author: GEAVES, J.

text:
    MAUD ENGLE et al., Appellants, v. WORTH COUNTY.
    Division One,
    June 2, 1919.
    1. PARTITION: Land Subject to Homestead: Theory of Trial. Where respondent in the trial court, by its answer, joined in the prayer for a partition and sale of the property, and the case was tried on the theory that it was subject to partition and sale, respondent cannot be heard to contend on appeal that the land is not subject to partition because burdened with the widow’s.homestead. The theory of the trial cannot be shifted on appeal.
    2. LIMITATIONS: Deed of Trust: Payment of Interest After Maturity: Sureties. ■ Under the statute which provides that if an action on the note is barred an action on the deed of trust securing ii is likewise barred, the note is not barred either as to the maker or sureties if by its terms it contemplates that interest will be paid annually after maturity and the interest is paid by the maker up to within ten years before suit is brought, nor is the deed of trust barred as to the maker.
    3. -: -: -: Separate Mortgage as Security. Notwithstanding a bond to the county for moneys borrowed from the school fund and a deed of trust securing the same are separate contracts, and the bond is signed by the principal and two sureties, and the deed of trust by other persons, if the note is kept alive by the payment of annual interest and the deed of trust and the bond contemplate that interest is to be annually paid, and they refer to each other, the payment of interest by the maker of the note prevents the Statutes of Limitations running as to the deed of trust, although paid without the knowledge and consent of its makers, for by the deed of trust they agreed that the interest would be paid annually. .
    4. SCHOOL FUND: Deed of Trust on Land. ■ The county Can look to the land 'embraced in a deed of trust given to secure a loan from the school fund. Both by the usual deed of trust and the law, its makers bind their interest in the land to the payment of the debt.
    Appeal from Worth Circuit Court. — Hon. John M. Dawson, -Judge. •
    Affirmed.

      J. E. Engle and Dubois S Miller for appellants.
    (1) The school fund mortgage as to the interest of appellants in the lands sought to he partitioned was barred by the Statute of Limitations long prior to the institution of this suit. Regan v. Williams, 88 Mo. App. 577; Maddox v. Duncan, 143 Mo. 621; Corbyn v. Brokmeyer, 84 Mo. App. 649; Clute v. Clute, 197 N. Y. 439, Frase v. Lee 152 Mo. App. 566; McCollum v. Boughton, 132 Mo. 625. (2) The appellants herein are liable only to have the property covered by the school fund mortgage sold after defendant, Worth County, had exhausted its remedy against the principal and sureties on the bond. McCollum v. Boughton, 132 Mo. 625. (3) In any event, recovery in this case on the school fund indebtedness should have been limited to the penalty in the bond, $200, with interest from time of filing answer of Worth 'County, on February 19, 1917. Worth County on the school fund indebtedness alleged herein is claiming $384,' being $200 principal with $184 interest. The amount of the penalty provided in the bond is $200. Clearly the position of the county is wrong and. absolutely so in claiming $384. If entitled to foreclose and enforce the mortgage herein at all, it can iri any event be only for • the amount of the bond, $200, with a small amount of interest accrued after the filing of its answer herein on February 19, 1917. 27 Am. & Eng. Ency. Law (2 Ed.),453; Brighton Bank v. Smith, 12 Allen (.Mass.), 243, 90 Am. Dee. 144; Thomas Laughlin Co. v. Surety Co., 114 Fed. 627.

      James Anderson, Prosecuting Attorney, for respondent.
   GEAVES, J.

Appellants in their brief have fairly outlined the facts of the case. In- fact there is no contest as to the facts, the case having been submitted upon an agreed statement of facts. We quote a part of their statement thus:

“This is an action in partition among the heirs at law of one Thomas Walton, deceased, including his widow, Mary C. Walton, his sons Charles T. and Elihu J. Walton, his daughters, Amanda Eighmy .and Oda M. Eighmy, his granddaughters, Maud Engle and Zella Trillion, and his great grandchildren, Arlyn Kirkpatrick and Helen Kirkpatrick. Both the grandchildren and great grandchildren aforesaid are descendants of one Martha Kirkpatrick, a daughter of said Thomas Walton-

“Thomas Walton died intestate in Worth County, Missouri, during the year 1878. His estate was duly probated in the probate court of said county and fully and finally settled. His daughter Martha Kirkpatrick died in the year 1907 and her son, A. V. Kirkpatrick died in the year 1915. The plaintiffs herein, Maude Engle and Zella Killion, are daughters of said Martha Kirkpatrick and defendants Arlyn Kirkpatrick and Helen 'Kirkpatrick are children of her son, A. Y. Kirkpatrick, deceased. The plaintiffs Maude Engle and Zella Killion and defendants Amanda Eighmy and Oda M. Eighmy are married women; defendants Helen Kirkpatrick and Arlyn Kirkpatrick are minors of tender years, and defendant Mary C. Walton, widow of Thomas Walton, deceased, is old and infirm and was, in November, 1915, adjudged insane by the county court of Worth County, Missouri, and is now confined to the Insane Asylum at St. Joseph, Missouri.

The land affected by this suit is described as Lots Seven and Eight of Block Sixteen in Grant City, Missouri. It was' owned in fee simple by Thomas Walton at the time of his death, at which time its value was less than $1500, when it was occupied by himself and family as a homestead. Under the statute then in force, defendant Mary C. Walton became the owner of a life estate or homestead in said land, with remainder to the children and heirs at law of said Thomas Walton, deceased.

“There is no contention in this appeal as to the various interests of the widow and other heirs at ■ law' of said Thomas Walton, deceased, in the property above described or as to the title ■ thereto. The sole question presented to this court is as to the validity of a certain school fund mortgage covering said land executed on the 29th day of December, 1896, to secure the payment of a school-fund bond, executed on that date by Mary C. Walton as principal and J. W. Watson and J. B. Dawson, as sureties, in favor of defendant. Worth County, Missouri, for the benefit of the school fund of said county, said bond being due one year from the date thereof.

“The court will understand and it is a conceded fact in this case that the $200 named in said bond was borrowed by Mary C. Walton, the life tenant alone; that at the time she so borrowed it she executed her bond therefor, with" J. W. Watson, and J. B. Dawson as sureties thereon; that the owners of the fee in said property, to-wit: the children of said Thomas Walton,' all of whom were then living, never at any time received the said $200 so borrowed by said Mary C. Walton, or any part thereof; that said children never at any time signed or in any way executed the said bond; that they never in any way bound themselves personally for the payment thereof; that so far as the borrowed money itself and the bond executed therefor are concerned the said children of said Thomas Walton, deceased, are in no wise liable in any manner whatsoever.

“At the time she, the said Mary C. Walton, borrowed said money, and with said J. W. Watson and J. B. Dawson, as sureties, executed her bond therefor, she, the said Mary C. Walton, together with her children Martha Kirkpatrick, Elihu J. Walton, Charles T. Walton, Amanda Eighmy and Oda M. ‘Eighmy executed their school fund mortgage to Worth County, Missouri, covering the above described lands, to secure said school-bond so executed by Mary C. Walton, J. W. Watson and J. B. Dawson as aforesaid.”

The contest is between Worth County and the plaintiffs and the defendants, other than Worth County. A guardian ad litem was appointed for the insane fudow and the minor defendants. The widow, the principal in the school-fund bond, made payments of interest thereon up to and including December 31, 1908. By the agreed facts these payments were made without the knowledge or consent .of the other makers of the deed to trust. It is conceded that one of the sureties on -the bond is worth $25,000 and that the insane widow is insolvent. The present suit was instituted January 29, 1916', and the answer of defendant Worth County sets up the school-fund bond and deed of trust aforesaid, and closes with the following prayer for relief:

“Wherefore, this defendant, Worth County, Missouri, prays that a sale of said real estate be made, as in plaintiff’s petition prayed; that out of the proeeeds of such sale said above-mentioned school-fund indebtedness be paid,” and for such other and further relief as shall be meet and just in the' premises. ”

An interlocutory judgment in partition was entered, and in such judgment we find (among other things) the following:

“Wherefore it is considered, ordered and decreed by the court that said school-fund indebtedness in the" sum’ of $381 is a valid and subsisting lien against the real estate herein described, and against and upon, first, the interest of defendant Mary C. Walton therein, with the residue thereof a valid and subsisting lien upon the interests of plaintiffs and.the other defendants herein according to their respective interests in said property; that said real estate be sold by the sheriff of Worth- County, according to law, to the highest bidder for cash in hand ,• that out of the proceeds of said sale, said school-fund indebtedness to Worth County, Missouri, be first paid as herein found, and after paying all costs and expenses incurred in making said sale, including fee for abstract of title to same, that the remainder of the proceeds arising from such sale be partitioned and divided among .and between the parties, plaintiffs and defendants herein, according to their respective interests as herein set forth, and the said sheriff of Worth County, is hereby further ordered and directed to make said sale at the south front door of the court house in the city of Grant City, Worth County, Missouri, and report said sale to this court, and account for and pay over, according to law and the order of this court, to the parties entitled thereto, all sums of money coming into his hands and in such sale. ”

The contention of appellants is that the payment of interest on the school fund bond after its alleged maturity (which was one year from its date) did not keep alive the lien of the deed of trust, and inasmuch as they specially invoked the Statute of Limitations in their pleadings, the decree so far as the parties were concerned (excepting the widow) should have been against Worth County.

I. In respondent’s (Worth County’s) brief there is a suggestion that the land is not subject to partition, because of it being the homestead of Mary C. Walton, the widow. Whether there is substance in this contention need not be decided. Worth County is in no position to urge the question here. This, because such was not the theory in the trial below. By answer Worth County joined in the request for the partition and sale, and ashed that her deed of trust be declared a first lien upon the proceeds of sale. The whole proceeding below was not one adverse to the idea of partition. On the contrary, the trial was on the theory that partition was proper, but that it could not be had in hind (owing to the number of interests) and a sale in partition should be ordered. It is trite law that the theory nisi cannot be shifted here upon appeal.

