author: BROWN, J. —

text:
    T. A. WARNE et al., Appellants, v. BERTHA B. SORGE et al.
    Division Two,
    May 26, 1914.
    1. CONVEYANCES: Life Estate: Remainder to Children. A deed made in 1861 conveying land to a young man, a son, “for and during his natural life and at his death to the child or children he may leave surviving him and entitled hy law to inherit his estate, in such shares or portions as such children would hy law tafee,” created a vested remainder in his children and the children of his deceased children living at the time of his death in 1909. The word children is used in a collective sense, and means offspring or issue.
    2. -: Child: May Mean Grandchild. The word children of a named person usually refers to his immediate offspring, and not to his grandchildren. But it is sometimes used in a collective sense, and means issue or offspring, and will he so expanded when justice or reason demands.
    3. -; Construction. The cardinal rule for construing deeds and wills in Missouri is to ascertain the intention of the parties from all parts of the instrument,

      4. -: -: Aided by Parol Evidence. It is not permissible to add to or vary the meaning of written instruments by parol evidence, yet when language is found either in a will or deed that is fairly susceptible of different constructions the court may receive parol or other evidence to ascertain the situation of the parties, for the purpose of ascertaining the meaning of the words used in the instrument.
    5. --: -:--: Discrimination Among Descendants. Where a mother gave land to her son for life and “at his death to the child or children he may leave surviving him and entitled by law to inherit his estate, in such shares and portions as such children would by law take,” the deed being made when he was twenty-four years of age and few if any of his eight children were then born, the natural inference is that she did not intend his children who survived him to take the entire estate to the- exclusion of the children of such of them as died prior to his death, but did intend that all of his children would share in the land-alike, and if one of them died then that one’s descendants would take his share.
    6. -: -: Meaning Placed on Deed by Parties to It. The grantee of a life estate cannot place a construction upon a deed that will bind the remaindermen. But where the deed, made when he was twenty-four years old, conveyed to him a life estate and “at his death to the child or children ho may leave surviving him and entitled by law to inherit his estate, in such shares and portions as such children would by law take,” the fact that by his own will, made when he was sixty-five years of age, and after eight children were born to him, two of whom died before he made his will, and two others prior to his death, he gave to his children each one dollar without naming them, adding “the home farm being theirs at the time of my death,” is persuasive that he understood that the original deed had conveyed the title to all his eight children, and his grandchildren would take the portion of any deceased child, respectively.
    Appeal from Jefferson Circuit Court. — Now. Joseph J. Williams, Judge.
    Affirmed.

      F. A. Wind and L. A. Wind for appellants.
    The deed created a contingent remainder. It is to the child or children surviving the life tenant.' Until termination of the life estate it could not be known who would take the remainder. Buxton v. Kroeger, 219 Mo. 224.

      Frcmh Dietrich for respondents.
    ■ (1) In construction of deeds as well as wills the intention of parties should he considered, especially that of grantor. 13 Cyc. 601; Waddell v. Waddell, 99 Mo. 338 ; Tindall v. Tindall, 167 Mo. 224. (2) A resort to extrinsic facts and circumstances may become necessary to ascertain who the grantees are. 13 Cyc. 622. (3) The law favors vested estates and the rule is that estates shall he held to vest at the earliest possible period unless a contrary intention is clearly manifested in the grant. Tindall v. Tindall, 167 Mo. 225. (4) There is no lack of authority that the word “heirs” will he construed as meaning children and vice versa, and children as issue, grandchildren, or descendants, if the justice or reason of the case require it. Herrington v. Gibson, 22 Ky. L. R. 1486; Butler v. Ralston, 69 Ga. 485; Waddell v. Waddell, 99 Mo. 345; Keeney v. McYoy, 206 Mo. 71.
   BROWN, J. —

Action to determine the title to real estate and for partition. From a decree adjudging the defendants to own one-half of the land and directing a sale in. partition, the plaintiffs appeal.

The four plaintiffs (appellants) are the surviving children of one Charles G. Warne, who died March 4, 1909. The defendants are grandchildren of Charles G. Warne, whose parents died prior to the death of said Charles G. Warne, which fact becomes -an important item in this cause* as will hereafter appear.

On December 31,1861, one Timothy B. Edgar held the title to a one-hundred-acre farm situated in Jefferson county, Missouri, as trustee for Mary S. Warne, the mother of the aforesaid Charles G. Warne. Edgar was duly authorized as such trustees to convey the farm to whomsoever Mary S. Warne, his cestui que trust, should in writing direct.

The real dispute between the parties arises over the construction of a deed which Timothy B. Edgar as such trustee for Mary S. Warne executed on December 31, 1861, conveying the one-hundred-acre farm in controversy, which said deed, omitting signatures, description of land and acknowledgments, is as follows:

‘ ‘ This deed, made and entered into this thirty-first day of December, A. D. eighteen hundred and sixty-* one, by and between Timothy B. Edgar, trustee, in a certain deed executed by Oscar W. Collet and wife to him as trustee for Mary S. Warne, dated the eleventh day of September, A. D. 1857, the said Timothy B. Edgar, trustee, as aforesaid making this conveyance at the written request of the said Mary S. Warne as is evidenced by her signature hereto, party of the first part, and Charles G. Warne, of Jefferson county, Missouri, party of the second part. Witnesseth, that the said party of the first part in consideration of the said written request of the said Mary G. Warne aforesaid and the sum of ten dollars to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, does by these presents bargain, sell, convey and confirm unto the said Charles G. Warne for and during his natural life and at Ms death to the child or children he may leave surviving him and entitled by law to inherit his estate in such shares or portions as such children would by law tahe the following described tract, piece or parcel of land.”

(Here follows a description of the one hundred acres in controversy.)

“To have and to hold the same together with all the rights, privileges and appurtenances thereunto belonging or in any wise appertaining unto him, the said Charles G. Warne, for and during Ms natural life, and, at his death, in fee to such child or children as the said Charles 0. Warne may leave surviving him at his death and in default of any such child or children of the said Charles G. Warne in being and capable of inheriting his estate at his death then the same shall revert to the said party of the first part as of his first estate.
“In witness whereof the said party of the first part has hereunto set his hand and affixed his seal the day and year first above written.”

It is conceded by all the parties to this action that the above quoted deed passed a life estate to Charles G. Warne, the paternal ancestor of the parties to this action; hut the difficulty arises in determining to whom the title passed when the life estate of said Charles G. Warne expired. We have italicized those words in the deed which seem to throw light on the intention of the grantors.

In the year 1902 Charles G. Warne executed a will by which he disposed of other real estate to his wife. Said will contained the following recitals:

“I, Charles G. Warne of the age of sixty-five years, and being of sound mind and memory, do hereby make, publish and declare this my last will and testament in manner following, that is. to say:
“I give and devise to each of my children the sum of one dolar — their interest in the home farm of one hundred acres in U. S. Survey 416', being theirs at the time of my death.”

In this will Warne did not further refer to his children or grandchildren. Before Charles G. Warne made the will above mentioned two of his eight children had died, leaving issue, and between the date of making his will and his death two more of his children died, also leaving issue surviving them.

The defendants, as. before stated, are the descendants of the four children who departed this life prior to the death of their father, Charles G. Warne, and it is contended by plaintiffs that the trial court erred in awarding defendants any interest in the farm, because their parents did not survive said Charles G. Warne.

OPINION.

I. The proper interpretation of the deed front Edgar the trustee and Mary S. Warne to Charles G. Warne involves a construction of the word “children” as used in this deed, and whether the deed conveyed to the children of Warne a vested or a contingent remainder. If such remainder was contingent and vested only in such of Charles G. Warne’s children as were living at the time of his death, then the defendants have no title, and the judgment nisi should be reversed.

The word “children” of a named person most usually refers to his immediate offspring, and not to his grandchildren, but said word when used in a collective sense is sometimes applied to grandchildren or other descendants, depending, of course, upon the sense in which it is used. If one speaks of the “children of Israel” he is understood to refer to all the descendants of the patriarch Jacob. The word “children, as well as issue, may stand, in a collective sense, for grandchildren, when the justice or reason of the case demands it.” [4 Kent (13 Ed.), p. 451; 13 Cyc. 623.] So, I take it, the word “children” does not have a cast-iron meaning, and, in furtherance of the chief aim of all construction (to ascertain the intention of the parties using the word), it may be expanded when the surrounding facts warrant such construction. Text-writers have announced many rules for construing deeds and wills, but the settled rule in Missouri seems to be that a construction cannot be made to depend upon particular words found in such an instrument, but that all parts of the instrument must be considered together, and the intent of the parties, when ascertained, is the pole star to guide courts to a correct interpretation. [Utter v. Sidman, 170 Mo. 284, l. c. 294; Tindall v. Tindall, 167 Mo. l. c. 224; Williamson v. Brown, 195 Mo. 313, l. c. 336; Howell v. Sherwood, 242 Mo. l. c. 536.] So, in approaching the solution of the particular dispute at hand, it must be conceded that the word children should be held to include only the immediate offspring of Charles G. Warne, unless there is language in the deed, or something in the situation of the parties who executed it, to warrant such an enlarged meaning of that word as to cover the grandchildren of said Charles G. Warne, whose parents had predeceased him.

