text:
    Q. BETZLER and L. G. CLARK, Appellants, v. A. J. JAMES, Appellant.
    Division Two,
    March 31, 1910.
    1. APPEALS: Deeds Omitted from Bill. Although, the hill of exceptions shows that a certain deed of trust was offered in evidence at the trial, yet if it is not set out in the hill of exceptions sent up to the appellate court, or in the printed abstract furnished in lieu of the hill, it cannot he considered on appeal.
    2. DEED OF TRUST: Foreclosure: The Then Sheriff. A provision . in a deed of trust providing that in case of default in the payment of the debt and the death or absence of the trustee named “the (then) acting sheriff” shall have power to sell the property, means the sheriff in office at the time the sale is made, and not the sheriff in office at the time the trustee died after default

      3. -: -: Inadequacy of Consideration. Inadequacy of price, unaccompanied with, any circumstances indicative of fraud, deceit, collusion, unfairness, surprise or accident or some similar infirmity, is not of itself a sufficient ground for setting aside a trustee’s sale under a deed of trust. And in this case, where the trial court found that the land was sold for only one twenty-fifth of its actual value, and set the sale aside on that ground, the judgment is reversed — the mortgagor having had actual timely notice, and the sale being fair and in all respects properly conducted.
    4. -: -: Equity. The power of a court of equity will not be exercised to relieve a mortgagor in a deed of trust from the consequences of his own inexcusable neglect. Where he was frequently urged to pay, was notified that his land was offered for sale thereunder, was sent a copy of the published notice of sale, and made no effort to- pay except to offer other valueless property in settlement, and the sale was made fairly at the usual time and according to the notice, and when the usual number of bidders were present, and in his bill he does not offer to redeem, but plants himself wholly on the ground that the deed of trust was void, that the note was without consideration, and that the land was misdescribed, and he brings forward no evidence to establish any of those grounds, equity will not set aside the sale on the one ground of inadequacy of consideration.
    Appeal from Carroll Circuit Court. — Ron. Jno. P. Butler, Judge.
    Reversed and remanded {with directions).

      Louis Benecke and Lozier, Morris é Atwood for plaintiffs appellant.
    (1) The trust deed under which the foreclosure sale was made is not before this court for construction. The provisions of said trust deed were not preserved in the bill of exceptions and the question as to whether the sheriff, Magee, was the proper person under the provisions of the trust deed to conduct the foreclosure sale, is not before this court for review. It will be observed that there is no direction to the clerk to copy the trust deed in the bill of exceptions, and the same was not copied into the record, and is not before this court for review. R. S. 1899, sec. 866, amended, Laws 1903, p. 105; Ryan v. Growney, 125 Mo. 474; State v. Griffin, 98 Mo. 672; Quail v. Lomas, 200 Mo. 674. (2) Nevertheless, such sale was not void, hut was made by the person authorized to execute the powers of the trust deed. In the McNutt case the decision hinged on the double use of the word “then” and the word “thereupon,” and we insist that, when the language of the two instruments is considered, the McNutt case does not militate against our position in the case at bar.(3) To justify the court in setting aside a foreclosure sale for inadequacy of consideration, there must be some fraud or unfair dealing; some deceit practiced upon, or some unfair advantage taken of the mortgagor. These elements are absent from the case at bar. Equity will not relieve a person from the effects of his intentional neglect, trick or duplicity. Hoffman v. Mc-Cracken, 168 Mo. 345. (4) Plaintiffs were purchasers at the foreclosure sale under a deed of trust. They brought suit in ejectment against the mortgagor. The answer sets up an equitable defense, which answer converts the action into an equitable proceeding, in which such relief may be granted either litigant as the equities of the case may warrant, even in the absence of prayer for such relief. Dunn v. McCoy, 150 Mo. 548; Swon v. Stevens, 143 Mo. 384; Allen v. Logan, 96 Mo. 591; Shuster v. Shuster, 93 Mo. 438; O ’Day v. Conn, 131 Mo. 321; Fisher v. Stevens, 131 Mo. 181. (5) The trial court very properly required) defendant to discharge the mortgage indebtedness, interest and taxes, as a condition precedent to his right to redeem, even though he did not ask to redeem, but did ask to have the mortgage annulled and cancelled and the foreclosure sale annulled and set aside. 1 Bouvier’s Law Dictionary (14 Ed.), p. 536; 20 Am. and Eng. Ency. Law (1 Ed.), pp. 608, 620, 621, 622; 2 Pingrey on Mortgages, see. 2179., One who redeems from the mortgage must pay the whole amount of the debt, although the land sold for a less sum. 2 Pingrey on Mortgages, sec. 2184; Collins v. Riggs, 14 Wall. (U. S.) 491; Hosford v. Johnson, 74 Ind. 479; Powers v. Colder Lumber Co., 43 Mich. 468 ; Martin v. Fridley, 23 Minn. 13; Johnson v. Harmon, 19 la. 56; Bradley v. Snyder, 14 111. 263; Cage v. Brewster, 13 N. T. 218; Raynor v. Selmes, 52 N. Y. 579; Axman v. Smith, 156 Mo. 286; Dwyer v. Rohan, 99 Mo. App. 120; Swon v. Stevens, 143 Mo. 384.

      J. A. Collet for defendant appellant.
    (1) The sale made by Geo. H. Magee, under which plaintiffs claim title, was absolutely void. By the provisions of the deedl of trust executed by James, upon the death of John Knappenberger, the trustee therein named, the note secured by the deed of trust being then past due, I. C. Cruzen, who was then sheriff of Carroll county, succeeded to the trust and became invested with the legal title to the land conveyed by the deed of trust. This title being held by him personally and not officially, he continued the rightful trustee after the expiration of his term of office and until he became disqualified by some act of his, and upon his becoming disqualified a trustee would have to be appointed. Ceo. H. Magee never had any authority whatsoever to act as trustee, hence the sale and deed made in consequence of the sale are both void. State ex rel. v. Davis, 88 Mo. 585; McNutt v. Ins. Co., 181 Mo. 94; Harwood v. Tracy, 118 Mo. 631. (2) The sale made by Magee was void for the further reason that the price, hid.for the land was so grossly inadequate as to shock the moral sense. Under such circumstances the sale, though regular and made by the proper person, will be held void. Hagan v. Bank, 182 Mo. 319; Bank v. Rich-' ardson, 156 Mo. 270; Yail v. Jacobs, 62 Mo. 130; Hoffman v. McCracken, 168 Mo. 337; Hardware Co. v. Brownlee, 186 Mo. 621. (3) The evidence shows that the note, to secure which the deed of trust in question- was given, was given to pay an attorney’s fee and that the attorney died before the services were rendered, and that thereby the consideration for the note failed; that Ben eche had knowledge of these facts before the sale was made, and advised with the record plaintiffs before the sale was made, and immediately after the sale, became jointly interested with plaintiffs, if in fact he was not joined in interest with them before the sale was made. These facts are sufficient to charge plaintiffs "with notice of the infirmity of the note. The court’s finding that the note had been assigned to Griffin for value and before maturity would relieve plaintiffs’ case of its weakness resulting from this failure of consideration, if the finding could be upheld, but that finding is not supported by a syllable of evidence. Where the finding of the trial court is not supported by evidence, it will be disregarded by this court. Kilpatrick v. Wiley, 197 Mo. 123. (4) The judgment rendered against James for the payment of the Hammond! note and the costs incurred in the attempted execution of the deed of trust, is erroneous for two reasons: First, because there was no issue of that kind involved in the case, and a judgment not responsive to the issues tendered will not be upheld. Schneider v. Patton, 175 Mo. 684; Roden v. Helm, 192 Mo. 71; Dawkins v. Griffin, 195 Mo. 430'; Kilpatrick v. Wiley, 197 Mo. 123. Second, because the judgment was rendered:, in part at least, in favor .of a person who is a stranger to the suit, and is an attempt to adjudicate matters not involved in this litigation and between parties, one of whom is not a party to this suit. This cannot be done. Manewal v. Proctor, 112 Mo. App. 315.
   BURGESS, J.

This is a suit in ejectment to recover the northwest quarter of section 15, township 53, range 20, in Carroll county, Missouri, and described in plaintiffs’ petition by metes and bounds.

The suit was instituted against James M. Farrell, who answered, admitting that he was in possession of the land sued for as tenant of A. J. James. Defendant James was made a party defendant on his own motion, and filed his answer admitting that he was, by his tenant, in possession of the premises sued for, and setting up that he was the absolute owner of said land. The defendant, in his said answer, tendered the following defenses:

First: That plaintiffs’ only claim of right or interest in the land sued for was based upon a deed executed by George H. Magee, sheriff of Carroll county, acting trustee, executed on the eleventh day of August, 1905, by which he, as trustee, undertook to sell to-plaintiffs, for the consideration of $275-, the lands in question, for the purpose of satisfying and paying off a note of $150, executed by defendant James on the 28th day of December, 1894, payable to Charles Hammond ; that said note was given in payment of professional services to be rendered by the said Hammond to the defendant; that said Hammond died before said services were rendered!, and that thereby the consideration for said note wholly failed; that said note was transferred after maturity to one Thaddeus Griffin, as security for another note owed by the said Charles Hammond to the said Griffin; that the said Griffin took said note ‘with full knowledige of its aforesaid infirmity; that after his death, his administrator, with knowledge of all the aforesaid facts, caused the deed of trust securing said note to be foreclosed, and that plaintiffs, with knowledge of all the facts in relation to the execution of said note and of the failure of consideration as aforesaid, purchased said land at said foreclosure sale.