II. The issue tried below in this casef was whether or not the lien,of the deed of trust had been lost under our statute which provides that if an action on the note is barred an action on the deed of trust mortgage is likewise barred. [Sec. 1892, R. S. 1909.]

The deed of trust in this case was executed after the Act of 1891 (of which Section 1892, supra, was a part); hence the statute applies in this ease, if the facts make it applicable. [Stockton v. Teasdale, 212 Mo. 611.]

Nor can there be any question that the payment made upon the bond by Mrs. Mary C. Walton obviated the running of the statute so far as she and her sureties on the bond are concerned. In other words, these payments by her left this bond as between Worth County and the signers of the bond a live instrument at the date of the instant suit. Neither she nor her sureties could successfully invoke the Statute of Limitations as to the obligation created by the bond. [Clinton County to use v. Smith, 238 Mo. 118, and cases cited therein.]

But the question urged by appellants is that, although it be granted that the payment on the bond by Mrs. Walton left such bond as a live instrument as-against her and her sureties upon the bond, yet as appellants were not obligors on the bond, they are not bound by the payments, and as to them the bond is barred by the Statute of Limitations. They urge that the bond and deed of trust are two separate contracts, and they not being parties to the bond are not bound by the acts of Mrs. Walton in making these payments. This question we take next.

III. If we grant that the bond and deed of trust are two separate contracts as contended for by appellants, this does not settle the controversy. We must then go to the terms of the deed of trust and see what its obligations are in respect to the bond. This is material and we quote from the deed of trust thus:

“Whe ref's, the said Mary C. Walton, on the 29th day of December, A. D. 1896, borrowed from the said county , the sum of--dollars belonging to the Capital School Fund of said county, for which said sum of borrowed money the said Mary C. Walton, as principal, with John W. Watson and J. B. Dawson, as securities, has executed her bond to the said county, bearing date the 29th day of December, A. D. 1896, in which said bond the said principal and securities agree and bind themselves to pay to the said county, for the use and benefit of the principal of the Capital School Fund, on or before the 29th day of December, A. D. 1897, the said sum of borrowed money with interest thereon from the date of said bond until paid, at the rate of eight per cent per annum, said interest to be paid a/nnually, on the ■first day of August of each and every year, until the whole debt shall be paid off and discharged.
“Now therefore, if the said principal and securities shall well and, truly pay or cause to be paid, the said sum of money borrowed, and all the interest thereon, according to the tenor and effect of said bond, then this deéd shall he void, and it shall be released at the proper cost and expense of the said parties of the first part. But should default be made in the payment of the principal or interest, or any part thereof, at the time when they shall severally become due and payable, according to the tenor and effect of the said bond, the then acting-sheriff of the said county shall have power to and may, without suit on this deed of mortgage, proceed and sell the property herein conveyed and mortgaged, first giving twenty days’ public notice of the time, terms and place of said sale.”

We have italicized a clause with reference to interest in the quotation, supra. From this it appears that the parties to the deed of trust contemplated and agreed that interest payments were to be made annually. Not only so, but the deed of trust contemplated partial payment of the principal. The deed .of trust refers specifically to the bond, and thereby incorporates its terms into the deed of trust. The bond contains this recital:

“The conditions of this bond are: That, Whereas, the said Mary C. Walton, principal, has this day borrowed from said county the sum of two hundred doL lars, belonging to the Principal Capitol School, which said .sum of money the said principal and securities agree and promise to pay .to said county for the use and benefit of the principal of the Capitol. School Fund, on or before the 29th day of December, A. D. 1897, with interest thereon, from the date hereof until paid, at the rate of eight per cent per annum, said interest to be paid, annually on the 1st day of each and every year, until the whole debt shall be fully paid off and discharged.”

From this it.appears that the parties to the bond contemplated that it might run longer than the one year, and by the due reference to the bond in the deed of trust it must be said that the terms of the bond must be read into the deed of trust. So that- in both ways we have this provision in the deed-of trust (1) by reference to the bond, and (2) by special recital in the deed of trust. So that at the very signing of the deed of trust the signers thereof contracted and agreed that either the principal or sureties on this bond should have the right to pay interest on the bond annually “on the first day of August of each and every year.” In signing the deed of trust they so understood and agreed and the right thereby became fixed. No subsequent knowledge or consent to payments were required. They had signed the deed of trust with the understanding that such could be done, and the life of the bond thereby protected from the Statute of Limitations. The life of the bond having been extended by these payments (expressly authorized by appellants in their deed of trust) the appellants are not released by the Statute of Limitations as to deeds of trust i. e. by Section 1892, Revised Statutes 1909. These payments made on the bond became the acts of appellants, because they by the deed of trust authorized them. The cases relied upon by appellants are not appropos to this situation. We' may concede that the deed of trust, so far as the property of appellants is concerned, is in the nature of additional security for the debt, but when they agree (as the terms of their obligation show) that the life of the bond may be extended by annual payments of interest, they are in no position to invoke the Statute of Limitations when the county seeks to enforce its lien upon the property of its proceeds, at any time within ten years from the last of such payments. The difference between this case and those relied upon by appellants in their brief, is, that here we have the contract of appellant authorizing the continued life of the bond by payments of interest or partial payments of principal. There was no error in holding that Section 1892, Revised Statutes 1909, did not relieve appellants.

IY. By the execution of the deed of trust the appellants bound their interests in the land to the payment of this debt upon default of payment by the obligors in the bond. The county can look to the land for the debt. The terms of .the deed of trust so say. Likewise the law so says. [McCullum v. Bought on, 132 Mo. 601, et seq.] Finding no error in the record we affirm this judgment.

All concur, except Woodson, J., absent.


source: Caselaw Access Project

author: BOND, C. J.

license: Public Domain

text:
    GRACE M. TRAPP et al. v. LULA M. SHULL et al.; CATHERINE A. WELLER et al., Appellants.
    Division One,
    June 2, 1919.
    1. APPEAL: Controlled by Statute. An appellate court cannot pass upon the merits of a case falling within its appellate jurisdiction except through the medium of an appeal or writ of error taken or sued out as prescribed by statute.
    2. --: Premature: From Order Setting Aside Commissioners’ Report in Partition. From an order of the circuit court setting aside the report of commissioners in a partition proceeding, the statutes provide for no appeal. After a refusal to confirm the .report the court has express power to appoint other commissioners, and by rejecting the first report it does not determine the right's of the parties. But if the report is confirmed, their rights are thereby determined, and from an order of confirmation an appeal lies.
    Appeal from Holt Circuit Court. —Hon. A. D. Burnes, Judge.
    Dismissed.

      Cook & Cummins for respondents.
    (1) That the right of appeal did not exist at common law, and is purely a creature of the statute, is fundamental. Therefore, unless the statute expressly gives the right to appeal, no such right exists. Snoddy v. Pettis Co., 45 Mo. 361; State v. Yaughn, 83 Mo. App. 457; Kreyling v. OReilly, 95 Mo. App. 561; Bottling Co. v. Exposition Co., 240 Mo. 634. (2) Our statute does not expressly give appellants the right to appeal from the order setting aside the commissioners’ report. Sec. 2611, R. S. 1909; 1 Black on Judgments, sec. 21; Collier v. "Lead Co., 208 Mo. 279. It is plain that this appeal is not from the .final judgment. Sec. 2586, R. S. 1909. (3) There can he no contention that the right t.o have this appeal is given by Section 2038. This section provides the right of appeal, in partition suits, “from any interlocutory judgment which determines the rights of the parties.” That statute has no application here, for this is not an appeal from the interlocutory decree. That decree was'rendered at the October term of the court and was acquiesced in by all parties. The commissioners’ report was set aside at the next February adjourned term, and the appeal taken from that order, and has no connection with the decree. Young v. Young, 175 S. W. 585.

      Frank Petree for appellants.
    (1) An appeal is the creature of the statutes, and the object to be subserved is to get at the right of the cause, and-statutes pertaining to appellate procedure are entitled to a liberal construction. Stid v. Railroad, 211 Mo. 411; Beechwood v. Railroad, 173 Mo. App. 371. Sec. 2038, R. S. 1909, provides for an appeal “from any interlocutory ^ judgments in actions of partition which determine the rights of the parties” or “from any final judgment in the case.” Respondents construe the above provision to mean that the only “interlocutory judgment in actions of partition” from which an appeal will lie is the judgment ordering partition to be made. The provision is not so narrow as respondents’ contention would make it, and the appellate courts have never so held. The courts have held that an appeal will lie from the decree ordering partition,-.but they have never directly passed on the question of whether an appeal will lie with any other interlocutory judgments in such actions. If there is only one interlocutory judgment in actions of partition, the words “any,” and “which determine the rights of the parties,” are meaningless. The words “the interlocutory judgment in actions of partition,” would have conveyed all the meaning respondents give to the provision. The report of the commissioners set off certain lands to appellants. This report was submitted to the court. The court heard the evidence and rendered a judgment disapproving and quashing the report. (2) A judgment confirming the commissioner’s report in partition is final and an appeal will lie from such judgment. Papin v. Blumenthal, 41 Mo. 440; Durham v. Durham’s Admr., 34 Mo. 447. (3) Conceding that the appeal is premature and must be dismissed, the questions raised by the appeal will remain in the case, and if the court has erred, the error could be reviewed on an appeal taken later. A ruling on the point raised (only one), “may obviate "the necessity of another review on final judgment.” Holloway v. Holloway, 97 Mo. 641; Gudgéll and Austin v. Mead. 8 Mo. 53.
   BOND, C. J.