While it is not permissible to add to or vary the meaning of written instruments by parol evidence, when language is found in either a will or deed which is fairly susceptible of different constructions courts may receive parol or other evidence to ascertain the situation of the parties for the purpose of determining what is meant by the language used. [Walton v. Drumtra, 152 Mo. l. c. 497; Cross v. Hoch, 149 Mo. 325, l. c. 338; Tisdale v. Prather, 210 Mo. l. c. 408; Cox v. Jones, 229 Mo. l. c. 62.]

Approaching the case with these rules in mind, we observe that the will of Charles G. Warne made in 1902 recites that he was then sixty-five -years old, and if that recital is correct he was only twenty-four years of age when the deed was made to him by Edgar the trustee. The further fact that two of his children had died leaving issue as early as 1902, with the recital of his age as sixty-five in the will, raises an inference that the land in controversy was conveyed to him shortly after his marriage, when but few, if any, of his children were born. When we consider the ordinary experience of mankind, it is certainly more reasonable to infer that a man of twenty-four years had no children than to presume that he had eight children at that early age in life. The fact that none of his children are named in the deed lends further support to this inference.

- Mary S. "Warne, the mother of Charles Gr. Warne, joined Edgar, the trustee, in the execution of the deed. Would she desire to discriminate between her grandchildren, but few if any of whom were then in existence? Would she desire that such of her sons’ children as might outlive the father should take all the farm, and that such of her great-grandchildren as were so unfortunate as to lose their parents before Charles Gr. Warne’s death should be turned, out to starve? Mrs. Warne hud the clear right to direct how this deed should be made, and I have difficulty in bringing myself to believe that she intended to discriminate among her own descendants before they were born. It certainly would be more in accord with the every-day experience of mankind that she should wish to bestow^ equal favors upon all her posterity.

Immediately following that clause of the deed directing that the title to the farm should pass to such of the children of Charles Gr. Warne as should survive him, is a proviso that said children shall take “in such shares or portions as such children would by law take.” This last recital evidences a desire that no one of Charles Gr. Warne’s children should be allowed to take more of the farm than another; and, considering the fact that neither Mrs. Warne nor the trustee could foresee which of the children then born, or to be born, would outlive the father, it indicated that neither the trustee nor Mrs. Warne had any preference among the offspring of Charles Gr. Warne. The habendum clause of this deed is practically a repetition of the granting clause, and the word “children” is evidently used in the habendum in the same sense it was used in the granting clause.

Another well-known rule for construing instruments that are susceptible of more than one meahing is the construction which is placed upon such instruments by the immediate parties thereto. [Carter v. Foster, 145 Mo. 383; Blumenthal v. Blumenthal, 251 Mo. 693, l. c. 706.]

It is apparent that Charles U. Warne, the ancestor of the parties to this action, understood that the deed of the trustee conveyed a vested remainder to all of his children, because his will, after bequeathing to his children one dollar each without naming them, uses this language: “their interest in the home farm of one hundred acres . . . being theirs at the time of my death.” At the time of making this will two of Charles G-. Warne’s children had already died leaving issue surviving them, and if he had not understood that they held a vested interest in the farm he would hot have been likely to have used the language in the will above quoted. So that if we give to this deed the construction which Charles Gr. Warne placed upon it, the judgment of the trial court ought to be affirmed.

It must be admitted, however, that Charles Gk Warne, the grantee of the life estate, could not place a construction upon this deed which would bind his remaindermen. His construction is only persuasive authority, and does not estop1 the remaindermen from setting up á different estate or title from what he thought they took under the deed. While all this is true, it is well known that many people place a somewhat different shade of meaning upon the same words —Charles Gk Warne was likely to understand the language of his mother and the trustee, and the meaning they intended to convey by the words used in the .deed, better than others who did not know those par-lies and who are called upon to construe their language forty ¡or fifty years after the deed was written. Por this reason the interpretation which Charles Gr. Warne placed upon this deed is entitled to some weight.

However, it is strenuously insisted by appellants that the interest of the children of Charles Gr. Warne jander the deed hereinbefore set out was only a contra-gent remainder, and, therefore, conld not pass by descent to the defendants whose parents died prior to their grandfather.

If the deed should be given the construction that appellants contend for their position seems to be sound. There is a great deal of learning on the subect of contingent and vested remainders. The rulings of this court are by no means in harmony upon what constitutes vested remainders. One view of vested remainders is found in the cases- of Jones v. Waters, 17 Mo. 587; Waddell v. Waddell, 99 Mo. 338; and Tindall v. Tindall, 167 Mo. 218. A seemingly different view is expressed in the cases of DeLassus v. Gatewood, 71 Mo. 371; Emison v. Whittlesey, 55 Mo. 254; Emmerson v. Hughes, 110 Mo. 627; and Buxton v. Kroeger, 219 Mo. 224 (the last ease by a divided court).

Our own decisions seem to leave this point of law somewhat “muddy,” but a very lucid and, to my mind, a reasonable definition of vested remainders, is found in the text of 13 Cyc. 647, as follows:

“Where a remainder is limited to take effect in possession, if ever, upon the determination of a particular estate and the latter estate is to determine by an event which must unavoidably happen by the efflux of time, the remainder will be vested in interest as soon as the remainderman is in esse and ascertained, provided such remainder depends upon no other event or contingency and nothing but the death of the remainderman before the determination of the particular estate will prevent the remainder from vesting in possession. So a vested remainder exists where property is deeded to a person for life with remainder to another at the death of the one holding the life-interest, as where property is conveyed to one for life with remainder to his children.”

When the language of an instrument creates a doubt as to whether it was the intention of the grantor to convey a contingent or a vested remainder, the doubt should be resolved in favor of the creation of a vested remainder. [Tindall v. Tindall, 167 Mo. 218, l. c. 225.]

While there is substantial authority to support the contention of appellants, after carefully considering the law, the situation of Charles G-. Warne at the time the deed was made to' him, the strong inference that some and possibly all of his children were then unborn, that the deed itself indicates a desire on the part of the grantors that Warne’s children shall inherit the farm in such shares as they “would by law take,” which, of course, means in equal shares; and considering the further fact that said Charles Gr. Warne himself understood the deed to pass a vested remainder to his children, we have reached the conclusion that the learned trial court was correct -in holding that the word “children” as used in the deed from Edgar to Warne should be expanded so as to embrace grandchildren of said Warne who were living at the time of his death, and whose immediate parents had predeceased 'the grandfather; Entertaining- these views the judgment will be affirmed. It is so ordered.

Walker,.P. J., and Faris, J., concur.


source: Caselaw Access Project

author: FARIS, J. —

license: Public Domain

text:
    OLLIE M. REED et al., Appellants, v. SAMUEL MOSS et al.
    Division Two,
    May 26, 1914.
    1. APPEAL: Overruling Motion for New Trial: No Exception. Where no exception to the action of the court in overruling appellant’s motion for a new trial is shown by the original bill of exceptions filed in the cause, there is nothing before the appellate court for review except the record proper.
    2.--: Objection to Motion Untimely Filed: Fair Play. It does not seem consonant with professional ethics for a party to stand by and acquiesce to tbe making of an entry upon the record to the effect that a motion for a new trial has been' filed and overruled, and afterwards, after the term of court has expired, when such motion is actually filed, to raise the objection that it was not filed within the time required by the statute.
    Appeal from Jasper Circuit Court. — Hon. H. L. Bright, Judge.
    Affirmed.

      J. B. McGilvray and R. A. Mooneyham for appellants.

      J. D. Harris for respondents.
   FARIS, J. —

This is an action to determine interest to certain lands in Jasper county. Upon a trial in the circuit court of that county, appellants here, who were plaintiffs' below, were cast, and have appealed, following the, usual procedure.

Respondents strenuously contend that there is no exception shown by the record to the action of the court below in overruilng appellants’ motion for a new trial, and that therefore there is nothing before us for review but the record proper. This contention has been the source of much trouble in this case. It was made upon a prior hearing of the case, but in such wise as that, after the most painstaking examination, we were not able to reconcile the attack made with the facts shown, apparently in a proper way, by the solemn record, and so an opinion was filed reversing and remanding the case with directions. Thereafter, upon a showing made by respondents in their motion for a rehearing, such a condition was made to appear as induced us to have sent up to us the original bill of exceptions as filed in the office of the clerk of the circuit court; whereupon the motion for a rehearing was sustained.

The actual facts bearing upon the contention made in this behalf'by the respondents, are shown by the below excerpt from the original bill of exceptions, which embraces all that this bill shows as to the motion for a new trial and the filing and overruling thereof, to-wit:

“On the 18th day of December, 1909, the court made the following entries upon the docket: Motion for new trial filed. Motion for new trial overruled. Affidavit for appeal filed. Docket fee of $10 deposited. Appeal granted to the Supreme Court. Appeal bond in the sum of $500 to be filed and approved by the clerk within ten days after the adjournment of present term of court. Leave to plaintiff to file bill of exceptions on or before third day of February, 19101, term of court. But in fact no motion for a new trial was filed on said day, and no affidavit for appeal was filed on said day, nor during said term of court; but on the 20th day of December, 1909, two days after the final adjournment of said term of court, a motion for a new trial and affidavit for appeal were filed with the clerk of this court in vacation, which said motion for new trial was as follows: ’ ’

This excerpt shows two things: (a) that no exceptions were saved to the action of the court in overruling the motion for a new trial, and (b) that such motion was actually filed two days after the court adjourned for the term. [Reed v. Bright, 232 Mo. 399.]