Second: That the acting trustee did not use due diligence, care and caution to procure the highest possible price for said land in that the sale was- not made at the usual and ordinary hour for making such sales, but at a later hour, and at the time said land was soldi there were practically no bidders, by reason of which the land, which the defendant avers was worth not less than $6400, was sold to plaintiffs for $275.

Third: That the said Gr. H. Magee, sheriff, undertook to and did) act as trustee in the foreclosure of said deed of trust under the following provision of said deed of trust: “Now, therefore, if the said parties of the first part, or any one for them, shall well and truly pay off and discharge the debt and interest expressed in said note, and every part thereof, when the same becomes due and payable according to the true tenor, date and effect of said note, then this deed shall be void, and the property hereinbefore conveyed shall be released at the cost of the said parties of the first part; but should the said first parties fail or refuse to pay the said! note, or the said interest, or any part thereof, when the same or any part thereof shall become due and payable according to the true tenor, date and effect of said note, then the whole shall become due and payable, and this deed shall remain in force; and the said party of the second part, or in case of his absence, death, refusal to act, or disability in anywise, the (then) acting sheriff of Carroll county, Missouri, at the request of the legal holder of said note, may proceed to sell the property hereinbefore described, or any part thereof, at public vendue to the highest bidder,” etc. That said note became due on the 28th day of December, 1895', and that thereafter, on the 21st day of October, 1902, John Knappenberger, trustee named in said deed of trust, died. That upon the date of the death of the said John Knappenberger, I. C. Cruzen was the then acting sheriff of Carroll county, Missouri. That the said Gr. Hi. Magee, who undertook to sell said land, was not the acting sheriff of Carroll county, Missouri, at the time of the death of ■the said Knappenberger, or for a long time thereafter, and was therefore without authority to act as trustee in the making of said sale.

To this answer the plaintiffs filed reply, denying all the matters of defense contained in said answer.

The evidence shows that on December 28, 1894, defendant James executed his promissory note for $150, payable to Charles Hammond, an attorney at law. By its terms, the note became due one year after date, and it was secured by a deed of trust executed by defendant James and his wife, conveying the land in question to John Knappenberger, trustee, 'for the use of said Hammond.

Said deed of trust was not copied or preserved in the bill of exceptions, nor is it shown that there was any direction to the clerk to copy the same therein; but with reference to the trust deed,„ the bill of exceptions contains the following recital:

“Plaintiffs’ counsel offered and read in evidence trust deed, dated December 28, 1894, executed by A. J. James and Mary E. James, his wife, to John Knappenberger, trustee, for the use of Charles Hammond, conveying the land -described in plaintiffs’ petition, in trust, to secure the payment of a note for $150, therein described, payable to the order of Charles Hammond, said trust deed having been acknowledged on the same date before Louis Benecke, notary public, and having been filed for record in the office of the recorder of deeds within and for Carroll county, Missouri, on May 31, 1895-, and duly recorded in the records of said office in Book 12-2, at page 213, marked ‘Plaintiffs’ Exhibit 1.’ ”

The note' in question, which became due December 28, 1895, was assigned by Hammond, some time after its execution, to Thaddeus S. Griffin, as security for a note which Griffin held against Hammond for a like amount. Plammond died December 30,1897; John Knappenberger, trustee, died October 21, 1902, and Thaddeus S. Griffin, holder of the note against the defendant, died March 29, 1905. Morganza Griffin, brother of Thaddens S. Griffin, was duly appointed administrator of his deceased brother’s estate, and the said note was found among the assets of said estate.

The evidence shows that Morganza Griffin, the administrator, had several conversations with the defendant with reference to the payment of the note in question, in none of which conversations did the defendant deny that he was legally bound to pay it, but repeatedly asked the administrator to take in payment of said note another note which he, defendant, held, and which he called “a tile factory note;” but this the administrator refused to accept, saying that he wanted the note paid in cash. After waiting some weeks longer to give the defendant ample time to pay the note, the administrator placed it in the hands of Louis Benecke, his attorney, for collection. Benecke had several interviews with the defendant, at the first of which he told the defendant that if he would pay the principal it would be accepted, and the note under instructions from the administrator, 'would be delivered to him. The defendant refused to accept the proposition, but offered Benecke an old note in settlement of defendant’s note, which offer was refused. According to the testimony, the said note offered by the defendant “was insolvent.” In none of the said interviews did the defendant claim that there was a failure of consideration for his note to Hammond, nor did he deny his liability thereon. The defendant having refused to pay cash for the note, Benecke advertised the land for sale under the said deed of trust. Before doing so he notified the defendant that his land would be advertised for sale, and after the publication was commenced he sent the defendant a copy of the printed •notice. The defendant afterwards had another conversation with the administrator, who again urged him to make a settlement, and! told him that the land would be sold, under the trust deed, a week from the following Friday. To this the defendant replied that he knew it was going to be sold. The land was publicly sold by George H. Magee, sheriff of Carroll county, on August 11, 1905', at the place designated in the deed of trust and at the time stated in the published notice of sale. According to the evidence, the sale was public, and made at the hour and in the manner that such sales are usually made in said county. One witness testified that there were about twenty-five persons present at the sale, while another stated that there were but six or eight persons present. The sheriff testified that he remembered “about nine or ten parties that were there,” and that he saw some more standing around. He further testified that there was nothing done to prevent people from bidding, or that would tend to contribute to the secrecy of the proceeding, and also stated that, some days prior to the sale, he notified two or three parties that such sale would be made. At the sale Georg’e R. Starnes was the highest bidder, his bid being $210-. The sheriff was having a deed prepared to convey the land to Starnes when the latter discovered that there were delinquent taxes to the amount of seventeen dollars against the land, whereupon he refused to pay the amount of his bid unless the land was cleared of said taxes. Thereupon the sheriff ,again made public outcry and re-offered the land for sale, under the trust deed, at which sale the plaintiffs, being the highest bidders, became the purchasers, their bid being $275, and the net proceeds of the sale were credited upon the defendant’s said note. The sheriff’s deed, under said deed of trust, executed by George H. Magee, sheriff of Carroll county, on the 11th day of August, 190'5, conveying the land to plaintiffs, was offered and read in evidence.

John Meyers, a witness, testified that in a conversation had with the defendant about the time of the sale of his land the defendant told him that the reason why he had not settled the note !was because he didn’t think the debt was a just one, as “he never got no. service for the money;” that the defendant also told him that the description of the land in the deed of trust was not correct, and that “he thought the note was outlawed.”

The value of the land was fixed by various witnesses at prices ranging from thirty-five dollars to fifty dollars per acre. It was admitted at the trial that I. C. Cruzen was the duly elected, qualified and acting sheriff of Carroll county from January 1, 1901, to January 1, 1905, and that George H. Magee first qualified for sheriff of said county on January 1, 1905, and continued in office until after the sale.

After hearing all the evidence, the court found that the note in question, after its execution, and before maturity, was for value assigned by Charles Hammond to Thaddeus S. Griffin; that said Hammond died December 30, 1897, and that John Knappenberger, trustee named in the deed of trust given to secure the payment of said note, died October 21, 1902; that I. C. Cruzen Was sheriff of Carroll county from January 1, 1901, to January 1, 1905; and that George H. Magee first became sheriff of Carroll county on January 1, 1905; and was the acting sheriff of said county on the date of the sale, August 11, 1905; that L. Benecke, acting for Morganza Griffin, administrator of the estate of Thaddeus S. Griffin, deceased, and holder of said note, requested George H. Magee, sheriff of Carroll county, to advertise and sell the land, under the deed of trust, default having been made in the payment of said note, and that in pursuance of such request said Magee did advertise the land and sell it on the 11th day of August, 1905; that the sale was made at the usual place, and about the hour of 3 o ’clock, p. m., at which sale plaintiffs were the highest bidders, purchasing the land for the price and sum of $275, and that in pursuance of said sale plaintiffs received from said George H. Magee a deed purporting to convey said land, and that under and in pursuance of said deed the plaintiffs claim title; that the value of , said land was $7200, and that the price paid therefor by plaintiffs was less than one twenty-fifth of its real value; that upon the death of John Knappenberger, trustee, I. C. Cruzen, then sheriff of Carroll county, by operation of the provisions of the deed of trust, succeeded to the trust and became vested with the legal title to said land, and that said Magee was not entitled-to enforce the power contained in the deed of trust, or to enforce the terms thereof, and that the deed made by him to plaintiffs, in pursuance of the sale, was void and without effect; that the land having been sold for less than one twenty-fifth of its actual or real value, the said sale was void because unconscionable and inequitable.

The court further found that it would be inequitable and unjust not to compel the defendant to pay the debt and interest secured by said deed of trust, as well also the costs made in its attempted enforcement; that the debt, principal and interest, secured by the deed of trust, amounted to the sum of $358.90, and that the plaintiffs paid out costs and expenses incident to the trustee’s sale, and for taxes upon the land,-the sum of $43.13, and that said respective sums, aggregating a total of $402.03, ought to be impressed against said land as a first lien thereon.

Judgment was rendered by the court in conformity to its findings, from which judgment both plaintiffs and defendant appealed to this court.

The defendant-appellant contends that the sale made by Geo. H. Magee, sheriff, was null and void for the reason that at the time of the death of John Knappenberger, the trustee named in the deed of trust, at which time the note secured by said deed of trust was past due, the said Magee was not “the (then) acting sheriff of Carroll county,” and that under the terms and provisions of the trust deed he had no authority to make the sale. At the trial it was admitted by plaintiffs-appellants that I. C. Cruzen was sheriff of Carroll county at the time of Knappenberger’s death, and that Magee succeeded him in office.