A farm of two hundred acres in Holt County, Missouri, is owned by six sisters as tenants in common, three owning four-fifths thereof, the remaining three owning the residue, or one-fifth.

A partition suit was byought, and answer made, admitting the ownership of the parties as alleged in the petition, and praying that commissioners be appointed to divide the land accordingly.

Upon these pleadings, on November 2, 1915, the Circuit Court of Holt County rendered an interlocutory decree, adjudging the rights, titles and interests of al? the parties to the action, and ordering that partition be made accordingly, and adjudging further that the estates of the sisters who own four-fifths of the lands “be set off together” (they having so requested), and appointing three commissioners to make partition of said land according to law and as directed In said decree.

These commissioners duly reported, awarding one hundred and sixty acres of the farm, whereon are situated the buildings and improvements, to the owners of four-fifths of the whole, and valuing this allotment at $19,650.; and awarding the remaining forty acres to the owners of the one-fifth interest, and reporting that it was not susceptible of division in kind, and recommending sale, and recommending also that to the proceeds of such sale fifty dollars be added and charged against the three sisters to whom the one hundred and sixty acres were allotted and this sum divided among the sisters owning one-fifth of the farm.

To this report exceptions were filed, upon, the hearing of which it was set aside, and from the order of vacation this appeal was perfected and which respondents have moved to dismiss as premature.

Respondents’ motion to dismiss the appeal presents a threshold question; for this court cannot pass on the merits of any case falling within its appellate jurisdiction except through the medium of an appeal or writ of error taken or sued out as prescribed by statute. (Star Bottling Co. v. Exposition Co., 240 Mo. l. c. 641; Stid v. Railroad, 211 Mo. l. c. 418; Beechwood v. Railroad, 173 Mo. App. l c. 381.]

The statute pertinent to the right to an appeal in partition suits is Section 2611, Revised Statutes 1909, to the effect, that an appeal or writ of error in such actions may be brought “on all final judgments.” It is not claimed by appellants under the facts in this record, that the present appeal could be sustained under that statute. It is, however, insisted by appellants that their appeal falls within the purview of the general statute applicable to all civil actions. That section (2038) provides that “any party to a suit aggrieved by any judgment of any circuit court in any civil cause from which an appeal is not prohibited by the Constituton, may take his appeal to a court having appellate jurisdiction . . . from any interlocutory judgments in actions of partition which determine the rights of the parties.” [R. S. 1909, sec. 2038.] The action of the court from which this appeal is prosecuted was nothing more than a refusal on its part to confirm the report of the commissioners, in partition and a setting aside of the recommendation made by them. Its jurisdiction to proceed further was in nowise affected by its rejection of the report of the commissioners. Its action in so doing is expressly authorized by the statute applicable to such proceedings and it had unhampered power to appoint new commissioners “as often as may be necessary.” [R. S. 1909, sec. 2586.] In rejecting the report it did not “determine the rights of the parties.” On the contrary it left all such rights wholly unaffected. If it had - confirmed the report of the commissioners, then it would have conclusively bound the parties to tha proceeding; for such is the statute. [R. S. 1909, sec. 2587.] Prom such judgment of confirmation an appeal would lie under the terms of the statute quoted above (R. S. 1909, sec. 2038); for the interlocutory order of confirmation, being binding upon and determinative of the rights of the parties, would have "brought it strictly within the language of the statute,' and, therefore, within the class of judgments from which an appeal may be taken in partition suits.

The fault in the reasoning of the learned counsel for appellants is the failure to distinguish between the essence of what is done when an interlocutory judgment of confirmation of a report of commissioners in partition is rendered, and what happens when the trial court refuses to adopt such a report. In the latter case the .annulment of the report of the commissioners leaves the rights of the parties just as they existed or had been adjudged prior to the report. Hence it cannot logically be said that their rights were “determined” by the refusal of the court to approve the report recommended by the commissioners. It being obvious from this analysis that the rights of the parties were unaffected by any interlocutory judgment of the court, after its judgment of a former term decreeing partition (from which no appeal was taken), it must be clear that the attempted appeal in this case was abortive and must be dismissed as not lodging any jurisdiction in this court to consider the merits of the case. Appellants are not, however, prejudiced, for, after final judgment, they may bring np the whole case for a full review of all matters to which exceptions shall have been properly saved.

The result is that the present appeal is dismissed. It is so ordered.

Blair, P. J., and Graves, J., concur; Woodson, Jabsent.


author: BROWN, C. PER CURIAM :•

text:
    THE STATE ex rel. EDMOND KOELN, Collector of the Revenue, v. WEST CABANNE IMPROVEMENT COMPANY et al.; JOHN H. VETTE, Appellant.
    Division One,
    June 2, 1919.
    1. EASEMENT TO LAND: Extinguishment by Taxation. An easement in that part of a general private court which does not lie in front of defendant’s lot cannot be so extinguished^by a system of quit-claim deeds made by the other abutting property owners “for the purpose of vacating the court as a private street” as to make such part subject to taxation by the State.
    2. TAXATION: Public Purpose: Uniformity. Taxes must be levied and collected by general laws, for public purposes only, and must be uniform upon the same class of subjects; and taxing officers are instruments provided by the Legislature for the sole purpose of exercising these constitutional powers.
    3. -: According to Market Value: Land and Appurtenances. ■ The statute (Sec. 11519, R. S. 1909) declaring that the words “real property,” “real estate” and “land” shall be held to mean and include not only the land itself, “but also all buildings, structures and improvements and other permanent fixtures,” and “all rights and privileges belonging or in'anywise pertaining thereto,” expressly recognizes to its fullest extent the principle that “actual value” includes the elements which affect that value, which means the price at which it may be bought and sold in the market.
    4. -: -: -: Destruction of Easement. An easement appurtenant can have no existence apart from- the land to which it pertains, and an attempted severance of it not only destroys its value, but diminishes the value of the dominant estate; and any revenue system which destroys the easement violates fundamental constitutional rights.
    5. -: Separate Assessment of Easement: Double Taxation. Where the owner has paid the taxes assessed against his lot abutting on a private court, including the tax chargeable upon his easement in the court, any attempt to charge him a further tax upon that easement would be double taxation, and unlawful; nor can his easement in .the court be extinguished by any arrangement between the owners of the abutting lots by an exchange of deeds made for the purpose of extinguishing the court as a • private way, nor by an assessment and levy of taxes on said court by the taxing officers in accordance with such arrangement.
    Appeal from St. Louis City Circuit Court. — Hon. George H. Shields, Judge.
    Reversed And remanded.

      William F. Smith and Henry Higginbotham for appellant.
    (1) A valid assessment is a jurisdictional prerequisite to the levy or collection of a tax. Abbott v. Linden- • bower, 42 Mo. 168; State ex rel. v. Thompson, 149 Mo. 455; State ex rel. v. Mission Free School, 162 Mo. 336. And there can be no lawful assessment except in the manner prescribed by law. State ex rel. v. Lesser, 237 Mo. 318; Leavell v. Blades, 237 Mo. 710. (2) The power of taxation is a sovereign right which belongs alone, to the State, and which can be exercised only in pursuance of laws passed by the Legislature for that purpose. State ex rel. v. Shortridge, 56 Mo. 130; State ex rel. v. Cunningham, 153 Mo. 651. Assessors and tax collectors must look alone to the law for guidance in the discharge of their duties. State ex rel. v. Snyder, 139 Mo. 549; State ex rel. v. Bridge Co., 134 Mo. 336; State ex rel. v. Lesser, 237 Mo. 318. To determine that a certain article or interest in land is property according to the common law or general classification, is not to determine whether it is taxable eo nomine, although the Constitution provides that all property shall be taxed. The .quo modo is a matter of legislative control, and the statute must be steadily followed. De Witt v. Hays, 2 Cal. 468, 56 Am. Dec. 352; Willis v. Commonwealth, 97 Ya. 672; Williams v. Sheriff-and Tax Collector, 107 La. 101, 105; Kansas City v. Building & Loan Assn., 145 Mo. 53; Abbott v. Lindenbower, 42 Mo. 168. (3) An easement in land cannot be taxed independently, but only'as enhancing’ the value of the dominant tenement— in the absence of a statute authorizing its separate taxation., City of.Fall River v. County Comr. of Bristol, 125 Mass. 567; Boston Mfg. Co. v. Inhabitants of Newton, 22 Pick. 22; State v. St. P. & D. Railroad Co., 8.1 Minn. 422; State v. Minneapolis Mill Co., 26 Minn. 229; Eastman v. St. Anthony Falls Water Power Co., 43 Minn. 65; Town of Woodruff Place v. Raschig, 14? Ind. 525; Capital City Gaslight Co. v. Charter Oak Ins. Co., 51 Iowa, 31; Bradley v. Town of Rock Falls, 163 N. W. (Wis.) 16'8; Matter of Hall, 116 App. Div. 729, 192 N. Y. Supp. 5; Tax Lien Co. of New York v. Schultze, 213 N. Y. 9. (4) Intangible property appurtenant to tangible property unavoidably and automatically disturbs itself wherever the tangible property is, and, for the purposes of taxation, enhances the value of every part of the tangible property; and should be taxed with and as a part of it. Atchison, etc., Ry. Co. v. Sullivan, 173 Fed. 464; Stein v. Mayor of Mobile, 17 Ala. 240; People ex-rel. v. Barker, 48 N. Y. 177; State ex rel. v. Western Union Tel. Co., 165 Mo. 5.06; Whiting v. Mayor, 106 Mass. 98. (5) The courts condemn in strong language the arbitrary severance into artificial, independent or fragmentary parts, property which, from the good sense of the’thing, naturally forms a unit: as, the separation of appurtenances from the dominant tenements; of tangible from intangible property with «which it is connected; of buildings and superstructures from the land on which they stand; and even of the cutting up of that which is a single lot or parcel of land by the tax officials drawing arbitrary lines through the same, thereby dividing the land into needless, nonsensical, unusual, infinitesimal, or valueless fragments or interests. Esserv v. Bell, 18 Ontario Law Rep. 76; People v. Fredericks,' 48 Barb. 179; People ex rel. v. Barker, 48 N. Y. 77; State ex rel. v. Railroads, 215 Mo. 488; Aldridge v. Essex Road Board, 51 N. J. Law, 166; Muller v. Bayonne, 55 N. J. Law, 102; Biddleman v. Brooks, 28 Cal. 72; Toothman v. Courtney, 62. W. Ya. 181; Mullins v. Cemetery Assn., 259 Mo. 152; Rackliffe-Gribsoh Const. Co. v. Zeilda Forsee Inv. Co., 179 Mo. App. 229. (6) The statute, affirmatively prescribing the method of taxing land and all structures thereon, “and all rights and privileges belonging or in anywise pertaining thereto” as a unit, such statutory method is exclusive of any other method. Sec. 11519, R. S. 1909; Kansas City v. Building and Loan Assm, 145 Mo. 53; • Mound City Construction Co. v. Macgurn, 97 Mo. App. 498; City of Hannibal v. Bowman, 98 Mo. App. 108; Toothman v. Courtney, 62 W. Ya. 183. (7) Duplicate taxation exists where one person or subject of taxation is required directly to contribute twice to- the same burden, while other persons or subjects of taxation belonging to the same class are required to contribute but once. State ex rel. v. Brinkop & Koeln, 238 Mo. 298; 1 Cooley on Taxation (3 Ed.), p. 394; Reading v.' Finney, 73 Pa. St. 472. It is double taxation to assess a parcel including therein the value of an easement appurtenant which has been paid by the .owner/ and to assess over again against the -trustees who hold the fee the value of the land in which the ease: ment exists. People ex rel. v. Wells, 139 App. Div. 88, 202 N. Y. 518; People ex rel. v. Purdy, 143 'App. Div. 392.

