author: WOODSON, J.

text:
    EVERETT DOOLEY, by Guardian, v. THOMAS A. GREENING, Appellant.
    Division One,
    February 22, 1907.
    1. DEED BY MARRIED WOMAN: Particular and General Words: Dower or Title: Circumstances. Joseph C. Greening had been adjudged insane, and on March 27, 1899, his real estate was sold hy his curator, under regular proceedings, to his son, the defendant,' and on the same day his wife executed a quit-claim deed to defendant, which recited: “I hereby convey . . . all of my right, title and interest whether dower or other interest as the wife of Joseph O. Greening of, in and to” the land in suit, “containing 160 acres more or less, hereby conveying and intending to convey all interest I may have in said land whether of dower or otherwise.” The deed expressed a consideration of five dollars, which was never paid. She had at the time an estate in the land in her own right, but no other property, and was old, and if she conveyed her own estate by this deed she stripped herself entirely of property. Besides, it was her husband’s land that was ordered to be sold, and it was sold for the purpose of enabling the curator to obtain means for his support. Held, that by the first clause of the deed she conveyed only her marital interest in her husband’s estate in the land, and the second is broad enough to convey her own estate therein; but the rule of law being that, where general words follow particular words in a deed, the general words must be so construed as to limit their meaning to the particular words, and in view of the surrounding circumstances, she intended to convey only her marital rights in the land, and not her own estate.
    2. -: By Wife of Husband Under Guardianship: Of Own Lands. The wife of a husband under guardianship cannot sell and convey her own real estate except under the order and supervision of the proper court, and by deed jointly executed by her and the guardian.
    3. -: -: -: Separate Deed. The statute requiring the real estate of the wife whose husband is under guardianship to be conveyed by the joint deed of herself and his guardian and under prder of court, and not requiring her to join with the guardian in the deed conveying her husband’s lands, it will be held, where she executed a separate deed conveying land in which she had an estate of her own and also an inchoate dower as his wife, that she meant to convey only her dower interest.
    Appeal from Monroe Circuit Court. — Row. David II. Eby, Judge.
    Reversed and remanded (with directions).

      James H. Whitecotton and Thomas P. Bashaw for appellant.
    Instruction 1, asked by plaintiff, should not have been given. The deed of Mrs. Greening conveyed and vested in defendant that part of tbe land in controversy which the record shows she owned in her own right, as well as her dower in the part that belonged to her insane husband. This proposition plaintiff denies, and said instruction sustains him in such contention. The theory of the instruction is that Mrs. Greening’s deed does meet the requirements of section 4334, Revised Statutes 1899. The .first clause of said section empowers the wife of a man who is under guardianship to join with the guardian “in making partition of her own real estate” and to make jointly with the guardian any conveyance that may be necessary to effect such partition; and -with that clause we have nothing to do in this case. The second clause empowers such wife to sed and convey her own real estate by joining with the guardian in such sale and conveyance, under the order and supervision of the proper court, and provides that deeds “executed jointly by herself and such guardian shall have the same force and effect as if done with her husband if he had been under no' disability. ’ ’ The third clause provides that in all cases where the real estate of such husband shall be sold by his guardian in due conformity to law, she may relinquish her right or dower in such real estate as fully as if her husband joined in the deed of release. There is no room for dispute that, under the third clause, Mrs. Greening’s deed passed to defendant all her marital rights in that part of the land owned by her husband, since that clause provides expressly that where the lands of the husband are sold by his guardian in due conformity to law, the wife may relinquish her right or dower as fully as if the husband joined in the deed of release, and says nothing about the guardian joining in such case, as is provided in the second clause. It remains to be seen what was intended by the Legislature in the second clause empowering the wife to sell her own real estate by joining with the guardian in such sale under the order and supervision of the proper court and executing the deed jointly with him. Does this provision mean that she must sign and acknowledge the same identical instrument? If so, the instruction here complained of was properly given. But is such construction a reasonable one, under the peculiar circumstances of this case? The guardian in this case, in his petition for the sale of the real estate in controversy, proceeded upon the assumption that the entire tract belonged to his ward, Mr. Greening; and the probate court so found. It was not a proceeding, professedly, to sell real estate of the wife, and, therefore, on its face, not strictly ■within conditions in contemplation in said second clause. That is to say, it was not, on its face, a proceeding by the guardian and the wife to sell the real estate of the wife. The wife was not a party to the proceeding. Mr. Greening in his lifetime, when sane, treated the entire tract as his own, when he made a will devising it to his wife for life, with remainder in fee to a son. Mrs. Greening, except in the deed she executed to defendant, March 17,1902, does not appear to have ever claimed any title to any part of the land other than as the wife of Mr. Greening, nor to any part of the proceeds of the guardian’s sale of it, except as such wife and widow. The guardian also further so treated the situation in the disposition he made of the proceeds of the sale. So that although it appeared at the trial that Mrs. Greening had inherited one-half of the land long before the passage of the married woman’s separate property act, yet it is too plain for dispute, that in contemplátion of all the parties to the transaction in the probate court, the entire tract was owned by Mr. Greening. Now, in such state of facts, why should she join in the guardian’s deed? We have seen that under the third- clause it was not necessary to join in the guardian’s deed in order to convey her dower in that part of the land owned by her husband. It appears equally plain to defendant that it was not necessary for her to join with the guardian in the same instrument in order to convey the land she owned in her own right, for two reasons, first, because, properly construed, the second clause does not require her to sign the same instrument; and, second, because the facts in this case are not within the conditions of the second clause, in this, that the proceeding in the probate court was not a proceeding by her and her husband’s guardian to sell her lands. The section under consideration was enacted long before recent legislation and judicial decisions, the general trend of which is to relieve married women from the absurd and severe doctrines of tbe common law, .and it is fairly susceptible of a construction in entire harmony witb tbe statutes and recent decisions enlarging tbe rights and powers of married women. In this case the wife did not sign tbe identical instrument witb tbe guardian; but her deed was made on tbe same day that tbe guardian’s report of sale was approved by tbe probate court and the guardian ordered to make a deed. Tbe two conveyances were practically cotemporaneous. Why should she be required to sign tbe same deed witb tbe guardian? It contained recitals that she could not make, in fact, such an instrument would have been absurd on its face. Tbe identical words of her own deed must have been incorporated in tbe guardian’s deed, or it would have been inoperative as to her.

      W. T. Ragland for respondent.
    (1) Tbe deed from Margaret J. Greening to defendant would not have passed tbe fee to tbe land in controversy even if tbe said Margaret bad at tbe time been a feme sole, that is to say, if her husband bad been dead. Both tbe grantor and tbe grantee at tbe time of tbe execution of tbe deed believed that tbe only interest grantor bad in tbe land was that of inchoate dower. She received absolutely no consideration for a conveyance of land, and it is evident that tbe deed was executed solely for tbe purpose of relinquishing dower. Tbe language of tbe deed is apt for that purpose only. 1. “Tbe controlling canon for construction of deeds, as of wills and other instruments of writing, is to ascertain tbe meaning of the grantor from the words be uses in tbe light of tbe circumstances which surround bim in bis use of them. ’ ’ Long v. Timms, 107 Mo. 512; Walton v. Drumtra, 152 Mo. 489; Waddell v. Waddell, 99 Mo. 338; McCullock v. Holmes, 111 Mo. 447; Fanning v. Doan, 128 Mo. 323. 2. If tbe written and printed portions of a deed conflict, the written portion must control. Davidson v. Manson, 146 Mo. 608. 3. The language of the deed is, “all of my right, title and interest whether dower or other interest as the wife of Joseph C. Greening . . . hereby conveying and intending to convey all interest I may have in said land whether dower or otherwise.” The interest or estate embraced in the words, “all interest I may have in said land whether of dower or otherwise,” can only be construed to be the character or class of interest or estate ejusdem generis with, “dower or other interest as the wife of Joseph C. Greening.” State v. Schuchman, 133 Mo. Ill; State ex rel. v. Berch, 80 Mo. App. 665. 4. It has been held by this court that a warranty deed purporting to be that of a husband and wife, will not be effectual to convey the wife’s land if she acknowledge only as wife, relinquishing- her dower in the land. Hendricks v. Musgrove, 183 Mo. 300’. (2) The deed from, said Margaret J. Greening to defendant did not pass the fee to the land in controversy, however the deed be construed as to content, or whatever the intention of the parties thereto, because the said Margaret J. Greening was at the time of its execution a married woman and her husband was under guardianship. R. S. 1899, secs. 901, 4334. (3) A married woman who was married in the year 1844, and whose husband was on the 27th day of March, 18991, under guardianship, could not on said date, and while her’ husband remained in ward, convey her own real estate acquired by descent in the year 1833, without joining with the guardian of her said husband in such conveyance under the order and supervision of the court having jurisdiction of the guardianship and estate of her said husband; and this is true notwithstanding the passage since of various acts removing certain disabilities of married women. Olay v. Mayr, 144 Mo. 376; McReynolds v. Grubb, 150 Mo. 352; Leete v. Bank, 115 Mo. 184; Bartlett v. Ball, 142 Mo. 28; Leete v. Bank, 141 Mo. 574; Arnold v. Willis, 128 Mo. 145; Gladney v. Sydnor, 172 Mo. 318 ; Elliott v. Bristow, 185 Mo. 24; Mueller v. Kaessmann, 84 Mo. 318; Flesh v. Lindsay, 115' Mo. 1.
   WOODSON, J.

This is an action of ejectment for the possession of an undivided one-fourth interest in a tract of land situated in Monroe county, the description of which will hereinafter be stated.

The petition was in the usual form, and the answer was a general denial.

A jury was waived, and the cause was submitted to the court upon an agreed statement of facts.

The court found for the respondent, and appellant, in due time, filed motions for a new trial and in arrest of judgment, which were, by the court, overruled, and he has duly prosecuted his appeal to this court.

James Dryden was the common source of title, and in September, 1833, he departed this' life, intestate, leaving his widow, Milly Dryden, and his minor children, Margaret J. and William J. Dryden, his sole heirs at law. In 1836 Milly Dryden, his widow, married Mason Wilkerson. In 1844 Margaret J. Dryden married Joseph O. Greening.