Under the repeated rulings of this court, the saving of exceptions to the action of the trial court in overruling the motion for a new trial is a necessary condition precedent to a consideration here of the bill of exceptions. [Abbott v. Gillum, 146 Mo. 176; State v. Luttrell, 136 Mo. 25; State v. Swan, 234 Mo. 270; State ex rel. v. Hitchcock, 86 Mo. 231; Ross v. Kansas City, etc. Railroad Co., 141 Mo. 390; Recar v. Recar, 171 Mo. App. 632.] The original bill of exceptions, now before us, shows that no exceptions were saved. Therefore there is no proper hill of exceptions, and we are relegated for errors to the record proper, and having examined same and finding no error therein sufficient to cause a reversal, the case must be affirmed.

This case illustrates, but these views render unnecessary a discussion of, the situation brought about by a too prevalent practice of hastening adjournment of a term of court by allowing the record to show that motions for a new trial, motions in arrest of judgment and affidavits for appeal, were filed and acted on, sometimes days in advance of the actual filing of such papers with the clerk and at a time when such papers did not in fact exist. The language of the statute itself is clear and we are not here called on to construe it (Sec. 2025, R. S. 1909); but upon the ethical phase we are constrained to say in passing that when the rules of a game are fixed and agreed on beforehand, the most ordinary considerations of fair-play and decency, would seem to demand that the rules should not be changed in the middle of the game. This sportsman-like rule of fair-play has not been observed in this case; though so far as the record shows counsel are not in faidt for this. For we assume they did not stand by silently and hear these orders made, and then object when relief to plaintiffs was utterly foreclosed. But for the reasons above suggested we are compelled, to affirm it. Let this be done.

Walker, P. J., and Brown, J., concur.


text:
    STELLA F. ROBBINS v. JOHN B. ROBBINS, Plaintiff in Error.
    Division Two,
    May 26, 1914.
    1. RESULTING TRUST: Sufficiency of Evidence: Purchase of Lot. Defendant worked for a street car company, earning $60 per month, from which he says he was always able to save something, after paying the household expenses of himself and wife, and those savings he placed in a bank, but how much he actually did save per month he cannot remember, but he does claim that all the $800 placed in the bank was the earnings of himself and not the earnings of his wife. During the same three years his wife earned $450 a year, or $1350 in all, teaching school, and her corroborative evidence is that her expenditures for clothing were moderate, and defendant does not show how she squandered or spent this $1350. She says that most of the money that was deposited in the bank was hers. Held, that the evidence is sufficient to sustain a decree that at least one-half of the $680, drawn out of the bank and used to purchase a lot, the title to which was taken in the husband’s name, was the wife’s money.
    2. -: -: Improvements. After the lot was purchased and the title taken in the husband’s name, the wife continued to teach school for nine years, part of the time at $50 per month and the remainder at $70, and she says that at the end of eight years she handed to him $1100 to pay off an incumbrance created to place a house worth $1900 on the lot, the title of which was in her husband and which had been bought largely by her money, and the evidence is undisputed that $1100 was used at that time to remove the lien. She says she had maintained an economical life during those years, and saved her money, in order that she might assist her husband in paying for the house, and that they might have a home; and he cannot explain what she did with her money during those years unless it was so used. During those years his earnings were $60 per month most of the time, and a part of it probably $100 per month, out of which he claims he paid the household expenses, and from his savings and money he had about the housé paid the entire $1100 incumbrance. Held, that the evidence is sufficiently cogent and convincing to support a decree that the wife’s money paid at least one-half the cost of the house.
    Error to Jackson Circuit Court. — No». Walter A 4 Powell, Judge.
    Aeeirmed.

      Bruce Barnett for plaintiff in error.
    (1) The plaintiff must establish, beyond reasonable doubt the facts necessary to constitute a resulting trust. Beed v. Sperry, 193 Mo. 173; Brinkman v. Sunken, 174 Mo. 715; Burdette v. May, 100 Mo. 16. That plaintiff has not established beyond a reasonable donbt and that she has not established by the preponderance of the evidence and that she has brought forth no evidence whatsoever of a direct nature that any of her earnings were invested in the real estate cannot be controverted. We call attention to the language of the decree in which the court recites that it cannot he determined what amount of money plaintiff invested in the real estate, and we submit that a reading of the evidence will show that it cannot be determined that a single dollar of her money ever went into real estate. (2) The only definite statement by plaintiff of money paid by her is that she paid her husband’s $200 note to Mason, hut this was after the title to the property was acquired, and therefore no trust resulted on that account. Weiss v. Heitkamp, 127 Mo. 31. (3) There can be no advantage to plaintiff by reason of any intermingling of funds. The disadvantage falls upon the one who is responsible for the intermingling, and not upon the other party. Mrs. Robbins testifies that she herself deposited her earnings with Mason, taking receipt or due bill therefor in her husband’s name, knowing that her husband also deposited his savings with Mason. Therefore, Mrs. Robbins cannot claim all because a part was hers and intermingled. If both were responsible for the intermingling equity will leave the parties as it finds them.

      G. W. Owsley for defendant in error; J. H. Brem■merman of counsel.
    (1) Where land is purchased by one in his own name with the money of another, a resulting trust is created by implication of law which follows the ownership of the money. Baumgardner v. Guessfeld, 38 Mo. 36; Alekire Gro. Co. v. Ballinger, 137 Mo. 369'; Jones v. Elkins, 143 Mo. 647; McLeod v. Venable, 163 Mo. 577; Stevenson v. Smith, 189 Mo. 466-.' The- same doctrine pertains where the trustee is the husband and the wife supplies the money. Perry on Trusts (5 Ed.), sec. 127; Broughton v. Brand, 94 Mo. 169; Bowan v. McKean, 82 Mo. 594. (2) If only part of the purchase money is paid by a third person a trust results pro tanto. -Perry on Trusts (5 Ed.), sec. 126; Pomeroy’s Equity Jurisprudence (3 Ed.), sec. 1038; Bowman v. McKean, 82 Mo. 598; Shaw v. Shaw, 86 Mo. 594; In re Ferguson Estate, 124 Mo. 574; Jones v. Elkins, 143 Mo. 647; McLeod v. Venable, 163 Mo. 536; Johnston v. Johnston) 173 Mo. 118; Donovan v. Griffith, 215 Mo. 167. (3) The remedy being drastic the law has wisely provided that to establish a resulting trust, the proof must be clear, strong, cogent and unequivocal, but it is nowhere held that when the trust is so established, this rigid requirement applies to proof' as to the exact amount of the purchase money furnished. It is nowhere held that where a trust is established and a party is unable to show that just so many dollars, no more no less, of his money, was paid for a property in question he must fail. That would be monstrous and this court has never adopted that principle. Crawford v. Jones, 163 Mo. 577. (4) It was nowhere claimed or attempted to be shown that the money of the plaintiff was, at any time, reduced to the possession of defendant by consent of plaintiff in writing and under the law it remained her separate property. B. S. 1909, sec. 18091. (5) Where two contribute to the fund and the conveyance is taken in the name of one the presumption is that the proportions were-equal. Shoemaker v. Smith, 11 Humph. 88. Any undue advantage by the use of the marital relation is a legal' fraud on the wife, which courts of equity- will not allow to stand to her prejudice. Wilbeck v. Wilbeck, 25 Mich. 438; Jennie v. Marble, 37 Mich. 322.
   BROWN, J. —

Action to establish resulting trust in real estate. Prona a judgment for plaintiff in the circuit court of Jackson county defendant prosecutes his writ of error to this court.

It is alleged in plaintiff’s petition that she and defendant were husband and wife from July 27, 1887, to July 16,1906', a period of nineteen years, at the end of which time they were divorced. That neither of them possessed any property of consequence at the time of their marriage, nor did they accumulate anything until about the year 1889, when they located in Kansas City, Missouri, and the plaintiff began teaching school, and defendant working for a street ear company. Plaintiff alleges that her earnings as a teacher were applied upon the purchase of a town lot in Kansas City, Missouri, the title to which lot was taken in the name of defendant and by him held in trust for her. Wherefore, she prayed that the title to said town lot be divested out of defendant and invested in plaintiff.

The answer was a general denial.

The evidence is quite clear that neither party owned any property of consequence prior to 1889. Each party claims to have earned and furnished the money which paid for1 the lot in controversy.

• The official records of the school district of Kansas City show that plaintiff taught in the public schools of that city during nine months of each year for fourteen consecutive years, beginning in 1889, at $50 per month, and ending in 1904, at $70 per month. Her aggregate earnings during that period as a teacher in the public schools were $7,245.

During the same period of time her husband (defendant) worked, first, there years and seven months for a street car company. He estimates his average wages during that time at $60 per month, out of which he says he was able to save something after paying the ordinary expenses of himself and wife; The remainder of the time, while plaintiff was teaching, he operated a two-chair barber shop' of his own, and testifies that his net earnings from said barber shop were $100 per month. He kept no books.

The plaintiff testified that she tanght music and other private classes when the public schools were not open, whereby she earned some additional money. The defendant testifies that he traded some in real estate and horses whereby he picked up a few hundred dollars on the side.

In the year 1893 the town lot in controversy was purchased for $680. Plaintiff testified that she had deposited her earnings as a teacher in the Kansas City Safe Deposit Bank until such deposits aggregated about $800; that enough of her earnings were withdrawn from the bank to pay for the lot and leave a balance in the bank of $121. The total price of the lot was not paid at the time of its purchase. There was a $400 mortgage on it, which was paid subsequently; but both parties claimed that the entire cost of the lot was paid out of the funds deposited in the bank before mentioned. Plaintiff was not entirely sure that all the money which went into the bank was hers On cross-examination her evidence runs as follows:

“The money which went into that Savings Bank was mine, and some of John’s. John would put in sometimes, but it was mostly mine.”