      Edward W. Foristel for respondent.
    (1) To constitute a public street, the intention on the part of the owner to dedicate is absolutely essential, and unless such intention can be found in the facts and circumstances of the particular case,-no dedication exists; while a street may appear on the Recorder’s plats, yet, if there is an endorsement that it is reserved to the use of the property owners, that endorsement negatives any intention of its dedication to public uses. 2 Dillion on Municipal Corporation (4Ed.), sec. 636; Collier’s Estate v. Western Paving & Supply Co., 180 Mo. 388. (2) A street, not dedicated, is private property, which when owned, there is a tacit condition annexed to the ownership, that it shall contribute to the public revenue. The taxes should be against the record owner, but, after the court has once acquired jurisdiction, the procéeding is against the property. Hilton v. Smith, 134 Mo. 499; Land & Lumber Co. v. Bippus, 200 Mo. 688. (3) One who owns the fee, rather than one who owns an easement, to which it is subject, is liable for the taxes. Winston v. Johnson, 42 Minn. 398. (4) The collector shall receive taxes on part of any lot, piece or parcel of land, charged with taxes. Sec. 11459, R. S. 1909; State ex rel. Wellworth Realty Co. v. Koeln, 255-Mo. 301.
   BROWN, C.

This is a suit by petition in the ordinary form to enforce the lien of the State for general delinquent taxes for the years 1909, 1910 and 1911 against three parcels of land in the City of St. Louis assessed and described as follows:

“Parcel 1. A strip of land in City Block 4539 beginning • at a point in the center line of West Cabanne Place 1323 feet and 6 inches west of the west line of Hamilton Avenue, and extending southwardly parallel with said west line of Hamilton Avenue 245 feet to the south line of Townsend’s Subdivision of West Cabanne, according to a plat recorded in Plat Book 12, page 132; thence westwardly 25 feet to the center line of West Cabanne Court; thence northwardly parellel with the west line of Hamilton Avenue 245 feet to the center line of West Cabanne Place, thence eastwardly 25 feet to the point of beginning.
“Parcel 2. A strip of land in City Block 4911, beginning at a point in the south line of Townsend’s Subdivision of West Cabanne Place, according to a plat recorded in Plat Book 12, page 132, 1348 feet and 6 inches west of the west line of Hamilton Avenue; thence nothwardly 434 feet to the south line of property now or' formerly owned ]iy John H. Yette; thence westwardly 25 feet; thence southwardly 434 feet, thence eastwardly 25 feet to the point of beginning.
“Parcel 3. A strip of land in City Block 4912, beginning at a point in the center line of West Cabanne Place 1323 feet and 6 inches west of the west line of Hamilton Avenue; thence northwardly 230 feet to the south line of property now or formerly owned by C. M. Clark; thence westwardly 25 feet; thence southwardly 230 feet; thence eastwardly 25 feet to the point of beginning. ”

The following is a plat of the strip of land described as West Cabanne Court, fifty feet wide and four hundred and ninety-two feet and six inches long, showing the “parcels” into which it was divided by the assessor, the junction of West Cabanne Place and the respective lots of appellant Yette and defendant Clark abutting the north end.

North Line of Townsend's Subdivision - West Cabamte Place J. H. Fette 215 ft. w • tu O CC < CL '25 it -'Lil* tor ?ccs < a. 25 ft. <0” 0.° C. M. Clark 25 ft- £* LÜc¿ dQo '<* a. 25 ft. Ul*-' O'" CC < a. 25 ft. 148 ft. 6 in. West Cabanne Place North Line of the Clemen^ Tract

Appellant, and defendant Emma M.. Clark, the owner of the seventeen feet-marked on the above plat “C. M. Clark,” filed a joint answer, to which plaintiff replied.

The sufficiency of these pleadings to present all questions arising upon the facts is not questioned. All the other defendants made default. All the .facts were admitted by stipulation or otherwise at the trial, and are briefly as follows: ’

In May, 1888, George Townsend, the owner of a strip of land 392 feet and six inches wide extending from Hamilton Avenue on the east to Hodiamont Avenue on the west, a distance of about 1750 feet, platted it by the name of “Townsend’s Subdivision of West Cabanne Place.” This plat was duly approved by the board of Public Improvements of the City of St. Louis, and recorded. On this plat West Cabanne Court extended north and south through the tract, 50 feet wide. It connected with no public street of the city. From" the connection shown in. the above sketch a strip sixty feet wide extended east through the middle of the tract 1323 feet to Hamilton Avenue. No other way, either public or private, was shown on the plat except a continuation of Catalpa Street, which extended from a point in the north line of West Cabanne Place to a connection with a public street of the same name at the north line of the tract. These strips were dedicated on the plat as follows: “All said named streets, to-wit: West Cabanne Place, West Cabanne Court and Catalpa street, shown on said plat, are private streets, laid out for the exclusive use and benefit of the parties owning lots in this subdivision.” Building lots were laid out on each side of West Cabanne Place and fronting thereon for a distance of more than a thousand feet east of the court, all of which were numbered, and a building line was drawn through each fifty feet from West Cabanne Place upon which they fronted; A row of four lots fronting on the west side of West Cabanne Court throughout its length was also marked with a building line of twenty-five feet. The north fifty-seven feet and one inch of these is- the Vette lot, Mrs. Clark’s seventeen feet fronting west at the north end of the court as shown on the above plat.

Shortly after the filing of his plat Townsend, by a printed form of warranty deeds uniform in-their terms, conditions and covenants, sold and conveyed all the lots in said subdivision to divers persons, in each case describing the lot as extending to the middle of the contiguous” street, upon the express condition therein written that the parts of the lots therein conveyed embraced in a strip half the width of the street should he subject to a right of way for the use and benefit of the owners of the lots in said subdivision, hut not for public use. That all of said lands have passed to the present owners, including Vette and Clark by and through similar deeds. The parties stipulate that “each lot owner in Townsend’s Subdivision of West Cabanne Place, including the defendants John H. Vette and Emma M. Clark, has a dominant easement of way appertaining to his or her lot in the private streets and ways laid out in said subdivision and known as West Cabanne Place, West Cabanne Court and Catalpa Street, as shown on the plat of said subdivision made by said George Townsend.” That part of their respective lots included in West Cabanne Court in front thereof has never been separately assessed, but in the words of the stipulation, the same “has been assessed in connection with and as part of the said parcels of the said John H. Vette and Emma M. Clark, respectively” and they have regularly paid taxes thereon for the years 1909, 1910 and 1911.

On June 5, 1907, nearly all the owners of land in Townsend’s Subdivision fronting on West Cabanne Place executed a quit-claim deed to William Yule, purporting to convey all their right, title and interest in West Cabanne Court, with the following explanation: “It is the intention of this instrument to sell, and release all right, title and interest which said parties of the first part have in and to said parcels of land by reason of certain easements mentioned in the plat of said subdivision, recorded in Plat Book 12, page 132, of the Recorder of Deeds ’ Office, in the City of St. Lonis, and in certain deeds from Townsend to the parties of the first part or their prior grantors, for the purpose of vacating said strip as private streets. ’ ’

The defendant West Cabanne Improvement Company, is a corporation formed July 5, 1905, the shareholders being all the owners of lots fronting on West Cabanne Place. Yule was its secretary, and took the deed to himself in that capacity.

In October, 1908, that part of the subdivision lying west of the court and south of appellant’s lot was replatted by the coporation, extending West Cabanne Place across the court, where it terminated in a circling drive, to which the frontage of all lots, except appellant’s, was changed from the court, so that the rear of those which adjoined him were backed against his lot. His only means of egress shown by the record is' through the court over the land involved in this suit, to West Cabanne Place, his-easement in which-would be unavailable otherwise than by passing through the court.