The bill of exceptions shows that the deed of trust was offered and read in evidence, but by some oversight the same was not incorporated in said bill. It is not shown by the record that the clerk of the court was idirected to copy the deed of trust into the record, as provided by section 866, Revised Statutes 1899, as amended by the Act of 1903 (Laws of 1903, p. 105), the material part of which reads as follows: “But it shall not be necessary, for the review of the action of any lower court on appeal or writ of error, that . . . . any .written or printed matter offered in evidence upon the trial, and properly identified and deposited with the clerk, to remain in his custody until after the determination of the cause in the appellate court, shall be copied or set forth in the bill of exceptions filed in the lower court: Provided, the bill of exceptions so filed contains a direction to the clerk to copy the same, and the same are so copied into the record sent up to the appellate court.”

As the deed of trust offered and read in evidence was not set forth in the bill of exceptions, and there was no direction to the clerk to copy it into the record, and the same was not so copied, it is not before us for construction. [Ryan v. Growney, 129 Mo. 474; State v. Griffin, 98 Mo. 672; State v. Gilmore, 110 Mo. 1; Quail v. Lomas, 200 Mo. 674; Hendricks v. Calloway, 211 Mo. 536.] It necessarily follows that defendant’s third defense to the action wholly fails, and the point must be ruled against him. While being compelled to thus summarily dispose of the question, we will add that were the deed of trust, the provisions of which are set forth in the answer, properly before us for construction, we should still rule that the said Geo. H. Magee, sheriff of Carroll county at the time of the foreclosure sale, was the proper person, under the provisions of said trust deed, to conduct the sale. In the recent case of Feller v. Lee, 225 Mo. 319, wherein a deed of trust of like tenor was construed, it was ruled that the words “the then acting sheriff” had reference to the sheriff in office at “the time a foreclosure was demanded by the holder of the indebtedness.” The opinion in that case was the delivery of Lamm, J., of Division One, and it was afterwards, upon a rehearing in court in Banc, adopted as the unanimous opinion of the whole court, In Banc. The provisions of the trust deed construed in the case of McNutt v. Life Insurance Co., 181 Mo. 94, cited by defendant, were peculiar, and not at all as simple as the provisions of this deed of trust, and the decision in that ease could not be held to apply.

Under the facts in this case, we are of opinion that the defendant is not entitled to have the foreclosure sale set aside on the ground of inadequacy of consideration. This court has never held that inadequacy of price, unconnected with any circumstances indicative of fraud, deceit, collusion or unfairness, is of itself a sufficient ground for relief. ■

In Hoffman v. McCracken, 168 Mo. l. c. 345, it is said): “As a general proposition, inadequacy of consideration is not of itself a distinct principle of relief in equity; but where there is such a great disparity between the actual value of land and the price which it brings at a forced sale, as in this case, and the land is sold under the mistaken idea that it is encumbered for quite a large sum (in this case $900), when it is not, and bidders are deterred from bidding by reason thereof, a court of equity will not hesitate to set the sale aside.”

In Helena Coal Co. v. Sibley (1901), 132 Ala. 651, it is held that when property sold under an order of court is purchased by a stranger, such sale will not be set aside for mere inadequacy of price, no matter how gross, unless there is some unfair practice at the sale, or unless there is surprise, without fault on the part of those interested. See also, Parker v. Bluffton Car Wheel Co., 108 Ala. 140, and Lowe v. Guice, 69 Ala. 80.

In the case of March v. Ludlum, 3 Sandford’s Ch. (N. Y.) 35, it was held that a court of chancery could! not set aside a public sale made by an officer who is not acting under the direction of the court, on the ground of the inadequacy of the sum bid by the purchaser, however gross or startling it might appear. The court said: “The gravamen of the bill is that there was a gross and startling inadequacy in the sum bid at the sale. ... As to the inadequacy, this is unquestionably very great, for the property sold for less than one-twentieth of its value. But I do not under stand that the court of chancery can on this ground alone set aside a public sale made by an officer who is not acting under the direction of the court. Instances of greater inadequacy are of constant occurrence in sales for taxes and assessments made by our State and municipal authorities. The exercise of such a jurisdiction would, I imagine, be more startling to the public mind than any supposable inadequacy of price would be to the mind of the court. Over judicial sales, made by its own officers, the court of chancery has always exercised a summary control, by motion or petition. But even in those cases the court will not interfere on the ground of inadequacy alone. [American Ins. Co. v. Oakley, 9 Paige 259; Brown v. Frost, 10 Ib. 243; Tripp v. Cook, 26 Wend. 143, 156, 159.] There must be some surprise, accident, fraud, or similar cause, other than the neglect of the party interested, or his inability to raise the money, to induce an order for a re-sale when the sale has been made by its-own officers and under its own process or decrees: Under any other rule, confidence in such sales would b© entirely dissipated, and the final result would be that creditors would become the purchasers upon their own terms.”

The foregoing rule is founded on reason and fairness. There must he something more than mere inadequacy of price — some fraud or unfair dealing; some deceit practiced upon the mortgagor, or some unfair advantage taken in respect of the transaction. In the case at bar there is no evidence whatever of fraud or unfairness, and the sale was in all respects properly conducted. The defendant was repeatedly urged by the holder of the note and his attorney to' make settlement, and it was only after long delay, and after all efforts to persuade or induce him to take up the note had proven unavailing, that the land was advertised for sale under the provisions of the deed of trust. He was personally notified by the holder of the note that the land was advertised for sale, and was also sent a copy of the published notice; but he stubbornly and heedlessly allowed the publication to continue and the land to be sold at a sacrifice, without doing anything whatever to prevent it or to protect his property.

The court did not find that the sheriff, acting as trustee, conducted the sale unfairly, or that there was any fraud or deception practiced upon the defendant, or any collusion betweeq the bidders at the sale. It is shown by the evidence that the sale was attended by as many persons as ordinarily attend such sales, and that it was held at the place designated in the trust deed, aBd at the hour such sales are customarily made. The first purchaser declined to pay the amount of his bid ($210) because of some unsatisfied taxes against the land, and it was thereupon re-offered! for sale, and was purchased by the plaintiffs, who were the highest bidders, for $275. .

The answer to the petition sets up an equitable defense, which. converts the action into an equitable proceeding in which such relief may be granted either party as the equities of the case may warrant. Defendant’s prayer for affirmative relief was as follows: ‘ ‘ Wherefore, by reason of the premises, defendant asks for a judgment and decree cancelling and annulling the deed of trust executed by defendant to John Knappenberger as aforesaid, and cancelling and annulling and setting aside the trustee’s deed executed by the said George H. Magee to plaintiffs herein as aforesaid, and for all proper relief.”

Swon v. Stevens, 143 Mo. 384, was an action in ejectment in which the defense was that the sale under the deed of trust was invalid because made before the note or interest was due. The defendant in that case did not ask to redeem, but prayed the court to declare the sale under the trust deed null and void and of no effect, and that the trustee'’s deed be- cancelled. It was held that the answer stated an equitable defense, and that the action was thereby converted into a suit in equity. See also Allen v. Logan, 96 Mo. 591; Fisher v. Stevens, 143 Mo. 181; Schuster v. Schuster, 93 Mo. 443; Dunn v. McCoy, 150 Mo. 548.

While holding that the action, by reason of the defense set up, is converted into a case in equity, we are at a loss to see what claim the defendant has on the conscience of a court pf equity, or to discover how he has been unfairly treated. If there was any unfair dealing, it was altogether on the part of the defendant. On three or four different occasions, when called upon by the holder of the note, and his attorney, and requested to pay it, he tried to induce each of these gentlemen to accept an old “insolvent note” in exchange and satisfaction for the note against him. The conduct of the defendant, as disclosed by the record, is not such as places him in a position to claim equitable aid. He conceived the notion that the land was not described properly in the notice of sale, and, therefore, allowed the sale to be made, intending doubtless to take an unfair advantage of the supposed misdescription, and saddle the holder of the note and deed of trust with the costs of foreclosure. Indeed the record fails to show that the defendant offered to do anything that was fair in connection with his indebtedness and this transaction. He has not offered to redeem, but by his answer he seeks to have the foreclosure sale set aside and invalidated without being required to pay his indebtedness. He was even given the opportunity to discharge the obligation by paying the principal of the note, $150', but he refused to do that. If there was any failure of consideration for this note, there is absolutely no proof of it; nor was there any evidence that Griffin, who acquired the note for value before maturity, had any notice of the alleged failure of consideration.

The defendant could have attended the sale, of the time and place of which he had full knowledge, and could have bid in the land for the comparatively small amount of the indebtedness and the costs of the foreclosure, but he chose not to do so. No reason has been shown why he could not have attended the sale, or why he could not have made provision for the payment of his indebtedness. Tbe consequences are as much the fruit of his indifference to his obligation on the note as of his inexcusable neglect to protect his property. In the words of the Psalmist: “He made a pit, and digged it, and has fallen into the ditch which he made.”

The power of a court of equity is not to be exercised to relieve a party or other person from the consequences of his own inexcusable neglect. [17 Am. and Eng. Ency. Law (2 Ed.), pp. 998, 999, and cases cited.]

The judgment of the circuit court is reversed; and the cause remanded, with directions to enter judgment for plaintiffs for possession of the premises described in the petition, and for costs.