Plaintiff further testified that the bank failed about two months after they finished paying for the lot. On this point she said:

“Two months before the note was due we drew our money out, and paid for the lot, and had $121 in the bank, and we lost that, of course, and I have since gotten - a small per cent. There was enough money drawn from the bank to pay for this lot, and $121 left.”

The defendant, testifying in regard to this particular item, stated that the lot in controversy was paid for out of money deposited in the Kansas City Safe Deposit’ Bank, hnt that it was all his money— that none of it was earned hy plaintiff. He, however, corroborated the plaintiff as to the failure of the bank, saying: “It failed and got us for a hundred and something.”

After bank failures became so frequent in 1893 plaintiff and defendant declined to put their surplus earnings into banks. Plaintiff says she kept most of hers in a chamois bag until about the year 1903, when, having accumulated about $1100, she gave it to defendant to pay off an encumbrance created to place a house on the lot before mentioned. Defendant admits this $1100 expenditure about the year 1903, but claims that it was his own earnings which he had kept “about the house” after the bank failure. On cross-examination defendant said: “I won’t say she never gave me any money, because when I got hard up sometimes she would give me a piece o'f money. I could not tell how much. ... It would be a hard thing for me to tell how much money she has ever given me.”

Defendant also testified that there is on the lot in controversy a brick house which cost $1900, and a frame house which he bought and moved onto it, the cost of which seems to have been about four or five hundred dollars; making the total cost of the lot about $3,000. Some expenses were incurred for special tax-bills, but these were probably offset by rents collected.

Plaintiff testified that several years after the bank failure she and defendant deposited some of their earnings with a druggist by the name of Mason; that such deposits were usually made in the name of her husband. 'Defendant says that when plaintiff deposited any money with Mason she always did so in her own name. Mason, the druggist, was sworn, but he kept no books — issued only due bills to the parties when they deposited with him. ' In so far as his evidence has any weight it tends to corroborate defendant, who the witness said was a good friend and a good customer, who bought whiskey of witness but never got drunk. I am impressed with the idea that the memory of witness Mason is too hazy to be of any substantial value to either party.

Plaintiff introduced two wills, each dated August 6, 1896', signed by the plaintiff and defendant respec-; tively. The plaintiff’s will purports to bequeath and devise all her real and personal property to her husband, the defendant; and defendant’s will purports to devise all of his real and personal property to the plaintiff. Plaintiff further testified that these wills were executed because the property in controversy represented their joint earnings, and, having no children, they desired to bar the claims of collateral heirs to said real estate during the lifetime of each of them.

The defendant admitted that he executed the will to which his name was signed, but claimed he knew nothing about the will which-his -wife executed. He denied that he had ever told John Clough, the attorney who drew the wills and signed same as a witness, that plaintiff had assisted in paying for the town lot in controversy. Both wills purport to have been executed on the same day and before the same witnesses, and are written practically in the same language. John Clough testified that defendant never employed him to draw just one will. Other statements alleged to have been made by defendant to Clough at the time the wills were drawn were excluded.

Mildred Stotts, the mother of plaintiff, testified that after bad feeling arose between defendant and plaintiff as husband and wife, defendant visited her home near Sedalia, Missouri, and told her that “they had had trouble, and that he had been thinking of giving her a divorce, and her part of the property, as she had helped to make it. ’ ’

Mrs. ’ C. H. McCracken, a neighbor of the Robbinses, testified that she met them both at a birthday party given by a friend, and was sitting near them when sbe remarked to plaintiff that she ought to quit teaching — that she had taught so long she was in danger of nervous prostration, whereupon 'plaintiff replied: “We are paying for our home and whenever we get through with that I am going to stop teaching and rest a while.” Defendant heard this conversation but said nothing.

The defendant attempted to prove that during their married life plaintiff was extravagant, buying numerous unnecessary things, and in that manner consuming her salary as a teacher. He was only able to designate two silk dresses as constituting the substantial unnecessary waste of money on her part. On cross-examination defendant admitted that he bought one of the silk dresses, but stated that plaintiff paid for it. Plaintiff’s testimony is that she lived very economically while she was teaching, only buying a nice dress about once, in three or four years. That she did much of her own sewing and all of her own cooking and washing. That she herself washed and ironed on Saturdays to save expenses of that nature. Four witnesses (neighbors) corroborated her as to her plain dressing and economical mode of living while teaching. The defendant admits that plaintiff purchased for him a $36 suit of clothes a year or so before they separated. He says the clothes were rather better than he needed. This purchase seems to have been made after the lot and improvements thereon were paid for. Taken as a whole, we think the evidence fails to show that plaintiff was so extravagant as to prevent her from saving the money she claims to have invested in the town lot in controversy.

There was other evidence relating to the purchase of personal property by the plaintiff and defendant during their married life, but it has such meager relation to the issues in this case that we will not cumber pur opinion with it. The only thing that it tends to establish is that plaintiff has a somewhat better recollection of expenditures than defendant.

The evidence indicates that during their married life the defendant drank considerable liquor as a beverage, but not enough to impair his ability to work and manage his business.

The trial court found that the net earnings of defendant, after paying the ordinary household expenses, were equal to the earnings of plaintiff as a teacher, and recited that he could not' ascertain the exact amount of plaintiff’s money which was invested in the town lot in controversy; but, being fully convinced that plaintiff’s money paid for at least one-half of the lot and one-half of the improvements made and taxes paid thereon, the court found that she should have a half interest in said town lot, and one-half of the net rents on same collected by defendant since they were divorced, to-wit, $28.75, and gave judgment accordingly; whereupon the defendant brings the cause to this court by writ of error.

Any other facts deemed necessary to a full understanding of the case will be noted in our opinion.

I. Defendant (plaintiff in error) in his brief stands upon the proposition that the evidence is not sufficient to support the decree awarding to plaintiff one-half of the town lot in controversy.

According to defendant’s evidence the cost of the town lot was about $3,000 in round figures. Who furnished this money? Prom the time these parties located in Kansas City until the lot was purchased (about three years) defendant worked for a street car company, earning $60 per month, from which he says he was always able to save something to place in the bank after paying rent and their ordinary household expenses. How much he actually did save per month he cannot remember, but he does claim to remember that all the money placed in the saving bank was the earnings of himself, and not the earnings of his wife. I am frank to say that this evidence does not seem reasonable. It may be true, but it does not sound just that way.

The official records show that plaintiff was earning $450- per year as a teacher during those three years, which would make her aggregate earnings during that time $1350; and her corroborated evidence is that her expenditures for clothing were very moderate during that time. Defendant has not shown how she squandered this $1350, and we .think we can safely accept her statement as true when she says that most of the moneys which constituted the $800 fund in the saving bank were her savings. She admits, however, that her husband put some of his money in the bank, but says that what went into the bank was mostly hers. Her own evidence leaves it doubtful about what per cent of the money which went into the banl^was hers, but according to her version more than one-half of it was the product of her earnings, and when we consider the admitted fact that defendant was, during- that time, only earning $60 per month, out of which he was paying the family expenses, the inference is strong that nearly all the bank fund represented her earnings.

Both parties are agreed that the bank fund paid for the lot. There is certainly very convincing evidence that plaintiff paid more than half of the original cost of the lot — then what shall we say of the subsequent payments'? She says she paid $1100 more of her money toward the improvements. Defendant says she did not.

There is one fact which is fully proven. After the lot was purchased plaintiff continued to teach school, and maintained her economical mode of life for nine years for some purpose. Was that purpose to assist defendant in paying for the house placed apon the lot, in order that they might have a home, or was it for some other purpose which she has not explained, and regarding which even her husband, her daily companion, is not able to give us any substantial light?

We think the conclusion reached by the learned trial judge that the plaintiff contributed at least one-half of the purchase price of the lot and one-half of the cost of the improvements placed thereon is supported by cogent and convincing evidence, so strong as to leave no reasonable doubt in the mind of a chancellor. In reaching this conclusion we have taken into view all the evidence in the case as summarized in our statement of the facts.

.. The case is one which turns upon the evidence, and not upon the law. Defendant’s learned counsel does not deny that plaintiff is entitled to the relief which the trial court gave her if in fact her -money did pay half the purchase price of the lot and half the expenses of the improvements placed thereon.

The defendant (plaintiff in error) does contend thht the evidence in this case is not as cogent, convincing and direct as is required to establish a resulting trust in real estate, citing Reed v. Sperry, 193 Mo. 167; Brinkman v. Sunken, 174 Mo. 709; and Burdett v. May, 100 Mo. 13.

In the case of Reed v. Sperry, supra, there was no witness who testified that the money of Sperry’s wife, which it was claimed he had used in purchasing land in his own name, had ever come into his hands at all (193 Mo. l. c. 175-76). The facts in the other cases cited are likewise so utterly dissimilar to the case at bar that they are not persuasive authority in this case.

Defendant’s counsel seems to have brought this case here on the assumption that, because his client denied the facts testified to by plaintiff, there arises such a conflict in the evidence that the plaintiff’s case is not proven beyond a reasonable doubt. A similar plea was interposed, without avail, in Crawford v. Jones, 163 Mo. 577.

Believing that the findings of the learned trial judge are fully supported by the evidence, we affirm the judgment.