Everett Dooley, the respondent, was the only surviving heir of Mattie H. Dooley, a deceased daughter of Joseph O. Greening; and William H., Thomas J., Arthur M. and Clarence Clapper, and Amelia Anderson were the sole heirs of Amanda Clapper, a deceased daughter of Joseph C. Greening; and William T. and Thomas A. Greening were his only children.

In July, 1838, the land in controversy was partitioned among his widow and heirs. To Margaret J. Dryden was allotted the south one-half of the east half of the southeast quarter of section twenty, and also the south half of the west half of the southwest quarter of section twenty-one; and William J. Dryden received the north half of the same tracts, being eighty acres allotted to each.

In 1845 William J. Dryden died intestate, unmarried, and leaving as his only heirs at law his mother, Milly Wilkerson, and his sister, Margaret J. Dryden.

January, 1846, Milly Wilkerson and her husband conveyed their interest in the north half of the east half of the southeast quarter of section twenty and the north half of the west half of the southwest quarter of section twenty-one to Joseph O. Greening.

In February, 1898, Joseph O'. Greening was duly adjudged to be a person of unsound mind, and his son, William T. Greening, was appointed the guardian of his person and curator of his estate.

On February 18,1899, said curator filed his petition, in the proper court, praying for an order authorizing him to sell the land of his ward for his support and maintenance. Afterwards, the order of sale was duly made by the court, and the sale of the", land was made by the curator, and on March 27, 1899’, the report of sale was by the court approved, and on May 8, 1899, said curator made, executed and delivered a deed purporting to convey said real estate to Thomas A. Greening, a son of the ward, for the consideration of $2,800, which sale was duly approved. The deed was an ordinary curator’s deed, duly executed.

On March 27,1899, Margaret J. Greening, the wife of Joseph O. Greening, the ward, made, executed and delivered to said Thomas A. Greening her certain quitclaim deed, by which she remised, released and forever quitclaimed unto him the land' described in the following language, to-wit:

“All of my right, title and interest whether dower or other interest as the wife of J oseph O. Greening of, in and to the east half of the southeast quarter of section twenty, and in the west half of the southwest quarter of section twenty-one, all in township fifty-five, range eight west, and containing 160' acres more or less, hereby conveying and intending to, convey all interest I may have in said land whether of dower or otherwise.”

The consideration expressed in the deed was five dollars, bnt no part of it was ever paid to her. The deed was made on an ordinary printed blank, and the blanks, as well as the portion above quoted, were written in by the scrivener who prepared the deed.

In June, 1899, said Joseph C. Greening departed this life, leaving his widow, Margaret J. Greening, and the children and grandchildren heretofore named as his only heirs at law.

The said Joseph C. Greening left a last will and testament, which was duly probated. All his property was willed to his widow for life, except a few minor bequests which were made to his grandchildren, and the remainder of his estate was willed to his two sons, William T. and Thomas A. Greening. The latter was appointed administrator of his estate. Joseph G. Greening had no personal estate except the proceeds of the sale of his land.

Upon proper orders the curator paid Margaret J. Greening the sum of $267.50 out of his ward’s estate for her support and maintenance, and after the death of’Joseph G. Greening the administrator of his estate, under proper order, paid her an additional sum of $201.75.

She departed this life on February 101, 1901, leaving as her sole heirs at law the said children and grandchildren heretofore mentioned as the heirs at law of said Joseph C. Greening. The said Margaret J. Greening nor the administrator of her estate never received any assets of any character from her deceased husband’s estate, except the $201.75 above mentioned.

At the date of the institution of this suit Thomas A. Greening was in the actual and exclusive possession of the land sued for; and Everett Dooley was a minor, ■under twenty-one years of age, and John H. Dooley was his duly appointed and acting guardian and curator.

It was agreed that the value of the monthly rents and profits of the one hundred and sixty acres of land was $15.

I. It will be seen from reading this record that Margaret J. Greening owned, in her own right, an estate in the land sued for, as well as her marital interest in that part of it which belonged to her husband, Joseph O. Greening. There seems to be no controversy as to the effect of the curator’s deed, it being conceded by respondent that it conveyed the entire interest of Joseph O. Greening in the premises to the appellant. But the question presented for the consideration of the court is, did the quitclaim deed of Margaret J. Greening, dated March 27, 1899, convey the estate she owned in her own' right as well as her marital interests in her husband’s land.

The language of the deed is, I hereby convey “all of my right, title and interest whether dower or other interest as the wife of Joseph O. Greening . . . more or less, hereby conveying and intending to convey all interest I may have in said land whether of dower or otheiwise.”

The first clause of the paragraph above quoted states that she conveyed all her dower or other interest as the wife of Joseph O. Greening, while the latter states that she conveyed and intended to convey all her interest in said land whether of dower or otherwise.

At first blush there seems to be some ambiguity as to the real intention of the grantor, but when both clauses are read together, and in the light of the facts and circumstances surrounding the parties at the time of its execution, that uncertainty disappears.

The facts surrounding the parties at the time the deed was made were, substantially, as follows:

Joseph C. Greening was of unsound mind and confined in an insane asylum, with no means of support outside of his interest in the land in controversy. That unfortunate condition of Joseph C. Greening made it necessary for his curator to apply to the probate court for an order to sell his land, which was duly made, and the land was sold for the purpose of securing the necessary means for his support and maintenance. On the same day the order of sale was entered by the court, March 27, 1899, Margaret J. Greening, his wife, made and executed the quitclaim deed which is the subject of this controversy. And it should be borne in mind that it was Joseph C. Greening who was in distress and needy, not his wife, and that it was his land which was ordered sold, not hers, and we might add that there is not a word in this entire record regarding the sale or that she wanted to sell her real estate except what is found in this deed. That deed stands out separate and alone — nothing preceding or succeeding its execution to show why it was made except the relation it bears to the transactions had and deed executed by the curator of Joseph C. Greening. It also appears from this record that she was a very old lady, without means other than this land, and that she received no consideration whatever for executing the deed. '

Looking at the language of the deed in the light of these facts, we are unable to say it was her intention to convey her own real estate. To do so would be equivalent to holding she deliberately, in her old age, without value received, with want and starvation staring her in the face, disposed of her all.

When the language of the deed is interpreted in the light of the facts above stated, the application of the rule of ejusdem generis seems to us to fully reconcile the apparent conflict of meaning between the two clauses of the deed below stated. The language is as follows:

First, ‘£ all of my right, title and interest whether dower or other interest as the wife of Joseph C. Greening,” and second, ££hereby conveying and intending to convey all interest I may have in said land whether dower or otherwise.” The words in the first clause refer to a particlar interest or estate, namely, dower or other marital interest only, she owned in her husband’s lands, while the second employs words which describe an interest and estate generally, without limitation; and by the application of the rule that where general words follow particular words, the general words in' this deed must be construed so as to limit their meaning to the particular words or estate embraced in the first clause, which refer to marital rights only. [State v. Schuchmann, 133 Mo. 111.]

According to that principle of interpretation Margaret J. Greening only conveyed her dower and other marital interests to appellant by the deed mentioned.

II. The deed of Margaret J. Greening to appellant was wholly ineffectual to convey her own real estate for another reason.

The statute in such case as this provides:

£ £ The wife of any man who is under guardianship may join with the guardian in making partition of her own real estate held in joint tenancy, or in common, and may, jointly with the guardian, make any release or other conveyance necessary and proper for that purpose ; and she may sell and convey her own real estate by joining with the guardian in such sale and conveyance, to be under the order and supervision of the proper court, and deeds executed jointly by herself and such guardian shall have the same force and effect as if done with her husband if he had been under no disability; and in all cases where the real estate of such husband shall be sold by his guardian in due conformity to law, she may relinquish her right of dower in such real estate as fully as if her husband joined in the deed of release. ’ ’ [R. £>. 1899, sec. 4334]

It will be seen from reading the second clause of the above section that the wife of Joseph O. Greening could not have sold and conveyed her own real estate except under the order and supervision of the proper court, and by deed jointly executed by her and the guardian. In this case there is no pretense that any court ordered her to sell her own real estate, or that the guardian jointly executed the deed with her. Even though she had intended to sell and convey her own real estate by the deed then in evidence, no title would have been conveyed thereby, because it would have been absolutely void because not executed in conformity to the statute. This is also an additional reason for believing she never intended thereby to convey her own real estate.

The third clause of the same section of the statute is the one governing the conveyance of the husband’s real estate while under guardianship; and it provides that his wife may release her dower interest therein, but it does not state the manner of making the release, nor the kind of deed required to be executed for that purpose. And as it does not- require her to join the guárdian in the execution of the deed of conveyance, it must have been the intention of the Legislature to leave it to her to choose any instrument which would be appropriate to accomplish that purpose.

The quit-claim deed of Margaret J. Greening was evidently executed in pursuance to the authority of that clause of the statute, and it is effectual in conveying all her maxital interests in her husband’s real estate and nothing more to appellant.

And when we examine the language of the deed in the light of this statute and in view of the object she and the curator had in view, the sale of Ms real estate for his support and maintenance, the intent of the parties to the deed is made clear. In order to secure the reasonable value of the land it was necessary for her to relinquish her dower, which she did by the execution and delivery of the deed of release herein mentioned.

It was neither the intention of Margaret J. Greening to dispose of her own real estate, nor did the deed of release have the effect to convey her said real estate.

It follows, from what has here been stated, that the-trial court was correct in its holding, that the respondent was entitled to recover; but it committed error in rendering judgment for respondent for the entire one hundred and sixty acres of land sued for.

The record is not quite clear as to the nature and exact amount of the interest respondent has in each t of the tracts of land described, and because of that, this court cannot safely enter up> judgment here in his favor, and for that reason the judgment is reversed and cause remanded, with directions to the circuit court to ascertain the interest of respondent in each tract of land described in the petition, and to enter up judgment in his favor therefor, and to assess the amount of damage he is entitled to, and to fix the monthly value of the rents and profits on his portion of the land.