All concur.


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    Ex Parte CHARLES HEATH, Petitioner.
    Division Two,
    March 31, 1910.
    1. BAIL: Appeal: Statute.' There is no constitutional right of appeal, and it was entirely competent for the Legislature, in allowing appeals from sentences in criminal causes, to provide also for bail pending the appeal or to refuse hail, as it is deemed best. And by the statute one who has been found guilty of a capital offense, and his punishment fixed at death or imprisonment for life, is not entitled to bail pending his appeal or writ of error.
    2. -:-: Constitutional Right. The provision of the Constitution “that all persons shall he bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great,” does not have application after conviction. That constitutional right to bail does not exist after conviction pending an appeal or writ of error.
    3. -: -: Murder. A defendant convicted of murder in the first degree and his punishment assessed at life imprisonment, is not entitled, either under the statutes or the Constitution, to bail pending his appeal or writ of error, and courts no longer have authority to admit him to hail.
    Habeas Corpus.
    'Writ denied.

      M. E. Benton and Geo. Hubbert for petitioner.

      Elliott W. Major, Attorney-General, and Chas. G. Revelle, Assistant Attorney-General, for respondent.
    (1) Tbe right of appeal did not exist at common law, and is enjoyed now solely by reason of statute. The privileges and immunities ancillary thereto, including stay of execution and bail pending appeal, are likewise of statutory creation, and are limited to the number and kind given by statute. In re Baurer, 112 Mo. 231; State v. Brown, 153 Mo. 578; Ex Parte McNally, 199 Mo. 516; State v. Thayer, 158 Mo. 36. Sections 2698, 2699 and 2700', R. S. 1899, provide the terms and conditions under which execution may be stayed pending an appeal. Since the punishment assessed in the case at hand was imprisonment in the penitentiary for life, this court is entirely without authority to admit relator to bail. (2) Since appeals and the right to bail after conviction did not exist at common law, and are of statutory instead of constitutional creation, it is elear that section 24, article 2 of the Constitution, which grants the right of bail except in certain cases, applies only before trial, and does not give such right pending an appeal. The clause as “to the proof being evident and the presumption great,” further discloses that this was the sole office of the constitutional provision, since, after verdict, no question as to the proof and presumption can be involved, they being settled by a verdict of the jury. But, if in this we are in error, and the guarantee can be invoked pending the appeal, relator is entitled to no relief, “but on the contrary quite the reverse,” the constitutional provision itself is an absolute prohibition against granting him bail- — it being “That all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident and the presumption great.” For the purpose of this application the phase as to the proof being evident and the presumption great, must be completely eliminated and relator’s crime conclusively treated as murder in the first degree, since the jury has so found. To such finding this court will defer. State v. Matthews, 202 Mo. 147; State v. McCullough, 171 Mo. 574; State v. Tetrick, 179 Mo. 100; State v. Williams, 199 Mo. 137. From its judicial knowledge of this case (State v. Heath, 221 Mo. 565), and the exhibits accompanying the application, the court cannot affirmatively say that the verdict is wrong, or so shocks the conscience that it will not be permitted to stand, and it must, therefore, decline to consider the ease except as one of first degree murder. Ex parte Cluch, 71 Mo. 235. Reading then, as we must, this constitutional provision, it prohibits the granting of bail to relator if murder in the first degree, accompanied with the punishment here, is within the class of crimes denominated capital offenses. Crimes are classified and their character fixed by law. The punishment which may be inflicted, not that which actually is inflicted, gives to the Crime its character, and classes it for all purposes, including bail. State v. Eubanks, 199 Mo. 127. Murder in the first degree is punishable by death or imprisonment in the penitentiary during the natural life of the offender, and belongs to a class of crimes defined and denominated as capital offenses. ' Ex parte Dusenberry, 97 Mo. 507; State v. Gray, 100 Mo. 524.
   GANTT, P. J.

On the 15th day of December, 1909, by the judgment of the circuit court of Lawrence county, the petitioner was sentenced, upon a verdict' of guilty of murder in the first degree, to the penitentiary of this State for a period of his natural life from and after the 14th day of December, 1909. From that judgment and sentence he prayed and was granted an appeal to this court and the said appeal in contemplation of law is now pending in this court.

On the 5th day of February, 1910, the petitioner applied to this court for an order of supersedeas staying the execution of said sentence pending his said appeal in this court; and the supersedeas was granted and served on the sheriff of Lawrence county, and accordingly the prisoner is in the custody of the said sheriff waiting the determination of the said appeal. On said 5th day of February, 1910, petitioner also filed his petition in this court for a writ of habeas corpus to require the sheriff to produce his body in this court, and that he might be admitted to bail pending his said appeal. The writ issued and was returnable on tbe 12th of February, 1910. To that petition, the sheriff on the 8th of February, 1910, made his return in dhe form, stating among other things that he had the said petitioner in his custody and imprisoned in the county jail of Lawrence county by virtue of the judgment and sentence of said Lawrence Circuit Court, of date December 15, 1909, by which defendant was sentenced to the penitentiary for the period of his natural life from December 15, 1909, for the offense of murder in the first degree; that he also held petitioner by virtue of the said order of supersedeas staying the execution of said sentence pending said appeal. Said return was accompanied by a duly certified copy of the said judgment and sentence of the circuit court. Upon the return being filed, it was ordered by the court that the petitioner and the Attorney-General each submit to this court within ten days their suggestions and brief as to whether the petitioner was entitled to bail under the laws of this State, and this having been done, the application is now before us for determination.

The petitioner bases his application for bail upon section 24 of the Bill of Rights, or article 2 of the Constitution of this State, which provides: “That all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great.” His contention is that the assessment of punishment and sentence for life imprisonment repelled and effectually removed not only all weight of evident proof and great presumption of capital guilt, but established the fact that he is not guilty of a “ capital offense,” and that there is no possibility of his capital punishment until the existing judgment and sentence has been reversed on appeal; that there is no longer room for contention that this court is now dealing with a petitioner whose status is that of one liable to punishment by death and that he has not been convicted of a capital offense; that a capital crime is one for which the punishment of death alone is inflicted, and in support of this contention cites us to the definition of capital offense in Bouvier’s Dictionary, p. 284; 6 Cyc. 348; Dusenberry’s case, 97 Mo. 504, 507; Walker v. State, 28 Tex. App. 503; Anderson’s Dictionary, p. 148. He concedes that so long as “capital” punishment may be inflicted under a pending charge it is considered a capital offense with reference to bail, but insists that when once a trial has occurred and his punishment assessed at less than death then the charge is merged in the sentence and it is not and cannot be a capital offense, or non-bailable as such so long as the judgment remains in force and unreversed. On the other hand, the Attorney-General denies the right of petitioner to bail on two grounds, first, that the right of appeal did not exist at common law and is now enjoyed solely by reason of statute, and the privileges and! immunities ancillary thereto, including a stay of execution and bail pending appeal, are likewise of statutory creation and are limited by the number and kind given by statute, and in support of this contention relies upon section 2702, Revised Statutes 1899, which provides: “In all cases where an appeal or writ of error is prosecuted from a judgment in a criminal cause, except where the defendant is under sentence of death or imprisonment in the penitentiary for life, any court or officer authorized to order a stay of proceedings under the preceding provisions may allow a writ of habeas corpus, to bring up the defendant, and may thereupon let him to bail upon a recognizance, with sufficient sureties, to be approved by such court or judge. ” The only preceding section pertinent to this discussion is section 2698, in these words: “No such appeal or writ [of error] shall stay or delay the execution of such judgment or sentence, except in capital eases, unless the Supreme Court, or a judge thereof, or the court in which the judgment was rendered, or the judge of such court, on inspection of the record, shall be of opinion that there is probable cause for such an appeal or writ of error, or so much doubt as to render it expedient to take the judgment of the Supreme Court thereon, and shall make an order expressly directing that such appeal or writ of error shall operate as a stay of proceedings on the judgment; but in capital cases the order granting the appeal shall operate as such stay absolutely.” Section 2703 provides: “The recognizance shall, in cases of felonies not excepted in the last preceding section, be conditioned that the defendant shall appear in the Supreme Court, ’ ’ etc. Accordingly, it is argued that since the punishment of petitioner has been assessed at imprisonment in the penitentiary for life, this court is without authority to admit petitioner to bail.

It is evident that petitioner is not entitled to bail under section 2702, supra, because by its very terms, he is excepted from its provisions as he is under sentence of imprisonment for life in the penitentiary, and such is the purport also of sections 2698 and 2703. It is to be observed that section 2702 does not except those who have been found guilty and sentenced for a capital offense, but specifies that where the defendant is under sentence of death or imprisonment in the penitentiary for life h.e is not entitled to bail pending his appeal or writ of error. So that if we look to the statute for authority to bail, clearly the petitioner is not entitled to it under the statute. There is no constitutional right of appeal and in allowing appeals from sentences in criminal causes, it was entirely competent for the Legislature in providing for an.appeal to provide also for bail pending the same, or to refuse bail as it deemed best.