Walker, P. J., concurs; Paris, J., concurs in result.


author: WALKER, P. J. —

text:
    WILLIAM S. BRYAN, Appellant, v. THOMPSON PUBLISHING COMPANY.
    Division Two,
    May 26, 1914.
    1. CONTRACT: To Share in Profits: Suit for Partition of Stock. Where plaintiff entered into a contract with a publishing company by which it was agreed “that the cash profits shall be divided between us in proportion of one-third" to plaintiff and two-thirds to the publishing company after all the original expense for plates and electros were paid, and “that the profits shall be reckoned on the basis of cash, and not that of stock, and that the stock until such profits are made and declared shall be the property” of the publishing company, and plaintiff’s “connection and interest therein is to be one of profit-sharing simply,” plaintiff is not entitled, after the initihl costs of the publication have been paid, to maintain a suit for a partition between himself and said publishing company of its books, electros and plates on hand, or the copyright which the company was authorized to take out in its own name, either before said company made an assignment in bankruptcy or after the trustee sold its assets to said company. Plaintiff’s interest is in the profits arising from the sales, and not in the stocks.
    2. -: -: Partition: No Ownership. There can be no partition of personal property or choses in action in the absence of ownership by plaintiff; and a plaintiff, who as author, was to share in the cash profits arising from the publication and sales of a book, and not in the stocks of books, plates and electros, although the costs of the plates and electros were to be deducted as an initial expense before plaintiff was to sl__re in the cash profits, has no ownership in said stocks, etc.
    3. -; -: Joint Ownership: Pleading. And Where the facts pleaded show that plaintiff was to share in the cash profits only, an allegation that he is a joint owner in the stock is a mere conclusion of law, and cannot be held to state a cause of action for partition.

      Appeal from St. Louis City Circuit Court. — Hon. George H. Shields, Judge.
    Affirmed.

      S. T. G. Smith and Thomas S. Meng for appellant.
    (1) Partition of personal property is authorized by statute. R. S. 1909, sees. 2619-2621. (2) A general allegation of joint ownership of the personal property sought to be partitioned is sufficient on demurrer. Bank v. Ragsdale, 158 Mo. 681; Hayes v. McReynolds, 144 Mo. 348. (3) The bankruptcy and insolvency of the Publishing Company rendering further performance of the contract impossible, constituted a breach of the contract on its part. 9 Cyc. 641. This necessitated a distribution of the property on hand as part of the profits in the proportion provided for in the contract.

      Ferriss, Zumbalen S Ferriss for respondent.
    (1) Under the contract pleaded plaintiff did not, at any time, become a joint owner of said plates, dies, copyright, stock, etc., and hence cannot maintain a suit to partition them. The allegation of joint ownership is simply a conclusion based upon the preceding facts and is completely disproved by them. (2) A copyright cannot be partitioned. Sec. 2620, R. S. 1909; Stephens v. Cady, 14 How. (U. S.) 528; Stephens v. G-ladding, 17 How. (U. S.) 448; Ager v. Murray, 105 U. S. 126. (3) Even if a joint owner, defendant has a complete right to use and enjoy the common property and n'eed not account to plaintiff for the proceeds of that use. 17 Am. & Eng. Ency. 692; In re Tyler,' 40 Mo. App. 378; Lilly v. Menke, 126 Mo. 218; Starks v. Kirchgraber, 13*4 Mo. App. 211; Carter v. Bailey, 64 Me. 458; Note, 28 L. R. A. 829.
   WALKER, P. J. —

A general demurrer was sustained to the petition filed herein, plaintiff refused to plead further, an order of dismissal was entered, and an appeal perfected to this court.

Following a formal allegation as to the corporate character of the defendant, the body of the petition is as follows:

“That in the year 1899 plaintiff• entered into a contract with N. D1. Thompson Publishing Company, a corporation, relating to the production of a publication known as ‘Our Island Possessions.’ That it was agreed by and between plaintiff and said Publishing Company that plaintiff should write the matter for this publication, attend to its illustration, proof reading, and see it through the press, and that every expense pertaining thereto should be charged to the publication, and that after such expense had been deducted the profits arising from the publication should be divided between plaintiff and said Publishing Company in the proportion of one-third to plaintiff and two-thirds to the said Publishing Company. That the agreement between him and said Publishing Company was evidenced by a certain letter' of date March 29, 1899, signed by N. D. Thompson on behalf of said Publishing Company, as follows:
“W. S. Bryan, Esq., City.
“Dear Sir: . In our several conversations concerning the production of ‘Our Island Possessions,’ a serial publication to be completed in twenty-four or thirty-two parts, it has been agreed that every expense pertaining thereto shall be charged to the publication, which expense includes your salary as heretofore arranged, with that of such help as you may employ, and after this and the expenses of every kind have been deducted, that the cash profits shall be divided between us in the proportion of one-third to you and two-thirds to me, or the N. D. Thompson Publishing Company.
“It is understood that the profits shall be reckoned on the basis of cash, and not that of stock, and that the stock, untii such profits are made and declared, shall be the property of the N. D. Thompson Publishing Company. Your connection and interest therewith is to be one of profit-sharing simply, on the conditions above named.
“It is further understood that you will give your time and energies to it, and to such other business as you may have in connection with our publishing business, except such time as is devoted to editorial work which you have and are doing for the Democrat and Journal of Agriculture.
“It is understood that you will write the matter for the new publication, viz, ‘Our Island Possessions,’ and attend to its illustration, its proof reading; and that you will see it through the press. It is further understood, of course, that we will work together with the necessary resources at our command for a successful and profitable business on this publication. Respectfully yours,
“N. D. Thompson.
“Accepted: W. S. Bbyan.
“Plaintiff states that lie entered upon the performance of said agreement between him,self and said Publishing Company, and fully complied with said agreement on his part. That in pursuance of said agreement, said Publishing Company caused to be made certain plates, dies and electros for the printing of said publication, and 'Complied with the acts of Congress relating to copyrights, whereby said Publishing Company became entitled to the copyright for said publication, subject to the rights of plaintiff therein. That said publication was issued and printed and sold by said Publishing Company under the title of ‘Our Islands and Their People, as Seen With Camera and Pencil.’ That hundreds of thousands of volumes of said publication were issued, printed and sold by said Publishing Company, and that it received from such sales about one million dollars.
‘ ‘ That in the year 1903 plaintiff instituted suit in the circuit court of the city of St. Louis against said Publishing Company for an accounting under said agreement; and to recover his share of the profits arising from said publication. That in said cause a judgment was rendered January 22, 1906, in favor of plaintiff and against said Publishing Company, for the sum of $7,715.35', as plaintiff’s share of the profits of said publication up to June 30, 1903.
“Plaintiff states that in the year 1905 the said Publishing Company was duly adjudicated a bankrupt under the acts of Congress, and that James W. Graves was appointed trustee of its estate. That plaintiff duly exhibited and filed’,with the referee in bankruptcy his claim for the profits accruing due to him under said agreement for the production of said publication up to the date of the adjudication in bankruptcy, and said claim was duly allowed. That by said adjudication all the assets of said Publishing Company passed to the trustee appointed in said proceeding. That all of said assets, remaining after cost of administration were distributed pro rata to creditors of said Publishing Company, and were insufficient to pay its proved indebtedness. That since the date of the adjudication in bankruptcy said Publishing Company has ceased doing business and has no assets.
, “ That in the accounting between plaintiff and said Publishing Company to determine the amount due the plaintiff under the aforesaid agreement, upon which said judgment and the allowance in his favor were based, there was charged against the publication the entire cost of the plates, dies, electros and the printed book stock on hand, up to the close of said accounting, and that the profits in which plaintiff was allowed to share, and for which he obtained said judgment and allowance, were determined after the deduction of all such charges. That the entire cost of said plates, dies, electros and printed book stock and of obtaining the copyright for said publication, were paid out of the receipts from sales of said publication.
“That in the administration of the estate of said Publishing Company in bankruptcy, the trustee thereof sold all the right, title and interest of said bankrupt estate in and to the copyright of said publication known as ‘Our Islands and Their People,’ and also in and to the said plates, dies and electros intended for use in the publication of the same, and the said book stock on hand. That at the time of such sale there was in the possession of said trustee in bankruptcy one original set of plates complete, three sets of electro plates and dies complete, and two thousand printed volumes of said publication. That the interest of said bankrupt estate in all of said property was sold to John Bermel, and said property was delivered by said trustee in bankruptcy to said John Bermel or the Thompson Publishing’ Company, the defendant herein. That in the purchase of said property the said John Bermel was acting for1 and on behalf of said defendant, and that if possession of the same was delivered to him it was immediately, or within a few days thereafter, delivered to defendant. That both said John Bermel and said defendant had full notice of the agreement between plaintiff and said Publishing Company as hereinbefore set out and of plaintiff’s interest in said publication and in said copyright, plates, dies and other property.
“That the interest formerly held and owned by said Publishing Company in said copyright, plates, dies, book stock and other property was sold and transferred to defendant, either directly by said James W. Craves, as trustee in bankruptcy, or by an intermediate transfer from said John Bermel.
“That defendant still has in its possession said original set of plates for said publication; that plaintiff has no knowledge or1 information sufficient to form a belief as to whether or not defendant still has in its possession said three sets of electro plates and dies for said publication, and said two thousand printed volumes of said publication, but plaintiff states that defendant either has the same in its possession, or has sold the same and received the proceeds thereof. That said sets of plates, electro plates and dies cost and are of the value of thirty thousand dollars, and said two thousand printed volumes were and are of the value of $2,500, and said copyright is of the value of more than $20,000.
“That said original set of plates, and such of said electro plates and dies and said printed books as are now in the possession of defendant, and the copyright for said publication are owned by plaintiff and defendant jointly, plaintiff being entitled to an undivided one-third interest therein, and defendant to an undi-' vided two-thirds interest therein.
“That since defendant acquired the interest of said Publishing Company in said copyright, plates, dies' and other property, it has used the same in its business, and has continued to print, issue and sell additional copies of said publication under said copyright printed from said dies and plates. That plaintiff does not know the amount of business so done by defendant or the number of copies of said publication so printed or sold by it.
“That the nature of the property hereinbefore described is such that partition in kind cannot be made thereof without great prejudice to the owners thereof.
“Wherefore, plaintiff prays that partition may be made between plaintiff and defendant of the property hereinbefore described as being owned by them jointly, and that the same may be ordered sold and the proceeds divided between plantiff and defendant, according to their respective interests therein; that an accounting may be had to determine the value of such of said property as has been used, sold or disposed of by defendant, and that judgment may be rendered in favor of the plaintiff and against defendant for the value of his interest in such property; that an accounting may be had as to the number of volumes of said publication issued, printed and sold by defendant under said copyright and from said plates and dies, and that judgment may be rendered in favor of plaintiff and against defendant for the amount of plaintiff’s interest in the proceeds of such sales; and that an accounting may be had as to the use made by defendant of said copyright and other property so owned by plaintiff and defendant, and that plaintiff may have judgment against defendant for his proportionate part of the receipts obtained by defendant therefrom. Plaintiff farther prays for all other and farther relief, which to the coart may seem meet and proper.”