All concur.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    M. R. PITTS et al., Appellants, v. JAMES J. PITTS et al., Respondents.
    Division One,
    February 22, 1907.
    1. EJECTMENT: Equitable Defenses: Equity Suit. Where the answers in ejectment set forth equitable matter as a defense and pray affirmative equitable relief, the case does not remain one at law, but becomes a suit in equity.
    2. -: -: -: Incorporating Findings in Judgment: No Bill of Exceptions: Review. Equity suits are to be heard de novo on appeal, and the evidence must be brought up, or nothing hut the record proper will be reviewed. A judgment into which has been incorporated the chancellor’s finding of facts, is not a sufficient presentation of the case on appeal in a suit in equity. The appellate court will not be content with a determination of the probative force of the facts found by the chancellor. Those chancellor’s findings of facts are simply advisory; it is for the appellate court, in an equity case, to find the facts, for itself, from the evidence.
    Appeal from Hickory Circuit Court. — Eon. Argus Cox, Judge.
    Affirmed.

      Rechow & Pufahl for appellant.
    (1) Under the finding of facts and the ruling of this court in the case of Wheelock v. Overshiner, 110 Mo. 100, the judgment should'have been for the plaintiffs. (2) When the finding .of facts is incorporated in the judgment, then they become a part of the judgment, and if the conclusion of law is not warranted by the facts thus found, this court will reverse and enter up the proper judgment, or reverse the case. Blount v. Spratt, 113 Mo. 48; Land Co. v. Bretz, 125 Mo. 422;. Fitzpatrick v. Weber, 168 Mo. 572; Shaffer v. Detie, 191 Mo. 388; Leavitt v. Taylor, 163 Mo. 170; Hill v. Combs, 92 Mo. App. 261.

      J. E. Childers for respondents.
    As stated by appellants ’ counsel, this was an ordinary action of ejectment filed in the Hickory Circuit Court and respondents filed therein an equitable answer. The case was tried at length in the Hickory Circuit Court, and that evidence is not preserved in the record of the case so far as shown by appellants ’ brief. It seems from said brief that the only thing relied on to reverse this case is the contention of counsel for appellants that the ease of Wheelock v. Overshiner, 110 Mo. 100-, was an adjudication of this case also. The court below found for respondents and at the suggestion of appellants made a finding of facts, and this court will not go into the matter of evidence upon such finding, no complaint being made in respondents’ brief except upon the one point that judgment should have been rendered for respondents under and by virtue of the case of "Wheelock v. Overshiner. In said case of Wheelock v. Overshiner the respondents herein were not parties to the action, nor represented in any way in said suit, and the parties in the two suits are entirely different; therefore, the case is not res judicata. 145 Mo. 551.
   LAMM, J.

Plaintiffs sued Jas. J. Pitts in ejectment for the southwest one-fourth of the southeast one-fourth of section 1, township 35, range 22, in Hickory county, Missouri, laying their ouster as of the 2nd day of May, 1902. As Elenor Britton filed a separate answer, we assume that by mediate steps she was made a party defendant. The answers of Pitts and Mrs. Britton set forth equitable matter as a defense, and prayed affirmative equitable relief. A finding of facts was requested by plaintiffs, was made by the trial court, and incorporated into the decree. On that finding of facts, the decree went for defendants, and plaintiffs appeal here on the record proper — in this case, petition, answers, replication and decree. -

I. At the threshold we are met with the question: Did this case on these answers remain at law, or did it become a case in equity? "Whatever may have been the ancient practice whereby there was a gulf fixed between equity and law, so that a case brought as a law suit could not be changed and pass over into an equity suit, yet, under our code, it is no longer so. A defendant may now plead his equitable defenses when sued at law. Under somewhat deceptive catchwords, section 605, Revised Statutes 1899, provides as follows: “. . . The defendant may set forth by answer as many defenses and counterclaims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. . . .” In establishing a working theory for the administration of this statutory rule, it has been determined that a mere equitable defense, without more, leaves the case one at law to be tried by a jury; but if the answer go further and pleads facts entitling defendant to affirmative equitable relief, and such relief be asked, then the case goes over to the chancery side of the court to be heard by the chancellor as an equity suit. [Carter v. Prior, 78 Mo. 222; Kerstner v. Vorweg, 130 Mo. 196; O’Day v. Conn, 131 Mo. 321; Swon v. Stevens, 143 Mo. 384; Martin v. Turnbaugh, 153 Mo. 172; Shaffer v. Detie, 191 Mo. l. c. 388; Bouton v. Pippin, 192 Mo. l. c. 473; Cobe v. Lovan, 193 Mo. l. c. 252.]

II. Plaintiffs’ learned counsel argue that on the facts found by the chancellor the decree was for the wrong party — in other words, the judgment on its very face is a non sequitur. It may be conceded there are dicta in some of our decisions lending countenance to the view that we will review a judgment in equity which incorporates into itself a finding of facts and reverse or affirm such judgment in accordance with our notions of the probative force of the facts found. But such precedents, if precedents they be, must no longer be followed. Our later decisions thoroughly review the cases and furthermore consider the matter on its philosophies and from the standpoint of the very right and justice of the thing, and hold that in an equity suit it is incumbent upon a litigant seeking relief from us to bring here the evidence, so that our conscience may be bound and we may seek equity and do it in the light of the testimony itself. [Guinan v. Donnell, 201 Mo. 173; Patterson v. Patterson, 200 Mo. 335; State ex rel. v. Jarrott, 183 Mo. 204; see, also, Rule 7 of this court.]

Equity suits are to be heard de novo on appeal. The eye of a chancellor must search the very marrow of the thing; and, in order to discern what is due the litigant, that eye must not be baffled by the screen of a mere finding of facts below — the question still remaining, were the facts as found the real facts or not? [Fitzpatrick v. Weber, 168 Mo. 562; Shaffer v. Detie, supra; Bouton v. Pippin, supra.] If the chancellor had called to his aid a jury and submitted to that jury issues of fact the jury’s finding would have been merely advisory and not binding on the chancellor. [Bouton v. Pippin, 192 Mo. l. c. 474.] By analogy, the chancellor’s findings, nisi, are looked on as somewhat advisory and not binding here.

There being no bill of exceptions in this case, and, therefore, no evidence preserved and brought here, and the record proper being unchallenged except in the one particular'that the decree is not supported by the finding of facts, there is nothing for us to do but to affirm the judgment. It is so ordered.

All concur.


author: GRAVES, J.

text:
    BOARD OF TRUSTEES OF METHODIST EPISCOPAL CHURCH, SOUTH, a Corporation, Appellant, v. MAY et al.
    Division One,
    February 22, 1907.
    1. WILL: Description of Property: General and Particular. In the interpretation of a will which undertakes to devise real estate, a particular description thereof may he rejected, and reliance had on the general description, and if that, together with the evidence, is sufficient to identify the property, the description is sufficient.

      2. -: -: -: Incorrect Numbers. Testatrix, eighty-one years old, owning lots 1705 and 1914 on Olive street at the time the will was made and at the time of her death, but no other property on Olive street, placed this clause in her will: “My Kansas City property on Olive street, No. 705 and 1489, will a portion be for the fitting up our graves be left in the hands of Wash Adams for that purpose; the remainder to be given to the Methodist E. Church South and missionary cause.” Held, that the particular description, “No. 705 and 1489,” may be rejected, and the general description, “My Kansas City property on Olive street,” is sufficient to include the lots she actually owned on Olive street.
    3. --: Void for Indefiniteness. The clause in this will, “The remainder to be given to the Methodist B. Church South and missionary cause,” is void for indefiniteness. If the word “for” had been used in lieu of the word “and,” it might be determined for what the property was to be used, but as it reads it cannot be said what part of the property the trustee (the church) takes, nor for what purpose the trustee is to use the property. And the court cannot substitute the word “for” for “and,” without making a will for the testatrix.
    4. -: -: Wha't Church. Nor is the court authorized to say what particular Methodist Episcopal Church South was meant, even though there is a Tennessee corporation known by that name, having power to receive and hold contributions of property.
    5. -: Rules of Construction. The courts cannot make wills for parties.
    6. -: -: Intention: Evidence Aliunde. Wills should be so construed as to carry out the intention of the maker, and in doing that courts are not limited to the four corners of the instrument, but may be enlightened by evidence aWwnde as to the conditions surrounding the testator.
    7. -: Revoking Single Clauses. The court, without doing violence to any of the rules of construction of wills, may determine that a clause therein cannot, because of its vagueness and indefiniteness, be enforced.
    Appeal from Jackson Circuit Court. — Noto. A. F. Evans, Judge.
    Affirmed,

      Scarritt, Scarritt & Jones for appellant.
    (1) Plaintiff is competent to institute this suit and to take and administer the gift to the Methodist Episcopal Church, South. The Methodist Episcopal Church, South, is an organized society not incorporated. It is old enough to have a history; cohesive and stable enough to frame and enforce regulations, rules and laws for the control and government of its property and membership. The plaintiff is a corporate entity organized and maintained by that church for the purposes of holding, handling and transferring its property. All the property held by the plaintiff is the property of the church and is subject to its sole management, control and disposition. The purposes of this corporation are stated in its charter. First Baptist Church v. Robberson, 71 Mo. 326; Schmidt v. Hess, 60 Mo. 591; Mo. Hist. Society v. Acad, of Science, 94 Mo. 459. (2) This will must he construed as a whole in the light of the circumstances which surrounded the testatrix at the time of the execution of her will, and when so construed it is clear that Bessie Timberlake Moore is to receive one hundred dollars from the Kansas City property; that Col. Shrader is to have his expenses, including traveling expenses in looking after the property, paid from the income thereof; that a reasonable sum for fitting up the graves of Colonel and Mrs. Shrader he expended by Wash Adams for that purpose, and that the remainder goes to the Methodist Episcopal Church, South, and particularly to the missionary cause, as enterprised by that church. That the facts an)d circumstances which surround the testator are to be taken into consideration in construing the language of a will is not an open question in this State; and indeed in England and in many of the States of the Union such is the general rule of construction. If the woman meant to give her property to the Methodist Episcopal Church, South, to he applied to the missionary cause, the bequest will he upheld. It was so ruled in Kinney v. Kinney’s Exr, 86 Ky. 610; Schmidt v. Hess, 60 Mo. 591. "We are asking no new rule of construction. We are asking that nothing be incorporated in the will more than is expressed or necessarily implied by the language used by the good woman. It is not foreign to the practices of this court to substitute words or to eliminate words when, from the whole context of the will construed in the light of the facts which surrounded the maker of the will at the time it was written, it is evident from that language and such circumstances that such substitution or elimination is necessary to effectuate the evident intention of the testator. Meiners v. Meiners, 1791 Mo. 614; Briant v. Garrison, 150 Mo. 655; Thomson v. Thomson, 115 Mo. 50; Young v. Harkleroad, 166 111. 318; Glover v. Condell, 163 111. 566. (3) The trial court erred in excluding from the evidence the Discipline of the Methodist Episcopal Church, South, tendered by the plaintiff. But this court will give due weight to that evidence, which is in the record, in construing Mrs. Shrader’s will upon this appeal. Such facts are clearly competent and material and are essential to the intelligent consideration and construction of this will. Schmidt v. Hess, 60 Mo. 593; Donohue v. Donohue, 54 Kan. 136; Morgan v. Dodge, 44 N. H. 255; Smith v. Holden, 58 Kan. 535; Gould v. Chamberlain, 184 Mass. 115.