Recurring now to the contention of the petitioner that he is entitled to bail by virtue of section 24 of the Bill of Rights, and that it was not within the power of the Legislature by the enactment of section 2702 to deprive him of the right of bail, let us consider the language of the Constitution. It is, “That all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident and the presumption great.” The question then is, has petitioner been convicted of a capital offense within the meaning of the Constitution?' In Ex parte Dusenberry, 97 Mo. 504, this court unanimously defined a “capital offense,” as one “which is punishable, that is to say, liable to punishment, with death. This is the substance of the definitions by the lexicographers, both professional and lay. The offense then is a capital one within the meaning of the Constitution.” In that case, the petitioner had been indicted for rape, and our statute, then, as now, provided that a person convicted of that charge should suffer d.eath or be punished by imprisonment in the penitentiary not less than five years in the discretion of the jury. [R. S. 1879, sec. 1253; R. S. 1899, sec. 1837.] By our statute, murder in the first degree has always been punishable by death, until the Act of March 18, 1909, which amended section 1817, Revised Statutes 1899, by adding the words: “ or be punished by imprisonment in the penitentiary during their natural lives and the jury shall decide which punishment shall be inflicted. ’ ’ So that as amended it now reads: “And persons convicted of murder in the first degree shall suffer death or be punished by imprisonment in the penitentiary during their natural lives and the jury shall decide which punishment shall be inflicted.” Ex parte Dusenberry, supra, was reaffirmed in State v. Gray, 100 Mo. 524, and in State ex rel. v. Madison County Court, 136 Mo. l. c. 326.

In Ex parte Fortenberry, 53 Miss. 428, it appears that by section 8 of article 1 of the Bill of Rights of that State, there was a constitutional right to bail “except for capital offenses, when the proof is evident or presumption great,” and that by the Code of 1871, section 2630, of that State, murder was punishable with death, but that under the Laws of 1875 it was left to the discretion of a jury to say what the punishment should be and the contention of the petitioner for bail was that since the amendment of the statute leaving it discretionary with the jury to inflict death or imprisonment for life, murder was not longer a capital offense in that State'. But the Supreme Court said: “It is manifest that offenses heretofore capital remain so, under this statute, but with discretion in the jury to award a different penalty. Death is the rule, imprisonment the exception. An indictment, therefore, for a crime heretofore capital must still be regarded as an indictment for a capital offense.”

As opposed to this view of the law, learned counsel for the petitioner cite us to Ex parte Walker, 28 Tex. App. 246. In that case it appears that the Bill of Rights of Texas provides, “All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident.” Article 55 of the penal code of that State defines a “capital offense” as one “for which the highest penalty is death,” and article 609 of the penal code declares murder in the first degree to be a capital offense, but by article 35 of the same code, it was provided that a person who commits murder in the first degree before he arrives at the age of seventeen years cannot be punished with death. Accordingly it was held that murder committed by one under seventeen was not a capital offense and therefore he was entitled to bail before conviction. The court cited In re Perry, 19 Wis. 676. The Constitution of Wisconsin provides that, “all persons shall before conviction be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great,” but by the Laws of 1853 capital punishment was abolished in that State. It is evident that these last cited cases do not apply to a statute like ours, because in those cases in no event could the death penalty be inflicted, whereas by onr statute, even as amended in 1907, murder in the first degree may still be punished by death.

In Ex parte McCrary, 22 Ala. 65, the petitioner had been indicted for murder and applied for bail, which had been refused by the circuit court. Thereupon he applied to the Supreme Court for a writ of habeas corpus to revise the action of the circuit court. It appeared in that case that the constitutional provision was that “all persons shall, before conviction, be bailable by sufficient securities, except for capital offenses where the proof is evident or the presumption great.” It appeared also that, by the penal code of that State, in all cases of murder in the first degree, the jury had the power to say whether the accused should be punished with death, or sent to the penitentiary for life, and the contention was there, as here, that since the adoption of the penal code, murder in the first degree was not a capital offense within the meaning of the Constitution, but the Supreme Court said: “It is true that since the adoption of the penal code, the jury, in all cases of murder in the first degree, have the power, and it becomes their duty, to say whether the accused shall be punished with death, or sent to the penitentiary for life; but this does not authorize us to say that murder in the first degree is not a capital offense. It may be capital or it may not, according as the jury decide. The fact, however, that they may decide, does not make the offense less capital before the trial is had, in the sense in which the term ‘capital offense’ is employed in the Constitution. . . . The obvious intention of the framers of the Constitution, denying to the Legislature the right to pass any laws impairing the right of bail, except in capital cases, was, as to these offenses, to leave them free to pass such laws as they please. This clause of the Bill of Rights in the Constitution was, many years since, made part of the statute law of the State, and was incorporated in the penal code. The object of making this class of offenses an exception doubtless was to secure the trial of the accused with more certainty than could be effected by mere personal liabilities. These offenses were of so high a grade that no personal securities were deemed a sufficient guaranty that the offender would be brought to punishment. Under the Constitution, and the law as it stood before the adoption of the penal code, although the offense might be reduced, on the trial, below the grade of the one charged, still, when the charge was made, and the proof evident or the presumption great, the magistrates were not permitted to take bail. . . . The penal code is then adopted, giving to the juries the power of saying, in cases of murder in the first degree, whether the accused shall suffer death, or go to the penitentiary for life. This is but a simple extension of the power of. the jury one degree beyond what it was before. Capital punishment still remains.”

It will be observed that the Constitution of Alabama limits the right to demand bail “before conviction. ’ ’ These words are absent from our Bill of Rights, and this brings us now to the final contention of the petitioner, that the jury having by their verdict assessed his punishment at imprisonment for life, the offense is no longer capital and the verdict has removed him for the time being from the category of the constitutional description of capital offenders, and hence by the very terms of the Constitution he cannot be deprived of the privilege of bail. And therefore that the decision in Ex parte Dusenberry, which was predicated upon an application for bail before conviction and at a time .when the defendant was liable to be punished by death, cannot govern petitioner’s right to bail, now that he has been found guilty of murder in the first degree and his sentence pronounced and his punishment assessed at imprisonment for life only. And it is insisted that section 2702, which deprives him of the right to hail after he was sentenced to imprisonment for life only, is to that extent in violation of the Constitution.

As already noted, in some of the States, the provision in their Constitutions is “that all persons [or prisoners] shall, before conviction, be bailable by sufficient securities, except for capital offenses, where-the proof is evident or the presumption great.” Obviously in those States this constitutional right doe's not exist after conviction on appeal or writ of error, but whether bail shall be granted is in the discretion of the court as at common law or governed by the-statute, the Legislature not being inhibited to make-such provision as it may deem just or proper. But is not this the meaning of our Constitution, even though the words ‘ ‘ before conviction ’ ’ are not used ¥ We think-it is.

In Ex parte Voll, 41 Cal. 29, the prisoner had been convicted for manslaughter. The Constitution of California provided: “All persons shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident, or the presumption great.” The statute of that State provided that a person charged with such an offense as manslaughter may be admitted to bail before conviction “as a matter of right,” but after conviction, “as a matter of discretion” merely. After Yoll had perfected his appeal, he sued out his writ of habeas corpus to be admitted to bail, alleging his right to bail. His counsel denied the constitutionality of the statute in so far as it enacted that a conviction already had should take away the right of bail and leave it to the discretion of the court, upon the-facts appearing in a particular case. It was insisted that the language of the Constitution was sufficiently broad to embrace not onlya case where no trial had been had, but equally a case in which a conviction of an offense less than capital in degree had occurred; that the Constitution did not regard the particular stage of proceedings which the prosecution may have reached, but only the grade of the offense involved as being less than the capital grade. Upon these contentions the Supreme Court of that State said: “We are of opinion that the Constitution, in declaring bail to be a matter of right, contemplated only those cases in which the guilt of the party had not been already judicially ascertained; cases in which the prisoner as yet stood upon his plea of not guilty, supported with all the presumptions of innocence with which the law delights to surround him. But when his trial has been had and his plea proven false, the law will not stultify itself by presuming him other than that it has itself adjudged him to be. If the Constitution, indeed, intended to introduce the rule of absolute right to bail, as well after as before conviction of such felonies, -it would result that no convict could be punished for his ascertained crime if he had either wealth or friends ,* for no mere pecuniary considerations could weigh against the alternative of a degrading imprisonment at hard labor, for a crime involving moral turpitude. It would operate in practice as a mere money commutation for the infamous corporal punishment which the law has denounced against the perpetration of crime. The literal interpretation insisted upon— following, as it does, the mere words of the Constitution —would not only entitle the prisoner to bail, pending his appeal taken, but would have done so had he not taken an appeal at all. In this view it was unnecessary for him to have stated, as he has done in his petition, that he had appealed from a judgment of conviction, because, upon a literal reading of the Constitution, upon which he insists, that is not a condition imposed upon his right to bail; it is one which is only to be found in the statute, which he seems, however, to have so far observed, even while coming here to assail its constitutionality.”

The Constitution of Texas provided (art. 1, sec. 11): “All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident.” In Ex parte Schwartz, 2 Tex. App. 74, it was said: ‘ ‘ The constitutional provision guaranteeing bail except in capital cases, relates to persons who are accused, before trial and conviction. [Ex parte Ezell, 40 Tex. 460.]”

We think the construction put upon the Bill of Rights in California and Texas, in which the words “before conviction” are omitted, as they are in our Constitution, is the correct one. We think the language of section 24, article 2, óf our Constitution clearly refers to the right of bail while yet there is room for presumption and while the “proof evident” is open to consideration by the court or judge to whom an application for bail is made, and not to a time when presumptions and proofs are merged in a verdict of guilty. In 3 Am. and Eng. Ency. Law (2 Ed.), p. 675,, it is said: “In the United States, after conviction,, no constitutional right to bail exists, and the granting-of bail rests in the sound discretion of the court.” This would be the rule in this State, under our constitutional provision, in the absence of a statute, but, as the Legislature by section 2702, Revised Statutes 1899, denies bail where the defendant appeals or prosecutes a writ of error from a sentence of death or imprisonment in the penitentiary for life, the courts no longer have the power to admit to bail after a conviction and sentence either of death or imprisonment in the penitentiary for life.

