond he gave was conditioned that he would perform all his duties under the law. The record does not show he did not do so. It fails to show who signed the exceptions to the referee’s report and the motions for new trial and in arrest of judgment. The trial court proceeded to hear these and rule upon them, though advised that Boardman was then under guardianship'. It is to be presumed that the trial court followed the law in its . rulings until the contrary appears, and it will therefore be presumed that the trial court on examining the exceptions and motions found that the guardian was actually the moving party and was defending the action as. the statute required him to do.

With these facts and presumptions in mind it follows that this record sufficiently shows that Boardman acted for himself while sane and that his lawful guardian acted for him at all times and in all matters when and in which such action was necessary under the statute after he was put under guardianship.

The objection that the name of the guardian was not written into the title of the cause is highly technical. It is particularly so in this case since the very style of the case is correct to the time of the referee’s. hearing.

In Hunter v. Kansas City Savings Bank, 158 Mo. 262, the facts were that a suit had been instituted previously against “Harry F. Rose, guardian of Robert Hunter” and a judgment rendered and property sold thereunder. Suit to enjoin the enforcement of this judgment was begun and the trial court dismissed the bill. The question raised'was not exactly like that in this case but the reasoning in that case is fully applicable here. The trial court found that since the guardian was served with process and appeared and defended, the omission from the title of the cause of the name of the insane person was not a matter of substance, could be cured by amendment after the second suit was brought, and in any event could not have affected the substantial rights of the insane person, and therefore was. such a defect, if any, as the statute commands courts to disregard at all stages of an action.

This court adopted the trial court’s reasoning and affirmed the judgment.

So, in this case, the fact that the name of the guardian was not actually inserted in the title of the case, that title being entirely correct and properly designating all the parties when the suit.was brought and until the hearing before the referee, and the guardian having duly appeared for his ward at that time and daring subsequent proceedings', is purely technical, worked no injury to anyone and must be disregarded. The judgment is affirmed.

Broivn, G., concurs.

PER CURIAM.

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

All the judges concur.