      Paxton é Bose for respondents.
    (1) The words, “My Kansas City property on Olive street, Number 705 and 1489,” do not mean “Olive street property numbers 1705 and 1914.” The language is plain and without obscurity or double' meaning. Hence, it is a patent ambiguity, such as the courts do not correct. Bell v. Adamson, 32 Mo. 79. (2) Words are to be taken in their ordinary meaning, and the courts are not authorized to make wills. Missouri Baptiát Sanitarium v. McCune, 112 Mo. App. 339; Lehnhoff v. Theine, 184 Mo. 358. (3) The cy pres doctrine exists in England in two forms: First, the prerogative of the Crown to make a scheme of charity if the donation is too indefinite or to change one charity to another; second, the power of a court of equity to see that the end of a charity, being once established on definite lines, is not destroyed by the changes brought about by time. Only the latter exists in this country. Woman’s Christian Assn. v. Kansas City, 147 Mo. 122; Grimes v. Harmon, 35 Ind. 198. (4) The words, “The remainder to be given to the Methodist E. Church, South, and missionary cause,” are not technical, and taken in their ordinary meaning are plain enough as far as they go. They mean a part to the Methodist Church, South, and a part to “missionary cause,” the nature and scope of such cause being left unexpressed. Now, if either one of these bequests, to the Methodist E. Church, South, or to missionary cause, fails, then it all fails, the court having' no power to make an apportionment. 5 Am. &■ Eng". Efncy. Law (2 Ed.), 915. (5) The bequest to the Methodist E. Church, South, fails, because it does not appear whether the bequest is to some local church or to the church at large. McHugh v. McCole, 97 Wis. 156. (6) The bequest to “missionary cause” is void because no court can possibly figure out what missionary cause was meant. Nolte v. Meyer, 79 Tex. 351; Grimes v. Harman, 35 Ind. 198;' Moran v. Moran, 104 Iowa 216; Schmucker’s Estate v. Reed, 61 Mo. 592. (7) It would be assuming too much to say that if it is proved that testatrix was a member of the Methodist E. Church, then she meant the missionary cause of the Methodist E. Church, but there is no such question here, because it is not alleged in the petition nor anywhere shown by the evidence that the testatrix belonged to tbe Methodist E. Church or had any leaning toward it or affection therefor. Bowman v. Domestic & Foreign Missionary Soc. of the Protestant Episcopal Church, 87 N. T. Supp. 621, 42 Misc. Rep. 574. (8) Even if the bequests to the Methodist E. Church, South, and to missionary cause were definite and certain as to the beneficiaries, they would both fail because the court could not tell how much to give to the church or how much to missionary cause. Matter of Goodrich, 2 Redf. Sur. 45.
   GRAVES, J.

This is an action by plaintiff in the circuit court of Jackson county, Missouri, by which it seeks, first, to have the following clause of a will executed by Elizabeth A. Shrader, deceased, construed, said clause being:

“My Kansas City property on Olive street, No. 705 and 1489, will a portion be for the fitting up our graves be left in the hands of Wash Adams for that purpose; the remainder to be given to the Methodist E*. Church, South, and missionary cause.”

And secondly, to have said property sold and the proceeds applied to the payment of a mortgage of $700 thereon, and $500 to Wash Adams as trustee,, and the remainder of said proceeds to this plaintiff for missionary purposes. Defendants Stella Timberlake May and John I. May by answer aver that they have no interest in the suit and ask to be discharged with their costs. Defendant John G. Paxton, guardian ad litem for Charles Timberlake, averred the ownership of the property to be in Charles Timberlake as the heir at law of Elizabeth A. Shrader, and likewise asked the court to so construe the will and so declare, and denied all other matters set out in the petition. Defendants S. R. Shrader and Wash Adams by joint answer practically admit all the matters and things set out in the petition except the construction of the will contended for by plaintiff and aver that said will should be construed and the rights of the respective parties determined.

Defendant Finch answered, first, by way of general denial, and then by an admission that the deceased, Elizabeth A. Shrader, made and executed a mortgage of which he was the holder in the sum of $700' and accrued interest, covering the property alleged to be involved in this litigation, which said mortgage is a first lien, and praying the court in the event of a sale to have his debt first fully paid and satisfied. The trial court-found said clause of the will to be void and too uncertain and indefinite to be enforced and denied the prayer of plaintiff’s petition asking for the sale of said property and gave judgment for defendants against plaintiff for costs.

Evidence : Certified copy of the will was introduced by plaintiff containing the clause hereinabove set forth. Plaintiff then introduced its charter, showing it to be a Tennessee corporation with power to receive and hold contributions of property of the character mentioned in this will under the construction thereof contended for by the plaintiff herein. There was also introduced certain sections of the Discipline of the Methodist Episcopal Church, South. The age of the defendant S. R. Shrader was shown to be eighty-one years. It was also shown that Mrs. Shrader did not in fact own the property at No. 705 and No. 1489 on Olive Street, but that she did own two- tracts of land on Olive street, at No. 1705 and-No. 1914, respectively, and had never owned any other tracts of land on Olive street in Kansas City, save and except these two tracts, which she owned at the date of making the will as well as at the date of her death. The deed of trust to Finch was introduced. The evidence further disclosed that neither tract of land was of very great value. By oversight, or otherwise, the evidence fails to. disclose that Mrs. Shrader was a member of the Methodist Church, South. Motion for new trial was filed and overruled and plaintiff duly perfected its appeal. Such portions of the testimony as may he necessary for the disposition of the case will he more fully investigated in the course of the opinion.

OPINION.

As we gather it from the record the following contentions were made by respondent in the circuit court: (1), that plaintiff had no right to maintain this suit under the terms of the will; (2), that the description of the property in the will, involved in this case, is not property which was owned by the decedent and that the property now sought to be brought in under the terms of the will cannot be subjected to its terms, even if the will is in all parts valid and enforceable; (3), that the clause of the will hereinabove set out in the statement of facts, and under which the plaintiff claims, is too indefinite and uncertain to be enforced by the courts and for that reason invalid; (4), that the plaintiff could not introduce in evidence the official book of rules and discipline of the Methodist Episcopal Church, South, to-wit, “to show the authority of this corporation [meaning plaintiff] to act for the Church.” The court excluded the rules last mentioned and also sustained the contention of respondent as to contention three above. Contention four was sustained during the trial and contention three by the express terms of the judgment. We are not further enlightened as to the views of the trial judge upon the first and second contentions. By brief of respondent the first and second contentions do not seem to be seriously urged, so that we will take up the third and fourth contentions, considering the rules and discipline offered as if admitted.

I. The description given in the will is, ‘ ‘ My Kansas City property on Olive street, No. 705 and 1489.” The property sought to be charged, by this suit, by the disposing part, if any, of the will is Nos. 1705 and 1914 on Olive street, in Kansas City, Missouri. The evidence aliunde shows that decedent had no property in Kansas City except upon Olive street, and no property upon that street except at the numbers last mentioned, to-wit, Nos. 1705 and 1914, being the two tracts of land described by metes and bounds in the petition. We are not disposed to agree with respondent in his contention as to the insufficiency of this description.

We have here a general description of, “My Kansas City property on' Olive street, ’ ’ followed by a particular description, “Nos. 705 and 1489.” In our judgment we can Reject this particular description and rely upon the general description. This will not only appears to dispose of all the testator’s property, but also specifically says: ‘ ‘ My Kansas City property on Olive street.” The testator could have had in mind only such property as she owned on Olive street in Kansas City, in so far as the attempted devise in the contested clause of this will is concerned. As to the sufficiency of this description under the evidence in this case we are thoroughly satisfied under the learned discussion of Sherwood, J., in Thomson v. Thomson, 115 Mo. 56; and of Mr. Justice Bradley in Patch v. White, 117 U. S. 210. In our judgment the doctrine of these cases is sufficient to upohld this description under the oral evidence.

II. We reach now the vital question of this case: Is the clause in this will, “The remainder to be given to the Methodist E. Church, South, and missionary cause,” too uncertain and indefinite to be enforced, and for that reason void and of no effect? The trial court held that both clauses, “My Kansas City property on Olive street, Nos. 705 and 1469, will a portion be for.the fitting up of our graves, be left in the hands of Wash Adams for that purpose,” and “the remainder to be given to tbe Methodist E. Church, South, and missionary cause,” were too indefinite and uncertain to' be enforced and therefore null and void and of no effect, “without prejudice to the remaining provisions of said will.” Was this construction right? The first clause and the adverse construction thereof affects more particularly the defendant Wash Adams, but he abides the judgment of the trial court and perfects no appeal, so that as an issuable question here we only have for our consideration the clause in judgment, “The remainder to be given to the Methodist E. Church, South, and missionary cause.”