Prom the judgment of the trial court enforcing the lien of the State against all the defendants, Yette appealed.

I. The judgment from this appeal is taken purports to enforce the lien of the State against the interest of appellant in a strip of land described as West Cabanne Court, except that portion lying in froirt of his own lot, which is admitted to have been assessed with his lot and the taxes hereon paid by him. His interest is adihitted by stipulation to be an easement over this court appertaining'' to his lot, from which it is the only means of access to the highways of the City of St. Louis, through West Cabanne Place, over which his easement extended.

The parties in interest against the appellant and Mrs. Clark, who is similarly situated, comprise, either openly and in their own names as defendants, or as stockholders of the defendant company, or as signatories of the deed to defendant Ynle, all the owners of lands fronting on the two original thoroughfares.

There is a subtle suggestion in the object sought that gently but persistently agitates the memory of the old story of the- king who became obsessed, even to sickness, with the desire to appropriate his neighbor’s vineyard for the purpose of converting it into a flower garden to beautify his own grounds. With the same laudable purpose, these men undertook to extinquish the easement of the appellant which he had acquired and paid for in furtherance of an enterprise for the common benefit of all.

It does not appear in the record that, like Ahab, they offered him a better lot, or even its value in money. The law gave them no right to take it without his consent; so they conceived a plan to persuade the State, through its taxing officers, to exercise the most drastic of its constitutional powers in their behalf. They made a deed purporting to quit-claim to Yule, their secretary, the fee in the street covered by appellant’s easement, “for the purpose of vacating the strips as private streets.” How this was to be done next appears in the proceeding' now before us. That Yule took no title other than for the purpose so carefully limited is evident, and is scarcely denied. That the deed bore its intended fruit (not yet ripened) appears from the action of the assessors on which this suit is founded. The completion of the plan is in the hands of this court. If this is a good and valid assessment of the appellant’s easement, and the tax thereon has not been paid, it goes smoothly according to the original program? if otherwise, it must fall.-

Before considering these questions it is well to say that no question is made that appellant well and faithfully performed all the duties assumed alike by him and all his associates and expressed in their deeds. He has paid his taxes on his interest in the mutual enterprise exactly as his associates who joined in the Yule deed paid theirs. No reason is disclosed by the record why they should beautify and enhance the. value of their holdings at his expense. So far as this appeal goes, the rights of the State alone are involved on one side and the rights of appellant on the other.

II. The Constitution (Sec. 1, Art. 10) has vested the taxing power in the General Assembly subject to certain conditions and limitations which it may not transcend. Taxes must be levied and collected general laws, for public purposes only, and must be uniform rnpon the same class of subjects (Section 2). Taxing officers are the instruments provided by the Legislature for the sole purpose of exercising this constitutional power. Their duties have no connection whatever with the exercise of the general police powers of the State under the protection of which private property is accumulated, developed and enjoyed. Their powers are confined to taxation, and must be exercised with that impartiality which is included in the word “uniform.” Partisanship has no place in the performance of these duties.

In its exercise of the taxing power the Legislature has been particular in its definition with respect to property which must contribute to the" general burden. It is expressly declared (R. S. 1909, sec. 11519) that the term “real property,” “real estate,” “land” or “lot” wherever used in the chapter relating to taxation and revenue ‘ ‘ shall be held to mean and include not only the land itself, whether laid out in town or city lots or otherwise, with all things contained therein, but also all buildings, structures and improvements and other permanent fixtures, of whatsoever kind thereon . and all rights and privileges belonging or in anywise pertaining thereto except where the same may be otherwise denominated by this chapter.” This expressly recognizes to its fullest extent the principle that “actual value” includes the elements which affect that value, that is, the price at which it may be bought and sold in the market.

■ This statute was before us for construction in Center Building Company v. St. Joseph, 108 Mo. 304. In that case the biennial assessment for State and county taxation for 1888-9 had been made in June, 1887, and the value of the two lots involved fixed at twienty-one thousand dollars. In January, 1889, the lots were assessed for city purposes. A building costing more than fifty thousand dollars had been erected on them, and the assessor valued them at twenty-one thousand dollars, and the building át thirty-five thousand, making a total valuation of fifty-six,thousand dollars. The Constitution, (Article 10, section 11) provides that the valuation of property for city taxation shall not exceed its valuation for State and county purposes. A city ordinance provided for the addition of the value of improvements made since the assessment for State and county taxes. Citing the statutory definition of real estate we have already quoted, we held that the city was property enjoined from collecting the city tax on the value of the improvements, and added: “This seems too plain for argument. ’ ’ ,

The application of the definition to this case seems plainer still. Buildings, structures and permanent fixtures may be removed, and their value or a portion of it be transferred to another tenement, but an easement appurtenent can have no existence other than in connection with the land to which it pertains, nor can its value find other expression than in the value of the dominant tenement which it serves. Its severance destroys its existence. If the value of the servient estate is diminished the State may gain nothing for the purpose of taxation, but in cases like the present the mutual easements are created for the very purpose of increasing the taxable value of the entire tract. It is by such development that a large percentage of the aggregate taxable value of the State is created, and a revenue system which should disregard the permanence and safety of such conditions would be highly detrimental to the interest of the people.

These -simple principles require no statutory support, and seem to be universally recognized by the courts. The following are a few of the cases by which they are illustrated: Essery v. Bell, 18 Ont. L. R. 76; Matter of Grand Boulevard, 160 App. Div. 80; People ex rel. v. Wells, 139 App. Div. 83; People ex rel. v. Purdy, 143 App. Div. 389, affirmed 202 N. Y. 609; Gas Light Company v. Charter Oak Ins. Co., 51 Iowa, 31; Town of Woodruff Place v. Raschig, 147 Ind. 517; In the Matter of New Avenue, 153 App. Div. 164. It is said in the Grand Boulevard case, supra., that the question has been so1 carefully and thoroughly .discussed in the case last cited, that it is unnecessary to attempt its rediscussion. Collier v. Western Pav. & Supply Co., 180 Mo. 362, cited by respondent, has no application to the facts of this case.

III. The views stated in the preceding paragraph lead to the conclnsi on that the appellant, in paying the tax assessed and charged upon his lot, also paid the tax chargeable upon his easement in West Cabanne Court, and that any attempt to charge a further tax upon that easément by the proceedings to' which this suit is an incident is, in law, an attempt to subject it to double taxation, and cannot, therefore, be enforced by the court. The attempt, by the conveyance to Yule, to hybridize the various interests to produce a taxable entity appealed effectually to the assessor, but in law each seed continued to produce its own kind. The easement continued to be attached to the tenement in which it was planted, and'cannot be uprooted by the court in this suit. The appellant has been invited by process to assert his claim, and is entitled to a judgment protecting him to the fullest extent of the title under which he holds.

We are not called upon by the record to express any opinion upon the rights as between themselves or against the State, of any of the defendants who have, by their conduct, arrayed themselves as respondents, and therefore refrain from doing so.

It follows that the judgment of the St. Louis Circuit Court must be reversed and the cause remanded to that court for further proceedings in accordance with the views we have expressed.

Bailey, G., concurs.

PER CURIAM :•

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

Blair, P. J., Bond and Graves, JJ., concur Woodson, J., absent.


text:
    JOHN COUGHENOUR v. C. F. HUTCHINGS, STANDARD LAND COMPANY et al., Appellants.
    Division One,
    June 2, 1919.
    For the reasons given in Rahenau v. Harrell, ante, page 247, the decree in this case, cancelling plaintiff’s deed conveying his land on account of fraud on the part of the vendees, is affirmed.
    Appeal from Christian Circuit Court. — Bon. John T. Moore, Judge.
    Affirmed.

      G. O. French for appellants.

      J. E. Baymes for respondent.
   BOND, C. J.

Suit to rescind a land contract for fraud, and to recover money damages in addition thereto.

Plaintiff Coughenour, a farmer of Webster County, through D. J. Haugeberg, one of defendant corporation’s land agents, was interested in a proposition of said company to sell him a tract of land in their Edinburgh district in Hidalgo County, Texas.

The Standard Land Company in 1913 were endeavoring to interest farmers in Missouri, Illinois and other states in a large tract of uncleared Texas land, which they widely advertised to be <£one of- the richest, most certain agricultural districts of the world,” and that they had installed therein “the most splendid irrigation system that can be found,” claiming that they could “show more advantages and fewer disadvantages than can be found elsewhere on the American continent. ’ ’

In June, 1913, plaintiff, attracted by the glowing accounts of the resources of that country, the fertility of the soil, the fine climate, certainty of crops, joined an excursion party which the defendants were taking to Edinburgh, Texas, to view this land. On the trip home the plaintiff entered into a written contract to purchase about forty-two acres of land in the Edinburgh tract at the rate of $185 per acre, and in part payment he agreed to execute a deed to his eighty-acre farm in Webster County, Missouri, at the rate of twenty dollars an mere, giving notes for the balance, secured by a vendor’s lien on the Texas land.

In October of the same year, plaintiff removed his family to Texas, where he rented a farm in the vicinity of the uncleared land which he had purchased. He continued to farm in that locality until the spring of 1915, when having discovered that it was impossible to produce the crops he had been told could be produced, and claiming that the irrigation system was wholly insufficient to water the land and that he had been deceived and defrauded, he returned to Webster County, Missouri, and in February, 1915, instituted this suit, asking annulment of his contract and the cancellation of the deed conveying his Missouri farm to defendants.

The court found the issues for plaintiff and decreed that the deed executed by plaintiff conveying his Webster County farm to defendant be cancelled and set aside, and that plaintiff should also recover $175 paid by him to defendants in cash, together with the costs of suit. Defendants duly appealed.