I. Reference mast be had to the terms of the contract, the tenor of which is set forth in the petition, *n determining whether or not a canse of action has been stated. A brief statement of the contract in more familiar words than are ordinarily used in snch instruments may assist in the solution of this question. Plaintiff and the N. D. Thompson Publishing Company entered into the contract to publish and sell a publication entitled ‘ ‘ Our Island Possessions. ’ ’ Plaintiff was to write the matter, attend to its illustration, and proof reading, and see it through the press. During this time he was to be paid a salary by the Publishing Company, and when the publication was sold he was to receive one-third of the net profits arising from the sale. The Publishing Company was to perform all the necessary mechanical work, and, although it is not so expressly stated, it follows as a necessary inference that it was to bear all the expenses incident to preparing the work for • sale. When the publication had been sold all the expenses incident theréto were to be deducted from the funds arising from the sale before any profits were declared.

Plaintiff’s relation to the agreement so far as its legal aspect is concerned is best defined in the language of the contract itself, to-wit:

“That the cash profits shall be divided between us in the proportion of one-third to you and two-thirds •to me, or the N. D. Thompson Publishing Company.
“It is understood that the profits shall be reckoned on the basis of cash, and not that of stock, and that the stock until such profits are made and declared shall be the property of the N. D. Thompson Publishing Company. Your connection and interest therewith is to be one of profit sharing simply, on the conditions above named. ’ ’ °

The meaning of the foregoing words is to our mind unmistakable, and a prolix discussion of eases presenting similar facts in support of the conclusion we have reached herein would serve no useful purpose in that they would not make more clear that which is already as clear as words may be used to convey thought.

Plaintiff’s interest, therefore, in the contract, is no greater than that defined by its terms, namely, that of a profit-sharer. This is evident from the fact that the Publishing Company assumed all the expenses incident to the publication of the work for sale, which it was enabled to do by reason of its being a going concern equipped with type, type machines, compositors, presses, book stock and other requisites of the publishing business; while plaintiff was only equipped with his ability and experience and did not even contribute his time to the uncertainties of the venture, but was paid a salary by the Publishing Company during the performance of the work upon the publication, and was accorded the privilege of hiring assistants, his additional compensation being dependent upon whether or not the publication was a profitable investment. If it did not so prove, then his compensation was limited to the salary agreed upon. That he construed tbe contract as only giving him a share in the profits is evident from the fact that after the publication had been put upon the market, the expenses paid, and a certain amount of profits made thereon, upon a failure of the Publishing Company to adjust same, he brought suit against it, and recovered judgment in the amount of his proportion of the profits proved to have been earned up to June, 1903. As a further evidence that he so construed the contract, when the Publishing Company became bankrupt in 1905, he made proof before the referee of his claim in the amount of his profits to that date, and the same was allowed, and he asserted no claim to the* property, although it is evident from all the other facts that he knew it had been surrendered by the bankrupt as a part of its assets. We refer to this matter, not as showing that plaintiff would not on account of such a course be entitled in a proper manner to assert ownership in the property in question, if authorized by the contract, but not being so authorized, it is at least persuasive evidence that no other construction was placed thereon by either party until the institution of this suit. Prior thereto there was certainly no cláim of ownership1 in the property on the part of plaintiff, and the fact that the Publishing Company became insolvent did not change the terms of the contract, or, in any way, affect the relations of the parties thereto. The mere allegation in the petition that the plaintiff is a joint owner of the property is nothing more than a mere conclusion and must, as is contended by the respondent, be measured by the other allegations in the petition. Thus measured we find that it is simply an unsupported declaration of ownership which is attempted to be based upon a contract which only authorizes a sharing' in the profits.

Thé allegation that the individual purchaser of the property in question at the bankrupt sale of the assets of the N. D. Thompson Publishing Company and the defendant corporation, which afterwards acquired ownership- of same, were familiar with the terms of the agreement between the plaintiff and said Company, avails plaintiff nothing becaus.e said contract discloses no ownership of the plaintiff in said property, nor contains any terms upon which a well founded claim of ownership can be based which would affect the title acquired by defendant.

Partition is asked. It cannot be decreed in the absence of ownership; this we hold under the allegation of the petition does not exist in the plaintiff.

Absent ownership, with the added fact that plaintiff made a claim to his share of the profits up to the date of the adjudication in bankruptcy and same was allowed, there is no ground for an accounting.

As we construe the pleading, the copyright was taken out by the N. D. Thompson Publishing Company, and the ownership of same being now in the defendant, the question as to whether or not it may be partitioned is immaterial. Holding as we do that there was no joint ownership, a discussion as to the rights arising therefrom is .unnecessary.

We are, therefore, of the opinion that the trial court ruled properly in holding that the petition did not state a cause of action. The judgment of the trial court is, therefore, affirmed. It is so ordered.

Broivn and Baris, J.J., concur.


text:
    ROSIE DUBOWSKY v. HANNAH BINGGELI et al., Appellants.
    Division Two,
    May 26, 1914.
    1. APPELLATE JURISDICTION: Raised by Court Sua Sponte. Tbe appellate court, when a case is appealed to it, will of its own motion ascertain whether or not it has jurisdiction, since the jurisdiction of the Supreme Court and that of the courts of appeals are defined by the Constitution.
    2. -: -: Conferred by Stipulation. Jurisdiction of the subject-matter cannot be conferred upon a court either by stipulation or by acquiescence of parties.
    •j -; Action to Foreclose Deed of Trust. An action to foreclose a deed of trust in the nature of a mortgage, and to establish a lien in favor of plaintiff upon defendant’s land, .defendant’s title therein or the validity of the deed of trust being in no wise disputed, does not involve title to real estate.
    4. -: -: To Reestablish Mortgage. Plaintiff and her brother-in-law each loaned $500 to defendant, upon an alleged agreement that he would execute to each of them ■ his separate promissory note for the amount, and secure the same by a deed of trust in the nature of a mortgage upon his land. No note was executed to plaintiff for the $500 loaned by her, but in lieu thereof defendant executed to her brother-in-law a single note for $1000, and secured the same by a deed of trust, and thereafter defendant paid $620 to the brother-in-law, and he entered a release upon the land records, purporting to fully release and discharge the land from the lien of the deed of trust, and this suit is to reestablish that deed of trust and foreclose the same, because the defendant had not paid to plaintiff nor to her said brother-in-law the balance due her on said loan. The defenses pleaded are the Statute of Limitations, the Statute of Frauds and laches. Held, that the action does not involve title to real estate, and the Supremé Court does not have jurisdiction over an appeal from a judgment in favor of plaintiff.
    5. -: Constitutional Question: Not Timely Raised: By Motion in Arrest. If to permit the plaintiff to sue and recover judgment upon a note and deed of trust in which she was not specifically named as the payee or beneficiary deprives defendants of their property without due process of law, in violation of the Constitution, then that defense could have been raised by demurrer or answer, and not having been so raised, but raised for the first time in the motion in arrest, it was raised out of time, and must be disregarded, and hence jurisdiction was not thereby conferred upon the Supreme Court.
    Appeal from .D'eUalb Circuit Court. — Hon. A. D. Burnes, Judge.
    Transferred to Kansas City Court of Appeals.

      Wm. M. Fitch for appellants.

      Peter J. Carolus and John E. Dolman for respondent.
   BROWN, J. —

Tbis is an action to set aside tbe release of a deed of trust and to foreclose tbe same. The plaintiff had judgment helow for' $602.33, and defendants appeal.