We confront at the outset two well-recognized rules in the law: First, courts cannot make wills for parties. Second, wills should be so construed as to carry out the intention of the parties. In the latter we are not limited to the four corners of the instrument, but may be enlightened by evidence, aliunde, as to the conditions and surroundings of the testator, in determining the real intention of the party making the will. But even when guided by these rules the court may by invoking, and without doing violence to, any of the rules of construction in cases of wills, find a condition in the devise which, for vagueness and indefiniteness, cannot be enforced. Such appears to us to be the real question in this case. In the clause under consideration the- testatrix in plain English says she wants the remainder to go to “the Methodist E.. Church, South, and missionary cause.” Had she said “to the Methodist E. Church, South, for missionary cause,” there would be less trouble, for in that instance we would have a trustee named in the will and an indication of how that trustee should apply and use the fund, rather indefinitely stated however, for even in this instance the trustee would not be advised as to what particular “missionary cause” under the control of the trustee, or being at tbe time prosecuted by the trustee, was meant. "Whether to foreign missions or home missions would be a question not decided by the will. But it is useless to theorize on the supposed case, unless we can substitute the word “for” instead of the word “and” in this will. Can we do that under the evidence in this record. The testator had a right to give a part of the remainder to the church and another part to missionary causes, and to a missionary cause separate and apart from any missionary cause under the control of the church named. Conceding that she was a member of the Methodist E. Church, South, and was a religious woman, which appears only by inference in this record, yet it would not be unreasonable to suppose that she intended to give a part of the property to the church of her choice, and another part to the “missionary cause” as prosecuted not only by her own church, but by all the churches, including her own. We know that the cause of missions is one fostered by all the churches and it is not unreasonable to conclude that a church member, especially interested in missions, would, in the dis.position of her property, first think of her church, and then of the “missionary cause” in the broad sense. She at least had the right to so say in her will, and by the use of the word “and” she has so said. It is not the province of the court to make a will, nor to change the ordinary meaning of the words used therein. With the word “and” in this clause we have two distinct beneficiaries. The testatrix had the right so to designate, and it is not for the courts to change language which is unambiguous, plain and easy of construction. In this case to substitute the word “for” in place of the word “and” would be the making of a new will by the court, a thing which we cannot do, and a proposition upon which the citation of authority is unnecessary.

We are therefore forced to pass upon the clause in this will as it is written. We have no hesitancy in saying that the trial court was correct in holding that it is void and of no effect on the ground of being indefinite and uncertain. What particular South Methodist Church is not named, nor is the particular field of missions named; but even if it could be said that the parent body of the South Methodist Church is meant, yet, we meet vagueness, uncertainty, and indefiniteness in the remainder of the clause, ‘ ‘ and missionary cause. ’ ’ The conclusion of the trial court finds ample authority in the following cases: Moran v. Moran, 104 Iowa 216, 73 N. W. l. c. 620; Crimes’ Exrs. v. Harmon, 35 Ind. 198; Coleman v. O’Leary’s Exr. (Ky.), 70 S. W. 1068; Nolte v. Meyer, 79 Tex. 351, 15 S. W. 276; Pack v. Shanklin, 43 W. Va. 304, 27 S. E. 389; McHugh v. McCole, 97 Wis. 166, 72 N. W. 631.

These cases all discuss very fully similar provisions in wills and in all they are held void.

The principal case relied upon by appellant is the case of Kinney v. Kinney’s Exr., 86 Ky. 610, 6 S. W. 593. That case is clearly distinguishable from the one at bar. The clause there was, “I do will and bequeath to the Methodist Episcopal Church, South, to be applied to foreign missions, all of my property, real and personal, after the payment of my just debts, for their use and benefit exclusively.” Were we permitted to read in the present will the word “for” in place of the word “and” as we have it, the cases would be somewhat parallel. But were we permitted to do this, and did do it, there is in the Kinney case, supra, a specific designation of what branch of the “missionary cause” is desired, while in the case at bar we would still be in doubt where the fund should go, whether to foreign or home missions. Wills must be definite enough for the courts to take hold of them and enforce them, and such is not the. case in the clause of the will under consideration. We, therefore, hold that the following clause in this will is void and of no effect, to-wit: “the remainder to he given to the Methodist E. Church, South, and missionary cause.” As to the preceding clause we express no opinion, for the reason that the defendant Wash Adams,'who was the party interested therein, has abided the judgment of the trial court and has tahen no appeal.

For the reasons aforesaid, the judgment should be and is affirmed.

All concur.


text:
    TRIMBLE et al. v. KANSAS CITY, SHREVEPORT & GULF RAILWAY COMPANY, Appellant.
    Division One,
    February 22, 1907.
    1. ATTORNEY FEES: Receivership: Auxiliary Companies. Three Insolvent railway companies, owning together a line of. road from Kansas City to Port Arthur and certain terminal lines, all operated by one company which held the stock of the other two aDd had issued its bonds covered by mortgages on all the lines, were brought into court by separate suits, the principal suit being to foreclose the mortgage. Thereupon, in order to perfect a reorganization of the properties, the attorneys of.the principal company managed ancillary suits brought against the other two, obtained the transfer of all the suits from the State courts to the United States Circuit Court, had receivers appointed for all the roads and the receivership extended over the entire line, and succeeded in perfecting the reorganization of a company which took over all the properties, and thereby one entire railway system was preserved, and the value of the properties greatly enhanced. Held, in a suit by the attorneys against one of the auxiliary companies for compensation for their services, that there was evidence that they had rendered services for it under the same kind of a contract they had with the principal company, and payment of that company did not acquit the auxiliary company of its obligation to pay for such services.
    2. -: Time Employed. The time engaged by attorneys in rendering a beneficial service to a client is of minor importance in determining the value of the service. The amount involved, the responsibilities assumed and the benefits obtained are of more importance.
    Appeal from Jackson Circuit Court. — Son. A. F. Evans, Judge.
    AiTTRMED.

      8. W. Moore, Cyrus Crane and Samuel W. Sawyer for appellant.
    There was no express contract covering the rendition of the services in question, and no obligation to pay for them can arise from the circumstances of this case. 2 Clark & Slcyles, Law of Agency, p. 1058; Lamar v. Hall, 129 Fed. 84; Muscott v. Stubbs, 24 Kan. 522; Roselius v. Delechaise, 5 La. Ann. 481, 52 Am. Dec. 597; Westmoreland v. Martin, 24 S. C. 238; Wailes v. Brown, 27 La. Ann. 411; Hersled v. Moss, 28 Ind. 354; Jones v. Wood, 76 Pa. St. 410; Smith v. Lyford, 24 Me. 150; Bank v. Benton, 591 Ky. (2 Mete.) 243; Railroad v. Lamed, 26 111. 220; Grimball v. Cruse, 70 Ala. 544; Simms v. Floyd, 65 Ga. 719; Kirkpatick v. Railroad, 52 Kan. 104; Trust Co. v. Kneeland, 138 U. S. 414; Turner v. Meyer, 23 Iowa 391; Sayles, Texas Civil Statutes 1897, secs. 4367, 4368, 4369;

      John A. Eaton for respondents.
    (1) In the first case against the Kansas City, Pittsburg & Gulf Railroad Company, this court affirmed the judgment of the circuit court in Trimble v. Kansas City, Pittsburg & Gulf Railroad- Company, 180 Mo. 574; in which case the facts were similar to those in this case. In the second ease, against the Texarkana & Fort Smith Railway Company, this court affirmed the judgment of the court below, 199 Mo. 44. The opinion in that case is based upon facts substantially identieal with those in this case. These decisions .are decisive of this case. While appellant has, without the support of the facts, endeavored to point a distinction, it is clear that none of any merit whatever exists, and the brief shows a reprint, to a large extent, of the same argument and a citation of many of the same authorities examined in the former case. (2) The defendant below (appellant here), The Kansas City, Shreveport & Gulf Railway Company, was a party in its own' behalf in the negotiations and in the proceedings in the receivership suit in which the legal services sued' for were rendered, and accepted the benefits, ■ advantages and results of the services, and in law contracted and became obligated to pay the reasonable value of such services. Reinhard on Agency, sec. 83; Weeks on Attorneys at Law, secs. 187, 339' and 340; Clark & Skyles on Agency, secs. 56 and 691; Taussig v. Railroad, 166 Mo. 28; s. c., 186 Mo. 269; Webb v. Browning, 14 Mo. 355; Forsyth v. Doolittle, 120 U. S. 73; Ebel v. Stringer (Neb.), 102 N. W. 466; Southgate v. Railroad, 61 Mo. 89; Kiley v. Forsee, 57 Mo. 390; Seals v. Edmondson, 73 Ala. 295; Davis v. Trimble (Ark.), 88 S. W. 920; Brown v. Arnold, 131 Fed. 723. (3) After the first day of April, 1899', and the appointment of separate receivers for the properties of the three defendants in the receivership suit, one of said defendants being the Kansas City, Shreveport & Gulf Railway Company, the prior relations in respect to the property of each became and were severed in law and in fact, and the property of the Gulf Company was not similarly situated or administered in the receivership suit with that of the defendant, the Shreveport Company, and the defendant company did enter into the negotiations and proceedings in which the services sued for were rendered, for the primary purpose in its own behalf of preserving its property as a part of an entire system of railroad under the management of a reorganized corporation. Davis v. Walker 131 Ala. 204; Cook on Corporations, sec. 709; Railroad v. Railroad, 51 Fed. 309; Fitzgerald v. Railroad, 45 Fed. 813; Water Works Co. v. Kansas City, 78 Fed. 428; Alderson on Receivers, pp. 199 and 348; Trust Co. v. Railroad, 150 U. S. 287. (4) The appointment of receivers in the state court in Jackson county, Missouri, over the property of the Kansas City, Pittsburg & Gulf Railroad Company, and the appointment of different receivers in the district court of Caddo Parish, Louisiana, over the defendant’s property, operated in law to cancel, suspend and set aside all existing and previous relations and contracts between the Gulf Company and the defendant company. This proposition requires no extended discussion. It has the support of both reason and principle, and is declared by all of the decided cases. Alderson on Receivers, and cases cited in notes, pp. 199 and 348; Trust Co. v. Railroad, 150 U. S. 287.
   WOODSON, J.

This is an action originating in the circuit court of Jackson county, seeking to recover the sum of $10;000', attorney fees, for services alleged to have been rendered, by respondents, for the appellant, during a period of time extending from April 1, 1899, to March 20, 1900.