The grounds of appeal in this case are the same, as far as they go, as the errors assigned by the appellants in the case of Rabenau v. Harrell, ante, page 247. The evidence of deceit and fraud in the present case is similar to that adduced in the former. For the reasons given in the opinion in that case, the decree in this should be affirmed. It is so ordered.

Blair, C. J., and Graves, J., concur; Woodson, J., absent.


author: SMALL, C. PER CHRIAM:

text:
    JAMES G. RUTLEDGE, et al., Appellants, v. FIRST PRESBYTERIAN CHURCH OF STOCKTON et al.
    Division One,
    June 2, 1919.
    1. DESCENT: Children of Deceased Wife. By the statute the children of intestate’s wife by a subsequent marriage after her death take the title to land as against the descendants of intestate’s deceased aunt.
    2. -: Statute: Constitutionality: Public Policy. The Statute of Descents, which permits intestate’s lands to descend to his wife’s children by a subsequent marriage, in preference to the descendants of intestate’s deceased aunt, is not unconstitutional or void as against public policy, although it allows property to descend to persons not of intestate’s blood, in preference to those of his blood.
    3. -:-: Public Policy. Acts of the Legislature are not void as against public policy unless that policy is imbedded in some provision of the State or Federal Constitution. The public policy of the State on any given subject is found in the provisions of the Constitution and legislative acts in harmony therewith and relating to the subject. The Statute of Descents does not conflict with any constitutional provision.
    4. VALIDITY OF WILL: Attack by Persons Without Interest. If the plaintiffs have no interest in the land in controversy they cannot attack the validity of the provision of a will devisipg it to a church, or invoke a ruling of the court on the point.
    Appeal from Cedar Circuit Court. — How. B. G. Thurman, Judge.

      Affirmed.

      Foulke & Brown and H. C. Hembree for appellants.
    (1) The court committed error in finding for the defendants Wassons, since the provision of the statute under which they claim is unconstitutional and against public policy and the evident purpose of the statute as a whole. (2) The court committed error in finding for the defendants Wassons because the third provision of Sec. 332, R. S. 1909 upon which they base their claim is void, being in contradiction of all the other, provisions of said section and against its evident purpose. (3) The First Presbyterian Church of Stockton can claim no title coming through the will offered in evidence, that instrument being void because in violation of the express law, because too indefinite and uncertain to convey, there was no church or thing having legal being that could take at time of making will or since, because the defendant church is not such donee as described in the attempted will, and said defendant cannot take because it is not the church designated in the will. Douthitt v. Stinson, 63 Mo. 268; Proctor v. Board of Trustees, 225 Mo. 52; Mo. Constitution, 1820, art. 3, sec. 5; Board of Trustees v. May, 201 Mo. 360; Wells v. Fuchs, 226 Mo. 106.

      S. F. Osborne and Mann, Todd & Mann for First Presbyterian Church.
    , (1) If appellants have no valid title it is no concern of theirs whether or not the defendants’ claims are valid. Wheeler v. Land Co., 193 Mo. 291; Barkley v. Donnelly, 112 Mo. 561; Dixon v. Hunter, 204 Mo. 391. (2) It is not only competent, but the obvious duty of the trial court in an action like this, to ascertain and determine the title of all parties to the suit both plaintiff and defendant, who might have conflicting interests. Himmelberger v. Jones, 220 Mo. 190; Richards v. Coal Co.? 221 Mo. ,173. (3) Plaintiffs point out no provision of the Constitution which has been violated, and point to no specific constitutional guaranty which has been denied them by the trial court. They, therefore, present no constitutional question for interpretation to this court. Carmody v. Transit Co., 188 hfo. 575; Canning Co. v. Evans, 238 Mo. 599. (4) The third division of Sec. 332, R. S. 1909, is not unconstitutional. Similar provision exists in the statutes of almost, every State in the Union. We fail to find where its constitutionality has ever been questioned in any of them. We have traced this provision of our Statute of Descents and Distribution back to the Missouri Territorial Acts of 1815, and it has remained in every revision of the Territorial and State statute from that day to this. Its constitutionality has never been questioned, (a) The constitutionality of Section 350 has been assailed, not upon the ground that it was against public policy, but upon other grounds, and th'e right of the Legislature to provide that the husband should inherit from the wife one-half of her property even against father and mother, brothers and sisters, has been held by the court to violate no provision of the Constitution. O’Brien v. Ash, 169 Mo. 283; Waters v. Herboth, 178 Mo. 166. (b) So far from declaring the provision of any statute, giving the husband or wife the preference of inheriting over near blood relatives, to be against public policy has this court gone, that it has declared that neither the husband nor • wife can by will defeat the right of the survivor to take under Sections 350 and 351. O’Brien v. Ash, 169 Mo. 283; Lilly v. Menke, 126 Mo. 190; Pullman v. Schafer, 258 Mo. 710 ; Rice v. Waddill, 168 Mo. 118; Straat v. O’Neil, 84 Mo. 68. (c) It is inconceivable that there can be a violation of a rule of public policy where the action is done under a legislative enactment and in accordance with constitutional provisions. Moorshead v. United Railways Co., 203 Mo. 137. The public policy of this State in regard to the order in which the wife or blood relations should inherit property upon the death of the owner was conclusively settled by the Legislature when it enacted what is now Section 332, (d) There is no vested right, of inheritance and the sole right of determining how property shall descend upon the death of the owner is vested in the Legislature which may change the order of succession at' its pleasure any time before the right of inheritance becomes vested by the death of the owner. Cooley’s Const. Lim. (7 Ed.) secs. 512 tb 515.

      Parks & Son for Omar Wasson and Wallace Wasson.
    (1) The power of the Legislature to prescribe the right of descent cannot be denied. Such right is not a natural one. State ex rel. v. Henderson, 160 Mo. 216. (21) The law giving to husband or wife the right in the survivor’s estate is constitutional. Waters v. Herboth, 178 Mo. 166; O’Brien v. Ash, 169 Mo. 283; Jarboe v. Hey, 122 Mo. 354; Graham v. Moore, 189 S. W. 1186. (3) For history of adoption of different sections of our present statutes of descents and distributions, see Perry v. Strawbridge, 209 Mo. 621. (4) Section 2 of Statute •of Descents, found in 1 R. S. 1855, p. 659, has remained the same since 1855 as is shown by subsequent revisions, to-wit: R. S. 1909, sec. 332; R. S. 1899, secs. 2908, 4465; Jarboe v. Hey, 122 Mo. 354; Graham v. Moore, 189 S. W. 1186. (5) No one has, a right to'require another to come into court and show his title, who cannot himself show a prima-facie title, and no plaintiff is entitled to a decree declaring the claim of another invalid until he has shown that he himself 'has a better claim. If the plaintiff has no valid title, it is no concern of his to know whether or not the defendants’ claim is valid. Wheeler v. Land Co., 193 Mo. 291. If appellant has no title, he cannot have, on his appeal, a review of the decree affecting rights of respondents as between themselves. Ross v. Presbyterian Chnrch, 272 Mo. 96.
   SMALL, C.

This is a suit to quiet title commenced in the Circuit Court of Cedar County. There is no controversy about the facts. Both plaintiffs and defendants claim through Hugh Ross and John Ross as the common source of title. Hugh Ross owned the property in his lifetime. He was married, but never had,any children. At his death in 1860, he left surviving him his wife, Caroline Ross, and his brother John Ross. By his will he devised a life estate in the property to his wife and directed that after her death the land should be sold and the proceeds be “applied to the erection of a house of worship in the town of Stockton, for the use and benefit of the Old School Presbyterian Church. ’ ’

Caroline Ross elected to take the provisions made by her husband’s will. She remained in possession of the property until 1910, the time of her death. John Ross was the sole heir of his brother Hugh, and upon the latter’s death inherited the property, subject to the life estate of Caroline Ross and the right of'the defendant church, created by the will of said Hugh Ross. Prior to the institution of this suit John Ross died intestate. He left surviving him, his widow, Jane Ross, but no children or their descendants, and no father, mother, brother or sister or their descendants. '

Jane Ross subsequently married John Wasson, and the defendants Omar Wasson and Wallace Wasson are the children of that marriage. Said defendants claim that their mother, as the widow of said John Ross, inherited the property from him, and that they, on her death, inherited it from her and are the owners of it, subject to the rights of the defendant Presbyterian Church, under the will of Hugh Ross, and the decree in certain prior litigation which was affirmed by this court in the case of Ross v. Presbyterian Church, 272 Mo. 96.

There is no controversy between the defendants themselves, but they deny that the plaintiffs have any interest in the property. The plaintiffs were not parties to said prior litigation and it is not claimed to affect their rights. They claim to own the property as the descendants of Mrs. Rutledge, who was the sister of the mother and, therefore, an aunt of said John Ross.

The court below found against plaintiffs and for defendants, and plaintiffs brought the case here by appeal.

I. The circuit court correctly decided the case. The statute governing the course of the descent and distribution of real estate (Sec. 332, R. S. 1909) provides as follows: “Third: If there be no children or their descendants, father, mother, brother or sister, nor their descendants, then to the husband or wife; if there be no husband or wife, then to the grandfather, grandmother, uncles and aunts and their descendants in equal parts.”

The plaintiffs in their brief admit that if this statute is valid, the plaintiffs have no title as against the defendants Wasson, because said defendants are the descendants of the surviving wife of John Ross, and the plaintiffs are descendants of an aunt of said .Ross, and by the plain words of the statute, therefore, said defendants took the title by inheritance from said John Ross, and the plaintiffs have no interest therein.