It is alleged in plaintiff’s petition that she loaned $500 to one Christian Binggeli in the year 1897, and* that her brother-in-law, Stephen Ushler, at the same time, loaned to said Binggeli $500. That it was agreed between plaintiff, said Binggeli and Stephen Ushler that said Binggeli would execute to. plaintiff and said Ushler his separate promissory notes for said loans, and secure the same by a deed of trust (in the nature of a mortgage) upon forty acres of land owned by said Binggeli in DeKalb county, Missouri. That no note was executed to plaintiff for said $500' so borrowed of her, but in lieu thereof the said Binggeli and his wife executed to Stephen Ushler a single note for $1,000, and secured the same by a deed of trust, which note and deed of trust were intended by said Binggeli and said Stephen Ushler1 to cover the aforesaid loan of $500 made by plaintiff, as well as the $500 which said Ushler had loaned to said Binggeli, as hereinbefore recited.

Plaintiff further alleges that Christian Binggeli paid to said Stephen Ushler $620 on the aforesaid note, and that $110 of said payments on said note were for the use and benefit of plaintiff, which $110 she received. That said Stephen Ushler, on March 12, 1903, entered a release upon the land records of DeKalb county, purporting to fully release and discharge the land of said Binggeli from the lien of the aforesaid deed of trust, which said release was wrongful and illegal,.because said Binggeli had not paid to plaintiff, nor to said Ushler for her, the balance due her on the aforesaid loan, which indebtedness said deed of trust was given to secure.

Wherefore, plaintiff prayed that the release of the deed of trust so entered by said Ushler be set aside, and that plaintiff have judgment for the balance due her on her aforesaid loan to Christian Binggeli; and that said judgment he made a special lien against the interests of defendants in the land conveyed by the aforesaid deed of trust. Plaintiff did not pray for the reformation of the deed of trust.

Chistian Binggeli died intestate before the institution of this suit, and the defendants (except Ushler) are his widow and children.

The answer of defendants is (1) a plea of the Statute of Limitations; (2) the Statute of Frauds; and, (3) laches.

I. No motion has been filed to transfer this cause to the Kansas City Court of Appeals, but the Constitution having defined our jurisdiction, as well as the jurisdiction of the courts of appeals, it our duty to ascertain whether we have . , . J . jurisdiction before considering tne case upon its merits. [May v. Mortgage Trust Co., 138 Mo. 447, l. c. 449; Cable v. Duke, 208 Mo. 557; Ferguson v. Comfort, 159 Mo. App. 30.] This court will not permit parties to confer jurisdiction upon it by stipu-. latipn or acquiescence. [Vandeventer v. Bank, 232 Mo. 618.]

This is an action to foreclose a deed of trust (in the nature of a mortgage) upon real estate. The title of defendants 'to said real estate is not disputed in any manner. Plaintiff merely sued to establish a lien against the real estate of defendants. As early as the case of State ex rel. Haeussler v. Court of Appeals, 67 Mo. 199, it is ruled by this court that actions to foreclose mortgages do not involve the title to real estate. In that case Hough, J., speaking for the court, said: 44At the January term, 1876', . . . we decided that suits on special taxbills, and to foreclose mortgages, and to enforce mechanic’s liens, were not suits involving title to real estate, and all such cases involving sums within the final jurisdiction of the Court of Appeals which were docketed in this court after the establishment of that court, were transferred to it.”

The same rule prevails as to suit's having for their purpose the establishment of other liens upon real estate. [Barber Asphalt Paving Co. v. Hezel, 138 Mo. 228; State ex rel. Reed v. Elliott, 180 Mo. 658; Stark v. Martin, 204 Mo. 433.]

When the suit is to cancel a deed of trust, and it is admitted that such deed of trust was given to secure a valid indebtedness, and the only issue is whether or not such indebtedness has been paid, this court has no jurisdiction of the appeal. [Vandeventer v. Bank, 232 Mo. 618.] The case of Lemmon v. Lincoln, 130 Mo. 335, is more nearly like the one at bar than any we have been able to find. In that case the plaintiff Lemmon loaned money to an owner of real estate with which to pay off and release two outstanding mortgages upon such real estate. With the money so loaned by plaintiff the mortgages were paid off and released of record. The borrower, failed to repay the loan to plaintiff, whereupon he sued to set aside the releases of the mortgages and to be subrogated to the rights of the mortgagees whose notes had been paid with the money he had loaned. Upon appeal it was held that this court had no jurisdiction, because the title to real estate was not involved.

The fact that in the suit at bar the plaintiff seeks to set aside the alleged improper release of the deed of trust and to foreclose the same, the original validity of which deed is not disputed, does not make the case so different from an ordinary action to foreclose a. mortgage as to give this court jurisdiction.

We have not overlooked the fact that defendants’ learned counsel, in his motion in arrest, asserts that by the judgment in this cause the defendants are deprived of their property without due process of law, as prohibited by article 2, section 30, Constitution of Missouri. On this point it is only necessary to say that if to permit the plaintiff to sue and recover judgment upon a note and deed of trust in which she was not specifically named as the payee or beneficiary deprives defendants of their property without due process of law, that defense could have been raised by demurrer or answer, and as it was not raised until the motion in arrest was filed, such issue was presented out of time and must be disregarded. [Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685; State v. Gamma, 215 Mo. 100; Hartzler v. Met. Street Ry. Co., 218 Mo. 562; Howell v. Sherwood, 242 Mo. 513.]

For the reasons hereinbefore stated the cause will be transferred to the Kansas City Court of Appeals.

Walker, P. J., and Paris, J., concur.


text:
    CHRIS BIMMERLE et al. v. ROBERT L. LANGDEAU, Plaintiff in Error.
    Division Two,
    May 26, 1914.
    1. VERDICT: Ejectment: No Finding of Possession. A special verdict for plaintiff in ejectment which fails to find that defendant was at any time in possession of the land, is not sufficient.
    2. INSTRUCTION: Ejectment: Limited to Surface Only. An instruction for defendant in ejectment which limits plaintiff’s right to possession to the surface of the thread of land sued for, is properly refused.
    3. DAMAGES: Ejectment: Excessive. Where the testimony showed that the value of the property of which the two and a half inches sued for is a part, was forty dollars a front foot, an award of one hundred dollars as damages for the wrongful withholding of said thread of ground for about a year, was excessive.
    Error to St. Louis City Circuit Court. — -How. W. B. Homer, Judge.
    Reversed and remanded,

      Albert E. Eausmcm for plaintiff in error.
    (1) The verdict is insufficient to support the judgment or to support any judgment in this cause. Sec. 3060, R. S. 1899; Sec. 2389, R. S. 1909; Caldwell v. Stephens, 57 Mo. 589. (2) The verdict is the result of passion and prejudice and therefore should be set aside. Duty v. Steinberg, 25' Mo. App. 328; Kaeltz v. Bleekman, 46 Mo. 320; Creve Coeur Lake v. Tamm, 90 Mo. App’. 202; Meerberger v. Scharff, 51 Mo. App. 109. (3) The court erred in refusing to give instruction number 3 asked by defendant. A party who is in full possession of his lot of ground cannot bring ejectment. Zander v. Valentine Blatz Br. Co., 95 Wis. 162; Rosch v. Noth, 991 Wis. 285. ■

      W. 8. Campbell for defendants in error.
    (1) No specific form of verdict is required in an ejectment suit by the statute or decisions. A general verdict for the plaintiff is sufficient. Lemmon v. Hartsook, 80 Mo. 21; Buse v. Russell, 86 Mo. 216; Meier v. Meier, 105 Mo. 433. (2) A judgment for excessive damages can be corrected by remittitur, entered either in the trial or appeal court. Franklin v. Haynes, 119 Mo. 571; Buse v. Russell, 86 Mo. 216; Ellis v. Construction Co., 60 Mo. App. 67; Keen v. Sehnedler, 92 Mo. 525. The rule that an excessive verdict should be set aside, and that a remittitur will not cure the error, cannot be applied to a case where a new trial on the same evidence would lead to the same result as would be reached by the judgment after entering the remittitur. Sherman v. Printing Co., 29 Mo. App. 39; Ray v. Thompson, 26 Mo. App. 436. (3) No error was made in refusing to give instruction number 3. The owner of a lot or tract of land is entitled to the possession of said lot or tract of land not only on the surface, but both above and below the surface, and if he is deprived of any part of that possession, he may recover it by ejectment. See. 2382, R. S. 19091.
   WALKER, P. J. —

Defend ants in error brought suit in the circuit court in the city of St. Louis, in ejectment, against the plaintiff in error. Defendants in error in their petition claimed that they were entitled to a strip of ground two and one-half inches wide and fifty-five feet and two inches long, in Block 3776> in the city of St. Louis, and that plaintiff in error on November 16, 1908, entered into possession of same and unlawfully withheld such possession from them, to their damage in the sum of one hundred dollars, for which they ask judgment and for one dollar monthly rents and profits from the rendition of the judgment until the possession of the premises is delivered to them, and for all other relief.

The answer was a general denial.

The case was tried in December, 1909, before a jury, who found that the defendants in error were the owners of and entitled to the possession of the land described in the petition, and that they had sustained damage, by reason of the occupation of same by plaintiff in error, in the sum of one hundred dollars, and that the reasonable monthly value ■ of the rents and profits of said land was one dollar per month. Judgment was entered in accordance therewith. After the usual procedure, the case was brought here for review by a writ of error. There is no formal assignment of errors.

It is contended in the “points and authorities” (1) that the verdict is insufficient to support the judgment, (2) that the verdict is the result of passion and prejudice, (3) that the court erred in refusing to give instruction numbered 3 asked by plaintiff in error.