The facts of the case are substantially as follows:

The Kansas City, Pittsburg & Gulf Railroad Company, which will hereafter be called the Pittsburg Company, operated a line of railroad from Kansas City, Missouri, to Port Arthur, in the State of Texas; and also operated certain terminal railroads at each end thereof. The line of road belonged to three different companies: The Pittsburg, the Kansas City, Shreveport & Gulf Railway Company, which will hereafter.be called the Shreveport Company, and the Texarkana & Fort Smith Railway Company, which will hereafter be called the Fort Smith Company. Through construction and traffic arrangements, the two> latter companies bore the relation of auxiliary companies to the former, the exact nature of which is not material to be inquired into in this case. That part of the line lying in the State of Louisiana belonged to the Shreveport Company, the defendant; that part lying in Arkansas and Texas belonged to the Pittsburg Company, but, as stated above, the entire line was operated by the latter company.

The Pittsburg Company owned practically all the bonds and securities of the other two' companies, amounting to many millions of dollars. All of the property of- the Pittsburg Company was mortgaged to the State Trust Company of New York, as trustee, which will hereafter be called the Trust Company, to secure its outstanding bonds, aggregating several millions of dollars.

That on and prior to the first day of April, 1899; the Pittsburg Company was in great financial stress, which involved the Shreveport and Fort Smith companies. "Which condition of the companies caused the stockholders and other interested parties to' counsel and negotiate among themselves and others, including the respondents, as to how the best interest of all parties could be conserved. After much consultation, it was finally concluded that a reorganization and consolidation of all the companies was the most feasible mode to accomplish that end.

In pursuance of said scheme, on April 1, 1899; Charles E. Granis et al. instituted a suit in the circuit court of Jackson county against the Pittsburg Company, it having defaulted in the payment of the installment of interest upon its bonds, due at that time, alleging insolvency, and prayed for the appointment of receivers to take charge of the road. Eeceivers were appointed, who qualified and took possession of the road and property of the Pittsburg Company.

Immediately thereafter ancillary suits were instituted and carried forward to extend the receivership over the entire line of the Pittsburg Company. About the same time an independent suit was instituted in the district court of Caddo parish, Louisiana, for the purpose of extending the receivership over the property of the defendant in the State of Louisiana.

Thereafter, on April 6,1899, the suit which was instituted in the circuit court of Jackson county was removed to the circuit court of the United States, for the Western Division of the Western District of Missouri.

On the same day the Trust Company instituted a suit, in the United States Circuit Court, for the Western Division of Missouri, for the foreclosure of the mortgage against the Pittsburg Company, and for the appointment of receivers.

From and after April 1, 1899, said negotiations were continued and further negotiations were entered into between the various parties interested in the Pitts-burg, Shreveport, Fort Smith and the terminal companies, looking to and having for their object a consolidation of all of the said interests and properties.

Up to April 28th all of the suits and proceedings instituted, and had, in all the State courts, affecting . all the companies and their properties, were instituted and conducted by the respondents.

On the 28th of April, 1899, as a result of said negotiations, the Trust Company filed an amended bill in its case against the Pittsburg Company, in which the Fort Smith and the defendant, the Shreveport companies were made defendants, and the two latter companies entered their appearances by respondents, as their solicitors.

Immediately thereafter an ancillary suit was instituted in the circuit court of the United States for the Western District of Louisiana, which was begun for the purpose of aiding the consummation of the negotiations and plan of reorganization and consolidation begun and carried through and by the said negotiations and foreclosure suit of the Trust Company.

Pursuant to said negotiations all ancillary suits pending in the State courts were then dismissed.

Pursuant to this general plan the United States Circuit Court, at Kansas City, appointed receivers for the Pittsburg Company, and by and through ancillary suits filed in the other States, the receivership was extended over the entire line, which included the properties of the Fort Smith and Shreveport companies.

Thereafter there was a final decree entered in the suit of the Trust Company against the Pittsburg, Shreveport and Fort Smith companies, and on March 19, 1900, all the property, stocks and bonds of said companies were sold, under said decree, and in pursuance of said plan of reorganization, to a purchasing or reorganizing company; and under said plan the Pitts-burg, Fort Smith and Shreveport companies received in exchange for their property, sold under said decree ----shares of stock and bonds of the new or consolidated company, which then owned the entire line of railroad extending from Kansas City to Port Arthur, including the terminals at each end thereof.

Respondents represented the ' Shreveport Company, the appellant, in all the proceedings in the United States Circuit Court, entered its appearances, filed all papers required, and represented it generally in all the proceedings.

Appellant introduced evidence tending to prove respondents did not represent it in said litigation, but did represent the Pittsburg Company, and that they had been fully paid for all services rendered the latter company.

A jury was waived, and the trial was had before the court, which, after hearing the evidence, found for respondents in the sum of $10,000.

Appellant filed motions for new trial and in arrest, which were overruled, and in due time appealed the cause to this court.

I. This is one of three suits instituted by respondents to recover attorney fees for legal services rendered in the litigation mentioned in the foregoing statement. Each was for $10,000. The first was against the Pitts-burg Company, the second against the Port Smith Company, and this is the third. The trial in each resulted in a judgment for respondents for the sum of $10,000. All of them have been appealed to this court. The first is reported in 180 Mo. 574, and the second in 199 Mo. 44, and both of them were affirmed. And we are now asked to pass upon the third.

The appellant earnestly contends that it did not employ respondents; that they did not represent it in the litigation mentioned; and that they performed no legal services for it; and asks this court to review the evidence in the case in order to verify its contention.

The position of the appellant seems to be that the Pittsburg Company was the owner of the appellant company, and that whatever services were rendered by respondents were for that company, and that they had been fully paid therefor by it.

There was a great deal of evidence introduced in this case tending to show the character of the litigation between the Trust Company and the various railway companies; the character of the services performed by respondents; the parties for whom they were rendered, and the value of those services. The appellant’s abstract of record devotes about one hundred and fifty pages of printed evidence to those matters, and respondents’ additional abstract contains twenty pages more relating to the same subjects.

If we assume or find that the Pittsburg Company was the parent company, and owned the Shreveport and Fort Smith companies, and that the former was the principal subject-matter of the litigation, and that the two latter companies were mere incidents thereto, or assets of the former, then there is great force in the contention of appellant that the employment of respondents was by and for the Pittsburg Company, and there is much evidence in the record tending to establish that theory of the case. But if we look at the case as presented by respondents, then a different conclusion might he reached. From their viewpoint we see three insolvent railway corporations, the Pittsburg, Shreveport and Fort Smith, owning a line of railroad extending from Kansas City, Missouri, to Port Arthur, Texas, being operated by the former, all of which were threatened with litigation which would result in a total loss of all of their properties unless some kind of reorganization of all the companies could be arranged or perfected.

With that idea in view, respondents contend that they instituted suit in the circuit court of Jackson county against the Pittsburg’ Company, and had receivers appointed therefor, and later had the receivership extended over the entire line, by courts of competent jurisdiction, in which ancillary suits were brought for that purpose; and that by these proceedings the continuous line, as one ■ entire railway system, was preserved, which fact greatly enhanced the value of the properties of all of said companies.

When the evidence in this record is viewed and weighed in the light of all the facts and circumstances surrounding the parties, the companies and their properties, we are unable to say there was no evidence which would warrant the court in finding for the respondents. While it is true there was no evidence of an express contract of employment, yet when we consider the facts that respondents did. represent all three companies, in both the State and Federal courts, and that no one else ever represented the Shreveport and Fort Smith companies in either of said courts, we are constrained to hold that there was ample evidence to justify the finding of the trial court.

The facts in the case of respondents against the Fort Smith Company, hereinbefore mentioned, are substantially the same as are the facts in this case; and this court arrived at the same conclusions in that case that we have reached here.

Counsel for appellant have, with great learning and industry, collected, cited and discussed many cases bearing upon the question involved in this case; and we fully concur with them in the contention, that third parties do not become liable to an attorney for fees by reason of the fact that they are also equally interested in the case with his clients, and stand by without objection and accept the benefit of his services, which extends to all parties interested in the litigation. [2 Clark & Skyles on Agency, p. 2058.]

Respondents’ case is not based upon the theory that they had been employed by the Pittsburg Company, and that the services performed by them for it were equally beneficial to the appellant, and because of that benefit, the law would raise an implied promise on its part to pay them for those incidental services and benefits. The respondents plant their right of recovery against the appellant upon the same character of contract which it had with the Pittsburg and Fort Smith companies, and we concur in that view of the case.

In oral argument, counsel for appellant laid much stress upon the fact that the services were performed in a comparatively short period of time.

While it is true, the time taken in the performance of legal services should be taken into consideration in fixing the value thereof, yet it is of minor importance in comparison to the character of the litigation, the amount involved, the responsibilities assumed, and the benefits derived. The benficial results obtained by counsel for their clients are the chief matters to take into consideration in estimating the value of the services.

The judgment of the circuit court was for the right parties, and it is affirmed.

Valliawt, J., concurs; Lamm and Graves, JJ., concur in the result.


text:
    TETLEY v. McELMURRY, Appellant.
    Division One,
    February 22, 1907.
    1. EJECTMENT: Forfeiture: Contract. A forfeiture of premises contracted to be sold to defendant in ejectment, cannot be based on a failure to pay debts not mentioned in tbe contract, nor upon plaintiff’s inability to make a valid transfer of the premises on full performance by defendant; nor can forfeiture be allowed if when forfeiture was declared defendant was not in default in his monthly installments to be paid in purchase of the property.
    2. -: -: -: Interest on Installments. If the obligation of the purchaser to pay interest on the monthly installments to be paid may be spelled out of the very obscure contract of purchase, yet if the contract calls for a note, that note must be read into the contract; and if in the note it is written that “if the interest be not paid annually to become as principal and bear the same rate of interest,” the penalty is not forfeiture, but compound interest.
    3. -: -: -: -: Interpretation of Contract. Where the contract is equivocal, a recognized rule of construction is to seek out the construction the parties thereto placed upon it and apply that; and if the evidence shows' that the running arrangement between plaintiff and defendant did not imply the payment of interest on the monthly installments as they became due, and no request for interest was made when they were paid, no forfeiture will be declared for defendant’s refusal to pay interest on each monthly installment after a large number have been paid.