It follows that in our opinion section 2702 does not infringe the Constitution and must govern the petitioner’s application, and it must be and is accordingly denied, and the petitioner is remanded to the custody of the sheriff of Lawrence county to await the determination of his appeal in this court.

Burgess and Fox, JJ., concur.


author: BURGESS, J.

text:
    JESSE T. JAMISON, Appellant, v. HANORA ZAUSCH, HENRY ZAUSCH, Executor of MARY JAMISON, and MERCANTILE TRUST COMPANY.
    Division Two,
    March 31, 1910.
    1. SEPARATE ESTATE TO WIFE: Husband’s Curtesy: Intention. A deed to a husband as trustee of the wife, for the separate use and benefit of the wife, will be held to bar the said husband’s right to curtesy therein, if it clearly appears from the language of the instrument that it was the intention of the grantor that the said husband should not have curtesy. By such a deed an equitable estate of inheritance is vested in the wife, which upon her death intestate descends to her legal heirs, free from the curtesy of her husband named as trustee.
    2. •-: -: Wife’s Death Testate or Intestate. And where the deed to the husband as trustee for the separate use and benefit of the wife recited that “upon the decease of said third party, said trustee shall and will convey all interest in him in said real estate in accordance with the said will of the said third party; but in case said third party should leave no will, then said trustee shall and will convey the said real estate to the legal heirs of said third party,” his right to any interest in the estate was not affected or impaired by the wife’s will, hut by the deed, and it is wholly immaterial, in determining what interest he has therein, whether or not she died testate or intestate, for in either case, by the terms of the deed, he has none.
    3. -: -: Statute of 1895: Widower’s Dower. The husband named as trustee in such a deed, conveying to him an equitable estate by inheritance for the separate use and benefit of his then wife, is not,- upon her death, without descendants, leaving a will by which she devises the property to others, entitled to an undivided one-half thereof under the statute (Sec. 2938, B-. S.-1899) which says that “when a wife shall die without any child or other descendants in being capable of inheriting, her widower shall be entitled to one-half of the real and personal éstate belonging to the wife at the time of her death, absolutely, subject to- the payment of the wife’s debts.” His rights and hers were fixed by the deed when he accepted the trust, and were not affected or impaired by the said Act of 1905 subsequently enacted.

      4. TRUST: Acceptance of Trust: Signing Deed. It is not necessary for an acceptance of the trust by the trustee named in the deed that he sign it. .If he knew of the execution of the instrument, acquiesced in it without objection, and with the beneficiary entered into possession in accordance with its terms and thereafter made no disclaimer, he will be held to have accepted it.
    6. -: -: Relation: Subsequent Statute: Vested Rights. And the trustee’s acceptance related back to the date of the deed, and his rights and those of his wife were thereby fixed, and thereafter it was beyond the power of the Legislature to disturb the rights so vested by an act which gives the widower one-half the property which his wife, who dies without descendants, owns at' the time of her death, subject to debts. Such statute as to vested rights cannot operate retrospectively.
    Appeal from St. Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge.
    Aeeirmed.

      W. B. & Ford W. Thompson for appellant.
    The deed in question from Kilpatrick and wife to Mary Jamison is dated October 18, 1888. At that date plaintiff and' Mary Jamison were husband and wife, and, therefore, unless the terms of the deed when properly construed are such that his right is excluded, the husband would be entitled, under the common law and statute of this State in existence at that time, to the possession and enjoyment and usufruct from the land during, the lifetime of his wife, and in the event that during the coverture they had lawful issue, born alive, which might have been capable of. inheriting the estate, he would have been entitled to curtesy therein. Myers v. Hansbrough, 202 Mo. 495. The language of the deed from Kilpatrick and wife to Mary Jamison fails to indicate a purpose to deprive the husband of his right to dower therein, as well as curtesy, conceding, for the moment, that this question is at all essential or necessary to .a decision of a case where the wife has attempted to exclude the husband, not by conveyance during her lifetime, but by will operative after her death. Kennedy v. Koopman, 166 Mo. 87; R. S. 1899, sec. 4603';- Myers v. Hansbrough, 202 Mo. 495; Soltan v. Soltan, 93 Mo. 307; T'remmel v. Kleibo-ldt, 75 Mo. 255; Woodward v. Woodward, 148 Mo. 241; O ’Brien v. Ash, 169 Mo. 283; Waters v. Herboth, 178 Mo. 166; Spurlock v. Burnett, 183 Mo. 524; Gilroy v. Brady, 195 Mo. 205; Perguson v. Gentry, 206 Mo. 189.

      T. B. Skinker and Rassieur, Kammerer & Bassieur for respondents.
    (1) The Kilpatrick deed created a separate equitable estate in Mary Jamison, wife of appellant, and excluded appellant from all marital rights therein. McTigue v. McTigue, 116 Mo. 138; McBreen v. Mc-Breen, 154 Mo. 323; 1 Washburn, Real Prop. (5 Ed.), p. 176, sec. 15; Tyler, Infancy and Coverture (2 Ed.), sec. 286; Bernet v. Davis, 2 P. Wms. 316; Cooper v. McDonald, 7 L. R., Oh. D. 288. (2) In construing the terms of deeds creating separate equitable estates in the wife, this court has uniformly based its conclusions upon what it has found to be the intention of the parties as ascertained from the language employed in the instrument, McTigue v. McTigue, 116 Mo. 138; Mc-Breen v. McBreen, 154 Mo. 323; Woodward v. Woodward, 148 Mo. 241; O’Brien v. Ash, 169 Mo. 283.- (3) (a) Appellant having accepted the trust created by the Kilpatrick deed, and having, by the terms of the deed, covenanted that he would, upon the death of his wife, “convey all interest yet in him in said real estate in accordance with the will of said third party” (his wife), he thereby waived aud relinquished all prospective rights he might otherwise have had in the property conveyed in the deed. McBreen v. McBreen, 154 Mo-. 323; Crum v. Sawyer, 132 111. 443; Heisen v. Heisen, 145 111. 658; 21 Cyc. 1161. (b) Having accepted the trust, and having entered into possession of the property under the terms of the deed, appellant is now estopped from claiming that the covenants therein are void and unenforceable against him. McBreen v. Mc-Breen, 154 Mo. 323; Crum v. Sawyer, 132 111. 443; Heisen v. Heisen, 145 111. 658. (4) The contract made by appellant to convey all interest in the property yet in him upon the death of his wife, in accordance with the provisions of her will, was not affected or impaired by the Act of 1895 (R. S. 1899, sec. 2938), which went into effect seven years after the execution and delivery of the deed. Constitution, art. 2, see. 15; Cooley, Const. Lim. (7 Ed.), p. 383; Fletcher v. Peck, 6 Cranch 87; Fisher v. Patton, 134 Mo. 32.
   BURGESS, J.

This is a suit to partition two parcels of ground in the city of St. Louis, at the southeast corner of Prairie and Easton avenues. Plaintiff is the widower of Mary Jamison, to whom he was married in 1865, and who, at the time of her death, was the owner of the two parcels sought to be partitioned. One, the larger parcel, was acquired from Claud Kilpatrick and wife by deed dated October 18, 1888; the other from William G. Ashby, by. deed dated June 4, 1904. The said Mary Jamison died on the 29th day of January, 1906, leaving a will, which was duly probated in the probate court of the city of St. Louis on the 31st day of January, 1906, wherein and whereby she nominated and appointed her nephew, Henry Louis Zausch, defendant herein, as executor, authorizing him to take charge of said real estate, to collect the rents therefrom, and after the payment of her debts and the expenses of administration, to pay not less than thirty dollars monthly to her husband, the plaintiff, during the administration of her estate; and also appointed the defendant Mercantile Trust • Company as trustee with power to hold, manage and control all the rest and residue of her estate, and to pay four-fifths the income thereof to the plaintiff during the period of his life, and the remainder of the income to the defendant Hanora Zausch, sister of the testatrix; the remainder in fee of said trust estate, after the expiration of said life estate, to go to the said Hanora Zausch, her heirs and assigns, forever.