The verdict is as follows:

“We, the jury in the above entitled cause, being duly impaneled and sworn, do find for the plaintiffs, and that at the time of the commencement of this suit plaintiffs were the owners of and entitled to the possession of the lands described in the instructions, being situated in the city of St. Louis, State of Missouri, to-wit:” (Here follows a description of the land, not necessary to be inserted.) “And we further find that the plaintiffs have sustained damages by reason of the occupation of said lands by the defendant in the sum of $100. And we further find the reasonable monthly value of the rents and profits of said lands to be $1 per month. ’ ’

Instruction numbered 3 asked by the defendant, and refused, is as follows':

“The court instructs the jury that before you can find a verdict for plaintiffs in this cause you must find and believe from the evidence, that defendant’s wall is built upon and occupies some portion of plaintiffs’ lot in such a way as to exclude plaintiffs from any and all possession thereof; and even though you find from the evidence that the foundation of defendant’s wall projects over the line of plaintiffs’ lot, yet if you further find from the evidence that plaintiffs occupy the surface of the ground of their lot up to their line by having placed thereon timbers and tiling and drain pipe, then the court instructs you that plaintiffs cannot recover in this action and your verdict must be for defendant. ’ ’

I. Plaintiff in error contends that the verdict is insufficient in that it does not find that the defendant (plaintiff in error) was at the time of ^ commencemen^ 0f action, Or at any time, in possession of the thread (two and one-half inches) of real estate in controversy.

Under section 2389, Eevised Statutes 1909/ title, “Ejectment,” it is provided that: “To entitle the plaintiff to recovery, it shall be sufficient for him to show that, at the time of the commencement of the action, the defendant was in possession of the premises claimed, and that the plaintiff had such right to the possession thereof as is declared by this article to be sufficient to maintain the action.”

This section is identical with the eighth section, page 559, 1 Wagner’s Statutes 1872, under which it was held in Caldwell v. Stephens, 57 Mo. 589, 596, that a verdict which omitted the finding that the defendant was in possession of the property at the time of the commencement of the action, was insufficient to sustain a judgment; that although “a general verdict for the plaintiff on the whole cause might have been good; but here only one single fact' is found which of itself is not sufficient to authorize a recovery.” This upon the theory that a special verdict must include all the essential elements laid in the petition to render such verdict responsive to the issues. It is so held elsewhere: Knight v. Roche, 56 Cal. 15, 25; Abbott v. Roach, 113 Ga. 511.

The verdict in the case at bar is in no wise different from that in Caldwell v. Stephens, supra, except that in the former it is stated ‘ ‘ that the plaintiffs have sustained damages by reason of the occupation of said lands by’the defendant in the sum,” etc. This can scarcely be said to be a finding as to the possession of the lands at the time of the commencement of the action save by remote implication. So far as we have been able to ascertain by a careful examination, the rule announced in Caldwell v. Stephens, supra, has never been questioned. In Meier v. Meier, 105 Mo. 411, 433, a judgment was rendered on a verdict similar in its material findings to that in the case at bar, but the omission complained of here was not urged as error in the Meier case, and the verdict, without any reason being assigned therefor, was held to be sufficient. In support of its conclusion the court cited Buse v. Russell, 86 Mo. 209; an examination of not only the opinion but the files in the Buse case, discloses that the only question raised in regard to the sufficiency of the verdict was as to the description of the premises. A like state of facts appear in Lemmon v. Hartsook, 80 Mo. 13. Neither of these cases, therefore, in any way affects the ruling of the court in Caldwell v. Stephens, supra, and it must be held decisive in construing the statute referred to.

II. Instruction numbered 3 asked by the defendant and refused by the court, was properly refused, if for no other reason than that it limited plaintiff’s right to the possession of the property in controversy to the surface of the ground, an incorrect statement as to the ownership of realty, which the texts tell us extends from the zenith to the nadir.

The instructions given by the trial court correctly declared the law applicable to the case, and the refusal of instruction numbered 3 was, regardless of any other theory, not error. We, therefore, rule this contention against the plaintiff in error.

III. Forty dollars per front foot was the basis of valuation placed by the testimony on the property where that in controversy is situated; on this basis the two and one-half inches in dispute were worth a little more than seven dollars and fifty cents. The damages were from the very nature of the case difficult to ascertain, if not indeterminable. Under this state of facts, the damages found by the jury were excessive.

The verdict having been special and failing to find as to all the material issues submitted by the pleadings, the cause must be reversed and remanded, and it is so ordered.

Broivn and Faris, JJ., concur in the result.


text:
    LINCOLN A. LOWE, Appellant, v. JOHN W. FREDE.
    Division Two,
    May 26, 1914.
    1. APPEAL: From Order Overruling Motion for New Trial: Not Allowable. The statutes do not authorize the granting of an appeal from an order overruling a motion for a new trial. They contemplate that the movent will wait until a final judgment is entered upon the verdict returned by the jury, and take his appeal from that judgment.
    2. -: Recitals of Record. Where the record, as set forth in appellant’s abstract, recites that the appellant prayed and the court allowed him “an appeal from the ruling of the court on said motion for a new trial,” and no judgment of any kind is abstracted, and the accuracy of the said recital is admitted by respondent, the court will not examine the complete transcript of the record proper to ascertain if a judgment was in fact entered from which an appeal will lie, but will dismiss the appeal, since no appeal lies merely from an order overruling a motion for a new trial.
    Appeal from Atchison Circuit Court. — Hon. William G. Ellison, Judge.
    Appeal dismissed.

      H. B. Williams, L. J. Miles and John W. Stokes for appellant.

      L. D. Ramsay for respondent.
    The correctness of appellant’s abstract is not challenged and in such cases the court will accept it as correct and look to it alone for the record of the case. When there is no counter-showing made, the' court is bound by the recital of the appellant’s abstract. Ricketts v. Hart, 73 Mo. App. 648. This abstract shows no judgment in the case, and the appeal is from the order of the court overruling the motion for a new trial, as is stated at the-beginning of bis- statement. Our statute, See. 806, R. S. 1899;, says one cannot appeal unless judgment is rendered. You may appeal from an order granting a new trial, because the statute says so, but it does not say you may appeal from an order overruling the motion, and that section of the statute enumerates all our rights and excludes all not so enumerated. With no judgment, appeal should be dismissed. Herrmann v. Daily, 74 Mo. App. 505'.
   BROWN, J. —

Suit for personal injuries resulting from assault and battery.

This action was transferred to this court by the Kansas City Court of Appeals because the amount in issue exceeds $7,500.

The appeal is somewhat unusual. In his printed abstract of the record appellant describes it as follows:

‘ ‘ This is an appeal from the ruling from the circuit court overruling a motion for a new trial. In the court below the defendant obtained a verdict.”

A careful inspection of the abstract of the record shows that the cause was tried by a jury in the circuit court of Atchison county, which jury, on May 29, 1909, returned into court the following verdict: “We the jury find for defendant. W. H. Wright, Foreman.”

On said May 29, 1909', the plaintiff filed a motion for new trial, which motion for new trial was continued to the next regular term of the circuit court.

On the 2nd day of October, 1909', said court, having again convened in regular session, the following orders were entered of record:

“Now comes both parties herein, and by their respective attorneys, and by agreement of parties, plaintiff’s-motion for a new trial coming on to be heard, and the court being now fully advised in the premises, overrules said motion. To the action of the court in overruling plaintiff’s motion for a new trial plaintiff then and there and at the time excepted and still excepts.
“Comes now plaintiff, by his attorneys, and files his affidavit in appeal, and prays an appeal hereof from the ruling of the court on said motion for a neio trial to the Kansas City Conrt of Appeals, at Kansas City, Missouri, which appeal is allowed by the court. ’ ’ (The italics are ours.)

I. The respondent concedes that the appellant’s printed abstract is correct, but calls attention to the fact that no appeal lies from an order of the circuit court overruling a motion for , . new trial.

Our Code, section 2038, Revised Statutes 1909, does authorize an appeal from an order of a circuit court granting- a new trial, or an order arresting a judgment, but there seems to be no warrant in law for granting an appeal from an order overruling a motion for new trial. The law certainly contemplates that the party against whom a verdict is returned shall wait until a final judgment is entered on such verdict before taking his appeal. In the absence of an express statute no appeal lies from the ruling of courts on motions. [State ex rel. Shackleford v. McElhinney, 241 Mo. 592, l. c. 608.] There is 'on file what purports to be a complete transcript of the record proper and bill of exceptions in this case, but it would be useless for us to examine that document to ascertain if a judgment was in fact entered from which an appeal would lie.

Without reciting that a final judgment was entered, and without abstracting a judgment of any kind, appellant has assured us that his appeal is from the order of the court overruling his motion for new trial. This fact is also recited in the order of the court granting the appeal, as copied into appellant’s printed abstract ^and hereinbefore set out), the accuracy of which abstract respondent admits, and its verity is attested by tbe signatures and professional integrity of tbe attorneys for plaintiff.

We are not cited to, nor bave we been able to find, any law authorizing the granting of such an appeal. [Dale v. Copple, 53 Mo. 321; State ex rel. v. Turner, 113 Mo. App. 53; Herrmann v. Daily, 74 Mo. App. 505; Freeman v. McCrite, 165 Mo. App. 1; Voorhis v. Western Union Building & Loan Assn., 59 Mo. App. 55; Rock Island Implement Co. v. Marr, 168 Mo. 252.]

Being fully convinced that this appeal was improvidently granted the same will be dismissed. It is so ordered.

Walker, P. J., and Paris, J., concur.