      4. -: -: Equity. Forfeitures'are abhorred, not favored, in equity. Courts of equity are slow to enforce them, and will do so only when the provisions of the contract strictly construed clearly call for a forfeiture.
    5. -: -: Improvements: Pleaded. Ordinarily improvements are not an issue in ejectment. But if pleaded by way of estoppel to a forfeiture, or by way of reliance on a waiver as shown by a course of dealing in receiving monthly installments of the purchase price, evidence of valuable improvements is admissible in support of such pleas.
    6. -: Installments: Tender: Refusal: Interest Where defendant in ejectment contracted to purchase real estate and pay for same by monthly installments, tender of installments refused by plaintiff operates to abate the interest thereon from the date of the tender.
    Appeal from St. Francois Circuit Court.— Hon. B. A. Anthony, Judge.
    Reversed and remanded (with directions).

      Jere S. Qossom for appellant.
    (1) Forfeitures aré not favored by law, and all conditions and provisions in contracts providing for forfeitures must be strictly construed, and that construction adopted, if at all permissible, which will avoid the forfeiture. McCollum v. Ins. Co., 61 Mo. App. 352; Wheless v. St. Louis, 90 Mo. App. 106; Knight v. Orchard, 92 Mo. App. 466; Hernán v. Wade, 140 Mo. 340; Garnhart v. Finney, 40 Mo. 460; Gratz v. Railroad, 165 Mo. 217.. (2) The acceptance, by plaintiff, of the monthly payments without objection, for the period of thirty-one months, in which time he received from defendant the sum of $336.50, almost the entire amount of the consideration for said property, with full knowledge of the facts, was a waiver of all forfeitures (if any), which could not afterwards be asserted. Garnart v. Finneu, 40 Mo. 460; 0'’Fallon v. Kennerly, 45 Mo. 124; Nagel v. League, 70 Mo. App. 491. (3) Plaintiff, in Ms notice to defendant, dated March 27, 1901, refers to a former notice which he alleges he had served on defendant, in the following language, to-wit: “We sent yon notice some time ago that your terms of contract had been broken.” From the above facts it is manifest that plaintiff, with full knowledge, waived all his right to demand a forfeiture under said contract. (4) Plaintiff during the entire thirty-one months that he collected from defendant the monthly payments on said property of $10 per month, without objection accepted said payments and acquiesced in the manner in which they were made and never at any time demanded from defendant one cent interest or any other sum in. excess of the $10 per month, yet notwithstanding this fact he claims a forfeiture because, as he says, defendant failed to pay the interest, lease rent, taxes and insurance each month. By such acts and conduct plaintiff led defendants to believe that $10 per month was all he expected him to pay. And by his acceptance of the $10 per month for so long a time, •and by’ Ms acquiescence, waived his right (if any he had) to enforce a forfeiture under said contract for defendant’s failure (if any) to pay said interest, lease rent, taxes and insurance. (5) One of the provisions of said contract provided that in case defendant made default of three monthly payments he should deliver unto plaintiff the possession of said premises, and if defendant had at the time paid plaintiff any sum of money in excess of $7 per month, said excess should be returned to him by plaintiff and the said sum of $7 per month should be retained by plaintiff as rent for said premises. This provision of said contract clearly shows that plaintiff could not enforce a forfeiture of said contract, without at the same time constituting defendant his tenant; which fact plaintiff admits in his notice to defendant, dated March 27, 1901; in which case plaintiff would be compelled to terminate said tenancy before he could maintain ejectment. Tarlotting v. Bokern, 95 Mo. 541. (6) Plaintiff in Ms notice to defendant, dated March 27, 1901, used the following language: “ You have not paid up as you should. You are now notified that our contract is ended. The Federal Lead Co., owner of the lease, has notified me that after March 11, 1901, under no circumstances will they consent to a transfer of a lease to any person or persons.” Forfeitures are not favored, and when it is sought to enforce one under circumstances such as are disclosed by the record in this case, the court will scrutinize the contract and the conduct of the party seeHng to enforce the forfeiture very closely to see if the party seeking the enforcement of the forfeiture has in very particular complied with the terms of the contract in both its spirit and letter. Knight v. Orchard, 92 Mo. App. 472.

      Pipkin <& Swink for respondent.
    (1) The answer to appellant’s first point is that he has never suggested any construction of the contract in question which would relieve defendant of the default he has made in his payments. Defendant admits that he has defaulted. Therefore, no construction of said contract, however liberal, can be called to his assistance, and the question of how it shall be construed is not an issue. An action may be maintained without any entry or demand for possession. Ellis v. Kyger, 90 Mo. 600. Where one going into possession of land under contract of sale makes default in the payment of the purchase money, the vendor may recover the premises in ejectment. The vendee in such action can defend his possession only by showing the performance of the contract on his part. DeBernardi v. McElroy, 110 Mo. 65; 10 Am. and Eng. Ency. of Law 496. (2) Defendant in his answer pleaded performance of his contract and the trial proceeded on that basis. Now, upon appeal, we hear for the first time the question of waiver. However, the law in Missouri is that one cannot plead performance and show waiver of performance except in insurance cases. 4 Ency. PI. and Pr., 631. (3) Plaintiff did not waive the right to insist upon performance. Williams v. Railroad, 153 Mo. 519. An examination of the evidence will disclose that no act of plaintiff’s was inconsistent with his insistence upon performance. In other words, plaintiff did nothing that would stop him from insisting upon performance. Waiver depends on what one intends to do, and the question whether such intention exists is one for the jury. The court sitting as á jury found there was no waiver. Fairbanks, Morse & Co. v. Baskett, 98 Mo. App. 53.
   LAMM, J.

Plaintiff sued defendant in ejectment (in conventional form) in the circuit court of St. Francois county for “Leased lot No. 1 in Block ‘C’ of East Flat River, Missouri,” laying his ouster as of April 1, 1901. An equitable answer was interposed asking affirmative relief, thus putting the case in equity. A decree went for plaintiff, from which defendant appeals.

It seems plaintiff owned a leasehold in said lot, running for a term of twenty years at a ground rent of ten dollars per year, payable quarterly; that he biiilt a dwelling house thereon, and presently entered into a contract with defendant to become the purchaser of his right in the premises at a consideration of $400. Defendant was a miner, living on a daily wage, and, the record shows, could read ‘ ‘ a little bit. ’ ’ Plaintiff was a business- man — a lumber dealer at Bonne Terre, Missouri — and part of his business was that of building, selling and renting houses and collecting installments of rent and purchase money. Plaintiff, with his own pen, drafted an eminently formidable and complicated contract, empty of punctuation, but full of obscurity, forfeitures and perplexity, which the miner signed and which we produce here for the double purpose of showing its terms and as an example — to be avoided. The instrument reads:

“Articles of agreement made this day between F. I. Tetley and James McElmurry both of St. Francois county Mo.. — Witnesseth that the said Tetley for the sum of three hundred and sixty dollars together with such lease rent and repairs insurance and interest that may accrue to convey his Right to a certain leased lot No. 1 in Block ‘ O’ of East Flat River leased from the F. M. a. P. Co. to be paid as follows 10 Ten dollars and interest due each and every month until on or before the 10th of each month at the office of F. I. Tetley in Bonne Terre as agreed by the Promisory note of even date the said Me.Elmurry Promising in case he makes default of three monthly payments to deliver unto the said Tetley or his Representative full and complete Possession of the above Premises and this agreement as soon as this is done the said Tetley if any money had been paid in excess of seven dollars per month said seven dollars per month shall be for the monthly rent of the premises to return such excess this shall be the same in case of sale before paid the said Tetley to have the Right of Refusal at the terms before mentioned but in no case shall sale be made without the written consent of Tetley thereto this shall be ended if not paid or broken on or before the first day of December 1901, by the said Meelmurry delivering unto the said Tetley or his Representative without any written notice or demand whatever any holding over after that time or the time before mentioned or moneys paid not to be considered as renewing this agreement unless a New agreement is made this is to be considered as ended if suit has to be brought for Possession the said Tetley to retain in addition to rent the cost of suit and a reasonable attorneys fees in case of fire and there be an insurance and it received the said Mcelmurry to Perceive his Proportion to the Amt paid and Received the said Tetley Promising not to molest the said Mcelmurry in his Possession of the above Premises as Long as the requirement of this agreement are complied with in witness whereof we have hereunto set our hands and seal in Presence of and for each other this 25th day of July 1898.”

It seems that when this contract was signed plaintiff supposed defendant had so much as $40 in his pocket which he would hand over, and, therefore, the sum mentioned in the contract is $360; However, it was not so. He had but $10 by him, which he gave plaintiff. Several days after signing this contract, to-wit, on August 1, 1898, the transaction was consummated by executing the note called for in the writing, as follows:

“390.00. Bonne Terre, Mo., Aug. 1st, 1898.
“Within thirty-six months after date I promise to pay to the order of Frederick I. Tetley, in monthly payments of $10.00 and interest, due each and every month until paid, three hundred and ninety dollars. For value received, negotiable and payable without defalcation or discount and with interest from date at the rate of eight per cent per annum, and if the interest be not paid annually to become as principal and bear the same rate of interest. Jambs McElmtjrry.”