But the plaintiffs suggest that the statute is unconstitutional or void as against public policy, because it allows property to descend to persons not of the blood of the ancestor, in preference to those of his blood. This contention is untenable. No provision of the Constitution is pointed out nor referred to as conflicting with this statute, and we know of none such.

This subject was carefully considered in the recent case of State ex rel. v. Guinotte, 275 Mo. 298, where it is said, by Craves, J., in delivering the opinion of Court in Banc (1. c. 314): “So that under the great weight of authority we rule: (1) That the taking of property by inheritance or will is not an absolute or natural right, but one created by the laws of the sovereign power.. This court has so said (State ex rel. v. Henderson, 160- Mo. 1. c. 216) . . . (3) That this right of the State to foreclose absolutely, or partially, the right to inherit by law or will, ... is inherent in its sovereignty, which allows the" State or the Nation to say what shall be done with the property owned by the citizen at the time of his cieatu. No provision of the Missouri. Constitution stays the free hand of our lawmakers as to the disposition of property owned by a citizen at the time of his death.” .

To the same effect is the language of Bond, J., in his opinion in Maguire v. University, 271 Mo. 359, where he said at page 367: “Both the cases heretofore cited in this opinion and correct reasoning deduce the existence of this right [to impose inheritance taxes] in a sovereignty from'the fact that the power of succession in such cases depends upon statutes affording that privilege to the claimant, and this being in the full discretion of the enacting. body is subject to any terms which it sees fit to impose.”

As to the contention of the plaintiffs that the statute is void because against public policy, it is sufficient to say that acts of the Legislature are not void because they violate public policy, unless that policy is imbedded in some provision of the State or Federal Constitution and the public policy of the State on any given subject is found in the provisions of the Constitution • and acts of the Legislature in harmony therewith relating to that subject. In this case the public policy of the State as to the right of inheritance is found in the Statute of Descents and Distribution above quoted. That statute does not conflict with any constitutional provision and is valid. The circuit court committed no error in following it.

II. Plaintiffs also* attack the validity of' the provisions of the will of Hugh Ross in favor of the Presbyterian Church, but inasmuch as plaintiffs have no interest in the land in controversy, they have no interest in that question and cannot invoke the action of this court thereon. [Wheeler v. Land Co., 193. Mo. 291.]

The judgment of the circuit court should be affirmed, and it so ordered.

Brown and Ragland, GG., concur.

PER CHRIAM:

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

Blair, G. J., and Bond and Graves, JJ., concur; Woodson, J., absent.


author: WHITE, C. PER CURIAM

text:
    THE STATE v. HARRY REPPLEY, Appellant.
    Division Two,
    June 2, 1919.
    1. WITNESS: Coindictee: Case Undisposed of. Where two persons v are jointly indicted for the same offense one may not testify -for the State against the other before his case is disposed of.
    2. -: -: Disposal of Case: Plea of Guilty. A plea of guilty by one of two persons jointly indicted for the same offense is equivalent to a trial and conviction so-far , as to permit him to testify against the other.
    3. -:-: -: Effect of Plea of Guilty. A plea of guilty' does not necessarily confess guilt of the crime charged; it only means that the truth of the facts charged is confessed. Notwithstanding such plea, the defendant may file a motion for a new trial, and it being overruled appeal or sue out a writ of error, on the ground that the information charges no offense.
    4. -: -: -: Plea of Guilty: Motion for New Trial. The mere filing of a motion for a new trial after a plea of guilty does not disqualify the pleader from testifying against his coindictee; but, nothing more appearing, his case is sufficiently disposed of to qualify him to testify. So that if the motion for a new trial, filed after a plea of guilty by one of two jointly indicted persons, offered in evidence by the other in his separate trial, does not reveal • that it is an application to withdraw the plea of guilty and plead not guilty, or that it contains anything more than some technical objection to the information or the form of entry, it will not on appeal be held that the trial court erred in permitting said coindictee to testify against the codefendant on trial.
    5. INSTRUCTION: Larceny: Committed by Either Defendant. » An instruction which requires the jury to find that “the defendants, either acting alone or with one another, did wrongfully take and carry away . . . with intent to fraudulently convert the same to their, own use,” certain automobile tires, did not authorize a verdict of guilty', against one of them tried separately, if either of them committed the theft. It required both defendants to have ' participated in the ofílense, although the physical act of detaching the tires from the car was performed by one of them alone.
    6. -: -: --: On All Questions of Law. An instruction which told the jury that the court instructs them “on all ques- , tions of law” arising in the case and then proceeded to tell them that “all -persons are equally guilty who act together in the commission of a crime, and a crime so committed by one or more persons jointly, is the act of each and all so acting,” could not have misled the jury, oryinduced them to find the defendant guilty unless he participated in the theft.
    7. _-: -: Must Be Read Together. Instructions defining larceny and accessories must be read together, and if both are correct in their definitions they cannot be held to have misled the jury.
    8. ARGUMENT TO JURY: Prosecuting Attorney: Belief in Defendant’s Guilt: Truthfulness of Witness. The prosecuting attorney is out of order when he expresses his belief in the guilt of de- ■ fendant, and should be rebuked by the court.. But he has a right to refer to the facts in evidence and argue them, and in doing so to commend the truthfulness of his witness; and if a witness jointly indicted with defendant has pleaded guilty and has been attacked by defendant’s counsel, it is not error for the prosecutor to say to the jury: “That boy didn’t know what punishment he is going to get; and if I thought that his testimony didn’t ring true, I would never have insulted your intelligence by.offering him as a witness.”

      Appeal from St. Louis City Circuit Court. — Hon. Victor H. Falkenhainer, Judge.
    Affirmed.

      Willis H. Clark for appellant.
    (1) The court erred in admitting testimony of the codefendant Keller in evidence against appellant. State v. Miller, 100 Mo. 606; State v. Chyo Chiagk, 92 Mo. 395. (2) The first and second instructions given were erroneous in that they were not confined to the issue on trial, and authorized the conviction of appellant in case the jury found the offense charged to have been dommitted by either one or both the defendants named in the information.- State v. Vaughan, 200 Mo. 1; State v. Bobbitt, 228 Mo. 252; State v. Bobbitt, 242 Mo. 273; State v. Fredericks, 136 Mo. 51;' State v. Kaiser, 124 Mo. 651. (3) The court erred in-overruling objections of appellant to improper remarks of the prosecutor in his argument to the jury and in refusing to admonish the prosecutor concerning such remarks. State v. Baker, 2'46' Mo. 357; State v. Webb, 254 Mo. 414; State v. Hess, 240 Mo. 147; State v. Furgerson, 152 Mo. 92; State v. Wigger, 196 Mo. 99.

      Frank W. McAllister, Attorney-General, and Thomas J. Cole, Special Assistant Attorney-General, for respondent.
    (1) If an accomplice has pleaded guilty, or has been convicted, or if the case against him has been nolled and judgment has not been entered, he is a competent witness for or against others included in the same information or indictment. State v. Shelton, 223 Mo. 132, 136; State v: Conway, 241 Mo. 278; State v. Walker, 98 Mo. 102; State v. Jackson, 106 Mo. 177; State v. Chyo Chiagk, 92 Mo. 401. (2) The remarks of the prosecuting attorney were not improper. State v. Miles, 199 Mo. 553; State v. Wassing, 169 N. W. 488-, People v. Worth, 108 Mich. 307; 16 C. J. 2246; Driscol v. People, 47 Mich. 413. See also, People, v. Riker, 168 N. W. 435. (3) All of the instructions given in a case are to be considered together. State v. Kinder,' 184 Mo. 295; State v. Montgomery, 230 Mo. 671. Instructions 1 and 2, when considered with instruction 3 and the other instructions given herein, were proper. State v. Darling, 199 Mo. 200.
   WHITE, C.

The defendant was tried and convicted on an information charging him and one Joseph Keller with the crime of grand larceny. Keller, his co-defendant, was arraigned and pleaded not guilty. He afterwards withdrew his plea of not guilty and entered a plea of guilty. Thereafter Keller filed some sort of motion for new trial; which was pending at the time the defendant Reppley was brought to trial. Keller was a witness for the State against Reppley and the ruling of the trial court in permitting him to testify is assigned as error.

■ The defendants were charged with stealing two automobile tires from the car of Judge George Williams on the evening of September 3, 1917. On that evening Judge Williams drove to the Bevo Mills and left his car, a Packard, in charge of his chauffeur, Frank Wesley. He had two extra Goodyear Cord tires, mounted on steel rims and enclosed in leather cases, on the back of his car. These tires with casings, rims and inner tubes were valued at $221. The chauffeur parked the car on the south side of the street and remained in the car, after Judge Williams had stepped out, for some time, and then crossed the street, where he stood a few minutes, when some unknown man called his attention to his car. He ran hastily back .and found another car driving away, but not before he recognized the State license number, 101681. The tires mentioned had been taken from Judge Williams’s standing car. Later the same day the chauffeur discovered a Studebaker automobile with that license number at 4164 Pleasant Street, and reported the fact to the police. The defendants Reppley and Keller, with two other boys, were in the car at the time and they were arrested. The car contained two tires, but not' the tires of Judge Williams. The next morning the stolen tires were found at 2109 Johnson Avenue, in a shed of one Frank Shaller, who lived at that number and ran an automobile repair shop there. He said he did not know anything of the tires which were found in his shed.' Keller testified that he had known the defendant Reppley for two weeks prior to the time the tires were taken and that on the evening of September 3rd, he, Reppley and two others started out for the purpose of getting tires.-They drove to the Bevo Mills, saw Judge Williams’ car drive up, removed the tires from his car and took them away. They first intended to leave the tires at Reppley’s house, but decided to take them to a shed at some place west of Grand Avenue. After that they went out and got some more tires, which were found in their ear at the time they were arrested. The defendant offered evidence' to show that he had an automobile and horses and wagons which he let out for hire. His wife testified that on the evening of September 3rd, he had rented his automobile to Keller and that he was at home and with her at a picture show that evening. Defendant testified to the same facts. On the submission of the issues to the jury the defendant was found guilty and his punishment assessed at two years in the Penitentiary, from which judgment he appealed.