The deed from Claud Kilpatrick and wife was as follows:

“This deed, made and entered on this 18th day of October, 1888, by and between Claud Kilpatrick and Dolly L. Kilpatrick, his wife, of the city of St. Louis, State of Missouri, parties of the first part, and Jesse Jamison, party of the second part, and Mary Jamison of the same place, party of the third part.
“Witnesseth: That the said parties of the first part, for and in consideration of the sum of forty-five hundred dollars, to them in hand paid by the said party of the third part, the receipt of which is hereby acknowledged, and the further sum of one dollar to them paid by the said party of the second part, the receipt of which is also hereby acknowledged, do by these presents grant, bargain and sell, convey and confirm unto the said party of the second part, his heirs and assigns, and his successors in trust forever, the following described real estate, situated in the city of St. Louis, State of Missouri, to-wit: [Then follows a description of the property conveyed.]
“To have and to hold the same, together with all and singular the privileges and appurtenances thereunto belonging or in anywise appertaining unto the said party of the second part, his heirs and .assigns, and to his successors in trust forever.
“In trust, however, for the whole and separate, benefit and behoof of the said Mary Jamison, her heirs and assigns, and entirely free from all control, restraint or interference, as well as the estate by curtesy and all the debts of her husband. The said Mary Jamison to have, hold, to use, occupy and enjoy the exclusive and undisturbed! possession of said real estate and the appurtenances thereunto belonging, with power to direct the sale or lease or other disposal of the same at her will and pleasure, and to receive to her own separate use and benefit the proceeds of such sale and all rents and profits arising or accruing from the lease or other disposal of the same, the said party of the second part holding said real estate subject at all times to the direction in writing under her hand and seal without the intervention of her husband, of the said Mary Jamison, her heirs and assigns, as to the disposal of the said real estate, whether by lease, conveyance in fee, mortgage, assignment or transfer of this trust or otherwise. Upon the decease of said third party said trustee shall and! will convey all interest yet in him in said real estate in accordance with the said will of the said third party; in case said third party should leave no will, then said trustee 'shall and will convey the said real estate to the legal heirs of said third party. And the said Mary Jamison shall have the power, at any time hereafter, whenever she shall from any cause deem it necessary or expedient, by an instrument in writing under her hand and, seal, and by her acknowledged, to nominate or appoint a trustee or trustees in place and stead of the party of the second part above named, which trustee or trustees, or the survivor of them, or the heirs of such survivor shall hold the said real estate on the same trust above recited; and! upon the nomination or appointment of such new trustee, the estate in trust hereby vested in said party of the second part shall thereby be fully transferred and vested in the trustee or trustees so appointed bv the said Mary Jamison.”

This deed was signed and acknowledged by the said! grantors on the 5th day of November, 1888.

The deed from William G-. Ashby to Mary Jami-son, of date of the 4th day of June, 1904, was a regular warranty deed, without the intervention of a trustee. It conveyed a lot adjoining that conveyed by the Kilpatrick deed.

At the trial, plaintifftestified that he had not paid anything for the deed from the Kilpatricks, and that there was an arrangement between him and his wife that he was to be made trustee in the deed. He also stated that he had signed as trustee, although the deed shows that it was not so signed by him. The evidence shows that there was no issue born of the marriage of plaintiff and Mary Jamison, deceased, and that she had at the time of her demise no descendants in being capable of inheriting.

Upon the above evidence the court found that plaintiff was entitled, under section 2938', Revised Statutes 1899, to an individual one-half interest in the property acquired by Mrs. Jamison from William Gr. Ashby, and that he was entitled to partition thereof; but as to the property acquired from Claud Kilpatrick and wife, the court held that plaintiff had no interest therein, excepting that given to him by the will of his wife, and that as to that interest he was not entitled to partition. Judgment was entered accordingly. After an unsuccessful motion for a new trial, plaintiff appealed to this court.

The sole material question on this appeal is, whether the deed from Kilpatrick and wife deprived the plaintiff of the interest which he claims under the provision of the Act of 1895 (section 2938', Revised Statutes 1899), which reads: “When a wife shall die without any child or other descendants in being capable of inheriting, her widower shall be entitled to one-half of the real and’personal estate belonging to the wife at the time of her death, absolutely, subject to the payment of the wife’s debts.”

In construing the terms of deeds creating separate equitable estates in the wife this court has uniformly based its conclusions upon what is found to be the intention of the parties, as ascertained from the language employed in the instrument. The rule is that if the grant or devise be to the wife for her separate use, and it clearly appears from the conveyance or will that it was the intention of the grantor or devisor that the husband should not be tenant by the curtesy, this intention will govern, and the husband will not’ be entitled to curtesy. [Tyler on Infancy and Coverture (2 Ed.), p. 431; 1 Washburn on Real Prop. (6 Ed.), sec. 321, p. 147; McTigue v. McTigue, 116 Mo. 138; McBreen v. McBreen, 154 Mo. 323; Woodward v. Woodward, 148 Mo. 241.]

We think that the terms of the deed in question make it very plain that it was the intention of the grantors to wholly-deprive the plaintiff, husband of Mrs. Jamison, of his right of curtesy in the land conveyed.

In the McTigue case, supra, the deed under which both parties claimed was in its terms very similar to the Kilpatrick deed, except that the trustee named therein was not the husband of the beneficiary, as in this case. It was held in that case that by the terms of the deed an equitable estate of inheritance was vested in the wife, which, upon her death intestate, descended to her legal heirs, free from the curtesy of her husband.

In the McBreen case, supra, the court said: “Indeed it is the prevailing doctrine in England and the United States that it is not competent at common law, in a grant to a woman of an estate of inheritance, to exclude her husband from his right of curtesy; but it is equally well settled that in equity an estate may be so limited as to give the wife the inheritance, and by words clearly denoting that intention, to exclude and deprive the husband of curtesy;" citing Tiedeman on Real. Prop. (2 Ed.), sec. 105; McTigue v. McTigue, 116 Mo. 138; Grimball v. Patton, 70 Ala. 635; Rigler v. Cloud, 14 Pa. St. 361; Pool v. Blakie, 53 Ill. 495; Haight v. Hall, 74 Wis. 152.

The plaintiff rests his case principally upon the authority of O’Brien v. Ash, 169 Mo. 283. But that case is essentially different from the case at bar. The deed construed in that case was also a conveyance to a trustee for the sole and separate use of the wife, free from the husband’s-curtesy, and it was held that the deed undertook to cut off the marital rights of only her then husband, and not of any future husband she might have. The husband referred to in the deed ' having died, the court held that the trust thereupon ceased and terminated, and the use became executed in the beneficiary, and did not thereafter, upon the remarriage of the beneficiary, revive and revest in the trustee. After so construing the deed, the court adds: “In this view of the case, it is unnecessary to discuss whether the Act of 1895 could affect property held by a woman, married or unmarried, under a deed of settlement so formulated as to create a separate equitable estate to the exclusion of all marital rights of any future husband.” In that case the court also said: “So long as plaintiff’s wife was alive to enjoy the use of her property, it belonged to her free from legislative interference, and the Act of 1895 could have no effect or influence upon it, or of her use .or disposition of it whatever; but when death came, and she could no longer enjoy it, her acquisition ceased, and with it the right to direct its future use and ownership only as the legislative will was indicated by the statute then in force upon that subject.”

Plaintiff’s right of curtesy was not, of course, affected or impaired by his wife’s will, but rather by the deed to which he was a party.

In the O ’Brien case the husband was not a party to the deed, and simply accepted his statutory right.The fact that plaintiff was a party to the Kilpatrick deed is a most material fact, and makes the case entirely different from that of O’Brien v. Ash, on which plaintiff relies. Had Mrs. Jamison died intestate, plaintiff’s right of curtesy would still be barred, for he covenanted in the deed to convey to her legal heirs in case she made no will. The words of the deed are: “Upon the decease of said third .party, said trustee shall and will convey all interest yet in him in said real estate in accordance with the said will of the said third party; hut in case said third party should leave no will, then said trustee shall and will convey the said real estate to the legal heirs of said third party.”

It is true that the deed from the Kilpatricks does not show that plaintiff signed the same as trustee, hut it has never been held that a trustee named in a deed of trust can accept the trust in no other way than by signing his name to the deed. He testified that there was an arrangement between his wife and himself that he was to be made trustee in said deed, and he further stated that he signed it as trustee, so that he was evidently under the impression that he had signed it. In view of these admissions, and the fact that he and his wife entered into possession of the property under the terms of the deed and the further fact that he never made any disclaimer, by word or act, after a .lapse of eighteen years (the deed having been executed in October, 1888), we must hold that plaintiff accepted the trust. In Salter v. Salter, 80 Ga. 178, it was held that the fact that a party permits the title to property to be vested in him as trustee, without objection, makes him a trustee. In Roberts v. Moseley, 64 Mo. 507, it is said: “After a lapse of years the acceptance of the trust may be presumed, even when no act has been done by the trustee to indicate an acceptance. In the ease at har there was no act for the trustee to perform. His duty under the deed, was simply to permit the beneficiary, Mrs. Moseley, to have the use and occupation of the land, and if he had never exercised any control over the property whatever, the fact that he knew of the execution of the deed, and procured a copy for his own use, would amount to an acceptance, in the absence of a disclaimer, by word or act, after the lapse of six years." Again in Brandon v. Carter, 119 Mo. l. c. 582, this court held that, while acceptance of a trust is necessary to the vesting of a title in the trustee, such acceptance “may often be implied or established by inference.” We are of the opinion, that the plaintiff is estopped from claiming an interest adverse to the trust under which he held title, and by the terms of which he covenanted to convey all interest yet in him to his wife’s devisees.

In Heisen v. Heisen, 145 Ill. l. c. 665, the Supreme Court of that State said: “The husband being sui juris, and the (husband’s) right of dower conferred by the statute not having been trammeled, or hedged about by rules of law growing out of the disability of married women at common law, no reason exists why he may not release his inchoate expectancy or his right of action for dower, or bar recovery in respect thereof, as he might release or bar any other expectancy or right. And it would necessarily follow that the husband would be barred of his right to assert dower in the lands of his deceased wife, by any act or conduct that would estop him from the assertion of any other right. ’ ’

Crum v. Sawyer, 132 Ill. 443, was a case where the husband executed to his wife, upon a very valuable consideration, an instrument under seal, by which he released his dower interest, and also covenanted with her and her legal representatives not to assert said right in case he should survive her. The court said: “If then it should be held that a release of dower by a husband directly to his wife is, by reason of their relation, ineffectual as a conveyance, there is no reason why his covenant with her and her representatives not to claim or to assert dower should not operate by way of estoppel to bar him of the right.”