It will be observed that the face of the note calls for the $400 consideration, less the $10 paid when the contract was drawn, and the fact that it calls for $30 more than the sum mentioned in the contract is thus accounted for. During the month of August of that year, McElmurry paid Tetley $25. Possession was not delivered until the 1st of September, and Tetley collected $6 rent of one Cook, his tenant then in possession, and which, became due after the contract wa;s entered into. Tetley claims that by verbal understanding the possession was not to be delivered until September, and, by the same token, that Cook’s rent for the month of August was to go to him (Tetley). McElmurry does not agree this was the understanding, but he says thát Tetley appropriated this rent, and by so doing he received more than the $40 advance payment. Taking into account said rent from Cook, it stands practically conceded that McElmurry paid to Tetley on the foregoing note and contract, in the ensuing thirty-one months, the sum of $342.50'. The evidence shows that by a working arrangement Tetley did not stand on the punctilio of exacting payment at his office in Bonne Terre. He seems to have been collecting monthly installments of money from divers and sundry other people in the McElmurry neighborhood and, accordingly, collected McElmurry’s installments at his own home. The evidence establishes the faet that during said thirty-one months McElmurry practically paid $10' each month, missing a month two or three times, and then paying in augmented amounts to catch up. At no time prior to March, 1901, was any demand made on him for a monthly payment of interest, or for ground rent, or for insurance. It seems Tetley carried insurance on the house in his own name; that this insurance was in existence at the inception of the contract, and that it was renewed’ once during these thirty-one months; and during that time Tetley paid the ground rent. It will be seen that if-the $40 advance payment is deducted from the gross sums paid by McElmurry there will be left $302.50 to apply on the $360 mentioned in the contract; and at $10 a month McElmurry at the end of thirty-one months would be behind but a trifling sum —barring interest, ground rent and insurance. At the end of these thirty-one months Tetley refused to receive any more money. His monthly installments were tendered him, but he claimed and stood upon a forfeiture and demanded possession. He exacted this forfeiture on the theory that McElmurry owed him thirty-one installments of interest; on the fact that he owed a small lumber bill; on the fact that he owed him ground rent and insurance. But we cannot shut our eyes to the fact that other reasons existed; for instance, trouble was brewing in that Tetley’s own lessor had changed its policy in regard to permitting transfers of leases; and Mr. Tetley saw ahead of him the danger that he might be unable to comply with his contract to transfer the leasehold, although McElmurry might fully perform his agreement. Accordingly, he caused to be served on defendant the following notice:

“F. I. TETLEY,
Contractor and Buildeís.
DEALER IN
'Lumber, Lath, Lime, Hair, Cement,
And All Kinds of:Builders’ Material.
“Bonne Terre, Mo., March 27,1901.
“Mr. James Mcelmury Flat River Mo Dear sir we sent you notice some time ago that your terms of contract had been broken you have not paid up as you should you are now notified that our contract is ended the Federal Lead Co owners of the leases has notified me that after March 11th 1901 under no circumstances will they consent to a Transfer of a Lease to any Person or Persons. Whenever you move out as agreed if there has been any money paid over the seven dollars per month rent it will be returned to you, and you will be charged seven dollars per month rent until you remove your Respectfully, F. I. Tetley.”

Defendant’s answer was a general denial; and, furthermore, the foregoing contract was pleaded and that plaintiff for the purpose of cheating and defrauding defendant refused to accept monthly installments, though these were repeatedly tendered to him; that defendant was ready and willing to pay all sums due under the contract; that with plaintiff’s knowledge and with the expectation that the leasehold would he assigned and delivered to him, he had expended large sums of money in improving the property; and tender was made by the answer of all sums of money found by the court to be due plaintiff according to the terms of the agreement. Relief was prayed that the court would determine the amount due plaintiff and that he be required to accept the same and to assign the lease to defendant and bring into court the promissory note, make proper indorsements thereon and surrender the same upon payment of the amount found due by the court.

By his replication plaintiff admitted making the contract dated July 25, 1898, pleaded in defendant’s answer, but alleged that defendant had failed and refused to perform the conditions of said contract; that a default had existed for more than three months before March 27, 1901, at which time plaintiff declared defendant’s rights under the contract forfeited and demanded possession.

To this replication defendant (out of abundance of caution) filed “a general denial,” thereby paying the latest tribute (coming to our notice) to the wisdom of the common law fathers in their Declarations, Pleas, Replications, Rejoinders, Surrejoinders, Rebutters, and Surrebutters — not to mention their Similiter and their “doth the like” by putting themselves “on the country.”

One of defendant’s contentions here is that by receiving thirty-one ten-dollar monthly installments without protest, plaintiff waived the forfeiture, if any, under the doctrine of Garnhart v. Finney, 40 Mo. l. c. 460, and many other cases. To this contention plaintiff’s learned counsel replies that waiver should have been pleaded, and that, failing to plead such affirmative defense, no question of waiver is in the case, under the doctrine of McCullough v. Insurance Co., 113 Mo. l. c. 616, and many other cases.

It has been held in replevin that as “a general denial puts in issue plaintiff’s right to the possession of the property at the commencement of the action and every collateral fact necessary to establish the same,” a waiver may be shown under such general denial. [Oester v. Sitlington, 115 Mo. l. c. 257.] Under a general denial in ejectment, it has been held (contrary to the general rule) that the Statute of Limitations may be invoked without pleading the same. [Nelson v. Brodhack, 44 Mo. l. c. 599, et seq.~\ Moreover, as ejectment goes to the possessory right to real estate precisely as a replevin suit goes to the possessory right to personalty, for like reason it might well be held on the authority of the Oester case, supra, that as Tetley’s right to possession grew out of a forfeiture, then, if the forfeiture be waived and become as though dead, the right to possession (an incident) is dead also. The general issue in ejectment suits is much favored in the law, and the rule is stated broadly by Sedgwick & Wait (Sedg. & W. on Tr. of Tit. to Land (2 Ed.), sec. 476), to be as follows: “It is certain that a most liberal tendency existed and still prevails in the courts, and in modern legislation, to favor this plea, and to admit evidence of available legal defenses of almost every class or nature under it.” But from what follows it is not necessary to decide the foregoing question in this case.

In my opinion there is not a particle of equity in plaintiff’s case on the merits, regardless of waiver, because I have been unable to put my finger on a forfeiture. This is so, because it is obvious that a forfeiture cannot be based on a failure to pay the lumber bill, nor can a forfeiture arise merely as a shelter to protect plaintiff from liability based on any inability to make a valid transfer of the leasehold on full performance, as hinted in his notice of March 27, 1901. Furthermore, when the forfeiture was declared and plaintiff refused to receive further installments, defendant was not in default three months on his $10 payments. Therefore, no forfeiture could be declared on that account.

It is by no manner of means easy to get at the meaning of the contract; but, eyed however closely, it cannot be found written there that a forfeiture is declared upon failure to make monthly payments of the ground rent money and insurance premiums paid out by plaintiff during the life of the contract.

The case finally comes to this: If a forfeiture is to be declared, it must be because defendant failed in every single month for thirty-one consecutive ones to pay the increment of interest due on the consideration. On this point it is insisted by plaintiff’s counsel that a duty to pay the interest in monthly installments is written in the contract. It may be such duty can be painfully spelled out in one corner of the contract. But there are more comers than one visible to the eye of a chancellor in such a contract as this. For example, the note is called for in the contract — ergo, it must be read into the same; and in that note it is written that- “if the interest be not paid annually to become as principal and bear the same rate of interest. ’ ’ The presence oí that provision in the note is not to be ignored, because thereby it is contemplated that interest may be paid annually, and, moreover, if not paid annually the penalty exacted is (not forfeiture, but) that it should be compounded. ’Tis so nominated in the bond — no more, no less.

Again, where a contract is equivocal (as this must be held to be when the note is read into it) a recognized canon of interpretation is to seek ont the construction tbe parties to the contract placed upon it themselves and apply that; and when the evidence is looked into, it shows that the running arrangement between plaintiff and defendant did not involve the payment of interest from month to month. No such request was made of defendant at any time. Plaintiff was prompt and persistent in demands, but interest was not one of them. The course of dealing between these men from month to month was such as to show that the construction placed on that contract by them was that it was optional in defendant to pay the interest monthly, annually, or when the end came. To exact a forfeiture under such conditions would be to trap defendant, and miss the justice of the case.

Forfeitures are abhorred, not favored, in equity. It has been said that courts of equity do not lend their aid to enforce them; at least, that courts of equity are slow to enforce forfeitures and will (if that construction be at all permissible) so construe a contract as to preserve, rather than to disturb a party’s rights; that good conscience is the beaconlight which points the way out of a forfeiture; that while provisions for forfeitures should not be abrogated, yet they should be strictly construed, and never helped out by implication. [Dezell v. Fidelity & Casualty Co., 176 Mo. l. c. 265; Boyce v. Royal Circle, 99 Mo. App. l. c. 356; Wheless v. St. Louis, 90 Mo. App. 106; Knight v. Orchard, 92 Mo. App. 466; Heman v. Wade, 140 Mo. 340; Sease v. Cleveland Foundry Co., 141 Mo. 488; Moberly v. Trenton, 181 Mo. l. c. 645, et seq.; Watson v. Gross, 112 Mo. App. 615; McCollum v. Ins. Co., 61 Mo. App. 352; Messersmith v. Messersmith, 22 Mo. 369; see, also, Big Six Development Co. v. Mitchell, 138 Fed. 279.]

Defendant tendered proof of the allegation in his answer that he had made valuable improvements on the strength of his contract. This evidence was rejeetted, and defendant saved an exception. His learned counsel argues here that this was error. Ordinarily, improvements are not an issue in ejectment. If made without notice of an adverse claim, they may be recovered in a timely subsidiary proceeding. [R. S. 1899, secs. 3072, et. seq.']' If defendant had plead improvements by way of estoppel to a forfeiture, or by way of reliance on a waiver as shown by a course of dealing in receiving monthly installments, etc., then the evidence of valuable improvements would be admissible on such issue. We take it this was what was meant by the allegation in the answer, though the idea was scantily expressed. But the whole question becomes academic in view of what has been said and the disposition to be made of the case and need not be further pursued.

The decree in this case was for the wrong party and is, therefore, reversed and the cause remanded with directions to the court below to enter judgment against plaintiff and to state an account between plaintiff and defendant. In so doing the lumber bill should not be included; but insurance premiums and ground rent paid out by plaintiff should be included. The (took rent, having become due after the contract, belongs to defendant, and he should receive credit therefor. The chancellor should ascertain and adjudge how much is back on the contract price, including interest — the latter, however, to be computed at eight per cent on the theory of annual, not monthly, payments, and compounded. In the computation of interest, defendant should be allowed the advantage accruing in the law from his tenders of installments refused by plaintiff — that is, the amounts tendered from time to time should operate to abate the interest pro tanto from the respective dates of the tenders on that much of the price. On the question of tender, and to fix the amounts and dates thereof, the chancellor may hear further evidence. It must be decreed, furthermore, that, on defendant’s payment into court for the use of plaintiff, by a certain day to be fixed by the chancellor, of the amount so found due, plaintiff must surrender defendant’s note as cancelled and transfer to defendant the leasehold estate in question and all plaintiff’s right and title to the leasehold improvements. Costs to follow the decree against plaintiff.

All concur.