I. The evidence was entirely insufficient to warrant a verdict of guilty against the defendant except for the testimony of Keller. Counsel for defendant vigorously assert that the court committed error in permitting Keller to testify, on the ground that he was a co-defendant with Reppley. The authorities are uniform in this State that where two persons are jointly indicted for the same offense one may not testify for the State against the other while his case is undisposed of. In many jurisdictions the rule obtains that on separate trials of defendants jointly indicted one may testify against the other whether the case is disposed of or not. [16 O. J. p. 691.] But in this State the rule is more, strict, and such a witness cannot testify before his case is disposed of unless he is charged in a separate information from defendant. The authorities were collated and the points discussed at length in the case of State v. Chyo Chiagk, 92 Mo. 395. A plea of guilty is equivalent to a trial and conviction so far as an effectual disposition of the case is concerned, so as to permit a codefendant to testify. [State v. Jackson, 106 Mo. 174; State v. Shelton, 223 Mo. l. c. 134-5; State v. Minor, 117 Mo. 302, l. c. 305.]

Appellant in this case while admitting that the rule obtains here as stated, argues that Keller’s case was not disposed of in such way that he had nothing to. hope for or to gain through testifying against his codefendant. It is argued that although Keller had pleaded guilty, he had afterwards filed a motion for new trial, which was pending at the time he testified, and he was at liberty on bail; that therefore his case was undisposed of and the whole bodv of the case remained for determination against him. Under the law, it is urged he had a right to withdraw his plea of guilty, at any time before sentence and elect to submit his case to trial, and his motion for new trial is equivalent to an election to withdraw his plea of guilty.

The files were introduced showing that the defendants were jointly informed against for grand larceny, and the record of the circuit court was offered showing the plea of guilty of Joseph Keller; defendant also separately offered Keller’s motion for new trial and proof to show that the motion for new trial in that case was still pending at the time the witness was called to testify. That motion is not set ont in the record here. There is nothing to indicate its purport or substance except that it is designated as a motion for new trial. The record shows no indication that it is merely an application for leave to withdraw his plea of guilty and plead not guilty. We do not know, from what is shown by the record, that the motion contains anything of which the court could properly take cognizance, or that it contains anything more than some technical objection to the information or the form of entry.

A defendant who pleads guilty to a charge in an information does not thereby necessarily confess guilt of the crime it is sought to charge against him; it only means he confesses the truth of the facts stated in the information. He may follow his motion for new trial in such case, appeal, or sue out a writ of error, on the ground that the information or indictment charges no offense. [State v. Rosenblatt, 185 Mo. l. c. 119; State v. Kelley, 206 Mo. l. c. 693.] The fact" that Keller had filed a motion for new trial in the case in which he pleaded guilty would not indicate that he was attacking anything but the form of the information on which he was arrested. The trial court is presumed to have acted regularly. If Keller had presented his application to withdraw his plea of guilty so that he might plead not guilty, the record would show that, but it shows nothing of the kind;

At most it stands on the same footing as a motion for new trial would stand after a conviction. A witness is permitted to testify against his codefendant immediately after conviction and before time to file a motion for new trial is expired. [State v. Peters, 258 Mo. 334, l. c. 342.] While a defendant still has time in which to file a motion for a new trial his case is in the same position, so far as its final disposition is concerned, as that of a defendant whose motion has been filed. It has been held that the pendency of a motion for a new trial by an accomplice who has been convicted does not prevent his testifying against the defendant charged with the same crime. [State v. Myers, 198 Mo. 225, l. c. 252.] In that case, it is true, the witness was charged in an information separately from the defendant with the same offense, but the court' in determining the case puts the right of the 'State to use the witness upon two grounds, that he was charged separately and that he had been convicted; the pendency of ‘ his motion for new trial made no difference.

Por these reasons the court did not err in permitting Keller to testify.

II. Appellant complains of instructions given to the jury. Instruction numbered 1 is as follows:

“It is the duty of the court to instruct you on all questions of law arising in this case, and it is your -duty to receive such instructions as the ]aw 0£ pjie caSG) anf] to find the defendant guilty or not guilty according to the law as declared by the court and the evidence as you have received it under the direction of the court.
“All persons are equally guilty who act together in the commission of a crime, and a crime so committed by one or more persons jointly, is the act of each and all so acting.
“First, If, upon consideration of all the evidence in the case, in the light of the court’s instructions, you believe and find from the evidence that at the .City of St. Louis, Missouri, on the 3rd day of September, 1917, or at any time within three years next before the filing of the information herein, the defendants either acting alone or with one another, did wrongfully take and carry away two automobile tires, including casings, inner tubes and rims, of the value of one hundred and fifteen dollars, from the possession of George Williams, with the intent to fraudulently convert the same to their own use, and permanently deprive the owner thereof, without his consent, and that the automobile tires, tubes and rims were the property of the said George Williams, and'of the value of thirty dollars or more, you will find the defendant guilty of grand larceny and assess his punishment at imprisonment in the Penitentiary for not less than two years, ■ nor more than five; and unless you so believe and find from the evidence, you wijl acquit the defendant of grand larceny.”

It' is contended that this instruction authorizes a verdict of guilty if either of defendants committed the' theft. That is, Reppley could be found guilty if Keller alone stole the tires. The instruction is not open to that objection. Grammatically it is entirely clear and correct in requiring the jury to find “the defendants . . . did wrongfully take and carry away . . . with intent to fraudulently convert the same to their own use.” That is,- both defendants must have participated in the offense before the appellant could be found guilty, although the physical act of detaching the tire from its moorings .on the car was performed by one man alone.

It is not likely that the jury could possibly misunderstand the effect of the instruction because the first part of the instruction directs their attention to the fact that the court instructs them ‘ ‘ on all questions of law” arising in the case. It then directs them that “all persons are equally guilty who act together in the commission. of a crime, and a crime so committed by one or more persons jointly is the act of each and all so acting.” The jury could not have understood that the defendant was guilty unless he participated in the theft, although he himself did not take manual possession of the articles stolen. Juries are'supposed to exercise and do exercise ordinary intelligence in considering instructions and the facts of the case as presented. [State v. Taylor, 134 Mo. 109, l. c.. 151.]

The second instruction is also objected to. It describes what is necessary in the commission of the crime of larceny as applied to the facts of this case and directs that “if the defendants, or either of them, either alone or acting together, removed the property described in the information with intent,” etc., that act would constitute the crime of larceny. That instruction does not authorize a verdict on the finding of such fact. It does correctly state what would constitute larceny. The jury were bound to understand that the larceny would be committed by the one who actually did the act.

The jury is further enlightened about the matter by instruction numbered 3 which tells them that when the offense is actually committed by one person and another person is present and knows the willful intent, and aids, abets and encourages the person engaged in the unlawful act, such person so encouraging is equally guilty with the person actually committing the larceny. These instructions must be read together and taken together. They correctly state the law and are not likely to mislead, although they may be longer and more explicit than approved instructions in cases cited by appellant. [State v. Kinder, 184 Mo. l. c. 295; State v. Bobbitt, 242 Mo. l. c. 284-5.]

III. Appellant insists that there was error in permitting the State’s attorney in his closing argument to use this language: “Now he also speaks about this boy Keller may be turned out, and for you not to believe his' testimony. Now let me tell you something gentlemen: That boy didn’t any more know than you right now what punishment he is going to get. And ^ I 'tho'f-gtt that boy wasn’t telling the truth, and if I thought for one minute that his testimony didn’t ring true in every respect, I would have never insulted your intelligence by offering him as a witness.”

A prosecutor is out of order when he expresses his belief in the guilt of a defendant on trial. And such assertion on his part requires a rebuke by the court. [State v. Hess, 240 Mo. l. c. 159; State v. Webb, 254 Mo. l. c. 435; State v. Baker, 246 Mo. l. c. 376.] The reason for this rule is that the jury might infer from such remarks he had reasons or information other than that developed in the evidence from which he obtained his belief in the guilt of defendant, and might be improperly influenced thereby against the defendant. It would be improper for a prosecutor to state facts not in the evidence indicating guilt. [State v. Purgerson, 152 Mo. 92.] But if he should refer to the facts in evidence and argue that, from such facts, the inference of guilt should be drawn, he would be strictly within his rights, for that is the purport and effect of every argument presented by the prosecution. But no case has been called to our attention showing that the prosecutor in commending his witness as truthful, is improper, requiring a reprimand. It has been held to the contrary by this court. [State v. Miles, 199 Mo. 530, l. c. 553.] And-by courts in other jurisdictions. [People v. Wirth, 108 Mich. l. c. 308; State v. Wassing, 169 N. W. (Minn.) 485.]

It is evident from- the remarks the prosecuting attorney made that the witness Keller had been violently attacked by the defense. Apparently it had been charged that he was testifying with the knowledge that his testimony would mitigate his own punishment. What else was said by defendant’s counsel in disparagement of the witness does not appear in the record. But the effect of the argument was to bring this indignant protest of the prosecutor in defense of the witness. He does not indicate to the jury that he had information or that he based his opinion on Keller’s veracity'from anything outside the record. On the contrary, he asserts his faith in Keller’s truthfulness, because he had no reason to think “his testimony did not ring true in every repect,” referring directly to the testimony offered by the witness and his conclusion from it.

Finding no error in tlie record the judgment is affirmed.

PER CURIAM

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

All of the judges concur.