This court in McBreen v. McBreen, supra, applied the doctrine of equitable estoppel, and denied the claim of the husband to curtesy in his wife’s real estate, where they had entered into a contract with each other which recited that “the said parties hereto shall he absolved from any and all obligations toward each other by reason of their relation as husband and wife, and the said parties hereto hereby release each other from any and all obligations by reason thereof. ’ ’ The covenants in the agreement were acted upon and carried out by both parties until the wife’s death. The court said that such contracts were not enforceable at law, but nevertheless held that the husband was estopped by the terms of his own deliberate and solemn covenants, from claiming possession of his wife’s property as tenant by the curtesy.

The contract by plaintiff to convey all interest in the property yet in him upon the death of his wife, in accordance with the provision of her will, was not, in our opinion, affected or impaired by the act of 1895 (sec. 2938, E. S. 1899), which went into effect seven years after the execution of the deed. [Const. Mo., art. 2, sec. 15; Cooley, Const. Lim. ( 7 Ed.), p. 383; 2 Tucker on the Constitution, sec. 388; Fisher v. Patton, 134 Mo. 32.] In the construction of statutes the uniform rule is that they must be held to operate prospectively only, unless the intent is clearly expressed that they shall act retrospectively, or the language of the statutes admits of no other construction. [Cunningham v. Gray, 20 Mo. 170; Reed v. Swan, 133 Mo. 100; State ex rel. v. Wofford, 121 Mo. 61; Bartlett v. Ball, 142 Mo. 28, and many other cases.]

Plaintiff’s acceptance of the trust related back to the date of the deed. The trust or contract had been executed in part, the rights of the parties under the deed had become vested and fixed, and it was beyond the power of the Legislature to disturb the rights so vested or the obligation assumed under the contract.

. The plaintiff has no interest in the property conveyed by the Kilpatrick deed, excepting the interest bequeathed and devised to him by the will of Mrs. Jami-son. The judgment is affirmed.

All concur.


author: VALLIANT, J.

text:
    MARIE ALT v. WILLIAM C. DINES et al., Appellants.
    Division One,
    April 12, 1910.
    1. BILL OF EXCEPTIONS: Part of Record. A bill of exceptions becomes a part of tbe record only when the court orders it to be filed and made such, and that fact cannot be shown by recitals in the bill itself.
    -: Judgment: Motion for New Trial: How Shown. Neither the judgment rendered, nor the orders overruling the motions for a new trial and in arrest, can be shown except by the record proper. A recital in the bill, ahead of the judge’s approval thereof, that a motion for a new trial was overruled, and in the bill alone, is not sufficient to show either that the motion was filed or that it was overruled. Nor is a recital in the bill alone that judgment was rendered for respondent sufficient to show that fact. Those facts must be shown by the. record proper; and as a part of the record proper, where the appeal is by the short method, will be considered the transcript of the judgment on file with the clerk, although it is nowhere set forth in the abstract.

      3. JUDGMENT: Not Responsive to Pleadings. Where the purpose of the suit, as shown by the pleadings set out in the abstract, was to set aside a deed, on the ground that defendant obtained it by fraud, with a prayer as an incident that an account for rents and profits be taken, and the judgment rendered, as shown (not by the abstract but) by the certified copy thereof on. file with the clerk, does not set aside the deed, but renders a monetary judgment only, it cannot stand but will be reversed, although no part of what purports to be the bill of exceptions can be considered.
    Appeal from St. Louis City Circuit Court. — Hon, Jesse A. McDonald, Judge.
    Reversed and. remanded.

      Chester H. Krum for appellants.

      Thos. 8. Meng and 8. T. G. Smith for respondent.
   VALLIANT, J.

The only items as of the record proper shown by the abstract are, the petition,, the demurrer and the answer. An amendment to the abstract shows that the affidavit for an appeal was filed in due time and appeal allowed.

The petition is in the nature of a bill in equity to set aside a deed to real estate on the ground that it was obtained by fraud on the part of defendant; it also prays for an accounting of rents and profits. Under the index heading of “Record Aliunde” the abstract sets out the evidence and at the conclusion of the evidence is this statement:

“December 14,1905, the court entered a decree for respondent. Within four days thereafter, at the same hour, to-wit: December 15,1905, appellant filed a motion for a new trial, and on December 15, 1905, filed a motion in arrest of judgment. These motions were overruled January 20, 1906. On February 1, 1906, the motion for a new trial was reinstated by the court of its own motion, the order overruling it being.set aside, and on the last day of the December term, 1905, the court set aside the decree of December 14, 1905, and took the case farther under advisement.
“April 30, 1906, the_court entered a decree for respondent.
“May 4, 1906, at the same term and within four days after the decree, the appellant filed the following motion for a new trial, to-wit: ’ ’

The motion which is there set out in full assigns, besides other grounds, the action of the court, after setting aside the judgment of December 14, in taking the cause under advisement and rendering another judgment without a new trial or opportunity to defendant to be heard. Then follows a motion in arrest.

Then follows this statement:

“These motions were overruled September 20, 1906, and appellants only excepted.
“June 16, 1906, Virgil Rule, theretofore appointed referee to state an account, filed his report, the appellant excepted to it June 19, 1906, at the same term, and these exceptions were overruled September 20, 1906, and the appellants duly excepted.
“September 20, 1906, the court entered a decree for respondent. September 24, at the same term, and within four days after said decree, appellants filed the following motion for a new trial, ’ ’ which motion is also copied in full. Then follows a statement that on the same day the following motion in arrest was filed, and it is copied. Then follows the statement: “These motions for a new trial and in arrest of judgment were overruled September 20, 1906, and appellant duly excepted. ’ ’

The abstract does not show what, if anything, the record proper shows as to the decree, or as to the filing of the motions or the rulings of the court on the same, or that the bill of exceptions was filed. There is a statement that leave to file a bill of exceptions within ninety days was granted and that the bill was “approved, signed and filed as appears from the date of such approval and signing and filing certificate of the clerk. ’ ’ The abstract not only does not undertake to say what the record proper says concerning the decree of December 14, 1905, but even the statement gives no information as to the purport of that decree further than to say it was “a decree for respondent.” But whatever that decree was, it was, according to the further statement, set aside on the last day of the term and the cause taken under advisement by the court, which at the next April term, on April 30, 1906, “entered a decree for respondent,” and as to that decree the motions for new trial and in arrest were overruled, on September 20,1906.

There is nothing in the record proper' showing the appointment of a referee or what was referred to him and there is no report of the referee in the record.

We do not know from this abstract what the decree of April 30th, or the final judgment was, but the cause is here on a short transcript and we refer to that for information. That shows that it was a money judgment only for $844.45 and costs. And so far as we can discover from the record before us that was the only judgment in the case. In his statement appellant says that the deed was set aside, but we find no judgment to that effect. We may conjecture that the court first found the issues in favor of the plaintiff, holding that the deed ought to be set aside, and then sent the cause to a referee to take an account of the rents and profits before entering final decree, because the final judgment shown in the short transcript recites that the exceptions to the referee’s report are overruled and the judgment seems to follow that result.

If the judgment contained in the short transcript is the only judgment in the case it is erroneous because it does not respond to the issues made by the pleadings; it leaves the main question relating to setting aside the deed undecided.

Under the condition of the record as shown by the abstract we would be justified in disregarding the whole bill of exceptions and the statements concerning it, for the reason that the" abstract does not show that the record proper shows that the bill of exceptions was by order of the court made a part of the record. A bill of exceptions becomes a part of the record only when the court orders it to be filed and made so, and that fact cannot be shown by recitals in the bill itself. Neither can the judgment rendered nor the orders overruling the motion for a new trial and in arrest be shown except by the record proper. The abstract need not set out full copies of such entries, but it must show that such judgments and orders were entered of record and the substance of their contents. Here we have a statement that the court rendered a judgment for the plaintiff, December 14, 1905, and other proceedings that indicate that the court on motion of defendant for a new trial set that judgment aside, and yet without allowing a new trial took the cause again under advisement and at the next term rendered another judgment for the plaintiff. This court has held that when a judgment is set aside and a new trial is granted there cannot be another judgment rendered without another trial. [Hurley v. Kennally, 186 Mo. 225.] But we cannot say that that was done in this case without an abstract showing what the court record shows of such judgments and orders. If respondent cared to show that there was a valid judgment in her favor she could have filed an additional abstract (Sec. 813, R. S. 1899), but that has not been done. We are therefore, in this case driven to so much of the record proper as the abstract shows and to the short transcript filed which contains the judgment rendered, which shows all that we can know of the case. Prom that source we find that the sole purpose of the plaintiff’s suit is to obtain a decree vacating a deed which she had made to the defendant, on the ground that defendant had obtained it by fraud. The prayer of the petition is that the deed be cancelled, that ah account of the rents and profits be taken, and that she have judgment therefor. The judgment rendered was: “And it appearing to the court from said report that the referee finds the issues herein for the plaintiff and doth assess her damages at the sum of eight hundred and forty-four and 45-100 dollars. It is therefore considered by the court that the plaintiff recover of the defendant the said sum of $844.45, and also her costs and charges herein expended and have execution therefor.” There is no disposition made of the deed which was the whole cause of the suit. Rents and profits follow only as an incident to the cancellation of the deed; without that the judgment for rents and profits would be erroneous. This judgment is erroneous because whilst it purports to be a final judgment it does not respond to the main issue in the case.

The judgment is therefore reversed and the cause remanded to be proceeded with in the circuit court according to law.

All concur.